UNION OF INDIA & ORS. versus SHANKAR PRASAD DEEP ETC.ETC. on 14 March 2019

[2019] 5 S.C.R. 471

UNION OF INDIA & ORS.

v.

SHANKAR PRASAD DEEP ETC.ETC.

(Civil Appeal Nos. 3030-3044 of 2019)

MARCH 14, 2019

[DR DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Rehabilitation – Of land oustees, whose lands were acquiredfor Sambalpur-Talcher Rail Link Project – Railway Board formulatedpolicy for offering employment to persons displaced by theacquisition of land for railway projects – Employment notice forrecruitment of Gangmen in Group ‘D’ posts in the EngineeringDepartment of the Sambalpur Division – O.As filed before the CentralAdministrative Tribunal, Cuttack Bench by displaced persons –Tribunal found fault with the Railway for initiating selection processfor filling up 511 vacancies in Group ‘D’ posts, holding that recourseto direct recruitment was not justified without accommodating allthe land oustees and observed that it would be enough if they arefound suitable for the post by recruitment committee – Affirmed bythe High Court – On appeal, held: Though the policy of the RailwayBoard provided for the grant of preferential treatment to the landoustees, this was subject to the fulfillment of all other terms andconditions – View of the Tribunal that the land oustees were notrequired to undergo the process of selection, not accepted – Tribunalexceeded its adjudicatory authority by substituting its own directionsfor the policy – Out of 9,036 families which were covered by theSambalpur-Talcher Rail Link Project, 2,805 persons applied foremployment – Applications of 2,153 land oustees were rejected –Inter alia the reasons for rejection were insufficient proof of beingland losers in the land acquisition – It would be extremely technicalto reject the applications without sufficient opportunity to the landoustees to comply with the terms and conditions, including thesubmission of proof of being land oustees – Policy contemplatedthat as land acquisition is done through the civil authorities, thevillage sarpanch/tehsildar should be associated with the verificationof the claim of the oustees – Placing the entire burden on the land A

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Aoustees would result in deprivation of the benefit of the policy –Judgments of the High Court and the Tribunal set aside –Notwithstanding the rejection of the claims of 2,153 land oustees,steps be taken for re-verification of the claims of persons rejected– Applications submitted be reconsidered as against the 82 vacancies(out of 511 vacancies, 429 posts were filled) and in addition, againstBany other vacancies that may presently exist in respect of theSambalpur Division and those which may arise in the next two years.

Lands were acquired between 1984-85 and 1992-93 forSambalpur-Talcher Rail Link Project. The Railway Boardformulated policy for offering employment to persons displacedCby the acquisition of land for railway projects. Employment noticefor recruitment of Gangmen in Group ‘D’ posts in the EngineeringDepartment of the Sambalpur Division. Land oustess of theSambalpur-Talcher Rail Link Project allowed to apply, if otherwiseeligible. O.As were filed before the Central AdministrativeDTribunal, Cuttack Bench by the displaced persons. The Tribunalfound fault with the Railway for initiating selection process forfilling up 511 vacancies in Group ‘D’ posts, holding that recourseto direct recruitment was not justified without accommodatingall the land oustees and observed that it would be enough if theyare found suitable for the post by recruitment committee. InEchallenge by the Union of India, the High Court affirmed the saiddecision. Hence, the present appeals.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1.1 The policy of the Railway Board envisaged thatFappointments are to be made only on the fulfillment of theconditions specified in the instructions (Clause 1 of the letterdated 8 December 1989). The instructions stipulated that thedispensation to give preferential treatment to land oustees inemployment is to be limited to recruitments made from outsidein direct recruitment categories, subject to the terms andGconditions stipulated. The instructions also stipulated thatcandidates must fulfill the qualifications for the post and shouldbe found suitable by the appropriate recruitment committees. Inview of the terms and conditions, stipulated in the relevant instructions and circulars, it is not possible to accede to the viewof the Tribunal that the land oustees are not required to undergothe process of selection. Though the instructions provided forthe grant of preferential treatment, this was subject to thefulfillment of all other terms and conditions, stipulated in theinstructions. While laying down a policy for preferential treatment,the Union Government was entitled to stipulate the conditionssubject to which a claim for appointment in Group ‘C’ and Group‘D’ posts for the land oustees could be considered. The Tribunalexceeded the limits of its adjudicatory authority by virtuallysubstituting its own directions for the policy which was formulatedby the Union Government. Such an exercise, by its very nature,is impermissible. The terms on which a policy of offeringemployment to the land oustees should be framed is a matter tobe decided by the Ministry of Railways. Once this exercise hasbeen carried out, it was neither appropriate nor proper for theTribunal to trench upon that area. Out of 9,036 families whichwere covered by the Sambalpur-Talcher Rail Link Project, 2,805persons had applied for employment. 652 persons wereshortlisted, out of whom 553 persons appeared for the writtentest. 110 persons cleared the written test, out of whom76 were offered employment. 66 persons joined service.[Paras 18-20] [480-G-H; 481-A-E]

