M. Chinna Rao and Another vs Visakhapatnam Steel Project and Others

The petitioners (two in number) are seeking appointment as Assistant Store Keepers with Visakhapatnam Steel Plant Project under the Scheme of Rehabilitation of the Oustees of land acquired for the said steel Project.

By a letter dated 4-6-1992 addressed to the Employment Exchange by the 1st respondent the names of nine persons including the present petitioners were communicated as the persons selected for the post of Assistant Store keepers out of those who were sponsored by the Employment Exchange and that their Employment Registration Cards and other details would be forwarded to the Employment Exchange soon after their joining Visakhapatnam Steel Project By a subsequent letter dated 23-10-92 the Steel Plant informed the Employment Exchange that it had been decided not to fill the posts of Assistant Store Keepers earlier notified on 10-9-1991 and that the recruitment be treated as closed. By letter dated 4-3-1997 the Steel Plant sought confirmation from the Employment Exchange whether (1) M. Chinna Rao - Registration No. 1118/90, and (2) V. Sudhakar Rao (the present petitioners) had been retained on the r of the Employment Exchange loss of seniority, which was so Employment Exchange by their letter dated 6-3-1997.

Six other oustees filed a suit being O.S.No 1309 of 1992 on the file of Principal District Munsif, Visakhapatnam against the Steel Plant (Respondent No.1) seeking direction to be issued to the Steel Plant to appoint the plaintiffs as Assistant Store Keepers as per the 3rd defendant''s letter dated 4-6-1992. The Steel Plant refuted its liability to provide employment to all those holding ''R'' cards and no assurance was given by the Steel Plant to any land losers. It was further contended by the Visakhapatnam Steel Plant in their written statement that the defendants had notified to the Employment Exchange in the year 1981 about some posts of Assistant Store Keepers during the construction stage of II phase of the Steel Plant and accordingly a written test was conducted in respect of the candidates sent by the Employment Exchange on 16-2-1992 and the persons who were qualified in the written test were interviewed on 13-4-1992 and a selection list was drawn. Further, according to the defendants of the said suit, it was found that there was surplus staff on its Rolls on account of the completion of the II Phase Unit and, therefore, according to them they were under no legal obligation to absorb the surplus staff existing in the Organisation before recruiting the outsiders.

The Civil Court, however, rejected the Steel Plant''s contention and decreed the suit as prayed for by the plaintiffs on 26-10-1995. No appeal was filed against the same and, therefore, the judgment and the decree of the Principal District Munsif, Visakhapatnam acquired the status of finality. Thereupon all the six plaintiffs were appointed by the 1st respondent as the Assistant Store Keepers.

The present petitioners did not join the above suit as plaintiffs as they did not have sufficient funds at that time. However, according to the petitioners since they were similarly situated as the six plaintiffs of the above suit, the benefit of the judgment should also be extended to them. They served a notice dated 2-11-1995 on the 1st respondent for extending the benefits to them, but in vain.

However, the denial of the same opportunity to the petitioners is hit by the principles laid down by the Supreme Court in I.P.Yadav v. Union of India, 1985 (2) SLR 249. In paragraph 3 thereof it inter alia observed by the Supreme Court that a Scheme was formulated by the Railway Ministry according to which Casual Labour employed on projects who, though not in service on 1-1-1984, had been in service on Railways earlier and had already completed the above prescribed period (360 days) of continuous employment, the decision should be implemented in phases according the schedule given in the scheme. It was further clarified in the Scheme that Casual Labour on projects who had completed 180 days of continuous employment would continue to be entitled to the benefits admissible to them (so long as they fulfil the conditions) till they became due for the benefits mentioned in the preceding sub-paragraph.

Paragraph 5 of the said decision which is relevant for our purpose is reproduced hereunder:

"The Scheme envisages that it would be applicable to casual labour on projects who were in service as on January 1, 1984. The choice of this date does not commend to us, for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous Court''s order. To illustrate, in some matters, the Court granted interim stay before the workmen could be retrenched while some other were not so fortunate. Those in respect of whom the Court granted interim relief by stay/suspension of the order of retrenchment, they would be treated in service on 1-1-1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the Scheme. There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to Court. Their Federations have hardly been of any assistance. They had individually to collect money and rush to Court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock at the doors of the Court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson''s choice. Therefore, those who could not come to the Court need not be at a comparative disadvantage to those who rushed in here. It they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1 (a)(i) by modifying the date from 1-1-1984 to 1-1-1981. With this modification and consequent rescheduling in absorption from that date onward, the Scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by re-casting the stages consistent with the change in the date as herein directed."

