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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8487 OF 2014 (arising out of SLP (C) No. 31026 of 2011)

NTPC KAHALAGAON & ORS. …..APPELLANT(S)

VERSUS

NAKUL DAS & ORS. …..RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 8489-8490 OF 2014 (arising out of SLP (C) No. 33518-33519 of 2011)

CIVIL APPEAL NO. 8488 OF 2014 (arising out of SLP (C) No. 4686 of 2012)

CIVIL APPEAL NO. 8491 OF 2014 (arising out of SLP (C) No. 33772 of 2013)

CIVIL APPEAL NO. 8492 OF 2014 (arising out of SLP (C) No. 33784 of 2013)

J U D G M E N T

A.K. SIKRI, J.

Civil Appeal @ SLP(C) no. 31026 of 2011 Civil Appeal @ SLP(C) No. 33518-33519 of 2011 Civil Appeal @ SLP(C) No. 33772 of 2013 Civil Appeal @ SLP(C) No. 33784 of 2013

Leave granted.   

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2. Civil  Appeal  arising  out  of  Special  Leave  Petition  (Civil)  

No.31026 of 2011 is treated as lead case and the background  

facts culled therefrom are briefly mentioned below :

The appellant in this case is National Thermal Power  

Corporation,  Kahalagaon  (hereinafter  referred  to  as  the  

'NTPC').  It established a Super Thermal Power Plant in the  

District of Kahalagaon, Bihar in the year 1986.  While doing  

so,  the  NTPC  had  prepared  a  plan  for  the  recruitment  of  

labour in such plant, with preference to be given, in various  

classes  of  such  labour,  to  persons  whose  lands  had  been  

acquired for the construction of the said plant (Land Oustees).  

Thereafter, the NTPC ran into industrial relations problems as  

the said Land Oustees demanded a larger share of preference  

in  the  employment  in  the  various  classes  of  posts.  

Accordingly, the NTPC made adjustments to the recruitment  

procedure  on 28.05.1986.   Subsequently,  it  ran  into  further  

labour problems such as  Bandhs,  Gheraos, etc. by the said  

Land Oustees.  On this account, the appellant was suffering  

huge loss on a daily basis.  As a result, the NTPC resolved to  

exclusively  employ  Land  Oustees  in  all  the  specific  labour  

classes.  This decision was communicated to the Government  

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of India vide letter dated 20.07.1998.  Thereafter, there was  

the creation of new vacancies due to expansion of the said  

Plant.  The NTPC took a decision to allot these newly created  

posts entirely to the class of Land Oustees.  This decision was  

communicated to  the Parliamentary  Committee,  and as per  

the  same,  the  local  Employment  Exchanges  were  notified.  

Further, the NTPC sent requests to all the concerned District  

Magistrates to publish information about the said vacancies.  

On these basis, the NTPC received applications, conducted  

interview procedures and appointed the successful candidates  

to the vacant posts, being all Land Oustees.   

3. The  Parliamentary  Committee  devised  a  complete  scheme/  

procedure for appointments. It was of the opinion that in the  

ministerial  area,  NTPC  would  not  insist  much  for  the  

experience of the candidates falling in the category of Land  

Oustees  of  priority  group  one.   As  per  the  Committee,  the  

NTPC may induct people in the ministerial area and may keep  

them on such positions for such time that one acquires the  

requisite experience.  Till such time the requisite experience is  

attained, appointee was to be treated as on casual / muster  

roll employee.  However, no relaxation would be made in the  

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area as far as the job requirement and as far as certificate of  

competency is concerned and a certificate of land would be  

issued was the Circle Officer Kahalagaon, which would duly  

be counter signed by respective LRDC.  The Committee was  

of  the  opinion  that  only  one  job  would  be  provided  to  one  

member  of  a  family  falling  in  the  priority  group.   In  the  

Interview Board, apart from the representatives of the NTPC,  

Special Land Acquisition Officer,  District  Employment Officer  

were also to be associated.  For any reason, if one was not in  

a position to attend the interview, the validity of the interview  

so conducted was not to be challenged.   

4. It  may be mentioned at  this stage that the vacancy notified  

were  101  against  which  377  applicants,  who  were  Land  

Oustees, were considered.  Out of these 101 posts, 69 were  

meant  for  Artisan  Trainee  (ITI  Fitter),  30  posts  for  Artisan  

Trainee (ITI Electrician) and 2 pots for Lab Assistant Trainee.  

