JITEN KUMAR SAHOO & ORS.versusCHIEF GENERAL MANAGER MAHANADI COALFILEDS LTD. & ORS.

                         [2011) 1 S.C.R. 572

A             JITEN KUMAR SAHOO & ORS.
                             v.
     CHIEF GENERAL MANAGER MAHANADI COALFILEDS
                        LTD. & ORS.
              (Civil Appeal No. 1043 of 2011)
B
                         JANUARY 27, 2011
              [AFTAB ALAM AND R.M. LODHA, JJ.]
                                                                         ,._
       Service Law - Appointment - Government undertaking
C - Appointment of appellants who had undertaken
  apprenticeship with the undertaking - Writ petitions by
  respondents seeking quashing of the appointments -
  Direction by High Court to fill up the post from the merit list
  prepared earlier without giving preference to those who had
o undertaken apprenticeship with the government undertaking
  - On appeal held: Appellants were impleaded as party
  respondents in the writ petitions for the first time after ten years
  - They were not initially impleaded though primary relief was ·
  sought against them - Appellants have got three promotions
E and other candidates have been appointed to the post - Thus, .
  writ petitions not entitled to any discretionary relief - Order
  passed by the High Court set aside.
      . 38 vacancies of Mazdoors, category-I (ITI) occurred .
   in MCL, a government undertaking. The candidates
F sponsored by the employment exchange appeared for
  ·the written test and the trade test. A merit list was
   prepared on basis of the qualifying marks. Out of 38
   vacancies, 24 vacancies were filled up. Subsequentty, 84
   fresh vacancies arose. MCL requested the employment
G exchange for their permission to fill up fresh vacancies
   from amongst the candidates who had qualified hi the
   written test and the trade test which was conducted
   earlier. There being no response from the employment
   exchange, MCI filled up 51 vacancies out of 84 fresh
H                                 572
                                                .,_
                                                 I


         JITEN KUMAR SAHOO v. CHIEF GENERAL MANAGER             573
                   MAHANADI COALFILEDS LTD.

  vacancies by giving employment to the appellants-                    A
  candidates who had already undergone the
  apprenticeship with MCL. The respondents filed writ
  petitions seeking quashing of the appointments given to
  51 appointees; and that they be absorbed in the vacant
  posts. The High Court allowed the writ petitions. It                 B
  directed MCL to fill up 51 newly sanctioned posts strictly
  in the order of merit as per the select list prepared earlier.
~ Therefore, the appellants filed the Instant appeals.
             Allowing the appeals, the Court
                                                                       c
             HELD 1.1 The appellants were not initially impleaded
        as party respondents in the writ petitions although
        primary relief in the writ petitions was to quash their
        selection and appointments. The appellants were
        impleaded for the first time after ten years or so. By that    0
__,.    time the appellants got promoted from Mazdoor
        Category-I to Mazdoor Category-II and then to Mazdoor
        Category-Ill and thereafter, to the posts of Fitter. In view
        of these circumstances, the writ petitioners were not
        entitled to any discretionary relief by the High Court in
        exercise of its extraordinary jurisdiction. [Para 8] [577-E-   E
        F]
               1.2 The High Court failed to take into consideration
          the material aspects stated in the counter affidavit filed
          by the appellants that the writ petitioners impleaded the    F
          appellants after about 10 (ten) years of their appointment
       , as well as selection to the post of Mazdoor Category-I;
          that the writ petitioners though had the knowledge of the
       1
       , appointment, posting, continuance in service and
          subsequent promotions of the appellants, they did not        G
          challenge the same for about 10 (Ten) years and
          acquiescenced their claim and waived their claim if any;
        · and that the petitioners are estopped by acquiescence,
          waiver, conduct and by negligence to challenge the
          appointment of the appellants who are discharging their      H
         57 4      SUPREME COURT REPORTS              [2011] 1 S.C.R.