1.2 It would be extremely technical to reject the applicationswithout sufficient opportunity to the land oustees to comply withthe terms and conditions, including the submission of proof ofbeing land oustees. As a matter of fact, the policy which hasbeen formulated by the Ministry of Railways contemplated thatas land acquisition is done through the civil authorities, the villagesarpanch or tehsildar should be associated with the verificationof the claim of the oustees. Placing the entire burden on the landoustees would result in a deprivation of the benefit of the policy.Having laid down a salutary policy, it is necessary that the Ministryof Railways must coordinate its activities with the localadministration so as to ensure due verification of the claims madeby the applicants. Notwithstanding the earlier rejection of theclaims of 2,153 land oustees, steps should be taken for re- AB

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Averification of all the claims of persons who were rejected in thepast. Sufficient opportunity shall be granted to them to submitapplications afresh along with requisite certificates. Freshapplications be called within a period of three months. Anadvertisement shall be issued for that purpose with due publicityin the area. The applications submitted in pursuance to theBadvertisement by land oustees of the Sambalpur-Talcher LinkRail Project shall be reconsidered as against the 82 vacanciesand in addition thereto, against any other vacancies that maypresently exist in respect of the Sambalpur Division and thosewhich may arise in the next two years. The selection processCshall be completed within the next six months.[Paras 22, 23] [482-B-G]

1.3 Applicants would be entitled to an age relaxation of 15years. The applications of other land oustees apart from 2,153land oustees reflected in the tabulated chart shall also be dulyDconsidered by the Divisional Manager. However, applicants wouldbe required to fulfill all other prescriptions, including educationalqualifications, appearing at the written test, minimum agerequirements and medical fitness. The written test shall be heldexclusively for the applicants from among the land oustees. It isclarified that there shall be no displacement of the candidatesEwho were appointed in the process of direct recruitment. Thejudgments of the High Court and the Tribunal are set aside.[Paras 24, 25] [482-G-H; 483-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3030-3044 of 2019.F

From the Final Judgment and Order dated 21.06.2010 of theHigh Court of Orissa, Cuttack in OJC Case Nos.6154-6168 of 2002

A.N.S. Nadkarni, ASG, Ms. V. Mohana, Sr. Adv., Salvador SantoshRebello, Akshay Amritanshu, Ms.Ankita Sharma, R.B. Yadav, Mrs. AnilGKatiyar, Advs. for the Appellants.

R.P. Bhatt, Sr. Adv., Devansh A. Mohta, Nilakanta Nayak, AmitYadav, Kaushal Navoyan Mishra, A.P. Mayee, Tejaswi Kumar Pradhan,Kumar Gaurav, Robin Khokhar, B.N. Dubey, P. Dayal, Ms. Ritu Renitval, H

Rameshwar Prasad Goyal, Aniruddha P. Mayee, Sibo Sankar Mishra,Ms. Nidhi, Garvesh Kabra, Ms. Poga Kabra, Ms. Maithili Shubhangi,Shibashish Misra, Chandan Kumar Mandal, Somanatha Padhan, AshokAnand (for Ms. Anagha S. Desai) Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J

1. Leave granted.

2. The issue in the present appeals pertains to the rehabilitation ofland oustees, whose lands were acquired between 1984-85 and 1992-93for the Sambalpur-Talcher Rail Link Project.

3. The Union Government in the Ministry of Railways formulatedcertain policies on which the claim in the present appeals rests.

