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2022 DIGILAW 105 (JHR)

Bhismdeo Singh v. Eastern Coalfields Ltd.

2022-01-28

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application was initially preferred by the petitioners praying for a direction upon the respondent authorities to provide employment/appointment to the petitioner No.2 in lieu of one acre of agricultural land used and utilized by the respondents for excavating coal in the year 1982 for which registered Sale Deed was also executed in favour of the respondents in the year, 1985. Subsequently, an interlocutory application being I.A. No.1616 of 2012 was preferred challenging the order of rejection dated 12/13.01.2000 (Annexure A to the counter affidavit) which came to the knowledge of the petitioners during pendency of this application; whereby the claim of the petitioner No.2 for employment has been rejected. The said I.A. was allowed vide order dated 11.09.2012. 3. Brief facts of the case as narrated in this application is that one acre of agricultural land of petitioner No.1 in Mauza-Kapasara, Mauza no.63 under Khata No. 45 & 50 under Nirsa Police Station, District-Dhanbad was used and utilized by the respondent company for excavation in the year, 1982 for which deed of registration was also executed in their favour in 1985. According to the policy, the respondent coal company was to provide one employment in lieu of 1 acre of land. The petitioner no.1 duly applied for his appointment in lieu of 1 acre of land which was also approved by the functional Directors of the Company in its meeting. However, the same was denied subsequently in view of the fact that petitioner No.1 crossed age of 36 years, as such petitioner No.1 made representation before the competent authority requesting therein that his son (Petitioner No.2) should be considered for employment. However, the claim of the petitioners for employment of petitioner No.2 in lieu of 1 acre of land has been rejected vide order dated 12/13.01.2000 on the ground that the earlier policy of 1:1 ratio has been changed in 2:1 ratio. In other words, earlier one employment was to be provided in lieu of one acre of land; however, the same was changed pursuant to the scheme dated 01.01.1985 to the extent that one employment shall be provided to one land looser in lieu of two acres of land. 4. In other words, earlier one employment was to be provided in lieu of one acre of land; however, the same was changed pursuant to the scheme dated 01.01.1985 to the extent that one employment shall be provided to one land looser in lieu of two acres of land. 4. The grievance of the petitioner is that though as per the new scheme one employment was to be provided in lieu of two acres of land; however, before coming to the amended scheme the respondents have taken over the land of the petitioner No.1, as such the denial of giving employment and taking recourse to the new scheme is inconsistent and not tenable in law. The further grievance of the petitioners is that several similarly situated land losers have been granted employment in lieu of 1 acre of land. 5. Mr. Mahesh Tewari, learned counsel for the petitioners submits that admittedly; 1 acre of agricultural land of petitioner No.1 was used, utilized and coal were excavated from the same by respondent company since the year, 1982 and thereafter the land was also registered in their name. He contended that as per the existing policy when the land was taken over by the respondent company; one employment was to be provided to one member of the displaced family in lieu of 1 acre of land. He further submits that in view of the earlier scheme the name of petitioner No.1 was also considered and finally the Board of Functional Directors, which is the Apex Body, approved the case for providing employment to the petitioner No.1 on 02.02.1995 (Annexure-1) on the recommendation made by the General Manager. However, though the name of petitioner No.1 was approved, but the same was denied subsequently in view of the fact that petitioner No.1 crossed age of 36 years, as such the petitioner No.1 made representation before the competent authority of the respondent company stating therein that since petitioner No.1 is over age, the name of his son (Petitioner No.2) should be considered for employment, but, in spite of the fact that several other persons were given appointment in lieu of their land as per the land looser scheme but the respondent authorities did not give any call to the representation made by this petitioner. 6. 6. Learned counsel further submits that when no employment was given even after filing of representation/ reminders the instant writ application was filed in the year, 2003. Thereafter, a counter affidavit has been filed in this case wherein a letter dated 12/13.01.2000 was annexed which transpires that the claim of the petitioner was rejected way back in the year, 2000, itself. Subsequently, the said letter dated 12/13.01.2000 has also been challenged by way of amendment application. 