The  NTPC  availed  the  services  of  Indian  Institute  of  

Psychometry, Kolkata to conduct the written tests.  Thereafter,  

an  Interview  Board  comprising  of  representatives  from  the  

State Governments / Minority Community and senior officers  

of the NTPC was constituted which conducted the interview of  

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those candidates who have passed the written test.  In this  

manner, selection of 101 persons from the said category of  

Land Oustees was made.

5. Before  the  selected  persons  could  be  appointed,  two  writ  

petitions  came  to  be  filed  in  the  High  Court  of  Patna  

challenging the aforesaid selection.  One writ petition was filed  

by respondents Nos.1 and 2 herein.  Other was filed by some  

outsiders, namely those who were not the Land Oustees.  In  

so far as writ petition of respondent Nos.1 and 2 is concerned,  

their  main  grievance  was  that  the  method  for  calling  

applications only through Employment Exchange and limiting  

the  consideration  of  the  candidates  sponsored  by  the  

Employment  Exchange was not  fair  and there should  have  

been a wider publicity by means of public advertisement in the  

newspapers as well to make all such Land Oustees aware of  

the move of the NTPC for filling up of the said posts from the  

families of Land Oustees.  It was contended that as this mode  

of  advertising  the  vacancy  through  newspapers  was  not  

adopted,  persons  like  respondents  Nos.1  and  2  remained  

unaware  of  these  vacancies  and,  therefore,  they  could  not  

apply for the posts and thereby, were left out of consideration.

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6. In so far as second writ petition filed by the non Land Oustees  

is  concerned,  their  challenge  was  to  the  effect  that  100%  

reservation in favour of Land Oustees was impermissible.

7. The learned single Judge of the High Court allowed both the  

writ petitions and interfered with the selection and appointment  

made by  the  NTPC.   Challenging  the  order  of  the  learned  

single Judge, few appeals were filed.  One was by the NTPC  

and other appeals were filed by those who were selected but  

their selection was set aside by the learned single Judge.  The  

Division Bench of the High Court has decided these appeals  

by the singular judgment dated 12.09.2011 which is impugned  

in these appeals.  The High Court has modified the order of  

the single Judge partly.  In so far as writ petition of non Land  

Oustees is concerned, their contention has not found favour  

with the Division Bench and it has held that the policy decision  

of the NTPC in order to compensate for the loss which the  

Land  Oustees  had  suffered  was  taken  treating  such  Land  

Oustees as a special class and such a decision could not be  

treated  as  a  reservation  on  the  lines  of  reservation  policy  

provided to backward classes.  Therefore, restriction of 50%  

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by  treating  a  policy  to  be  a  policy  of  reservation  was  not  

justified.   On this  count,  the  decision  of  the  learned single  

Judge has been set aside, meaning thereby, the writ petitions  

filed by the outsiders are dismissed.

8. However, in so far as inaction of the NTPC in not advertising  

the  posts  by  publication  in  newspapers  is  concerned,  the  

decision of the single Judge is upheld by finding fault with the  

approach of the NTPC.  For taking this view, the Bench relied  

upon  the  judgment  of  this  Court  in  the  case  of  Excise  

Superintendent,  Malkapatnam v.  K.B.N.  Vishweshwara  

Rao, (1996) 6 SCC 216.  As a result thereof, direction is given  

to the NTPC to give opportunity to other eligible persons by  

giving  advertisement  in  newspapers  and  complete  the  

exercise  of  filling  up  of  101  posts  expeditiously,  preferably,  

within four months.

9. Not satisfied with the aforesaid outcome of the writ appeal, the  

NTPC  has  filed  the  instant  appeal.   Three  other  appeals  

arising  out  of  SLP  (C)  No.33518-33519  of  2011,  SLP  (C)  

No.33772 of 2013 and SLP (C) No.33784 of 2013 are filed by  

those  candidates  who  were  selected  and  appointed  to  the  

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posts but their selection has been set aside.  Therefore, as far  

as these four  appeals are concerned,  they arise out  of  the  

same judgment  of  the High Court  wherein aforesaid limited  

issue is to be considered namely whether it  was incumbent  

upon  the  NTPC  to  give  advertisement  in  the  newspapers  

notifying the vacancies.

