Dulal Maity & Anr vs Special Secretary, Power & The Managing Director WBPDCL & Ors

Amrita Sinha, J

The petitioners claim themselves to be the successors in interest of persons from whom the Government of West Bengal acquired certain plots of land for the purpose of construction of the Kolaghat Thermal Power Station sometime in the year 1974.

The Government of West Bengal, Labour Department by a memo no. 497-EMP/1.0.13/80 dated March, 1981 issued a circular for straight away appointment of candidates belonging to families who might have been uprooted from their homestead or whose main source of income have been affected due to loss of agricultural land, as a result of the land been acquired by the Government of West Bengal for development projects such as the power plant at Kolaghat and the township at Haldia.

The Government of West Bengal, Department of Power by a notification being No. 10352 Power dated 27th September, 1979 constituted a Local Advisory Committee for a period of two years to deal with the local problems relating to acquisition of homestead land. The Committee in its meeting held on 22nd. March, 1980 decided to prepare the panel for employment under the West Bengal State Electricity Board preferably from the evictees who were employed under the contractor working at Kolaghat Thermal Power Project site. The names of the predecessors in interest of the petitioners were not recommended for providing employment by the Local Advisory Committee.

Being aggrieved by the same the predecessors in interest of the petitioners, along with others, moved a writ application before this court wherein, the learned Single Judge by an order dated 10th September, 1998 directed the respondent officers of the competent authorities to scrutinise the applications made by the applicants and thereafter place the same before the Local Advisory Committee.

Being dissatisfied with the order of the learned Single Judge the predecessors in interest of the petitioners along with others preferred an appeal before the Hon'ble Division Bench and by a judgment dated 15th December, 2000 the Hon'ble Appeal Court directed the cases of 312 persons as well as the intervener to be scrutinised and considered for appointment as and when new vacancy occurs. The Hon'ble Appeal Court hoped and trusted that the left out persons shall be considered by the Selection Committee and as and when they are found suitable then appointment may be given to them.

It is the case of the petitioners that in compliance of the order passed by the Hon'ble Division Bench, Kolaghat Thermal Power Plant Authority gave appointment to several persons after interval of four years and the petitioners expected that they would be given appointment in the next turn. The petitioners waited for a considerable period of time but as no appointment was forthcoming the petitioners were compelled to file the instant writ petition praying for necessary relief.

The petitioners submit that the principle of estoppel will be attracted in the instant case inasmuch as there was a promise on the part of the respondents to provide employment to at least one member of the families of the land losers. The predecessors in interest of the petitioners acted upon the promise given by the respondents and handed over their lands. The petitioners are highly prejudiced as their agricultural land has been taken away by the Government by paying a very meagre compensation and the employment, as promised, has not been given in their favour.

The petitioners pray that a direction may be issued upon the respondent authorities for providing any type of employment in their favour.

The petitioners rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of M. Balakrishnan vs M. Krishnamurthy reported in (1998)7 SCC 123 wherein the court held on the question of delay that the acceptability of the explanation for the delay is the sole criteria that has to be looked into for condonation of the period of delay in approaching the court and the length of the delay is not relevant. There is no presumption that delay in approaching the court is always deliberate. In every case of delay there can be some lapse on the part of the litigant concerned but that alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fide or does not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor.

The petitioners submit that there has been no intentional delay or laches on their part to approach the writ court. The petitioners waited for their turn for issuance of the letter of appointment, as even after four years of the order passed by the Hon'ble Division Bench the respondents had issued appointment letters, in favour of some of the candidates who were parties to the writ proceedings along with the predecessors in interest of the petitioners.

The petitioners refer and rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Arun Kumar Chatterjee vs South Eastern Railway & Ors. reported in AIR 1985 SC 482 on the point of delay and latches wherein the court held that when attention of the respondents were drawn to the injustice done it was the duty of the authorities to have rectified their mistakes.