4. On 24 November 1987, the Railway Board formulated a policyin the context of its earlier decisions, and laid down guidelines for offeringemployment to persons displaced by the acquisition of land for railwayprojects. The letter dated 24 November 1987 stipulated that:

“(2) The Zonal Railway and Production Units and also projectauthorities may consider applications received from personsdisplaced on account of large-scale acquisition of land for projectson the Railways for employment of the displaced person, or hisson/daughter or wife for employment in Group ‘C’ or Group IVposts in their organization including engagement of casual labourand give them preferential treatment for such employment, subjectto the following conditions:

1. the individual concerned should have been displaced himselfor he should be the son/daughter/ward/wife of a persondisplaced from land on account of acquisition of the land by theRailways for the project.

2. Only one job on such preferential treatment should be offeredto one family.

3. This dispensation should be limited to recruitments madefrom outside in direct recruitment categories and to the firstrecruitment or within a period of two years after the acquisitionof the land, whichever is later.

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A4. It must also be ensured that the displaced persons did notderive any benefit through the State Government in the form ofalternative cultivable land etc.

5. The person concerned should fulfill the qualifications for thepost in question and also be found suitable by the appropriateBrecruitment Committees. In the case of group ‘C’ posts forwhich recruitment is made through the Railways ServiceCommission, the Chairman or the Member of the RailwaysService Commission should be associated in the recruitment.”

5. The Railway Board issued another circular on 10 NovemberC1989[1]. The subject of the circular was:

“Appointment to Group ‘C’ and Group ‘D’ posts on the Railwaysof members of families displaced as a result of acquisition of landfor establishment of projects.”

6. The circular laid down modalities for inviting applications fromDeligible persons belonging to families which were displaced as a result ofthe acquisition of land.

7. On 8 December 1989, the Railway Board issued another letterstipulating the procedure to be followed to implement the policy of offeringappointment in Group ‘C’ and Group ‘D’ posts in the Railways to oneEmember of every family displaced as a result of acquisition. The circular,inter alia, contains the following stipulations:

“3. Incidentally, as already clarified in the aforesaid instructions,not more than one job for one family can be given, even if theother conditions are satisfied. Further, once an offer of appointmentFhas been made, in no case should any further application claimingappointment on ground of acquisition of the same piece of landfor railway project, be entertained. All the applications receivedshould be properly registered in a register and the final disposalalso indicated to keep a proper check.”

G8. The present dispute originates in a batch of Original Applicationswhich were filed before the Central Administrative Tribunal at its CuttackBench by persons displaced by acquisition of their lands. The Tribunal,by its decision dated 20 February 2002, issued a slew of directions toensure the rehabilitation of land oustees. The Tribunal found fault with H1 No.E(NG)II/89/RC-2/38

the Railway Administration for initiating a selection process for filling up511 vacancies in Group ‘D’ posts, holding that recourse to directrecruitment was not justified without accommodating all the land oustees.The Tribunal observed that those of the land oustees who had appliedand were found to fulfill the educational qualifications and age requirementwill not have to undergo the selection procedure stipulated in theemployment notice issued on 31 July 1998. Instead, the Tribunal observedthat it would be enough if they are found suitable for the post by recruitmentcommittee.

9. The decision of the Tribunal was questioned by the Union ofIndia before the High Court of Orissa in O.J.C. No.6156 of 2002. TheHigh Court observed that the policy of the Union Government in theMinistry of Railways stipulated that one job should be offered on apreferential basis to a member of the affected family. The High Courtheld that out of 511 vacancies, as many as 508 had been filled up by‘outsiders’ other than land oustees and, as a matter of fact, except forthree persons, no job was offered to any of the family members. On thisreasoning, the High Court dismissed the Writ Petition and affirmed theview of the Tribunal.

10. Assailing the decision of the High Court, the Union of India isin appeal before this Court.

11. During the course of the hearing, Mr. A.N.S. Nadkarni, learnedAdditional Solicitor General of India, assailed the judgments of the Tribunaland of the High Court on the ground that the figures which had beenreflected in these judgments were erroneous.

12. In view of the submissions which were addressed before thisCourt, the following order was passed on 14 February 2019:

“In order to enable the Court to have a comprehensive assessmentof the situation, we have requested Mr. A.N.S. Nadkarni, learnedAdditional Solicitor General of India to provide the followingdetails:-

(i) The total number of families which were covered under theSambalpur-Talcher Rail Link Project;

(ii) The number of persons from amongst the affected familieswho had applied for employment; A

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A(iii) The number of persons from amongst the affected group whoappeared for the written test;

(iv) The number of persons who cleared the written test amongstthe above group;

(v) The number of persons who have been actually engaged byBthe Railway Administration from amongst the group of oustees;and

(vi) The grounds on which those who could not be accommodatedwere rejected.