10. It  is  the  submission  of  the  learned  counsel  appearing  for  

NTPC that  having  regard  to  the  facts  of  this  case  namely  

where requirement  is  confined to  class/category  of  persons  

(Land Oustees in the present case), it would not be necessary  

to  bring  out  advertisements  in  newspapers  and  recruitment  

through  the  Employment  Exchange  and  local  circulation  of  

Notice would be consistent with the principles of Articles 14  

and 16 of  the Constitution of  India.  It  was argued that  the  

Land Oustees reside in the village and sub-divisional towns  

and local circulation of notice in addition to the requisition from  

the Employment Exchange was appropriate.  Distinction was  

sought to be drawn between direct recruitment open to public  

and  recruitment  confined  to  a  particular  class/category  of  

persons.  It was submitted that in the later category, this Court  

has  held  in  the  case  of  Nihal  Singh  &  Ors.  v.  State  of  

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Punjab,  (2013)  14  SCC 65  that  such  a  procedure  making  

recruitment through the Employment Exchanges is consistent  

with the requirement of Articles 14 and 16 of the Constitution,  

following the judgment in the case of  Union of India  v.  N.  

Hargopal, (1987) 3 SCC 308.  The learned counsel also relied  

on the judgment in the case of  Arun Tiwari & Ors.  v.  Zila  

Mansavi Shikshak Sangh & Ors., (1998) 2 SCC 332 where  

the  earlier  judgments  in  the  N.  Hargopal  and  K.B.N.   

Visveshwara Rao, (1996) 6 SCC 216 were duly considered.

11. The learned counsel for respondent Nos.1 and 2, on the other  

hand, sought to justify the order of the High Court, based on  

the  judgment  of  this  Court  in  N.  Hargopal  and  K.B.N.   

Visveshwara Rao (supra).  We may record that the learned  

counsel for respondent Nos.1 and 2 also ventured to submit  

that there were certain other irregularities as well, but as that  

was  not  the  foundation  of  their  case  nor  is  the  reason for  

setting aside the selections by the High Court, we declined to  

look into those alleged irregularities.

12. It would be pertinent to point out at this stage that during the  

pendency  of  these  proceedings,  some  subsequent  events  

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have taken place which would demonstrate that it may not be  

even necessary to decide the issue involved.  

13. In the special leave petitions filed by the NTPC and selected  

candidates,  notices  were  issued  and  when  these  petitions  

came  up  for  hearing  on  09.05.2013  after  notice,  following  

orders were passed:

“SLP (c) No.33518-33519 of 2011

Heard Learned counsel for the Petitioners.

Looking to the facts and circumstances of the  case,  it  is  directed  that  subject  to  final  outcome of the Special Leave Petition, Eighty  Six  (86)  persons  are  permitted  to  resume  their  duties,  especially  when  it  has  been  stated  by  NTPC  that  their  working  is  adversely affected because of non availability  of staff.

SLP  (C)  No.31026  of  2011  and  SLP  (C)  No.4686 of 2012

Respondent Nos.1 and 2 in the above SLPs  are the persons who have not been offered  any  appointment  at  this  stage  and  their  names are also not in the waiting list.   The  petitioner – NTPC is directed to consider the  eligibility of the said respondents and inform  this  Court  whether  they  are  eligible  for  appointment or not.

Rejoinder be filed within four weeks.

List in the month of August, 2013 on a non- miscellaneous day.”

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14. At this stage, two of the selected candidates, who had not filed  

separate  SLP  filed  impleadment  applications  in  SLP  (C)  

No.33518-33519 of 2011 which was allowed on 19.08.2013.  

In respect of these two persons also, order was passed on  

22.11.2013, directing NTPC to appoint them as well as they  

were at par with others who had been selected and in whose  

case  order  dated  09.05.2013  were  already  passed.   Order  

dated 22.11.2013 read as under:

“Heard  Mr.  S.B.  Mahayana,  learned  senior  counsel in support of these I.As..  He points  out  that  two  persons  whom  he  is  representing, namely, Bhaskar Bhushan and  Dhirendra  Kumar  Singh  have  been  issued  appointment  orders.   This is  on the footing  that their land has been taken over by NTPC.  Mr.  Sunil  Kumar,  learned  senior  counsel  appearing for NTPC does not dispute it.  We  have also heard Mr. Prem Shankar Sharma,  learned  counsel  appearing  for  respondent  Nos.  1  &  2  in  the  above  special  leave  petitions  and  also  appearing  in  support  of  other  intervenors  in  the  main  SLP.   In  our  view,  as  observed  by  this  Court  in  order  dated 09.05.2013, these appointments will be  subject  to  the  final  outcome of  the  special  leave petitions.  These I.As. Are accordingly  disposed of.  NTPC will act accordingly.”