A duties sincerely to the best satisfaction of the authority
  being selected and appointed to the post for about ten
  years. On promotion of the appellants to the higher
  posts, other candidates have been appointed to the posts
  of Mazdoor-Category I in place of the appellants. If the
B order  of the High Court is allowed to stand, it would not
  only affect the appellants who, during the continuation
  of their service, had got three promotions, but would also
  seriously affect the persons who were appointed in their                ....
  place and were not impleaded before the High Court.
c Thus,  the order passed by the High Court is set aside.
  [Paras 9, 10 and 11) [577-G-H; 578-A-G]
             U.P. State Road Transport Corporation and Anr. v. U.P.
         ParivahanNigam Shishukhs Berozgar Sangh and Ors. (1995)
    --   2 -sec 1 - referred to.
D                              Case Law Reference:
                                                                          ._
                (1995) 2 sec 1
                                          --
                                        Referred to         Para 5
             CIVIL APPELLATE JURISDICTION : Civil Appeal No.
         1043 of 2011.
E
             From the Judgment and Order dated 02.05.2008 of the
         High Court of Orissa at Cuttack in OJC No. 10722 of 1997.
                                                                          +
                                        WITH
         Civil Appeal No. 1044 of 2011.
F
      P.N. Misra and K.N. Gupta, Abhisth Kumar, Pankaj
  Sharma, Archana Singh, Shovan Misra, K.K. Patra, Sunil Roy,
  Neeraj K. Gupta, Sweta Kumari, P. Niroop, Brajesh Jha, Rajesh
  Kumar, Anip Sachthey, Mohit Paul and Shagun Matta for the
G appearing  parties.                                                    )- ~

      The Judgment of the Court was delivered by
             R.M. LODHA, J. 1. Delay condoned in SLP (Civil) No.
         18031 of 2009. Leave granted in both petitions.
H               2. The appellants have preferred these two appeals, by
           JITEN KUMAR SAHOO v. CHIEF GENERAL MANAGER 575
              MAHANADI COALFILEDS LTD. [R.M. LODHA, J.)

          special leave, because consequent· upon the judgment and A
          order passed by the High Court of Orissa at Cuttack, they are
   ~
          likely to lose their job of more than 14 years with the Mahanadi
          Coalfields Limited {for short, 'MCL').
               3. MCL is a Government of India undertaking. By the end
          of 1993, 38 vacancies of Mazdoors, Category-I (1.T.I.) had 8
          occurred in the MCL. MCL sent a requisition to the local
          employment exchange for sending a list of eligible candidates
          for filling up the said vacancies. The local employment
          exchange, in response to that requisition, sponsored 664
          candidates. Out of these 664 candidates, 315 candidates c
          submitted their biodata. After scrutiny of the biodata of these
          candidates, MCL called 316 candidates for the written test.
          Pursuant thereto, 289 candidates appeared for the same on
          October 29, 1995. They were also called for trade test in
          different batches during the period December 26, 1995 to D
          January 5, 1996. Finally, 240 candidates secured qualifying
          marks. There is a dispute of fact about merit list as according
          to the contesting private respondents (writ petitioners before
          High Court), a merit list comprising 226 LT.I. candidates was
          prepared by the MCL as they were found suitable in all E
          respects, but MCL denies having prepared a merit list of 226
          candidates for employment. However, it is an admitted position
          that, of the candidates who secured qualifying marks, 24 were
  ~
          given appointment as Mazdoor Category-I (LT.I.). 14 vacancies
                                                                         F1
              5. vacancies in-the trade of Auto Electrician and 9
          vacancies in Scheduled Caste/ Scheduled Tribe category -
          could not be filled up due to non-availability of the candidates.
          Subsequently, it appears that fresh 84 vacancies of Mazdoor
\.- ,,,   Category-I (LT.I.) occurred and MCiL requested the local G
          employment exchange for their permission to fill up fresh
          vacancies from amongst the candidates who had qualified in
          the written test and the trade test conducted as above. There
          was no response from the local employment exchange to that
          requ\sition and, accordingly, MCL filled up 51 vacancies out of H
    576      SUPREME COURT REPORTS                  [2011] 1 S.C.R.


A 84 fresh vacancies by giving employment to those candidates
  who had already undergone the apprenticeship with them in the
  year 1991-92. The present appellants are amongst those
  candidates.
      4. The private respondents herein and few others
8 aggrieved by the appointment of the appellants and some
  others to the posts of Mazdoor- Category I (LT.I.) having been
  given preference as they had undergone the apprenticeship
  with the MCL, filed various writ petitions before the High Court
  of Orissa. They prayed that appointments given to 51 such
C appointees be quashed. They also prayed for their (writ
  petitioners') absorption in the vacant posts without calling them
  to appear for fresh written test and/or interview.
          5. MCL and its functionaries who were impleaded as
  respondents in the writ petition filed their counter affidavit and
0
  contested the writ petitions on diverse grounds. The defence
  of the MCL was that the preference was given to the
  apprentices who had undergone training with them in the interest
  of the company as coal mines use very specific and
  specialized high value heavy earth moving machines like
E dragline, shovel, dumpers, heavy duty dazers, drills and craines
  and those who have been extensively trained on these machines
  are of much use than the candidates who were trained in other
  industries not dealing with heavy earth moving machines. MCL
  justified their action on the basis of a decision of this Court in
F U.P. State Road Transport Corporation and Another v. U.P.
  Parivahan Nigam Shishukhs Berozgar Sangh and Others1• It
  was submitted by MCL that the preference to MCL apprentices
  was not influenced by any consideration other than the interest
  of the company.
G
        6. It is pertinent to mention here that neither the appellants
  nor others whose appointments were challenged in the writ
  petitions were impleaded initially. It was after 10 years or so
  that the present appellants were impleaded as party
H 1. (1995) 2 sec 1.
              ..
               '
         JITEN KUMAR SAHOO v. CHIEF GENERAL MANAGER                   577
            MAHANADI COALFILEDS LTD. [RM. LODHA, J.]

