Ali Mohammad Bhat and Another vs State of Jammu & Kashmir and Others

Permod Kohli, J.—Petitioner No. 1 was owner of land measuring 9 marlas comprising Khasra No. 178 situated at Kharbagh. Petitioner

No. 2 is his son and a matriculate un-employed. The Education Department approached petitioner No. 1 for donation of land referred to above

for construction of a Government School on the condition that the petitioner's son i.e., petitioner No. 2 shall be given employment as Class IV

employee with the Education Department in lieu of the land. It is the case of the petitioner that land was given to the Education Department in the

year 1988 and a school building has been constructed thereon. Petitioners applied for employment in lieu of the land for petitioner No. 2 who was

qualified to be appointed as Class IV. This was in terms of SRO 181 dated 3.6.1988. Despite repeated requests case of the petitioner was not

settled. Petitioners approached various functionaries of the department, Additional Deputy Commissioner, Srinagar vide his communication dated

19.12.1992 requested the Deputy Director (P/S) directorate of School Eduction Kashmir to process the case of the petitioner No. 2 for

employment in lieu of land donated by his father. No action was initiated on that basis. Another communication was addressed by Additional

Commissioner, Srinagar to the same functionaries under his No. 158/LAC dated 2.6.2001 which reads as under:

The Deputy Director (P/S), Directorate of School Education, Srinagar.

No:- 158/LAC Dated 2.6.2001

Sub: Land Acquisition case of Ali Bhat S/o Lassa Bhat R/o Kharbagh Ganderbal for construction of P/S building.

Ref: This Office No. 1149/SC/Misc. dated 19.12.1998.

Sir,

In enclosing herewith application of above named person I am to say that his land measuring 9 marlas under Khasra No. 178 village Kharbagh has

been acquired by your Department and a building stands constructed on this land in the year 1988. He has neither been paid any compensation of

the land nor his son employed in the department.

You will please look into the matter and intimate the factual position at your earliest.

Yours faithfully,

Sd/-

Addl. Deputy Commissioner, Srinagar.

Nothing seems to have been done and the petitioners were informed that SRO 181 sands repealed by a subsequent SRO 214 dated 11th July,

1991 whereunder no fresh appointment can be made even in respect to cases which are under process at the time of the issuance of this SRO. On

the denial of appointment to the petitioner No. 2, petitioners were constrained to approach this Court through the medium of the present petition

seeking a direction to provide employment to petitioner No. 2 in lieu of land donated by petitioner No. 1 and also to relax the age bar as at the

time of the filing of the petition, petitioner No. 2 was likely to cross the maximum age limit. A further writ of certiorari is asked for quashing SRO

214 dated 11th July, 1991 to the extent it deprives those persons whose cases were under process under SRO 181. In reply to petition

respondents have not disputed the acquisition of land for purposes of construction of school from the petitioners. The stand of the respondents is

that SRO 181 of 1988 stands rescinded and substituted by SRO 214 dated 11th July 1991, whereunder petitioner cannot be provided

employment in lieu of the land. It is stated that the averments made in the writ petition are vague and it is not known whether school was

constructed on the land or not.

It have heard learned counsel for the parties.

The petition is admitted to hearing and with the consent of learned counsel for the parties, it is taken up for final disposal.

At the time acquisition of land by the respondents, SRO 181 dated 3.6.1988 was in operation. Said SRO is reproduced as under:

SRO 181:-In exercise of the powers conferred by the proviso to Section 124 of the Constitution of Jammu and Kashmir and not with standing

anything contained in the rules and orders for the time being in force, the Governor hereby directed 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 such

appointment in any Department where the vacancy may be available, By order of the Government.

In terms of the aforesaid SRO where after acquisition the person is left with 50% or less of their land, one member of the family is entitled to

employment in the department which acquires the land. This SRO further provides that if vacancy is not available in the department which has

acquired the land, General Department shall make such appointment in any department where the vacancy may be available. In para 3(ii) of writ

petition, petitioner has specifically mentioned that 9 marlas was the whole immovable property of the petitioner No. 1, therefore, the case of the

petitioners squarely fall within the scope of SRO 181. Respondents have not denied the contents of communication dated 19.12.1992 and

2.6.2001 from Additional Deputy Commissioner, Srinagar to Directorate of School Education. In letter dated 2.6.2001 it is specifically admitted

that the department has constructed a building on the acquired land in the year 1988, hence the stand of the respondents that it is not known

whether the building has been constructed or not, is belied. Other contention of the petitioner is that there was an express promise to the petitioners

that the petitioner No. 2 shall be provided employment in lieu of donation of land. A specific averment has been made in para 3(i) and ground (A)

of the petition. The respondents in their objections have not denied these averments specifically or even by necessary implication, therefore, the

only inference that can be drawn is that the averments made in the writ petition are admitted. Land of the petitioners having been taken away on the

promise of providing employment to the petitioner No. 2, respondents cannot backout from their promise and deny employment to the petitioner

No. 2.

It is vehemently argued by the learned counsel or the respondents that SRO 181 dated 3.6.1988 having been rescinded by subsequent SRO

No. 214 of 1991, petitioners case cannot be considered in view of bar for fresh appointment as created under SRO 214. This contention of the

respondents cannot be accepted for the simple reason that the petitioners land was taken away in the year 1988 when SRO 181 was in operation.

Merely because respondents did not appointment the petitioner No. 2 till SRO 214 came into being cannot deprive the petitioner from his right

which was created under SRO 181. From the communications placed on record by the petitioners it is evident that delay in making appointment is

attributable only to respondents. A poor man was deprived of his property on solemn promise of providing employment. Now respondents cannot

be allowed to plead that with the passage of time, the right of the petitioner stands defeated on account of subsequent change in law. Petitioner

who is government by SRO 181 because his right to seek employment is created under said SRO the moment land of the petitioners is taken away

and utilized by the respondents. Subsequent change in law cannot take away the vested right of the petitioner. Impugned SRO 214 of 1991 dated

11th July 1991 to the extent it defeats the right of the petitioner is not sustainable in law. It is accordingly held that petitioners right under SRO 181

to seek employment remains in tact not withstanding issuance of SRO 214. Petitioners have relied upon 1998 Lab LC 100 Vol 31 para 34, which

is reproduced as under:

Apart from being violative of the rights then available under Articles 31(1) and 19(1) (f), the impugned amendments, insofar as they have been

given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are

unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of person that had become payable to

employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544

that were in force at the time of their retirement.

Apart from the SRO 214 being violative of Articles 14 and 16, respondents are also estopped from denying employment to the petitioners after

taking away their property without paying compensation and on the promise of providing employment. Doctrine of equitable estoppel is fully

attracted in the facts and circumstances of the present case. In addition to this every citizen has legitimate expectations that the modal State with its

socialistic and democratic approach will act fairly particularly when the citizens are induced to act in a particular manner on the promise of some

incentive. If a person acts on any legitimate expectations and changes his positions to his detriments, he cannot be refused the benefit of any

promise or the expectations which is generated by the State. This petition accordingly, succeeds. Respondents are directed to provide employment

to petitioner No. 2 as Class IV in the Education Department of the State within a period of two months in lieu of the land of the petitioners.