ANIL KUMAR versus UNION OF INDIA & ORS. on 22 February 2019

ANIL KUMAR

v.

UNION OF INDIA & ORS.

(Civil Appeal No.1958 of 2019)

FEBRUARY 22, 2019

[DR. DHANANJAYA Y. CHANDRACHUD ANDNAVIN SINHA, JJ.]

Circulars/Notices – Appellant’s father constructed aresidential house – Land over which the house was constructedwas acquired for a Railway Project – List of persons displaced inconsequence of the project undertaken by the Railways –Recommendation of the appellant’s case for appointment in servicein terms of policy circular of the Railway Board dated 19[th] April,2006 offering employment to displaced persons – Writ petition filedby the appellant before the High Court seeking benefit of the saidcircular – High Court directed that the claim of the appellant beconsidered for the grant of Group ‘D’ employment – Appellantsubmitted representation – Rejected – Second Writ Petition filed bythe appellant – Rejected by Single Judge – Order affirmed by theDivision Bench – On appeal, held: Initially by circular dated 1stJanuary, 1983, the Railway Board dealt with appointment to Group‘C’ and ‘D’ posts in the Railways, of members of families displacedas a result of the acquisition of land for the establishment of projects– Said Policy circular was specifically adverted to in the subsequentcircular dated 19[th] April, 2006– As per the subsequent circular theRailway Board decided that the policy to offer employment todisplaced persons should not cover displaced persons where onlya strip of land had been acquired – At the same time, it also stipulatedthat the claim can be considered for appointment against a Group‘D’ post where a “large area, house or substantial livelihood hasbeen taken away/snapped in the process” – Case of the appellantfell within the ambit of paragraph 2 of the circular dated 19[th] April,2006 – Entire house of the appellant was demolished – Rejection ofthe appellant’s claim was contrary to the terms of the binding policycircular formulated by the Union of India in the Ministry of Railways– Undoubtedly, the grant of appointment to persons displaced as a

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Aresult of acquisition is a matter which is within the purview of thepolicy discretion – No mandamus can lie in the absence of a policy– However, where a policy has been laid down by the Uniongovernment as in the present case, the terms of the policy can beenforced – Impugned judgment set aside – Appellant’s claim forappointment to a Group ‘D’ post be implemented within a period ofBtwo months from today by granting an age relaxation, if required.

Father of the appellant constructed a residential house. Theland over which the house was constructed was acquired for theAra-Sasaram Railway Project. Name of the appellant’s fatheroccurred in a list of the persons displaced in consequence of theCproject undertaken by the Railways. Appellant’s case wasrecommended for appointment in service in terms of policycircular of the Railway Board dated 19[th] April 2006. After theappellant’s father died, writ petition was filed by the appellantbefore the High Court seeking benefit of the said circular. TheDHigh Court directed the claim of the appellant to be consideredfor the grant of Group ‘D’ employment. Appellant submittedrepresentation, which was rejected. Second writ petition filed bythe appellant was rejected by the Single Judge. Order affirmedby the Division Bench. Hence, the present appeal.

EAllowing the appeal, the Court

Conclusion

EAllowing the appeal, the Court

HELD: 1.1 The policy circular dated 1 January 1983 wasspecifically adverted to in the subsequent circular dated 19 April2006. The subsequent circular stipulates that the Railway Boardhad decided that the policy to offer employment to displacedFpersons should not cover displaced persons where only a strip ofland had been acquired. At the same time, it stipulated that theclaim can be considered for appointment against a Group ‘D’ postwhere a “large area, house or substantial livelihood has beentaken away/snapped in the process”. The case of the appellantfell within the ambit of paragraph 2 of the circular dated 19 AprilG2006. In rejecting the application of the appellant, the groundwhich weighed with the Railway Authorities was that only a stripof land belonging to the appellant had been acquired. This is nota correct reading of the circular. The circular contemplates thatwhen a large area, house or substantial livelihood have been takenHaway, the case for providing alternative employment in a Group ‘D’ post would be considered. Those phrases are disjunctive.The entire house of the appellant was demolished. It was statedthat there was no specific guideline from the Railway authoritiesto provide a job in lieu of acquisition of land in Ara-Sasaramproject. This was not a valid ground to reject the claim, oncethere was a general policy circular dated 19 April 2006 whichheld the field. In the counter affidavit that was filed before theHigh Court, an additional ground was sought to be urged namelythat it was only if an exception is granted by the Ministry ofRailways that the application would be considered for appointmentin accordance with the prevailing norms. There is no justificationfor this submission since it would result in the exercise of a pickand choose approach, contrary to the policy circular dated 19April 2006. [Paras 17, 18][1161-B-G]