7. Learned counsel contended that the ground of rejection indicated in the letter dated 12/13.01.2000 is mala-fide and not tenable in the eye of law, inasmuch as, the land was taken over by the respondents for excavations prior to the amended scheme; only the registration of the said land was subsequently made. As such, the use of the land should have been taken into consideration and not the date of registration for applying the R&R Policy with regard to giving employment. Admittedly, the new scheme came as per the policy decision dated 01.01.1985 but the respondents have taken over the land prior to the said scheme and as per the old scheme only one acre of land was required for employment. He further contended that when there was no scheme then what was the reason for the respondent authorities for calling the petitioner for employment which was done in the year, 1995 and on the ground of age the same was rejected. 8. He lastly submits that several other persons were given employment in lieu of one acre of land as such this is also a case of discrimination. In support of his contention Mr. Tewari relied upon the order delivered by the coordinate bench of this Court in the case of Gopal Chandra versus Eastern Coalfields Ltd. & Ors. [W.P.(C)4463 of 2002] wherein this Court on the same plea of the respondent has allowed the writ application of the claimant and stated as under: “All these points that have been taken in this impugned notification were taken in the earlier writs or not have not been argued by either side before this Court. But one settled principle of law is that if the same relief is claimed then all the please that could have been taken if not taken earlier then in the subsequent case such pleading are barred by resjudicata. But one settled principle of law is that if the same relief is claimed then all the please that could have been taken if not taken earlier then in the subsequent case such pleading are barred by resjudicata. If the respondents had to take such plea for rejecting the prayer of the petitioner as they have taken in Annexure 6 then they could have taken these pleas in the earlier writs. Therefore, all these pleas that have been taken are barred by resjudicata and cannot be entertained. The next question is that if the new policy came in existence in the year 1985 and the consent was given in favour of the petitioner by the cosharers in the year 1992, whether the petitioner will be covered by new policy or old policy. When admittedly the land was acquired/used/damaged in the year 1982, so the eligibility for the appointment on the ground of acquisition accrued in the year 1982 and that right has to be governed in accordance with the policy in the year 1982 1985 policy will operate retrospectively and will affect those acquisitions which are made on or after the date of that implementation of that new policy. In absence of any retrospective clause, new policy does not divert the right that accrued to a person under the old policy and the learned counsel for the respondents has not argued that this new policy has any retrospective clause. Therefore, even though the consent was given in the year 1992 the petitioner will have to be dealt with according to old policy. So far, the question of 1:1 ratio is concerned, as all the co-sharers had given consent that the petitioner will be given appointment, this requirement is complete.” 9. Mr. Rajesh Lala, learned counsel for the respondents emphatically opposed the prayer of the petitioners and reiterated its stand made in the counter affidavit dated 15.01.2004 & supplementary counter affidavit dated 09.07.2012. For brevity, relevant Paragraphs of counter affidavit dated 15.01.2004 and supplementary counter affidavit dated 09.07.2012 are quoted herein below: Counter affidavit dated 15.01.2004 “6. That it is stated and submitted that the Land looser scheme upto 31.12.1984 was in ratio of 1 Acre of Land:1 employment. For brevity, relevant Paragraphs of counter affidavit dated 15.01.2004 and supplementary counter affidavit dated 09.07.2012 are quoted herein below: Counter affidavit dated 15.01.2004 “6. That it is stated and submitted that the Land looser scheme upto 31.12.1984 was in ratio of 1 Acre of Land:1 employment. That the said Land looser scheme was latter on amended as per the policy decision of the management of M/s ECL with effect from 01.01.1985, wherein against 2 Acre of land:1 employment was to be provided. 7. That at the very outset it is stated and submitted that the land in question of the Petitioner was not in occupation of the Respondent prior to June 1985 thus there is no question of using the said land of the Petitioner prior to June 1985. It is respectfully submitted that the land in question was purchased by the Petitioner from its original landowners vide registered Deed No.6467 dated 17.06.1985 and also vide registered Deed Nos. 8770 & 8762 dated 02.09.1985. Thereafter the Petitioner No.1 sold the land in question vide registered Deed No.11478 dated 05.12.1985 to the Respondent M/s ECL. Thus, in the year 1985 the Title & the Ownership of the land in question passed to the Respondent M/s ECL. 9. That it is submitted that the earlier also the Petitioner No.1 had claimed for the said employment but the same was also turned down on one of the ground that the Petitioner No.1’s date of birth is 06.01.1953. It is submitted that at the said relevant time the age of the Petitioner No.1 was 42 years and thus the same exceeded the maximum age limit of 35 years as per the policy of M/s ECL with respect to providing employment. 