C13. This Court shall also be apprised of how many of the remainingpersons meet the minimum qualifications and job description (other thanthe age requirement) as stipulated in the advertisement dated 31 July1998 (Annexure P-4).

This exercise shall be carried out and an additional affidavit shallDbe filed before the next date of hearing with an advance copy to thelearned counsel appearing for the contesting parties.”

14. In pursuance of the above directions, an additional affidavithas been filed by the appellants, through the Senior Divisional PersonnelOfficer, East Coast Railway, Sambalpur Division, Odisha.

The affidavit contains the following tabulated statement:

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“S.No. Details sought by this Hon’ble Court Particulars (i) Total number of families which were 9036 covered under the Sambalpur-Talcher Rail Link Project(ii) The number of persons from amongst the 2805 affected families who had applied for employment(iii) The number of persons from amongst the 652 persons were shortlisted after affected group who appeared for the written scrutinizing the Application, but test only 553 persons appeared for the written test(iv) The number of persons who cleared the 110 persons cleared the written written test amongst the above grouptest UNION OF INDIA & ORS. v. SHANKAR PRASAD DEEP[DR. DHANANJAYA Y. CHANDRACHUD, J.]

A(iv) The number of persons who cleared the 110 persons cleared the written written test amongst the above grouptest(v) The number of persons who have been 76 persons were offered actually engaged by the Railway employed by the Railway Administration from amongst the group of Administration, but only 66 oustees persons joined service. 7 persons did not join and 3 were Bdeclared medically unfit. (vi) The grounds on which those who could not Grounds for rejection of 2153 be accommodated were rejected land oustee-applicants: (1) 1831 persons (No land acquisition certificate enclosed) C(2) 215 persons (Insufficient proof of being land loser in the land acquisition certificate enclosed) (3) 40 persons D(Under qualified) (4) 31 persons (Incomplete application) (5) 14 persons (Over aged as per Advertisement Edt. 31.07.1998) (6) 13 persons (Under age as per Advertisement dt. 31.07.1998) (7) 7 persons F(Photographs in applications not attested) (8) 2 persons (Proper caste certificate not enclosed) GNote: Out of 2805 Applicant-land oustees who had applied, 2153 persons were rejected and 652 persons were shortlisted initially. H

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Number of remaining persons who meet the 586 persons other than those who minimum qualifications and job description joined service (652-66) meet the (other than the age requirement) as minimum qualification and job stipulated in the advertisement dated 31 description and job description July 1998 (Annexure P4)(other than the age requirement)”

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15. It has been stated that as of date, 82 posts remain unfilled. Ithas been stated in the affidavit that the finding of the Tribunal and theHigh Court that 508 out of 511 vacancies were filled in by ‘outsiders’(persons other than land oustees) is an apparent error, since 429 postswere filled in and 82 posts were kept vacant. Out of these 429 posts, 76Cposts were offered to persons from the land oustees category of whom66 joined service; 7 did not report and 3 were declared medically unfit.It has been stated that compensation of Rs 12.11 crores has been paid tothe families of the land oustees.

16. The dispute in the present case arose from a process ofDselection commenced on 31 July 1998 through an employment notice[2] ofthe then South Eastern Railway for recruitment of Gangmen in Group‘D’ posts in the Engineering Department of the Sambalpur Division.The advertisement stipulated that the candidates should have passed the8[th] standard besides which age requirements were set out. Theadvertisement stipulated that the selection procedure would be decidedEby the Additional Divisional Railway Manager (ADRM).

17. Thereafter, on 5 February 1999, an employment notice[3] wasissued by the Divisional Railway Manager, Sambalpur in terms of theearlier notice so as to permit the land oustees of the Sambalpur-TalcherRail Link Project to apply directly against the notification dated 31 JulyF1998, if they were otherwise eligible. However, all the terms and conditionspublished in the earlier notification remained unchanged.

18. The policy of the Railway Board envisages that appointmentsare to be made only on the fulfillment of the conditions specified in theinstructions (Clause 1 of the letter dated 8 December 1989). Moreover,Gthe instructions stipulate that the dispensation to give preferential treatmentto land oustees in employment is to be limited to recruitments made fromoutside in direct recruitment categories, subject to the terms andconditions stipulated. The instructions also stipulate that candidates must 2 No.SHP/3/98H3 No.SBP/1/99

fulfill the qualifications for the post and should be found suitable by theappropriate recruitment committees.

