Writ Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus calling for the circular in COPR/P&A/465/2005 dated 30.11.2005 issued by the 2nd Respondent and quash the same as illegal, unreasonable, highly discriminatory, arbitrary and unconstitutional and against the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and to regularise the Petitioner's service in the Respondent Neyveli Lignite Corporation from the date of joining in the NLC Health Promotion and Social Welfare Society and order all attendant service benefits including promotion, arrears of pay etc.
O R D E R
1. The Petitioner has filed the present Writ of Certiorarified Mandamus calling for the circular COPR/P&A/465/2005 dated 30.11.2005 issued by the 2nd Respondent and to quash the same as illegal, unreasonable, highly discriminatory, arbitrary and unconstitutional and against the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Further, the Petitioner has also sought the relief of regularising his service in the 1st Respondent/Corporation from the date of joining in the 3rd Respondent/ NLC Health Promotion and Social Welfare Society and to confer him with all attendant service benefits including promotion, arrears of pay etc.
2. The Petitioner is a physically handicapped person (Hearing Impaired). His qualification is VI Standard pass at NLC Middle School, Thandavankuppam, Neyveli. During the year 1982, the 1st Respondent/ Corporation formed the 3rd Respondent/NLC Health Promotion and Social Welfare Society to promote the measures which will facilitate the disabled persons to gain and develop self confidence, self reliance, social recognition and employment. He is one among the physically handicapped members of the 3rd Respondent/ Social Welfare Society, being managed by the officials of the 1st Respondent/ Corporation from the beginning.
3. The Petitioner is employed on a contract basis ever since 10.11.1986 in the 1st Respondent/Corporation, through the 3rd Respondent/Social Welfare Society and continued to be employed till date, on a monthly salary of Rs.2,500/- approximately.
4. It is the case of the Petitioner that some members of the 3rd Respondent/Society has formed an Association in the name of 'Neyveli Oonamutror Thesia Thozhilalar Sangam' and made many representations to the NLC Management through Sangam to regularise his and others services in Neyveli Lignite Corporation. However, no action has been taken by the 1st Respondent/Corporation.
5. According to the Petitioner, since the contract workers engaged in the 1st Respondent/Corporation were exploited by the contractors by paying less than minimum wages and denied the statutory benefits, the 1st Respondent/Corporation Management formed the 4th Respondent/NLC Industrial Co-operative Service Society. In the said Society, 5000 contract workers were admitted as members and engaged in the Neyveli Lignite Corporation. Further, the members of the 4th Respondent/Society are being regularised in a phased manner and around 4000 members became permanent employees of the 1st Respondent/Corporation.
6. It is the contention of the Learned Counsel for the Petitioner that the Government of India has ordered reservation of posts for physically handicapped persons in Groups 'C' and 'D' posts in Central Public Enterprises, which is extracted below:
Category of the handicapped % of Reservation
Blindness or low vision 1%
Hearing impairment 1%
Locomotor disability or cerebral palsy 1%
7. The Learned Counsel for the Petitioner urges before this Court that the reservation of posts ought to be made separately for each of the categories mentioned for physically handicapped persons, but a provision made by made for inter se exchange of vacancies if candidates belonging to a category of persons are not available or if the nature of vacancies in an office is such that a given category of persons cannot be employed.
8. Continuing further, the Learned Counsel for the Petitioner contends that the expert committee set up by the Ministry of Welfare, Government of India made an in-depth study of the numerous jobs performed in Government Offices as well as Public Sector Undertakings and identified 1,100 titles under Group 'C' and 'D' as suitable for the handicapped persons along with physical requirements for all those jobs. The committee also identified keeping in view the physical requirements and functional classification of disability 416 posts in Groups 'A' and 'B' in which preference will be given to physically handicapped persons in the matters of recruitment. Certain relaxation and concession were extended to the physically handicapped persons such as age relaxation, relaxation of standards, exemption from payment of examination, application fee, etc.