1.2 The rejection of the claim of the appellant was contraryto the terms of the binding policy circular formulated by the Unionof India in the Ministry of Railways. Undoubtedly, the grant ofappointment to persons displaced as a result of acquisition is amatter which is within the purview of the policy discretion. Nomandamus can lie in the absence of a policy. However, where apolicy has been laid down by the Union government as in thepresent case, the terms of the policy can be enforced. Therejection of the claim of the appellant was for extraneous reasonsand based on irrelevant considerations. Government in theMinistry of Railways formulated a policy. The failure ofimplementation results in a failure of social justice. The policycirculars were substantive attempts to enhance social welfare.Denial of benefits to the appellant has led to a long and tortuousroad to justice. The impugned judgment of the High Court is setaside. The claim of the appellant for appointment to a Group ‘D’post shall be implemented within a period of two months fromtoday by granting an age relaxation, if required. [Paras 19,20][1161-G-H; 1162-A-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No.1958 of2019.

From the Judgment and Order dated 03.01.2018 of the High Courtof Judicature at Patna in Letters Patent Appeal No.1929 of 2016 in CivilWrit Jurisdiction Case No.25313 of 2013.

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AUday Gupta, Ms. Shivani Lal, Hiren Dasan, M.K. Tripathi, SulalitSisodia, Mrs. Sarla Chandra, Advs. for the Appellant.

Ms. Vibha Datta Makhija, Sr. Adv., Dhruv Pall, Ms. AprajitaMukherjee, Samarth Khanna, Bharat Singh, Raj Bahadur, M.P. Gupta,Mrs. Anil Katiyar, Advs. for the Respondents.BThe Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J.

1. Leave granted.

This appeal arises from the judgment of a Division Bench of theCHigh Court of Judicature at Patna dated 3 January 2018 in a LettersPatent Appeal[1].

2. The father of the appellant, Lalan Pandey, had constructed atwo storied house together with a part of a third floor on Plot No. 1844,appurtenant to Khata No. 228, ad-measuring 0.06 acres, situated atDMauza-Pakri, Ara in the District of Sasaram in Bihar. The land overwhich the residential house was constructed was acquired in 2006 forthe Ara-Sasaram Railway Project.

3. On 7 June 2008, the Collector Bhojpur, Ara submitted a list ofpersons displaced in consequence of the project undertaken by theERailways. The name of the appellant’s father occurred at serial no. 8 inthe list of persons whose residential houses had been fully demolished.A communication was issued on 8 August 2008 by the Executive Engineer(Construction), East Central Railway, Ara to the Deputy Chief Engineerrecommending the case of the appellant for appointment in service interms of a policy circular of the Railway Board dated 19 April 2006.F4. Since the letter dated 7 August 2008 contains a statement ofrelevant facts, the letter is extracted below:- “The house of Sh. Lalan Pandey s/o Late Ram Naresh Pandeyof village Jagdeo Nagar, Pakri, Ara is coming centrally in theGalignment of Ara-Sasaram New Railway line with following landdetails:

Khata No. 228P.S. No. 236

Khesara No. 1844/32Pakri (ARA)

H 1Letters Patent Appeal No. 1929/2016 in Civil Writ Jurisdiction Case No. 25313/2013

The complete demolition of the house is required for constructionof new line at this location.

Sh. Lalan Pandey s/o Late Ram Naresh Pandey has demolishedabout 90% part of the house constructed in a two kattha land withcovered area approximate 1110 sq. feet. He had two-storiedbuilding with part construction in third story.

Sh. Lalan Pandey, s/o Late Ram Naresh Pandey is a completelydisplaced person due to construction of new line and his livelihoodhas suffered due to displacement. A report on assessment byDLAO/Ara office regarding size and facilities available at hisdemolished house is enclosed for reference.

Vide this office letter under reference above the application wasforwarded for consideration for job in Railway as per the extantprovisions.

His case may be considered for job in Railway in terms of RailwayBoard’s letter No. E(NG) II/2002/RC-5/4 dated 19.04.2006 (copyenclosed)”

5. Between 2008 and 2011, before he died, the appellant’s fatherhad an exchange of correspondence with the authorities for requestingthem that the benefit of the policy circular of 19 April 2006 be grantedsince his entire house had been demolished. After his father died on 15May 2011, the appellant instituted a writ petition before the High Court[2]seeking that relief.