The petitioners rely upon the decision of the three Judge Bench of the Hon'ble Supreme Court in the matter of P. C. Sethi & Ors. vs Union of India & Ors. reported in AIR 1975 SC 2164 wherein the court held that in view of the hopes held out by the Government from time to time the writ petition ought not to be dismissed on the ground of delay and laches.

To highlight the point that there is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution of India the petitioner relies upon the decision of Smt. Sudama Devi vs The Commissioner & Ors. reported in AIR 1983 SC 653.

The petitioners also rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Abhishek Kumar vs State of Haryana & Ors. reported in (2006)12 SCC 44 wherein it was held that the case of the appellant was required to be considered in terms of the rules which were in existence. The court held that the appellant was entitled to obtain appointment on compassionate ground as he was offered such appointment by the State.

The petitioners further rely upon the decision delivered by the Hon'ble Supreme Court in the matter of State of Haryana & Ors. vs M/s. Mahavir Vegetable Oil Pvt. Ltd. reported in 2011(2) Supreme 135 wherein the court held that where the Government makes a promise knowing or intending that it would be acted on by the promisee and in fact, the promisee, acting in reliance on it, alters his position, the Government would be bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required under Article 299 of the Constitution.

The petitioners submit that in the instant case the Government had promised the employment on account of acquisition of the land. On the promise of offering the employment the predecessors in interest of the petitioners handed over the land to the Government for development purpose. Presently, the Government is left with no other alternative but to provide employment to the petitioners. The petitioners are highly prejudiced as their sole agricultural land has been taken away by the Government and the employment, as promised, has not been given in their favour till date. The case of the petitioners will not be altered by virtue of a subsequent notification which required the land losers to enrol their names with the employment exchange under the exempted category and whenever there is requirement the Government will call for the names from the employment bank.

It has been submitted that in accordance with the provision of the General Clauses Act as enumerated in Section 6(c) inchoate right have already accrued in favour of the petitioners and the same will remain unaffected by the subsequent notification. It has been submitted that their right of getting employment is well protected under the General Clauses Act and the same is not merely a hope which can be destroyed by the subsequent notification issued by the respondents.

The petitioners allege discrimination inasmuch as the respondents have already issued appointment letters in favour of similarly situate persons. The only source of livelihood has been snatched away by the respondents and accordingly, the respondents ought to be directed to comply the principles of natural justice, equity and fair play.

The learned advocate appearing on behalf of the respondent West Bengal Power Development Corporation Ltd. submits that the cause of action of the instant case arose prior to 1980 when the land of the predecessors in interest of the petitioners were acquired by the Government. On acquisition of the land, compensation had been paid and accepted by the land losers. The predecessors in interest of the petitioners being aware that their names were not included in the list prepared by the Local Advisory Committee for the purpose of providing employment approached this court in the year 2000 and the Hon'ble Division Bench passed a specific order in the matter. The Hon'ble Division Bench after taking into consideration the facts of the case was pleased not to pass any mandatory order in the matter and had only expressed hope and trust that the left out persons shall be considered by the Selection Committee as and when they are found suitable and appointment may be given to them.

It has been submitted that by virtue of the notification dated 21st August, 2002 the State of West Bengal exercised the powers conferred under the West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings, Statutory Bodies, Government Companies and Local Authorities Act, 1999 and declared the persons belonging to the families of land losers in the exempted category. By virtue of the said notification the earlier circulars and the executive orders issued by the Government from time to time relating to employment of persons under the exempted category were superseded. In the said notification it was mentioned that for the purpose of enlistment of eligible persons in the category of land losers the Government may constitute a Screening Committee. The said Screening Committee will prepare a combined list, in order of priority, for families affected by acquisition of land and forward the same to the District Magistrate concerned. The District Magistrate shall forward the list of eligible persons to the Director of Employment for enrolment of their names in the exempted category cell for the purpose of filling up the vacancy reserved for the exempted category. The appointing authority shall write to the Director of Employment for names of candidates and the candidates should satisfy the qualification and other requirement prescribed for recruitment to the post.

It has been submitted that since the notification of 2002 superseded all the earlier notifications there is no scope for giving appointment to the petitioners directly at this stage. All government employments are made from the candidates whose names are sponsored by the employment exchanges.

