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2008 DIGILAW 371 (JK)

Bashir Ahmad Lone v. State Of J. &K.

2008-10-10

MANMOHAN SARIN, MOHAMMAD YAQOOB MIR

body2008
1. Appellant-Bashir Ahmad Lone in this appeal assails the judgment dated 12th of December, 2007 of the learned Single Judge dismissing OWP no. 1291/97. The appellant in the said petition had sought a writ of mandamus to be issued to the respondent-State to appoint the appellant and grant him employment commensurate with his qualification and entitlement in terms of SRO 181, issued under No. GD(MTG)RB/56/79 dated 3.6.1988 read with Circular No.24-GAD of 1991 dated 25.07.1991. Appellant had also claimed that the service benefits including salary, pay and increments be paid retrospectively to him since he was eligible for appointment from 1988. 2. The Learned Single Judge noting that the writ petition claiming relief had been filed in the year 1997 while SRO 181 had been withdrawn in the year 1991, dismissed the writ petition. Learned Single Judge held that since the appellant did not file any petition for enforcement of his right during the period the said SRO was in force and had filed the petition after the SRO had been withdrawn, he had lost his right. Hence petition was dismissed. 3. The genesis of the controversy lies in the appellant and his predecessor having donated one kanal twelve marlas of land for a public purpose, i.e., building of a Water Reservoir. The said land was more than 50% of the total land holding of the appellant and his family members. In terms of the SRO 181, one member of the family of the appellant was entitled to employment. For facility of reference, SRO 181 is reproduced hereinafter: "Government of Jammu and Kashmir General Department Notification Srinagar, the 3rd June 1988 SRO 181: - In exercise of the powers conferred by the proviso to section 124 of the Constitution of Jammu and Kashmir and notwithstanding anything contained in the rules and orders for the time being in force the Governor hereby directs that the appointment of one member of the family who are left with 50% or less of their agricultural land on account of the same having been acquired by the Government for public purposes, shall be made without any reference to the Recruitment Board concerned, against a post available at the lowest rank of the cadre for which such a person is eligible. In case the vacancy is not available in the Department which has acquired the land, the General Department shall make such appointment in any Department where the vacancy may be available. By order of the Governor. Sd/- (Qazi Mohd Amin) Secretary to Government. General Department No. GD(MTG)RB/56/79 dated 3-6-1988" 4. The above SRO was withdrawn by SRO no. 214 dated 11th July, 1991. SRO 214 is also reproduced below for facility of reference:- Government of Jammu & Kashmir General Administration Department. Notification Srinagar, the 11th July, 1991. SRO 214: - In exercise of the powers conferred by section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to rescind the notification SRO 181 dated 3.6.1988: Provided that any appointment made under the provisions of the said notification shall continue to remain valid; and no fresh appointments shall be made in cases which are under process at the time of issuance of this notification. By order of the Governor. Sd/- (Ajit Kumar) Commr./Secretary to Govt. General Admn. Department. No: GAD(Mtg)RB/56/79 Dated 11-07-1991" 5. A clarificatory circular was also issued by the State Government authorities on 25th of July, 1991, it stipulated that whenever any major project in the public or private sector is set up it may be ensured that the provision in the project itself is made for giving employment to at least one member of the family whose land is acquired. The said circular is also reproduced for facility of reference: - "Government of Jammu and Kashmir General Administration Department. Circular No: 24-Gad of 1991. Dated: 25-07-1991. Attention of all Additional Chief Secretaries/Commissioner Secretaries to Govt. and Heads of the Departments invited towards SRO 214 dated 11.07.1991, when under the benefit for providing employment to one of member of the family who are left with 50% or less of the their Agriculture land on account the same having been acquired by the Govt. for public purpose has been withdrawn. However, in case any major project in the public or private sector is set up it may be ensured that provision in the project itself is made for giving employment to at lease one member of the families whose land is acquired. Sd/- (Ajit Kumar) Commr./Secretary to Government, General Administration Department." 6. for public purpose has been withdrawn. However, in case any major project in the public or private sector is set up it may be ensured that provision in the project itself is made for giving employment to at lease one member of the families whose land is acquired. Sd/- (Ajit Kumar) Commr./Secretary to Government, General Administration Department." 