It is pertinent to note that those who could not go to the Court should not be at a comparative disadvantage, as observed by the Supreme Court in paragraph 5, to those who rushed to the Court and that if, they were otherwise similarly situated, they were held to be entitled to the similar treatment, if not by anyone else at the hands of the Court,

On the same basis, I agree with the submissions made by the learned Counsel for the petitioners that the petitioners should receive the same treatment at the hands of the 1st respondent.

The learned Counsel for the respondents resisted the petitioners'' claim, mainly on two grounds. It is contended that the 1st respondent-Steel Plant had to resort to retrenchment in the recent past because of some unavoidable circumstances and it would not be possible for the respondent to absorb the petitioners so long as the retrenched employees were not given chance to be considered in preference to the petitioners. The learned Counsel also submitted that as far as the binding effect of the decision of the Civil Court is concerned, since the petitioners were not parties to that suit, they were not entitled to claim the same benefit as the plaintiffs of the said suit had secured. This argument, however, cannot be accepted in view of the decision of the Supreme Court in Yadav''s case referred to supra

The learned Counsel for the respondents further submitted that it was not the case of the petitioners that though they applied for the post in question but their cases were not considered by the 1st respondent. However, it appears from the papers filed by the petitioners that seeking extension of the benefits of the judgment of the Civil Court, a registered notice dated 2-11-1995 was caused to be issued but the 1st respondent did not give any reply to the same. It, therefore, does not lie in the mouth of the 1st respondent to say that the benefit which could be made available to the petitioners was never sought to be secured by the petitioners from the 1st respondent.

An objection was also raised by the learned Counsel for the 1st respondent that the Writ Petition deserve to be dismissed also on the ground that considerable delay in filing the present Writ Petition. In this connection, my attention was drawn by the learned Counsel for the petitioners to a judgment of the Division Bench of this High Court in S.T.A.C. vs. Andhra University, 1996 (2) ALD 1220 in which it is held that the question of delay was not a rule of law but a rule of practice based on sound and proper exercise of discretion and that each case must depend upon facts, there was no upper or lower limit for the delay and no period of limitation was prescribed in any law for filing a writ petition. Delay in filing the writ petition may be over looked where the writ petition was admitted and the petitioner had a positively good case on merits.

In the instant case the fact that the present petitioners are also having a good case on merits, in view of the decision given by the Civil Court in O.S.No. 1309/1992 which deals with the same question in relation to six other parties and not the petitioners, the decision of the Division Bench of this High Court in STAC''s case referred to (2) supra is directly on the question with which we are confronted in this Writ Petition and, therefore, there is no reason why the same should not be followed.

A note is also required to be taken that the 1st respondent was not averse to considering the case of the petitioners if and when vacancies arose in future but it will be necessary for them to go through the selection process as and when such vacancies arise. The learned Counsel for the petitioners resisted this proposition on the ground that the petitioners have already gone through the process of selection once. The fact that the petitioners had gone through the process of selection is evident from the averments made in para 2 of the affidavit that they were called for interview on 13-4-1992 and the petitioners did attend the interview but subsequently the respondents addressed a letter dated 4-6-1992 to the Junior Employment Officer, Gajuwaka, Visakhapatnam, intimating to him that 9 candidates had been selected including the petitioners and that the offers of appointment were yet to be issued to them. On the basis of the said letter, the Employment Exchange Officer deleted the petitioners'' names from the live Register.

This is, however, not true because in a letter dated 4-3-1996 addressed to the Employment Exchange by the 1st respondent seeking confirmation whether the names of the petitioners had been retained on the live Register of Employment Exchange without any loss of seniority, the Employment Exchange confirmed by its letter dated 6-3-1997 that their names were retained in the live Register of Sub-Employment Exchange, Gajuwaka, Visakhapatnam with their original seniority. Which other selection process had been gone though has not been clarified by the petitioners. But, on the other hand, the respondent No.1-Steel Plant, has also not clarified as to which selection process would be required to be gone through in the event of opportunity arising for considering the petitioners'' case for appointment as Assistant Store Keepers, in the given situation, I believe that since no specific selection procedure has been brought to the notice of the Court, either by the petitioners or by the 1st respondent, it is obvious that the petitioners Cannot be subjected to pass through the selection procedure. However, if any such selection process is in existence, no exemption can be granted to the petitioners from subjecting themselves to the selection process so that the possibility of any discrimination arising out of non-compliance with the selection procedure could emerge.

I am, therefore, of the opinion that the interest of justice would best be served if under the given circumstances of this case the following order is passed:

The respondents shall consider the case of the petitioners for appointment as Assistant Store Keepers if vacant or as and when suitable vacancies arise in future and that the petitioners shall be subjected to the selection procedure, if any which is already in vogue, and not created specially for the petitioners.

The Writ Petition is accordingly disposed of. No costs.