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Sumant Madhav Nannaware and ors. Vs. the State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1741 of 2001
Judge
Reported in2008(1)BomCR803; (2008)110BOMLR56; 2008(1)MhLj710
ActsElectricity Supply Act, 1948 - Sections 15, 29 and 48; Land Acquisition Act; Maharashtra State Electricity Board (Classification and Recruitment) Regulations, 1961 - Regulation 79
AppellantSumant Madhav Nannaware and ors.
RespondentThe State of Maharashtra and ors.
Appellant AdvocateM.R. Pillai, Adv.
Respondent AdvocateB.H. Dangre, Addl. Govt. Pleader for Respondent Nos. 1 and 2 and ;R.K. Deshpande, Adv. for Respondent Nos. 3 to 6
Excerpt:
.....eligible - respondents contended that it received 2996 applications - employment provided to 2431 land affected persons - maximum limit was 5 per cent amongst post available - procedure streamlined - principle of priority to 'suffers of larger degree amongst the persons in the same class' would be followed - held, petitioners not challenging validity, reasonableness, legality or other objection to the guidelines - issue that more than 5 per cent of land affected persons given employment does not carry weight as such condition waived by respondents in most of its projects - persons who benefited by erroneous appointment not arrayed as respondents before court - directions issued to respondents to publish list of land affected persons and give due publicity - opportunity of employment to..........regulations, 1961.3. appendix 'f' to the recruitment regulations deals with the employment of the land affected persons and provides for guidelines to be followed in such cases. the land affected persons has been defined as a person, whose house or land has been acquired full or partly should be treated as land affected person for the project and in the context for providing services to the land affected persons, members of such land affected family and his dependent should include husband or wife of the land affects persons, his dependent sons, unmarried daughters, dependent brothers and sisters and his parents.23. ...it is, in this context, that the present petition has been preferred, seeking a direction to the respondents by an appropriate writ that the petitioners be provided.....
Judgment:

A.H. Joshi, J.

1. Heard.

2. The crux of the petition, which runs into twenty-five pages, including amendment, can better be grasped by referring to few paras therein, which are quoted, for convenience, as follows:

2. The respondent Electricity Board, in pursuance of the Policy adopted in this regard for giving priority in employment to one person from each family affected by the land acquisition made for the Project incorporated regulations in the Classification and Recruitment Regulations, 1961 formulated by the Board in exercise of power conferred under Section 29[c] and [k] read with Section 15 of the Electricity Supply Act, 1948 named MSEB Classification & Recruitment Regulations, 1961.

3. Appendix 'F' to the Recruitment Regulations deals with the employment of the land affected persons and provides for guidelines to be followed in such cases. The land affected persons has been defined as a person, whose house or land has been acquired full or partly should be treated as land affected person for the project and in the context for providing services to the land affected persons, members of such land affected family and his dependent should include husband or wife of the land affects persons, his dependent sons, unmarried daughters, dependent brothers and sisters and his parents.

23. ...It is, in this context, that the present petition has been preferred, seeking a direction to the respondents by an appropriate writ that the petitioners be provided employment by the respondent board as per the rules and guidelines discussed herein before.

[quoted from page No. 9, 10 and 20 of the paper- book of the Writ Petition].

3. Probably, for collateral purposes, a grievance is made indicating at some appointments made by the respondent Nos. 1 to 3 in the category of 'Persons affected due to acquisition of land for the purpose of Super Thermal Power Station at Durgapur in Chandrapur District' [Sup. Power Project, Durgapur], to show that persons recruited in this category though they were not fulfilling eligibility conditions. This aspect was, to some extent, touched in the body of petition, and has been highlighted by amendment.

4. When the final hearing of this petition was advanced, the petitioners sought amendment to the petition for arraying the successor of respondent Nos. 3 and 4 as the respondent Nos. 4 and 5 who are actually operating and have succeeded to the functions of the Maharashtra State Electricity Board. Amendment to the petition as prayed was allowed and Respondent Nos. 5 and 6 are arrayed as respondents.

5. It is not in dispute that the respondent Nos. 5 and 6 would be under obligation to fulfill the obligation relied upon by the petitioners.

