Akram Rather vs State of J. and K.

Tashi Rabstan, J.—Service Reservoir was required to be constructed at Wagam, Budgam J & K State Public Health Engineering

Department in the year 1986 acquired land for this purpose. The said land belongs to one Mohammad Akram Rather son of Ghulam Mohammad

Rather resident of Wagam Chadoora District Budgam - petitioner in the petition. The compensation was to be given to its owner-present

petitioner. The petitioner insisted for employment in the department. Neither compensation nor has employment in the department been given till

date to petitioner.

Land measuring 13 Marlas, according to petitioner, has been acquired by respondents in the year 1986 for construction of water tank at

Wagam on the assurance to provide suitable employment to petitioner. Petitioner claims that he has given more than half of his land to respondents,

on which water tank has long since been constructed. It is contended that petitioner approached respondents seeking benefits percolating from

SRO 181 of 1988 dated 3rd June 1988, that provides that appointment of one member of the family, who are left with 50% or less of their

agricultural land on account of the same having been acquired by Government for public purposes, shall be made without any reference to

Recruitment Board concerned, against a post available at the lowest rank of the cadre for which such a person is eligible. The SRO further

provides that in case vacancy is not available in the department that acquired the land, General Department shall make such appointment in any

Department where the vacancy may be available.

The respondents in their reply state that respondent department acquired land measuring 11 Marlas for construction of reservoir so that drinking

water is provided to the entire area. It is insisted that as per present status the land acquired is less than half kanal but not 50% of agricultural land

of petitioner which clearly indicates that SRO 181 is not applicable in the case of petitioner and that said SRO was modified whereunder petitioner

is entitled to compensation.

Heard and considered.

Relevant portion of SRO 181 dated 3rd June 1988, for facility of reference, is reproduced hereinafter:

SRO 181:- In exercise of the powers conferred by the proviso to section 124 of the Constitution of Jammu and Kashmir and notwithstanding

anything contained in the rules and orders for the time being in force the Governor hereby directs that the appointment of one member of the family

who are left with 50% or less of their agricultural land on account of the same having been acquired by the Government for public purposes, shall

be made without any reference to the Recruitment Board concerned, against a post available at the lowest rank of the cadre for which such a

person is eligible. In case the vacancy is not available in the Department which has acquired the land, the General Department shall make

appointment in any Department where the vacancy may be available.

SRO 181, as aforementioned, was withdrawn vide SRO 214 dated 11th July 1991. It would be advantageous to reproduce apropos portion of

SRO 214 below:

SRO 214:- In exercise of the powers by section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to rescind the notification

SRO 181 dated 3.6.1988:

Provided that any appointment made under the provisions of the said notification shall continue to remain valid; and no fresh appointments shall be

made in cases which are under process at the time of issuance of this notification.

A circular No. 24-GAD of 1991 dated 25th July 1991 was issued by the State Government, clarifying that whenever any major project in the

public sector is set up, it may be provided in the said project itself that employment to at least one member of the family whose land is acquired is

given. For facility of reference, said appropriate portion of Circular is reproduced below:

Attention of all Additional Chief Secretaries/Commissioner Secretaries to Govt. and Heads of the Departments is invited towards SRO 214 dated

11.07.1991, whereunder the benefit for providing employment to one of the members of the family who are left with 50% or less of their

Agricultural land on account of the same having been acquired by the Govt. for public purpose has been withdrawn.

However, in case any major project in the public or private sector is set up it may be ensured that provision in the project itself is made for giving

employment to at least one member of the families whose land is acquired.

It is not in dispute that the petitioner's land has been acquired by respondent department for public purpose. It is petitioner's case that his land

has been acquired and Water Reservoir built thereon. However, employment in terms of SRO was neither offered nor provided to petitioner.

Respondent's case for non-grant of employment is sought to be justified on the plea that SRO 181 stood withdrawn vide SRO 214. It is urged

that there was no enforceable right in favour of petitioner after withdrawal of SRO 181. It is also sought to be contended that Circular referred to

earlier will not come to assistance of petitioner as Water Reservoir would not fall within definition of ""Major Projects"".

Learned counsel for respondents states that even if petitioner had applied for employment in terms of SRO 181, yet it is provided in SRO 214

that even if the case was under process, no fresh appointment could be made. The Circular apart, learned counsel states that same were merely in

the nature of instructions and have no binding force.

The respondent department has received the benefits acquired by it. The employment to be provided to one member of the family under the

Scheme as envisaged in SRO 181 has not been given. The moment land was acquired, a right accrued in favour of petitioner that cannot be

extinguished or forfeited by issuance of a subsequent SRO 214. The subject matter of instant writ petition has already been settled in case titled

Bashir Ahmad Lone v. State of J & K and others (2009 (1) JKJ HC 121), Ali Mohammad Bhat and Another Vs. State of Jammu & Kashmir and

Others, .

SRO 181 is couched in mandatory terms. It talks of granting employment/appointment, being made to one member without any reference to

Recruitment Board concerned, against a post available in the lowest rank of the cadre for which such a person is eligible. It is further provided that

in case any vacancy is not available in the Department which is acquiring the land, the General Department is enjoined to make such an

appointment in a department where the vacancy may be available.

It is on record and is not disputed that water reservoir has been built on the land donated and accepted without payment of compensation and

in return one member was to be given employment. There is no statutory rule or procedure prescribed requiring applications within any stipulated

time. It is the petitioner's case that he had been pursuing the matter for his employment but to no avail despite his land having been acquired and

utilised. In view of foregoing discussion, writ petition is disposed of with a direction to respondents to offer employment to petitioner within a

period of three months in the category in which he may be eligible after granting relaxation, if any, required as per rules. In case the State

Government is unable to provide employment to petitioner, it shall pay reasonable monthly compensation for use of the land, to be determined by

Divisional Commissioner, from the date possession was taken till date. In addition the appellant would be entitled to be paid compensation on

acquisition of the land to be done at current market rates.