9. The stand taken by the Petitioner is that the 1st Respondent/ Corporation being a Central Public Sector Enterprise is required to implement reservation policy for physically handicapped persons and required to identify the jobs which can be performed by various categories of physically handicapped persons. However, the Respondents neither implemented the reservation policy for physically handicapped persons nor identified the posts to be filled up with persons with disability for the past 30 years and thus act in utter disregard of the orders of the Government of India.
10. The Learned Counsel for the Petitioner submits that The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 squarely applies to the 1st Respondent/Corporation and as per Section 32 of the Act, the 1st Respondent/Corporation ought to identify the posts, which could be reserved for persons with disability and at periodical intervals, not exceeding three years, review the list of such posts identified and update the list, taking into consideration the development of Technology.
11. As per Section 33 of the Act, the 1st Respondent/Corporation shall appoint such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from
(i) Blindness or low vision;
(ii) Hearing impairment
(iii) Locomotor disability or cerebral palsy, in the posts identified for each disability.
12. The Learned Counsel for the Petitioner advancesan argument that there are around 19,060 employees working in the 1st Respondent/ Corporation and as per Government of India orders and the provisions of the Act, the 1st Respondent/Corporation should reserve not less than 3% of the posts and ought to have recruited not less than 572 persons with disability through special recruitment. Added further, around 122 persons with disability were in the employment of the 1st Respondent/ Corporation.
13. The Learned Counsel for the Petitioner strenuously contends that the 1st Respondent/Corporation has not implemented the reservation policy for physically handicapped persons nor identified the posts as required in the said Act, even after more than ten years of such enactment nor gone for any special drive recruitment for handicapped persons as that of special drive recruitment made to clear the backlog vacancies of SC/ST.
14. The submission of the Learned Counsel is that the 1st Respondent/Corporation regularised the members of the 4th Respondent/Society in permanent capacity and that the 'Neyveli Oonamutror Thesia Thozhilalar Sangam' made representations to regularise the members of the 3rd Respondent/Social Welfare Society, in as much as both the societies are placed in a similar position, managed and controlled by the Neyveli Lignite Corporation officials.
15. The Learned Counsel for the Petitioner brings it to the notice of this Court that the Chief Manager (P & A)/Recruitment of the 2nd Respondent, issued a circular in COPR/P&A/465/2005 dated 30.11.2005 calling upon applications from the 4th Respondent/Society members with disability. Since the members of the 3rd Respondent/ Social Welfare Society are on the same footing as that of the 4th Respondent/Society, they are entitled to get similar treatment and accordingly, submitted a proforma application dated 14.12.2005 through the 3rd Respondent/Society to the 2nd Respondent. The 2nd Respondent has not issued interview call letters either to the Petitioner or to the other members of the Social Welfare Society. The Learned Counsel for the Petitioner contends that the Petitioner has been working in the Neyveli Lignite Corporation on a contract basis for more than 20 years and that the minimum educational qualification prescribed for regularisation in the Neyveli Lignite Corporation is only V Standard pass and since the Petitioner has passed VI Standard and has 20 years of service to his credit, he is entitled to be regularised in the Neyveli Lignite Corporation.
16. Yet another submission of the Learned Counsel for the Petitioner is that the circular issued by the 2nd Respondent in COPR/P&A/465/2005 dated 30.11.2005 restricting the regularisation from among the 4th Respondent/Society is illegal, unreasonable and contrary to Articles 14 and 16 of the Constitution of India. As such the Petitioner has filed the present Writ Petition seeking to quash the circular COPR/P&A/465/2005 dated 30.11.2005 issued by the 2nd Respondent.
17. Conversely, it is the contention of the Learned Counsel appearing for the Respondents 1 and 2 that the Writ Petition filed by the Petitioner seeking to quash the circular in COPR/P&A/465/2005 dated 30.11.2005 is not maintainable and that the 3rd Respondent/ Society, where the Petitioner is working, is an independent non-governmental organisation and is not a part of the 1st Respondent/ Corporation.
18. According to the Learned Counsel for the Respondents 1 and 2, the employees of the 3rd Respondent/Society are not the employees of the 1st Respondent/Corporation and the 3rd Respondent/ Society provides training to the physically and otherwise disadvantaged persons to acquire special skills, more particularly in regard to the manufacture of artificial limbs etc. Moreover, some of the office bearers of the 3rd Respondent/Society are Neyveli based officers, who, of their own choice, are inclined to be associated with such NGOs. The 3rd Respondent/Society is not under the management or financial control of the 1st Respondent/Corporation.
