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2010 DIGILAW 598 (JK)

Farooq Ahmad Qureshi v. State Of J&K

2010-12-04

MUZAFFAR HUSSAIN ATTAR

body2010
1. On the basis of donation deed executed, amongst others, between petitioner and respondent-Superintendent of Police, it was agreed that in lieu of land donated, engagement order will be issued in favour of the donor as Constable Driver. The other persons, who have donated their land, in terms of donation deed executed on 28.04.2008 and registered by Sub Registrar, Pulwama, on 30.04.2008, it is stated at the bar that they have been engaged as SPOs, which fact is admitted in the objections as well, whereas the petitioner has been promised to be appointed to the post of Constable Driver. For seeking enforcement of the donation deed as also the promise extended to the petitioner, this petition is filed. 2. On issuance of notice, respondents have filed their objections. 3. Heard learned counsel for the parties. Considered the matter. 4. Mr. L.A. Latief, learned counsel appearing for petitioner submitted that the respondent-Superintendent of Police is bound by the promise made by him, in terms of donation deed and as the land has been donated and has been utilized by the respondent-department, petitioner is to be appointed as Constable Driver in the respondent department. Learned counsel also submitted that, in view of the promise extended and in terms of donation deed, the other family members of the other co-sharers have already been appointed as SPO's, but petitioner alone has been singled out by not providing him post of Constable Driver. Learned counsel, accordingly, submitted that respondents are duty bound to appoint the petitioner as Constable Driver. 5. Mr. A.M. Magray, learned Sr. AAG appearing for respondents, on the other hand, submitted that as the post of Constable Driver is not available with the respondents, so petitioner could not be considered for being appointed on the said post. Learned counsel further submitted that as and when the post of Constable Driver becomes available, same will be advertised and petitioner will also be considered for being selected and appointed on the said post. Learned counsel also submitted that there is no policy of the Government in force which would entitle the petitioner to seek appointment in lieu of land donated. Learned counsel also submitted that in view of the law of land, the petitioner may become entitled to receive the compensation, if he stakes the claim for that. 6. Learned counsel also submitted that there is no policy of the Government in force which would entitle the petitioner to seek appointment in lieu of land donated. Learned counsel also submitted that in view of the law of land, the petitioner may become entitled to receive the compensation, if he stakes the claim for that. 6. A post available with the respondents, when required to be filled up, comes within the public domain. A public post when available and required to be filled up, on the basis of mandate contained in Article 14 and 16 of the Constitution of India, requires consideration of all the eligible candidates for making appointment to such posts. A Government servant has no authority, in law, to enter into an agreement with a person promising him to provide job in the Government in lieu of land donated by such person. The appointment made to a public post is regulated by Articles 14 and 16 of the Constitution of India and Statutory Rules/executive orders issued by the Government. Neither any Constitutional provision nor any statutory rule has been brought to the notice of the Court, which would authorize an officer to extend promise for appointing a person in Government service in lieu of donation of land. The donation deed on which reliance is placed by the petitioner in this petition is against public policy, inasmuch as, no appointment can be made to a public post in the manner it is provided in the donation deed. As already stated, the appointment to a public post is made in accordance with Constitutional mandate and statutory rules. The donation deed is hit by Section 23 of the Contract Act. The donation deed is otherwise also illegal, in view of the constitutional mandate contained in Articles 14 and 16 of the Constitution of India. As the foundation for filing and maintaining the petition viz. donation deed is held to be illegal, the writ petition is held to be not maintainable. 7. The donation deed is otherwise also illegal, in view of the constitutional mandate contained in Articles 14 and 16 of the Constitution of India. As the foundation for filing and maintaining the petition viz. donation deed is held to be illegal, the writ petition is held to be not maintainable. 7. However, as the immovable property of the petitioner has been taken, in view of the mandate contained in Article 19 of the Constitution of India, which guarantees right to hold immovable property in the State of J&K, and further in view of the mandate of Article 31 and 300-A of the Constitution of India, a person when he is deprived of his immovable property is to be paid compensation thereof. Respondents are duty bound to pay compensation to the petitioner for the land taken from him. 8. For the above stated reasons, this petition is disposed of along with all connected CMPs in the following manner: Respondents will consider the claim of the petitioner for payment of compensation in accordance with law for the land taken from him within a period of three months from the date copy of this order is served upon them. This judgment shall not, however, prevent the respondents from passing any lawful orders to redress any lawful grievance of the petitioner.