6. It is seen that at no stage any amongst the respondents have replied the Writ Petition with reference to each of the paras. The affidavit opposing the petition, filed by respondent Nos. 3 and 4, which is styled as 'Submissions', has been filed on or about 7th July, 2007. In this Affidavit-in-Reply, certain facts, which are crucial, and foundation of petition, are, in fact, admitted, which can be seen from the said affidavit Submissions which reads as follows:

1. ...It is true that the petitioners are on the priority list of Land Affected Persons and Project Affected Persons, which has been prepared by the Board for providing employment to them in Pay Group III and IV services of the Board. There are in all 559 Land Affected Persons/Project Affected Persons, including the petitioners, satisfying one or more criteria specified at Sr. No. 1 to 5 of the Admn. Circular No. 314 dated 25 5-1999....

[quoted from page No. 127 of the paper-book of the Writ Petition], and further as follows:

I]...In spite of the various provisions for filling in the posts for Pay Group III and IV, the Board has given highest priority to provide the employment to the Land Affected Persons or their dependents as the respondents have received the applications of total 2996 persons/nominees of the Land Affected whose land has been acquired for Chandrapur Thermal Power Station upto 2 11-1999. Out of these 2996 persons, the Board has provided employment to 2431 Land Affected Persons whose land has been acquired for C.T.P.S. as per their priority and criteria thereof. It is seen that the Board has provided employment to maximum number of PAPs [i.e. 81.34%] instead of limited to 5% as required. It is clearly confirmed that the Board has always considered the highest priority for providing employment to the Land Affected Persons to the maximum possible extent as and when vacancies are available.

II] The Board has set up Central Employment Exchange as per the Admn. Circular No. 309 dt/-15-3 99 with a view to provide an employment to the Land Affected Persons to the maximum possible extent. A copy of which is annexed herewith and marked as Annexure-II to this Submission. As per the guidelines of this Circular all the concerned Offices are required to submit the priority list of the Land Affected Persons with all details to the Central employment Exchange Office and in turn Central Employment Exchange will recommend the names of the Land Affected Persons to the various offices where the vacancies exist for providing employment to such P.A.Ps. Accordingly, the Board has been trying to provide employment to the Land Affected Persons to the possible extent.

[quoted from page Nos. 127, 129 and 130 of the paper-book of the Writ Petition].

7. According to the Board, the procedure of giving employment to the persons affected due to land acquisition was streamlined by the Board aiming at doing justice to the victims which was guided by the principle of priority to 'sufferers of larger degree amongst the persons in the same class' and that the process of recruitment would be accordingly undertaken.

8. The petition proceeds on the foundation that petitioners' right of employment is emerging from Regulation 79 [c] and [k] of the Maharashtra State Electricity Board [Classification & Recruitment] Regulations, 1961. It is a common ground that implementation of the mandate therein is guided by further Circulars which have been referred to in the Submissions filed by the Board and copies whereon are placed on record as annexures thereto.

9. It is also a common ground that employment can be provided to the persons of the category in question s in Group-III and Group-IV only, and though to the extent of five per cent amongst the posts available, in fact, said quota was exceeded, reaching hundred per cent at Nasik and eighty-one per cent at Durgapur.

10. The petitioners have not raised any dispute as to the validity, reasonableness, legality or any other objection to these guidelines. Therefore, the petition proceeds on a very narrow compass which can be described as follows:

[a] The rights, which the petitioners are claiming, are emerging from statutory Rules framed under Section 48 of the Electricity Supply Act, 1948, i.e., Regulation 79 [c] [k] of the Maharashtra State Electricity [Classification & Recruitment] Regulations, 1961.

[b] The opportunity of employment applied only to Grade-III and Grade-IV.

[c] There is no mandate of any statutory or other rule that all those who are land affected have to be offered employment.

[d] Those who are affected have already received compensation under the provisions of Land Acquisition Act.

[e] The appointments have to be made initially by the Board. Respondent Nos. 3 and 4 and then by Respondent Nos. 5 and 6 as per the Regulations, however, priority to the extent of five per cent of the posts to be filled in is to be given to the land affected persons.

[f] The degree of priority to be given is to be guided by the six categories carved out by the Board as prescribed in the Circular No. 314 dated 25th May, 1999, as amended by Circular No. 351 dated 11th July, 2000 [Annexure-I and II to the Submissions of the respondents which are pages 137 and 139].

[g] Persons already working on Nominal Muster Roll [NMR] have priority in the matter of regular appointment over land affected persons.