19. The Learned Counsel for the Respondents 1 and 2 submits that the Petitioner is not a direct or indirect employee of the 1st Respondent/Corporation and that he is a member of the 3rd Respondent/Society and the 3rd Respondent/Society is neither a 'State' nor a 'local authority' falling under Article 12 of the Constitution of India nor is it a contractor rendering any services or supplying any goods to the 1st Respondent/ Corporation. As a matter of fact, the plea of the Respondents 1 and 2 is that the Petitioner has no 'employer-employee' relationship or even a 'contract worker-principal employer' relationship with the 1st Respondent/ Corporation.
20. The Learned Counsel for the Respondents 1 and 2 submits that the 4th Respondent/Society is in existence ever since the year 1990 and on 18.05.1995, a settlement as per Section 12(3) of the Industrial Disputes Act, 1947 was entered into, in and by which the 1st Respondent/Corporation agreed to absorb, by appointment, 5000 members of the 4th Respondent/Society as regular employees of the Corporation subject to the fulfillment of certain conditions.
21. The substance of the arguments of the Learned Counsel for the Respondents 1 and 2 is that the Section 12(3) settlement under the Industrial Disputes Act, 1947 dated 18.05.1995 related to those persons, who are engaged as contract workers of the 4th Respondent/ Society. The impugned circular dated 30.11.2005 has been issued pursuant to Section 12(3) settlement dated 18.05.1995 of the Industrial Disputes Act, 1947.
22. The Learned Counsel for the Respondents 1 and 2 contends that merely because the impugned circular dated 30.11.2005 pertains to persons with disabilities, it could not be construed that it applies to all disabled persons. Moreover, the Petitioner is neither a member of 4th Respondent/Society nor he was covered by the Section 12(3) settlement dated 18.05.1995.
23. Another submission of the Learned Counsel for the Respondents 1 and 2 is that the impugned circular dated 30.11.2005 was issued with avowed and beneficial intention of enabling persons with disabilities from among those covered by the Section 12(3) settlement of the Industrial Disputes Act, 1947 to be regularised in sufficient numbers and therefore, there is no illegality, arbitrariness, discrimination, unreasonableness or unconstitutionality in the issuance of the impugned circular.
24. In the counter filed by the Respondents 1 and 2 at paragraph-6, it is mentioned that necessary preference/reservation of posts is being done for persons with disabilities, while making appointments bulk of the fresh appointees to the answering Respondent, are displaced persons whose lands have been acquired, or contract-workers being absorbed under Section 12(3) settlement or compassionate appointments, etc.
25. Lastly, it is the submission of the Learned Counsel for the Respondents 1 and 2 that just because the Petitioner is a member of the 3rd Respondent/Society or is working in such Society, he is not entitled to be appointed as a regular employee of the 1st Respondent/ Corporation out of turn or without following the stipulated procedure for initial appointment.
26. The Learned Counsel for the Petitioner contends that one P.Shanmugam, as a Petitioner filed W.P.No.27349 of 2007 before this Court as against the order dated 23.11.2006 of the 2nd Respondent, in and by which, his representation dated 25.04.2006 praying for absorption in the Respondent/Corporation has been rejected and in the said Writ Petition, this Court on 10.02.2012 observed and passed an order in paragraph-4 as hereunder:
"4.Heard both sides. By consent of counsel for both sides, the writ petition is taken up for final disposal. A reading of the impugned order passed by the second respondent would disclose that a settlement was entered into between the respondents 1 and 2 and the fourth respondent under Section 12(3) of the Industrial Disputes Act. In the said settlement, the third respondent is not a party. According to the respondents 1 and 2, the third respondent is no way connected with the policy decision taken by the petitioner to absorb the employees from the fourth respondent society. The petitioner is admittedly working with the third respondent, a non-governmental organisation and based on the same, the petitioner does not get any legal right to seek for preference in the matter of employment. In any event, the petitioner has no legal or vested right to seek for absorption in the first and second respondent/Corporation. I also do not find any infirmity or illegality in the impugned order passed by the second respondent."
and consequently dismissed the said Writ Petition. Therefore, the Petitioner in the present Writ Petition before this Court is also similarly placed person and has no enforceable legal right to challenge the impugned circular dated 30.11.2005 and resultantly, the Writ Petition is to be dismissed by this Court.