6. It is not in dispute that the appellants predecessor had donated one kanal and twelve marlas of land which has been utilized for a public purpose namely building a Water Reservoir, catering to the needs of more than thirty five thousand persons. The appellant and his predecessor also executed requisite documents confirming the factum of donation of the land. It had also been verified by the Revenue authorities that the land was in occupation of the department. It is appellants case that the land so donated has been utilized and a Water Reservoir has been built thereon. However, employment in terms of the SRO was neither offered nor provided to the appellant. 7. The respondents case for non-grant of employment is sought to be justified on the plea that SRO 181 stood withdrawn by virtue of SRO 214 issued on 11th of July, 1991. The appellant had failed to apply for obtaining employment prior to the withdrawal of SRO 181. Accordingly, it is urged that there was no enforceable right in favour of the appellant after its withdrawal. It is also sought to be contended that the circular referred to earlier will not come to the assistance of the appellant since the Water Reservoir would not fall within the definition of "Major Projects". 8. Mr. Dar, learned counsel appearing for the respondents submitted that the appellant had failed to apply for employment and a petition was belatedly filed in the year 1997, which was barred by delay and laches. He submits that even if the appellant had applied in 1991, SRO 214 provided that even if the case was under process, no fresh appointments could be made. Besides the circular, submitted that the same were merely in the nature of instructions and have no binding force. 9. We have perused the record of the writ petition as also the documents filed with the appeal and the return. Besides the circular, submitted that the same were merely in the nature of instructions and have no binding force. 9. We have perused the record of the writ petition as also the documents filed with the appeal and the return. The respondent-State has received the benefit of the land donated to it by the appellant on the promise under the scheme envisaged in SRO 181 and employment been provided to one member of the family. The moment donation of land was accepted, a right accrued in favour of the appellant which cannot be extinguished or forfeited by issuance of a subsequent SRO 214. 10. The above would also be barred under the principles of promissory estoppel. Reference may be made to Southern Petrochemical Industries Co. Ltd. V. Electricity Inspector & ETIO and others reported at (2007) 5 SCC 447. The Supreme Court observed in para 122: "Unlike an ordinary estoppel, promissory estopped gives rise to a cause of action. It indisputedly creates a right. It also acts on equity. However, its application against constitutional or statutory provisions impermissible in law." In the cited case, the Court while referring to the decision in Moti Lal Padampat Sugar Mills Co. Ltd. v. State of UP observed inter alia: "The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution." 11. This matter is even otherwise no longer res Integra. Reference may usefully be made to two decisions of this Court arising from this very SRO. This matter is even otherwise no longer res Integra. Reference may usefully be made to two decisions of this Court arising from this very SRO. In case, Ali Muhammad Bhat and another V. State of J&K and ors reported at 2003 (II) SLJ 411, Learned Single Judge dealing with similar contentions observed as under;- "It is vehemently argued by the learned counsel for the respondents that SRO 181 dated 03-06-1988 having been rescinded by subsequent SRO No. 214 of 1991, petitioners case cannot be considered in view of bar for fresh appointment as created under SRO 214. This contention of the respondents cannot be accepted for the simple reason that the petitioners land was taken away in the year 1988 when SRO 181 was in operation. Merely because respondents did not appoint the petitioner No. 2 till SRO 214 came into being cannot deprive the petitioner from his right which was created under SRO 181. From the communications placed on record by the petitioners it is evident that delay in making appointment is attributable only to respondents. A poor man was deprived of his property on solemn promise of providing employment. Now respondents cannot be allowed to plead that with the passage of time, the right of the petitioner stands defeated on account of subsequent change in law. Petitioner who is governed by SRO 181 because his right to seek employment is created under said SRO the moment land of the petitioners is taken away and utilized by the respondents. Subsequent change in law cannot take away the vested right of the petitioner. Impugned SRO 214 of 1991 dated 11th July, 1991 to the extent it defeats the right of the petitioner is not sustainable in law. It is accordingly held that petitioners right under SRO 181 to seek employment remains in tact not withstanding issuance of SRO 214..." 