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2009 DIGILAW 658 (JK)

Mukesh Kumar v. State Of J. &K.

2009-12-18

MOHAMMAD YAQOOB MIR

body2009
1. Case of the petitioner is that he donated half of his proprietary land measuring 1 Kanal and 10 Marlas covered under Survey No. 262 situated at village Inherra Tehsil Gandoh District, Doda for construction of School building some 15/16 years back. In lieu thereof he was assured to be appointed as Class IV employee in the said School under SRO 181 of 1988, but till date he has not been appointed/engaged as Class IV employee, despite recommendation made by respondents 3 and 4, hence the petition. 2. It is admitted position that the petitioner had offered half of his proprietary land for the construction of the School building at village Inherra Tehsil Gandoh District Doda, has not received any compensation for the said land, but was waiting for being appointed as Class IV employee in the said School. In presence of respondent No. 4 villagers of the village concerned resolved that the land identified for construction of School building being proprietary land of Gian Chand father of the petitioner is required to be donated by said Gian Chand, in lieu thereof he has been assured the post of Chowkidar (Class IV) to be provided to his son (petitioner). Respondent No. 4 Head Master has also recommended to the District Development Commissioner, Doda for appointment of the petitioner as Class IV employee in lieu of the land donated for construction of the school building. In addition respondent No. 4 Head Master has also recommended the case of the petitioner for being appointed to the post of Chowkidar as lying vacant in the said school. The Chief Education Officer, Doda has also been asked by his higher authorities to look into the matter personally and try to accommodate the petitioner as Class IV employee in lieu of the land donated by the petitioner for construction of the School building. 3. Petitioner earlier filed SWP No. 534/2002, which came to be disposed of on 02.03.2002 with the direction to the respondents to consider the case of the petitioner in light of the decision rendered in LPA 309 of 1996. On consideration respondent No.2 Director School Education, after according construction to the case of the petitioner has concluded that at the time land was donated SRO 181 of 1988 was in vogue, but till issuance of subsequent Notification vide SRO 214 of 1991, petitioner was not appointed. On consideration respondent No.2 Director School Education, after according construction to the case of the petitioner has concluded that at the time land was donated SRO 181 of 1988 was in vogue, but till issuance of subsequent Notification vide SRO 214 of 1991, petitioner was not appointed. SRO 214 provides for specific bar of making fresh appointment. On the said analogy the case of the petitioner for appointment has been rejected. 4. Dissatisfied with the same the petitioner has filed the instant writ petition. 5. The short point which emerges for consideration is as to whether right of appointment which had accrued to the petitioner in terms of SRO 181 of 1988, is extinguished with the issuance of subsequent notification vide SRO 214 of 1991. The question as emerged for consideration is to be categories into two parts. (i) In case land is donated after 11.7.1991 i.e. date of issuance of SRO 214 of 1991, then definitely appointment cannot be given in lieu of the land donated in view of the bar contained therein. (ii) In case the land is donated prior to 11.7.1991, then whether right as has accrued in view of SRO 181 is extinguished. The case of the petitioner is covered by 2nd part. 6. Similar controversy has been dealt with by Division Bench of this Court in case titled Bashir Ahmad Lone v. State of J&K and ors., 2009 (1) JKJ 121 (HC). In the reported judgment appellant therein had donated land for Water Reservoir. He had been denied employment on the ground that he had not applied when SRO 181 was in operation. SRO 181 stands rescinded by SRO 214 of 1991. It was held that 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. It was further held that merely because respondents did not appoint the appellant till SRO 214 came into existence, he cannot be deprived from his right which was created under SRO 181. In the reported judgment respondents were directed to offer appointment to the appellant therein 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 the reported judgment respondents were directed to offer appointment to the appellant therein 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 therein, it shall pay reasonable monthly compensation for use of the land as determined by Divisional Commissioner from the date possession was taken till date. It was further held that in addition the appellant therein would be entitled to be paid compensation on acquisition of the land to be at current market rates. 7. The facts of the above said reported case are similar to the case in hand, so there is no scope for any departure. The judgment of the Division Bench being binding is to be followed in letter and spirit. Therefore, this petition is also disposed of in accordance with the conclusion as drawn in the above said reported judgment, i.e. respondents shall provide Class IV post to the petitioner in the category in which he may be eligible and he may also be given relaxation in age, if so required as per rules. In case employment is not provided to the petitioner, he shall be paid monthly compensation for the use of the land as shall be determined by the Divisional Commissioner from the date possession was taken till date. In addition petitioner shall also be paid compensation on acquisition of the land on current market rates. 8. The aforesaid exercise shall be completed within a period of eight weeks from the date a copy of this order is made available to the respondents by the petitioner. Disposed of as above.