27. This Court has heard the arguments of the Learned Counsel of either side and noticed the same.
28. As far as the present case is concerned, 'Neyveli Oonamutror Thesia Thozhilalar Sangam' on 03.04.2006, has made a representation to the Chairman-cum- Managing Director of the 1st Respondent/Corporation, Neyveli, seeking to consider the plea of regularisation of 16 employees and in Sl.No.8, the Petitioner, A.Sivakumar's name is found. Subsequently, the Petitioner (individually) has submitted a representation to the Chairman-cum-Managing Director of the 1st Respondent/Corporation dated 06.09.2006. For both the representations, according to the Learned Counsel for the Petitioner, no reply has been sent by the Authorities concerned.
29. It is not in dispute that the settlement under Section 12(3) of the Industrial Disputes Act dated 18.05.1995 is between the 4th Respondent/Society and the 1st Respondent/Corporation. As per Section 12(3) of the Industrial Disputes Act, 'if a settlement of the dispute or of any of the matters in the dispute is arrived at in the course of the conciliation proceedings, the conciliation officer shall send a report thereof to the appropriate Government (or an officer authorised in this behalf by the appropriate Government) together with a memorandum of the settlement signed by the parties to the dispute'.
30. Admittedly, the petitioner is not covered under Section 12(3) settlement dated 18.05.1995 of the Industrial Disputes Act, 1947. Even though, the petitioner claims quashing the impugned circular dated 30.11.2005 and also seeks other benefits for his regular appointment in the 1st Respondent/ Corporation as that of the members of the 4th Respondent/ Society, this Court is of the considered view that the Petitioner has no enforceable legal right to claim regularisation of his services etc.
31. Generally, a Court of Law cannot issue directions to regularise casual workers/ daily wage earners in the absence of any existing vacancies nor can directions be given to create posts.
32. In law, granting permanence of employment is different and cannot be equated with regularisation.
33. It is to be noted that working on daily wages alone will not entitle a person to the status of the permanent employee.
34. This Court pertinently points out that Art.14 of the Constitution of India is a positive concept. A Writ of Mandamus will lie before the Hon'ble High Court only when there exists a legal right in the writ petitioner and a corresponding obligation on the other side/STATE.
35. That apart the Petitioner has no vested right to claim regularisation. It is not in dispute that the 3rd Respondent/Society is a non-governmental organisation. The 3rd Respondent/Society has no nexus with any of the policy decision taken by the Neyveli Lignite Corporation management as regards the absorption of employees from the 4th Respondent/Society.
36. The Petitioner is not covered under Section 12(3) settlement dated 18.05.1995. There is no similar settlement in regard to the members of the 3rd Respondent/ Society. It is well settled principle in law that a settlement once arrived at in the course of conciliation proceedings under the Industrial Disputes Act cannot later on be nullified by any party to it in an unilateral fashion.
37. Looking at from any angle, this Court is of the considered view that the Petitioner is the member of the 3rd Respondent/Society. Further, he is not a direct or indirect employee of the 1st Respondent/ Corporation. Moreover, the 3rd Respondent/Society functions out of donations/ grants received by it and from other benefits available as per various Government schemes. At this stage, it is to be borne in mind that the 3rd Respondent/Society is not under the management or financial control of the 1st Respondent/Corporation.
38. In as much as the Petitioner has no enforceable right, he cannot seek a relief from this Court to quash the impugned circular in COPR/P&A/465/2005 dated 30.11.2005 issued by the 2nd Respondent.
39. In the light of the detailed discussions as mentioned supra, this Court holds that the Writ Petition is devoid of merits and consequently, the Writ Petition is dismissed, leaving the parties to bear their own costs.