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2016 DIGILAW 293 (JK)

Jyoti Saroop v. State

2016-05-25

B.S.WALIA

body2016
JUDGMENT : B.S. Walia, J. Instant writ petition has been filed on the ground that 01 Kanal 10 Marlas out of land measuring 03 Kanals 10 Marlas under Khasra No. 60 owned by the petitioner's father at village Garota, Jammu was acquired by the Education Department in the year 1988 and entry thereof was made in Khasra Girdawari attested in the year 2005 i.e. Annexure-B, that the acquisition of the land was on the promise to the father of the petitioner to provide employment to the petitioner. However, the assurance was not honoured whereupon representation was made to the Deputy Commissioner, Jammu by the petitioner's father, that Government had issued SRO 181 of 1988, dated 03.06.1988 i.e. Annexure-D which provided that one member of the family whose land had been acquired and which was left with less than 50% of their agricultural land on account of acquisition of land by the Government for public purpose would be appointed in the department which had acquired the land without any reference to the recruitment board concerned against a post available in the lowest rank of the cadre etc., that on failure of the respondents to honour the assurance held out to his father, the petitioner approached this Court by way of SWP No. 876 of 2006, which was disposed of vide order dated 19.04.2012 i.e. Annexure-E with a direction to the respondents to accord consideration to the appointment of petitioner in terms of SRO 181 of 1988, dated 03.06.1988 and to take a decision in the matter within six weeks from the date copy of the order was made available to the respondents. 2. That it is the stand of the petitioner that no decision was taken pursuant to the directions of Hon'ble High Court dated 19.04.2012 whereupon he approached the Minister for PHE, Irrigation and Flood Control, Jammu and Kashmir who vide order dated 02.04.2015 directed respondent No. 1 to issue orders of appointment in favour of the petitioner i.e. Annexure-F in terms of SRO 181 of 1988 dated 03.06.1988 of Education Department. 3. 3. Plea of the petitioner in Paragraph No. 9 of the writ petition is that although SRO 181, had been replaced in 1991 vide SRO 214, but such repeal did not affect the rights of the petitioner as the land of the petitioner's father had been acquired before SRO 214, came into existence and SRO 214 of 1991, was violative of Article 14 and 16 of the Constitution and the respondents were estopped from denying employment to the petitioner after taking his father's land, that the High Court in case titled 'Ali Mohd. Bhat and Anr. v. State of J&K and Ors.' reported in 2003 (3) JKJ 163 [HC]: 2003 SLJ 411' held that the Government which had taken over the land of a person was bound to provide employment to one of the family members and that the petitioner, who had now become overage, was seeking appointment under SRO 181, therefore, the same required relaxation in view of the changed circumstances, that the case of the petitioner had been rejected by the Director, School Education vide order dated 18.07.2013 on the directions of the Administrative Department but that order of rejection had been provided to the petitioner only three weeks ago. 4. In the aforementioned circumstances, the main thrust of the arguments of learned counsel for the petitioner are that once the land of the petitioner's father was acquired for construction of school in terms of SRO 181 of 1988, the respondents were bound to provide employment to one of the family members whose land had been acquired and in whose case, the family was left with less than 50% of the land. As per the categorical stand of the petitioner, father of the petitioner owned 03 Kanals 10 Marlas of land in Khasra No. 60 situated at Village Garota, Jammu and that out of the aforesaid land, Education Department acquired land measuring 01 Kanal 10 Marlas in the year 1988, 50% of 03 Kanals 10 Marlas of land would work out to 01 Kanal 15 Marlas, in other words 35 Marlas whereas only 30 Marlas of land was acquired. Thus, the case of the petitioner is not covered by SRO 181 of 1988, since the same contemplates appointment of one member of the family who is left with 50% or less than 50% of agricultural land on account of the same having been acquired by the Government for public purpose. 5. In the instant case, the land remaining with the petitioner's father was more than 50% of the total land owned by the petitioner's father, therefore, the aforementioned SRO is not applicable in the facts of the instant case. 6. Apart from the aforementioned position, it also needs mention that the land of the father of the petitioner was acquired in the year 1988. No doubt, SWP No. 876, was filed in the year 2006 and the same came to be disposed of vide order (Annexure-E) dated 19.04.2012 but the same was disposed of with direction to the respondents to accord consideration to the appointment of the petitioner in terms of SRO 181 of 1988, dated 03.06.1988 and to take a decision in the matter within six weeks from the date copy of the order was made available. Pursuant thereto, order (Annexure-G) dated 18.07.2013 was passed by the Director, School Education whereby the claim of the petitioner was rejected. The petitioner did not challenge the aforesaid order but chose to get his recommendations from Minister for PHE, Irrigation and Flood Control, Jammu and Kashmir on 02.04.2015 for issuance of orders of appointment in favour of the petitioner in terms of SRO 181 of 1988, dated 03.06.1988. 7. Claim for appointment by the petitioner is in the Education Department whereas representation was to the Minister for PHE, Irrigation and Flood Control, Jammu and Kashmir in the year 2015 leading to issuance of directions dated 02.04.2015. The petitioner did not choose to approach the Education Department but the Minister for PHE, Irrigation and Flood Control, Jammu and Kashmir. 8. Be as it may, even the directions of the Minister to the Commissioner/Secretary to Government, School Education Department are to go through the case and issue orders for appointment in terms of SRO 181 of 1988, dated 03.06.1988. In other words, the claim for appointment cannot be dehors SRO 181 of 1988. 8. Be as it may, even the directions of the Minister to the Commissioner/Secretary to Government, School Education Department are to go through the case and issue orders for appointment in terms of SRO 181 of 1988, dated 03.06.1988. In other words, the claim for appointment cannot be dehors SRO 181 of 1988. As has been noticed above, the land of the petitioner's father which was acquired resulted in more than 50% of total land of the petitioner's father being available with the petitioner's father, therefore, the aforesaid SRO is of no avail to the petitioner. 9. Secondly, without going to the question as to whether the department could have rejected the claim of the petitioner on the ground of delay and laches pursuant to the directions of the Court dated 19.04.2012, the fact remains that pursuant to the said directions, order (Annexure-G) dated 18.07.2013 was passed by the Director, School Education rejecting the claim of the petitioner and the same has also been challenged closed to three years after the rejection of the petitioner's claim. In other words, the petitioner has initiated the 2nd round of litigation, 1st one after 28 years of accrual of the cause of action and 2nd one after three years after the rejection of his claim for appointment. The petitioner as per his own saying has also become overage for appointment and is also seeking relaxation of age. 10. After hearing learned counsel for the petitioner and for the reasons recorded above, I am of the considered view that no cause of action whatsoever arises in favour of the petitioner so as to enable him to seek appointment in terms of SRO 181 of 1988, dated 03.06.1988 on the ground that the criteria stipulated therein is not applicable in the facts of the petitioner's case on account of more than 50% of the total land of the petitioner's father still being available with the petitioner's father after acquisition of land in question. Secondly, the writ petition is hit by delay and laches as also of the petitioner having become overage in the meantime. 11. In the absence of the claim falling within the four corners of SRO .181 of 1988, dated 03.06.1988, the writ petition is misconceived, yet the petitioner has approached the High Court twice. It is a fit case where costs should be imposed. 11. In the absence of the claim falling within the four corners of SRO .181 of 1988, dated 03.06.1988, the writ petition is misconceived, yet the petitioner has approached the High Court twice. It is a fit case where costs should be imposed. However, the only reason for not imposing costs is of the petitioner being unemployed and not coming from a sound economic background. 12. Finding no merit, the writ petition along with connected MPs is dismissed in limine. No order as to costs.