[h] While doing so, persons from Scheduled Castes etc., have to be given priority within the reservation category, if possible, and if they are not so eligible in that category, then they have to be treated as land-affected persons.

[i] The scrutiny of the land affected persons has to be done by the Committee constituted by the Board under its Circular dated 21st July, 2000.

11. Though the Respondent-Board has raised an issue that more than five per cent of the Project Affected Persons cannot be granted benefit/concession sought by them, this point does not carry much weight, in as much that the said ratio has long before and admittedly been waived and followed in breach by the Board in most of its projects, namely Nasik, Parali[Vaijnath] as well as Durgapur at Chandrapur.

12. The only question, that remains for consideration, therefore, is whether the petitioners would get a preferential treatment as given to many amongst those in the said category in excess of five per cent quota marked for a preferential appointment in this category?

13. The claim of the petitioners is based on the allegation that few persons initially named in the petition and later on described by amendment, who did not qualify, as they did not stand to the scrutiny of eligibility as laid down by the Board, have been given appointments.

14. The aspect as to the said illegal appointments was gone into by a Committee of Legislators of the Maharashtra Legislative Assembly. Their report is on record of the petition as Annexure-I. As we see, no satisfactory explanation as to in what circumstances the persons named therein came to be appointed has come forward. However, the persons, who are so benefitted by the erroneous appointments have not been arrayed as respondents, nor they have been offered an opportunity to meet the consequences that would follow if the petition is allowed.

15. In this peculiar situation, the Respondent Nos. 5 and 6 should publish the list of persons from amongst land affected persons who may be eligible for appointment, and those possess qualification as regards any particular post or posts and give due publicity to this list by displaying it on the notice board and by giving its copy to few amongst the petitioners. The petitioners and those, who may be willing, shall be entitled to furnish their objections. These respondents shall then give an opportunity of employment to those amongst the petitioners, whose claim was superseded due to erroneous appointments of eighteen persons in relation to whom an enquiry was made by a Committee of Legislators and who were appointed though not eligible.

16. It would not be appropriate to issue a direction to give employment to all those amongst the petitioners who may be found eligible, and found place in the list prepared for giving priority in the matter of employment, but only to those whose claim was superseded as noted in foregoing para.

17. This Court finds that appointment to persons more than those whose claim was superseded should not be given in view that the Board has admittedly given employment to over eighty-one per cent of the persons listed in the Priority List amongst whom petitioners are. Petitioners' grievance that persons, who are not eligible, have been given the employment and those eligible have remained unemployed can be conveniently mitigated and injustice done to them on this ground can be undone by what this Court proposes.

18. In the result, we make the Rule partly absolute and issue directions to the respondents as follows:

[a] The respondent Nos. 5 and 6 shall prepare and publish on 15th February, 2008 on notice board the list of eligible candidates from amongst the persons whose lands were acquired for Durgapur Super Thermal Power Station and who are eligible considering the eligibility criteria and the post or posts to which the concerned candidate prima facie could be eligible, i.e., qualification and post-wise list, as per the practice and instructions governing the matter of appointments, subject-matter, in vogue at relevant time in terms of Annexures-I and II to the Return of the Board referred to in para 10 above of this Judgment.

[b] The list also be made available for inspection with officer who be named, for fifteen days from the date of publication.

[c] The objections of the placements in priority ranking and other particulars incorporated in the list as well as placement of petitioners, whose claim is superseded due to the appointments referred to in Annexure- X[1] and those who have been appointed, shall be decided by officer who should be amongst the senior-most Establishment / Administrative Officers of the respondent Nos. 4 and 5.

[d] While deciding objections, he shall give to the persons concerned an opportunity of submitting a written and oral representation for which the date be fixed by him in advance, so that individual notices are not required to be given.

[e] Thereafter so nominated officer shall finalize the list and the Respondent Nos. 5 and 6 shall offer employment to those found eligible and superseded.

[f] Persons so appointed be treated to have been appointed on the date on which the employee concerned was eligible, but was denied appointment, however, they shall not be entitled for any amount as arrears of wages.

[g] The entire procedure herein above directed shall be commenced on or before 15th January, 2008, and shall be completed on or before 15th April, 2008.

[h] In the circumstances, parties shall bear their own costs.


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