10. That it is respectfully submitted that subsequently the Petitioner No.2 claimed for the said employment and his claim was processed to the competent authority and the said claim of the Petitioner No.2 was turned down on the ground that since the land in question was purchased from the Petitioner by M/s ECL vide registered deed no.11478 dated 05.12.1985 and the land looser scheme at the said relevant time was in the ratio of 2:1. This rejection was communicated to the Petitioners vide Letter No.ECL/GM/MA / Land -2000/ 261/ 977 dated 12/13.01.2000. This rejection was communicated to the Petitioners vide Letter No.ECL/GM/MA / Land -2000/ 261/ 977 dated 12/13.01.2000. That it is respectfully submitted that the said letter of communication was never challenged by the Petitioners and after a lapse of more than 3 years the present writ petition has been filed.” Supplementary counter affidavit dated 09.07.2012 “6. That the Land of Dilip Kumar Goswami has been used by the ECL during the period 01.04.1983 to 22.05.1984 for the purpose of Mining Activity. On the date of use the Land Loser was owner of the said land and as such the employment has been given to them in the ratio of 1:1 under the Old Land Looser Scheme. 7. That similarly the Land of Prabir Kumar Das has been used by the ECL during the period 1983- 1983 for the purpose of Mining Activity. On the date of use the Land Loser was owner of the said land and as such the employment has been given to them in the ratio of 1:1 under the Old Land Looser Scheme. 10. That as per record it is submitted that the employment of Sri Bishundeo Singh was not considered by the competent authority of ECL, HQ due to his over age since at that time the Petitioner No.1-Bishundeo Singh was aged about 42 years. 12. That in fact and circumstance it is submitted that there is no question to discriminate the Petitioners. The Writ Petition filed by the Petitioners is bad in law and devoid of merit and the averments/ statements made therein are totally wrong and hence denied, save and except those that have been specially mentioned in Counter Affidavit and the present Supplementary Affidavit.” 10. Relying upon the aforesaid averments, learned counsel contended that when the petitioners were not the owner of the land at the time of amendment; there is no question of applicability of the old land looser scheme. Further, even on the question of delay, the instant writ application should be dismissed. 11. Having heard learned counsel for the parties and after going through the documents available on record it appears that the land looser scheme up to 31.12.1984 was in ratio of 1 acre of land is to one employment i.e. 1:1. The said land looser scheme was later on amended by the policy decision of the management w.e.f. 1.1.1985. 11. Having heard learned counsel for the parties and after going through the documents available on record it appears that the land looser scheme up to 31.12.1984 was in ratio of 1 acre of land is to one employment i.e. 1:1. The said land looser scheme was later on amended by the policy decision of the management w.e.f. 1.1.1985. Relevant portion of the scheme is quoted herein below: “Employment will be offered to the nominee of the land owner for each one acre of land when the land has been used/damaged upto 31.12.84. for the period from 13.8.83 to 31.12.84 for one employment against one acre of land, 5 yrs. Ownership will be required for the land on date of use/damage. From 1.1.85 onwards for eligibility of one employment minimum two acres of land will be required.” 12. It further transpires from record that the petitioner No.1 purchased the land in question from its original land owner vide registered Deed No.6467 dated 17.06.1985 and also vide registered Deed Nos.8770 & 8762 dated 02.09.1985 and after couple of months he sold the land in question vide sale Deed No.11478 dated 05.12.1985 in favour of the respondents but at that relevant time the scheme of providing job in ratio of 1:1 was amended by the policy decision of the management into 2:1. In other words, earlier one employment was to be provided in lieu of one acre of land; however, the same was changed pursuant to the scheme dated 01.01.1985 to the extent that one employment shall be provided to one land looser in lieu of two acres of land. The above date of purchase and its subsequent transfer made by the petitioner also goes to show that the petitioner might have purchased the aforesaid land with an ulterior motive for taking employment. 13. From record it further transpires that earlier the case of the petitioner was rejected on the ground of over age and subsequently he raised claim for petitioner No.2, however, the same was also rejected on the ground that on the date of transfer of land, the policy of the respondent company was changed as mentioned hereinabove. 