12. We are in agreement with the above view. Appellants property cannot be taken away without fulfilling the promise of employment. The doctrine of promissory estoppel would debar subsequent action of withdrawal of the benefit. Reference may also usefully be made to the decision of a Division Bench of this Court in Ghulam Mohi-Ud-Din Tantray v. State of Jammu and Kashmir and ors, LPA No. 202/1996. Appellants property cannot be taken away without fulfilling the promise of employment. The doctrine of promissory estoppel would debar subsequent action of withdrawal of the benefit. Reference may also usefully be made to the decision of a Division Bench of this Court in Ghulam Mohi-Ud-Din Tantray v. State of Jammu and Kashmir and ors, LPA No. 202/1996. Here again, the Division Bench in a case where the land had been transferred to the State on the assurance of employment being given, held: "......respondents are estopped from resiling from the assurance once extended to the petitioner. The plea that SRO 181 of 1988 has been withdrawn can not be accepted since this matter pertains to the period when it was in vogue. Examining in the context of this SRO, petitioner fulfills the requirement thereof since with taking away of 50% of his land by the respondents he is left only with 50% of land as contended by him." Further, the Division Bench set aside the judgment of the learned Single Judge and issued directions to the respondents to engage the petitioner against any Class-IV category within a period of three months. 13. We may also notice that SRO 181 is couched in mandatory terms. It talks of granting employment/appointment being made to one member without any reference to the Recruitment Board concerned, against a post available in the lowest rank of the cadre for which such a person is eligible. It further provides that in case vacancy is not available in the department which is acquiring the land, the General Department is enjoined to make such an appointment in a department where the vacancy may be available. It is on record and is not disputed that water reservoir has been built on the land donated and accepted without payment of compensation and in return only one member was to be given employment. There is no statutory rule or procedure prescribed requiring applications within any stipulated time. It is the appellants case that he had been pursuing the matter for his employment but to no avail, despite verification by the concerned department of the land having been donated and utilized. The rejection, it appears emanated due to withdrawal of SRO 181 prior to appointment having been granted. It is the appellants case that he had been pursuing the matter for his employment but to no avail, despite verification by the concerned department of the land having been donated and utilized. The rejection, it appears emanated due to withdrawal of SRO 181 prior to appointment having been granted. It is the appellants case that he followed up the matter with the department, making representations to the concerned Executives including the Minister, who had directed sympathetic consideration of the appellants case. However, it was only when no relief was coming his way that the writ petition was filed in 1997. Reference may be made to Ishwar Singh V. Union of India and others reported at (2007) 9 SCC 396 wherein delay in filing of the writ petition has been condoned by the Supreme Court in case of a dismissed employee, who had been advised in June 2001, that he could seek his remedy in Court by the respondents and had belatedly filed the writ petition in 2004. The writ petition had been dismissed by the High Court, the Supreme Court entertained the Special Leave Petition and condoned the delay and set aside the order of dismissal. 14. This is a fit case where for purposes of subserving the interest of substantial justice and preventing miscarriage of justice, the delay in filing the writ petition be condoned since land of petitioner has been received in donation without reciprocal promise of employment being fulfilled. 15. In view of forgoing discussion, we allow the appeal and set aside the impugned judgment of the learned Single Judge and direct the respondents to offer employment to the appellant within a period of three months in the category in which he may be eligible after granting relaxation in age, if so required as per rules. In case the State Government is unable to provide employment to the appellant, it shall pay reasonable monthly compensation for use of the land as determined by Divisional Commissioner from the date possession was taken till date. In addition the appellant would be entitled to be paid compensation on acquisition of the land to be done at current market rates.