It has been submitted that the petitioners are in effect praying for execution of the order passed by the Hon'ble Division Bench. There is no explanation regarding delay in approaching the court. The petitioners are presently over aged and no relief can be granted in their favour at such a belated stage.

The respondents rely upon the decision delivered by the Hon'ble Division Bench of this court in the matter of Abu Bakkar Siddiqui vs Director, BSSEB & Ors. reported in 2002(1) CHN 404 wherein the court held that giving employment to land losers is a matter of concession and such concession cannot be enforced in a writ petition. The concession of offering employment was over and above the payment of compensation to the land losers. The State cannot be directed to be burdened for giving employment to those persons over and above the compensation already paid to them.

The respondents rely upon an unreported judgment delivered by an Hon'ble Single Judge of this court on 19th September, 2013 in WP 22169 (W) of 2010 in the matter of Arun Kumar Manna & Ors. vs The State of West Bengal & Ors. wherein the court categorically held that the concession shown by the Government does not confer any legal right on the petitioners and the writ petition failed on the ground of unexplained delay.

The learned advocate appearing on behalf of the State respondents also raised the issue of delay in approaching the court and further submitted that no right accrued in favour of the petitioners on the basis of the concession that was given by the Government to the land losers.

The respondents pray for dismissal of the writ petition.

I have heard the rival contentions made on behalf of all the parties. The land appears to have been acquired long prior to 1980. The predecessors in interest of the petitioners approached the court in the year 2000. The Hon'ble Division Bench after considering the matter in details was pleased not to pass any mandatory order upon the respondents for consideration of their prayer. It was only a pious wish and trust of the court that the case of the appellants would be considered for appointment, as and when vacancy arises.

The petitioners are seeking for a direction upon the respondents for providing them with employment. The said prayer is made on the basis of the observation made by the Hon'ble Division Bench. Had the petitioners been aggrieved by the action of the respondents in not complying the order passed by the Hon'ble Division Bench they ought to have approached the court within a specified time.

It is settled law that delay defeats equity. The petitioner, after the order in the year 2000, did not take any steps for executing the order. Neither did they take any steps for exercising their right which allegedly accrued in their favour by virtue of the said order. The only explanation forwarded by the petitioners for approaching the court at a delayed stage is that the respondent Corporation issued appointment letters in favour of similarly situate persons even after four years from the date of the order passed by the Division Bench. The statement of the petitioners is not supported by any document. The respondents have categorically denied the contention of the petitioners and have submitted that after the publication of the notification in the year 2002 no appointments have been given in favour of such land losers de hors the guidelines as laid down in the said notification. The court is not supposed to conduct an enquiry to verify the allegations made by the petitioners regarding appointment of land losers at such a delayed stage. It is for the petitioners to approach the court with all possible evidences in support of their stand. Without any proof to substantiate their claim, that appointment has been given by the Corporation after four years of the order passed by the Division Bench, the same cannot be relied upon and no order can be passed on the basis of such submissions.

The petitioners submitted that since there is no time limit for filing application under Article 226 of the Constitution of India they are entitled to approach the court at any point of time.

It is true that there is no time limit specified for approaching the court under Article 226 of the Constitution of India but it is expected that a litigant should approach the court at the earliest opportunity available. As the relief under Article 226 is discretionary it is for the court to take a call whether or not to exercise the discretion in case there is inordinate delay in approaching the court. In the case at hand though an order was passed in favour of the predecessors in interest of the petitioners in the year 2000 the petitioners did not show due diligence to execute the said order within the time specified under law. The petitioners practically slept over their right for a considerable period of time and have approached this court in the year 2010, by that time the circular which the petitioner was relying upon for obtaining employment had been superseded by a subsequent circular of the year 2002.

In the decision relied upon by the petitioner in the case of M. Balakrishnan (supra) the court held that the condonation of delay is a matter of discretion of the court and the acceptability of the explanation is the only criteria. Here the explanation given by the petitioner for approaching the court at such a delayed stage cannot be accepted by the court.