13. From record it further transpires that earlier the case of the petitioner was rejected on the ground of over age and subsequently he raised claim for petitioner No.2, however, the same was also rejected on the ground that on the date of transfer of land, the policy of the respondent company was changed as mentioned hereinabove. It is true that the case of the petitioner was considered by the Functional Directors but that does not give any vested right to the petitioner for getting employment, inasmuch as, the basis for employment was the scheme of the company which was amended from January, 1985; when the petitioner became the owner of the land and as per the amended scheme, the petitioner was not entitled as he sold only one acre of land. The argument of the petitioner that the land in question was taken over by the respondent authorities way back in 1982 has no legs to stand and without any basis as the record shows that in the year, 1982, the vendor of the petitioner was the owner of the land and the petitioner became owner only in the month of June, 1985 when the amended scheme of providing of one employment in lieu of 2 acres of land was prevailing. 14. Further, it is a settled law that the employment under land looser scheme is considered to be a compassionate appointment. In the case of Steel Authority of India Limited vs. Madhusudan Das & Ors. reported in (2008) 15 SCC 560 the Hon’ble Apex Court has held at para 15 as under: “15. This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefore viz. that the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right.” 15. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right.” 15. In the year, 2011 the Hon’ble Apex Court in the case of Bhawani Prasad Sonkar vs. Union of India & Ors. reported in (2011) 4 SCC 209 has again laid down certain conditions for compassionate appointment. Para 20 of the said judgment is quoted herein below: “20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee’s family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.” Emphasis supplied 16. From record it further transpires that the entire project was concluded way back in the year, 1982-83 and the petitioner knocked the door of this Court in the year, 2003. Thus, on the ground of delay and laches also, the instant application is fit to be dismissed. In this regard, reference may be made to the case of Steel Authority of India Ltd. versus Daby Lal Mahto & Ors. Thus, on the ground of delay and laches also, the instant application is fit to be dismissed. In this regard, reference may be made to the case of Steel Authority of India Ltd. versus Daby Lal Mahto & Ors. reported in 2008 (3) JCR 152 (SC) wherein the Hon’ble Apex Court has held that where scheme was introduced for providing employment to one member of every displaced family, intention of Government was not to distribute this kind of generosity for an indefinite period. Relevant para 11 is quoted herein below: “11. Be that as it may, it is now high time to put an end to the litigation. It is an admitted fact that the project was completed way back in 1966 and even after more than 40 years of the completion of the project, people whose land was acquired for the purposes of the project are still litigating for getting employment. This is not at all warranted. At the relevant time, the intention of the Government was to rehabilitate the landless people whose lands had been acquired and to provide employment to one member of the displaced family so that they could maintain the family so displaced. It was not at all the intention of the Government to distribute this kind of largesse on an indefinite basis. This is nothing but an abuse of the process of Court.” 17. The law is now well settled. The benefit of any scheme must be extended within a reasonable period of occurrence of such event and any claim cannot be at belated stage. The scheme of employment cannot be allowed to perpetuate for indefinite period. The ruling relied upon by the petitioner and referred at para-8 hereinabove is not applicable in the instant case in the light of ruling delivered in the case of Bhawani Prasad Sonkar (supra) and also the fact that in the instant case the petitioner became owner of the land in question in middle of 1985; during prevalence of amended scheme, so in no case it can be said that he was having right, title and interest over the land in question prior to the purchase date; as such, not entitled under the earlier scheme. 18. 18. In the instant case, on the one hand the petitioner’s land which was acquired was not sufficient for providing one employment, inasmuch as, pursuant to 01.01.1985; the scheme for providing one employment in lieu of 1 acre of land was changed to 2 acres of land and the petitioner became owner of the land during the period of amended scheme and he sold only one acre of land; and on the other hand, even the grievance has been raised by the petitioners after much delay. In view of the aforesaid discussions and judicial pronouncements, no relief can be granted to the petitioners. Accordingly, the instant writ application is dismissed on contest.