15. The reading of the aforesaid two orders reflects that on the  

one hand, all those who were selected in the selection process  

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undertaken by the NTPC were appointed.  On the other hand,  

in respect of respondents Nos.1 and 2 herein who could not  

apply for the post, direction was given to the NTPC to consider  

their eligibility and inform the outcome thereof to the Court.

16. Respondent Nos.1 and 2 were thereafter considered for the  

post on the same yardstick which were applied by the NTPC  

while making selections earlier.  However, it is reported by the  

NTPC that these two persons have failed in the selection.

17. The position which emerges from the aforesaid narration of  

events is this: The persons who were selected were admittedly  

eligible to be considered as they were also Land Oustees.  No  

doubt,  the  posts  were  not  advertised  by  publication  in  the  

newspapers.   Facts  remains  that  only  two  persons  namely  

respondent  Nos.1  and  2  made  a  grievance  in  this  behalf.  

These two persons have also been considered for the posts  

under the orders of this Court.  However, they have failed in  

the selection.  Others who were selected have already joined  

the posts.  In a matter like this, no useful purpose would be  

served in carrying out the directions of the High Court to have  

fresh  selection  process  after  issuing  advertisements  in  the  

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newspapers.

18. We may record at this stage that about 70 other persons have  

also filed I.A.'s supporting the stand of respondent Nos.1 and  

2.   However,  it  is  of  significance  to  mention  that  all  these  

persons  had  duly  participated  in  the  selection  process  but  

could  not  make  their  mark  and  failed  to  get  selected.  

Therefore, these persons have no right to raise any grievance  

about non-publication of the advertisement in the newspapers.

19. Having  regard  to  these  peculiar  facts  and  aforesaid  

developments during the pendency of these appeals, we find  

that  there  is  no  necessity  to  carry  out  any  fresh  selection  

process  as  directed  by  the  High  Court  in  the  impugned  

judgment.  The appeals are allowed and the direction is set  

aside.

Civil Appeal @ S.L.P. (C) No.4686/2012

Leave granted.

20. This appeal is filed by five persons who also participated in the  

selection process and were selected.

21. Pursuant to the orders dated 09.05.2013 directing NTPC to  

appoint the selected candidates, two out of the aforesaid five  

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appellants have given the appointment.   However,  cases of  

other  three  appellants  are  rejected  as  in  the  medical  

examination  conducted,  they  are  found  medically  unfit  as  

suffering from 'colour blindness'.  They are appellants Nos.1, 4  

and  5.   Learned  counsel  appearing  for  these  appellants  

submitted that their medical examination was done in haste;  

they  had  made  representation  to  the  NTPC  regarding  

constitution  of  Medical  Board  to  re-examine  their  cases  to  

which  NTPC  was  not  agreeing;  they  had  got  themselves  

medically examined from the same hospital and same doctor  

namely NTPC, Kahalagaon Hospital and also outside doctor  

and  they  had  duly  certified  that  these  appellants  were  not  

suffered from 'colour blindness'.  Additional affidavit dated 26 th  

June,  2005  is  filed  including  the  result  of  their  medical  

examination  from  Out-Patient  Department  of  NTPC,  

Kahalagaon  Hospital,  as  well  as  opinion  of  some  private  

Doctors in support of the aforesaid submission.

22. Having regard to the aforesaid facts, we are of the opinion that  

it  would  be  in  the  interest  of  justice  that  NTPC constitutes  

another  Medical  Board  for  re-examination  of  these  three  

appellants and decide their  fate on the basis of the opinion  

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given and take further action on the basis of opinion given by  

the reconstitute Medical Board.

23. This appeal is disposed of on the aforesaid terms.

…......................................J. (J. Chelameswar)

…......................................J. (A.K. Sikri)

New Delhi; September 05, 2014.

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