6. After a counter affidavit was filed in the proceedings, the HighCourt by its order dated 11 December 2012 directed that the claim ofthe appellant should be considered by the General Manager, East CentralRailways, Vaishali at Hazipur for the grant of Group ‘D’ employmentwithin a period of three months.

7. The appellant then submitted a representation which wasrejected by an order dated 20 February 2013. The reasons for therejection were as follows:- “(i) As per Annexure-1 (Railway Board Circular No. E(NG)II/2002/RC-5/4 dated 19.04.2006) “...no cognizance by way ofoffering employment to displaced persons should be given whereinonly a strip of land for construction of a line has been acquired...”

2Civil Writ Jurisdiction Case No. 4493/2012

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A(ii) In the impugned case a small piece of land measuring 0.06acre only was acquired in the year 2006 vide Annexure-C (CaseNO.01/2005-06). As such this does not conform to therequirement of above mentioned Board’s Circular to entitle theapplicant for job in railway.

B(iii) The letter of Executive Engineeer/ Construction No. XEN/CAra/AS-6 dated 08.08.2008 cited as Annexure-4 is a routineforwarding letter for consideration of the claim for job in railway.It did not contain any express commitment from administration toprovide job to the claimant.”

C8. The appellant then filed a Second Writ Petition[3] challenging anorder of rejection. The Writ Petition was rejected by a learned SingleJudge by an Order dated 31 August 2016 which has been affirmed in aLetters Patent Appeal[4] by the Division Bench.

9. The case of the appellant is based on the policy circulars of theDUnion Government in the Ministry of Railways. Initially by a Circulardated 1 January 1983, the Railway Board dealt with appointment toGroup ‘C’ and ‘D’ posts in the Railways of members of families whoare displaced as a result of the acquisition of land for the establishmentof projects. Certain guidelines were framed under the policy circularunder which it was envisaged that Zonal Railways and project authoritiesEmay consider applications received from persons displaced on accountof large scale acquisition of land for railway projects, so as to provideemployment to a displaced person or a son, daughter or spouse in Group‘C’ or Group ‘IV’ posts.

The guidelines are as follows:-

F“1. The individual concerned should have been displaced himselfor he should be the son/daughter/ward/wife of a person displacedfrom land on account of acquisition of the land by the Railwaysfor the projects.

2. The dispensation should be limited to recruitments made fromGoutside in direct recruitment categories and to the first recruitmentor within a period of two years after the acquisition of the land,whichever is later.

3Civil Writ Jurisdiction Case No. 25313/20134LPA No. 1929/2016H

3. It must also be ensured that the displaced person did not deriveany benefit through the State Government in the form of alternativecultivable land etc.

4. The person concerned should fulfil the qualification for the postin question and also be found suitable by the appropriate recruitmentcommittees. In the case of Group C posts for which recruitmentis made through the Railway Service Commission, the Chairmanor the Member of the Railway Service Commission should beassociated in the recruitment.”

10. Subsequently on 19 April 2006, a circular was issued by theRailway Board in which the earlier guidelines were adverted to and theissue was revisited. The circular, insofar as it is relevant, reads thus:

“2. The whole issue has been deliberated upon at length in thefull board meeting and it has been decided that no cognizance byway of offering employment to displaced persons should be givenwherein only a strip of land (viz., for construction of a line) hasbeen acquired but the same can be considered in Group D postsonly wherein large area, house or substantial livelihood has beentaken away/snapped in the process.

3. It has further been decided by the board that past cases whererecruitments are already in process or where any commitmenthas been given to provide employment by the competent authority,such recruitment process should be finalised and employmentprovided in Group D posts only to eligible persons.”

11. In the Writ Petition which the petitioner filed before the HighCourt, the prayer for mandamus was specifically based on the RailwayBoard Circular dated 19 April 2006. The relevant averments in the writpetition reads thus; “9. That it is submitted that the Collector, Bhojpur, Ara vide MemoNo. 211 dated 07.06.2008 sent a list of persons whose house wasdemolished with recommendation for employment and the list findsplace the name of Lalan Pandey. The Executive Engineer, Cons.,E.C. Railway, Ara has written a letter dated 08.08.2008 to Dy.Chief Engineer, Con./E.C. Railway/Danapur mentioning thereinthat Lalan Pandey is a completely displaced person due to A

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Aconstruction of new line and his livelihood has suffered due todisplacement. It was requested for consideration of thePetitioner’s case for job in Railways in terms of Railway Board’sletter dated 19.04.2006.”