19. In view of the terms and conditions, stipulated in the relevantinstructions and circulars which have been noted earlier, it is not possibleto accede to the view of the Tribunal that the land oustees are not requiredto undergo the process of selection. Though the instructions providedfor the grant of preferential treatment, this is subject to the fulfillment ofall other terms and conditions, stipulated in the instructions. While layingdown a policy for preferential treatment, the Union Government wasentitled to stipulate the conditions subject to which a claim for appointmentin Group ‘C’ and Group ‘D’ posts for the land oustees could beconsidered. The Tribunal exceeded the limits of its adjudicatory authorityby virtually substituting its own directions for the policy which wasformulated by the Union Government. Such an exercise, by its verynature, is impermissible. The terms on which a policy of offeringemployment to the land oustees should be framed is a matter to bedecided by the Ministry of Railways. Once this exercise has been carriedout, it was, in our view, neither appropriate nor proper for the Tribunal totrench upon that area.

20. From the facts, which have been disclosed on affidavit, inpursuance of the previous order dated 14 February 2019, it emerges thatout of 9,036 families which were covered by the Sambalpur-TalcherRail Link Project, 2,805 persons had applied for employment. 652 personswere shortlisted, out of whom 553 persons appeared for the written test.110 persons cleared the written test, out of whom 76 were offeredemployment. 66 persons joined service.

21. We were concerned about the reasons which weighed in therejection of 2,153 land oustees – applicants, who were not shortlisted.The tabulated statement, which has been extracted earlier, indicates thegrounds for rejection, which are as follows:

(i) 1,831 persons had not enclosed land acquisition certificates;

(ii) 215 persons had furnished insufficient proof of being land losersin the land acquisition;

(iii) 40 persons did not have the minimum qualifications;

(iv) 31 persons had submitted incomplete applications; A

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A(v) 14 persons were over-aged;

(vi) 13 persons were reported under-age;

(vii) 7 persons had not attested their photographs; and

(viii) 2 persons had not submitted caste certificates.

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22. We are of the view that it would be extremely technical toreject the applications without a sufficient opportunity to the land ousteesto comply with the terms and conditions, including the submission ofproof of being land oustees. As a matter of fact, the policy which hasbeen formulated by the Ministry of Railways contemplates that as landCacquisition is done through the civil authorities, the village sarpanch ortehsildar should be associated with the verification of the claim of theoustees. Placing the entire burden on the land oustees would result in adeprivation of the benefit of the policy. Having laid down a salutarypolicy, it is necessary, in our view, that the Ministry of Railways mustcoordinate its activities with the local administration so as to ensure dueDverification of the claims made by the applicants.

23. Consequently, we direct that, notwithstanding the earlierrejection of the claims of 2,153 land oustees, steps should be taken forre-verification of all the claims of persons who were rejected in thepast. Sufficient opportunity shall be granted to them to submit applicationsEafresh along with requisite certificates. We direct that fresh applicationsbe called within a period of three months. An advertisement shall beissued for that purpose with due publicity in the area. The applicationssubmitted in pursuance to the advertisement by land oustees of theSambalpur-Talcher Link Rail Project shall be reconsidered as againstthe 82 vacancies and in addition thereto, against any other vacanciesFthat may presently exist in respect of the Sambalpur Division and thosewhich may arise in the next two years. The selection process shall becompleted within the next six months. The railway administration shallpro-actively engage with the State administrative machinery in ensuringproper verification of all claims.G

24. Applicants would be entitled to an age relaxation of 15 years.The applications of other land oustees apart from 2,153 land ousteesreflected in the tabulated chart shall also be duly considered by theDivisional Manager. However, applicants would be required to fulfill allother prescriptions, including educational qualifications, appearing at the H

UNION OF INDIA & ORS. v. SHANKAR PRASAD DEEP[DR. DHANANJAYA Y. CHANDRACHUD, J.]

written test, minimum age requirements and medical fitness. The writtentest shall be held exclusively for the applicants from among the landoustees. We clarify that there shall be no displacement of the candidateswho were appointed in the process of direct recruitment.

25. The appeals shall stand allowed. The judgments of the HighCourt and the Tribunal are set aside. There shall be an order in terms ofBthe directions given above.

26. Applications for impleadment/intervention are allowed. Thereshall be no order as to costs.

Divya Pandey

Appeals allowed.

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