         respondents in the writ petitions. On their impleadment and          A
--<   :· service of notice, the present appellants filed their counter
         affidavit in opposition to the writ petitions and denied the claim
         of the.writ petitioners.
            7. The High Court vide its judgment dated May 2, 2008,
       however; held that MCL ought to have filled up the newly               B
       sanctioned 51 posts of Mazdoor - Category I (LT.I.) from the               I
       merit list prepared earlier strictly in the order of m~rit and no
  ~    preference could have been given to those who had undertaken
       apprenticeship with MCL. The High Court, accordingly, directed
       MCL to fill up 51 posts strictly in the order of merit as per the      C
       select list prepared earlier. The High Court further directed that
       those who were likely to lose their job could be adjusted in
       suitable posts in the existing and future vacancies without
       asking· them to face any recruitment test. It is this judgment and
       order of the High Court which is impugned in these two                 o
-<     appeals.                                                    '
             8. In our judgment, these appeals have to be allowed. There
       is no dispute of fact that the appellants herein were not initially
       impleaded as party respondents in the writ petitions although
       primary relief in the writ petitions was to quash their selection      E
       and appointments. The appellants were impleaded for the first
       time after ten years or so. By that time the appellants got
       promoted from Mazdoor Category-I to Mazdoor Category-II and
       then to Mazdoor Category-Ill and thereafter to the posts of Fitter.
       In view of these circumstances, the writ petitioners were not          F
       entitled to any discretionary relief by the High Court in exercise
       of its extraordinary jurisdiction.
            9. The appellants in their counter affidavit before the High
        Court set up the following specific grounds:
            "5. That the petitioners have impleaded the present Opp.
                                                                              G·
            Parties after about 10 (ten) years of their appointment as
            well as selection to the post of Mazdoor Category~! (ITI) . .
            Therefore the writ application is liable to be dismissed as
            against the present Opp. Parties being grossly barred .by
                                                                              H
    578       SUPREME COURT REPORTS                 [2011] 1 S.C.R.


A         limitation and on the ground of unexplained delay, latches
          and negligence of the petitioner.
          6. That the petitioners though had the knowledge of the
          appointment, posting, continuance in service and
          subsequent ~romotions of the Opp. Parties had not
B         challenged th~ same for about 1O (Ten) years and have
          acquiescence their claim and waived their claim if any.
          Therefore, this Hon'ble Court in exercise of its equitable
          jurisdiction may be pleased to dismiss the writ application.
          7. That the petitioners are estopped by acquiescence,
c         waiver, conduct and by negligence to challenge the
          appointment of the Opp. Parties who are discharging their
          duties sincerely to the best satisfaction of the authority
          being selected and appointed to the post for about ten
          years."
D       1(}. The High Court unfortunately has failed to take into
  consideration the material aspects stated in the counter affidavit
  filed by the appellants. As a matter of fact, on promotion of the
  appellants to the higher posts, other candidates have been
  appointed to the posts of Mazdoor - Category I in place of the
E appellants. If the order of the High Court is allowed to stand, it
  would not only affect the appellants who, during the continuation
  of their service, had got three promotions, but also will seriously
  affect the persons who have been appointed in their place and
  were not impleaded before the High Court.
F       11. For what we have discussed above, we do not think
    we need to deal with the merits of the issue as to whether the
    High Court was right in holding that MCL could not have
    preferred to give appointments to those who had undertaken
    training with them.
G
         12. The appeals are, accordingly, allowed; the judgment
    and order dated May 2, 2008 passed by the High Court of
    Orissa, Cuttack is set aside. The parties shal~ bear their own
    costs.
H N.J.                                             Appeals allowed.