12. The response of the Railways to the above averment containedBno denial of the averments contained in paragraph 9. Paragraph 10 ofthe response reads as follows:- “10. That with regard to statement made in paragraph 9 of thewrit petition it is stated that the same is a matter of records, hencethere is no comments.”C

13. The learned Single Judge rejected the writ petition, observingthat a claim for appointment in service, apart from an entitlement tocompensation for the acquisition of land, is by way of an exception. TheHigh Court also held that the policy circular could not be applied sincethe acquisition in question was made prior to 2006.

D14. The Letters Patent Appeal was rejected by the Division Benchrelying upon the statement of the counsel for the Railways thatemployment had not been provided even in a single case for acquisitionof land for the Ara Sasaram Railway project.

15. Learned counsel for the appellant has, while assailing theseEfindings submitted that the acquisition was in year 2006 and the case ofthe appellant is squarely governed by the policy circular. It was urgedbefore this Court that the grounds which weighed with the authorities inrejecting the representation are contained in the speaking order dated 20February 2013 of the General Manager of the East Central Railwaywhich was passed in pursuance of the direction of the High Court. ItFwas urged that the policy circular, contrary to what is stated in the order,would encompass the case of the appellant since the entirety of thehouse belonging to the appellant had been demolished. Hence the factthat only a strip of land was involved would not disentitle the appellantfor the grant of relief.G

16. On the other hand, Ms. Vibha Dutta Makhija, learned seniorcounsel appearing on behalf of the respondents submitted that the policycircular dated 1 January 1983 as well as the subsequent policy circulardated 19 April 2006 must be read together. It was urged that as a matterof fact, para 3 of the policy circular dated 19 April 2006 stipulated that H

past cases where recruitments were already in process and wherecommitment had been given to provide employment should be finalisedand employment be provided in Group ‘D’ posts only to the eligiblepersons. In the circumstances, it was urged that the appellant was notentitled to the benefit of the policy circular.

17. The policy circular dated 1 January 1983 was specificallyadverted to in the subsequent circular dated 19 April 2006. The subsequentcircular stipulates that the Railway Board had decided that the policy tooffer employment to displaced persons should not cover displaced personswhere only a strip of land had been acquired. At the same time, it stipulatedthat the claim can be considered for appointment against a Group ‘D’post where a “large area, house or substantial livelihood has been takenaway/snapped in the process”. The case of the appellant fell within theambit of paragraph 2 of the circular dated 19 April 2006. In rejecting theapplication of the appellant, the ground which weighed with the RailwayAuthorities was that only a strip of land belonging to the appellant hadbeen acquired. This is not a correct reading of the circular. The circularcontemplates that when a large area, house or substantial livelihood havebeen taken away, the case for providing alternative employment in aGroup ‘D’ post would be considered. Those phrases are disjunctive.The entire house of the appellant was demolished. It was stated thatthere was no specific guideline from the Railway authorities to provide ajob in lieu of acquisition of land in Ara-Sasaram project. This was not avalid ground to reject the claim, once there was a general policy circulardated 19 April 2006 which held the field.

18. In the counter affidavit that was filed before the High Court,an additional ground was sought to be urged namely that it was only if anexception is granted by the Ministry of Railways that the applicationwould be considered for appointment in accordance with the prevailingnorms. There is no justification for this submission since it would resultin the exercise of a pick and choose approach, contrary to the policycircular dated 19 April 2006.

19. For the above reasons, we have come to the conclusion thatthe rejection of the claim of the appellant was contrary to the terms ofthe binding policy circular formulated by the Union of India in the Ministryof Railways. Undoubtedly, the grant of appointment to persons displacedas a result of acquisition is a matter which is within the purview of the A

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Apolicy discretion. No mandamus can lie in the absence of a policy.However, where a policy has been laid down by the Union governmentas in the present case, the terms of the policy can be enforced. Therejection of the claim of the Appellant was for extraneous reasons andbased on irrelevant considerations. Government in the Ministry ofRailways formulated a policy. The failure of implementation results in aBfailure of social justice. The policy circulars were substantive attemptsto enhance social welfare. Denial of benefits to the appellant has led toa long and tortuous road to justice.

20. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High Court dated 3 January 2018.CIn the facts and circumstances of the case, in consequence, we directthat the claim of the appellant for appointment to a Group ‘D’ post shallbe implemented within a period of two months from today by grantingan age relaxation, if required.

21. The appeal is, accordingly, allowed. There shall be no orderDas to costs.

22. Pending application(s), if any, shall stand disposed of.

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Divya Pandey

Appeal allowed.

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