The petitioners have misinterpreted the ratio laid down in the matter of P. C. Sethi & Ors. (supra). In the said case the court categorically held that the mere expression of opinion limited to the context and also being rather fake hopes, specific assurances are not binding on the Government to create an estoppel.

The judgment relied upon in the case of Abhishek Kumar (supra) is distinguishable on facts as in the said case the appellants were offered appointment by the State but the District Magistrate stood in the way and refused to provide the said post. It was under such circumstances the Supreme Court passed an order directing the respondents to issue an appointment letter to the appellant. Such is not the case at hand. The predecessors in interest of the petitioners were not recommended for employment from the very initial stage and accordingly no right accrued in their favour.

In the case of Mahavir Vegetable Oil Pvt. Ltd.(supra) the issue of estoppel was considered by the court. The Supreme Court held that where the Government makes a promise knowing or intending that would be acted upon, the Government would be bound by the said promise. In the instant case there was no expressed promise from the Government to provide employment to the petitioners. The land of the predecessors in interest of the petitioners was acquired and compensation duly paid. Over and above the compensation amount the Government decided to provide employment to one of the family members of the land loser. If any right at all accrued in favour of the predecessors in interest of the petitioners that right ought to have been persistently proceeded with. The petitioners never proceeded with their claim seriously. Intermittently they arose from their slumber and approached the court for relief. In spite of having an order in their favour in the year 2000 the petitioners waited till 2010 for filing the writ petition and thereafter again slept over the matter.

The Hon'ble Division Bench of this court in Abu Bakkar Siddiqui (supra) categorically held that giving employment to land loser is a matter of concession which cannot be enforced in a writ petition. The Hon'ble Single Judge of this court in the matter of Arun Kumar Manna & Ors. (supra) has considered the matter in details and has been pleased to dismiss the writ petition.

The petitioners persistently harp upon the point that the judgment delivered by the learned Single Judge in the matter of Arun Kumar Manna (supra) will not be applicable in the instant case as the issue of estoppel was neither raised nor considered by the court in the said case. It has been submitted that the Government had made a promise of giving appointment to one of the members of the family of land loser. The petitioners accordingly acted in terms of the said promise and by virtue of the order passed by the Hon'ble Supreme Court the promiser is bound to carry out his promise and the promisee is entitled to challenge the inaction of the promiser to act in accordance with the promise. As the promiser did not act in accordance with the promise and did not give employment to the family member of the land loser the petitioner is highly prejudiced.

The aforesaid submission of the petitioners is absolutely fallacious. The scheme for employment was published long after the land was acquired by the Government. In the proposal for acquisition of the land there was no promise for giving employment. The land loser was given compensation on acquisition of the land as per law. The scheme for employment was introduced long thereafter. At the time of acquisition of the land the petitioner could not have anticipated that the Government would come up with a scheme for employment in the near future. No right accrued in favour of either the predecessors in interest of the petitioners or the petitioners herein to get employment on the date the notice for acquisition was published. Incidentally, the petitioners herein and the petitioners in Arun Kumar Manna (supra) both are claiming employment on the basis of the order passed by the Hon'ble Division Bench in the year 2000. On similar facts the Hon'ble Single Judge dismissed the petition filed by Arun Kumar Manna (supra). The instant writ petition is liable to meet the same fate. It has been submitted that the order passed in the case of Arun Kumar Manna (supra) has been carried in appeal and the same is pending before the Hon'ble Division Bench. The fact of pendency of the appeal will not make any difference in the present case.

The argument of discrimination as put forth by the petitioner is bound to fall flat in view of the lethargic and indolent attitude of the petitioners. Had the petitioners being vigilant enough with their rights the fate of their case may have been different. Alleging discrimination after so many years will not aid the petitioner in any manner whatsoever.

It is settled law that public employment cannot be given de hors the rules. The same will amount to discrimination and be in violation of the provisions laid down in the Constitution of India. No order ought to be passed in the year 2019 for providing employment to the petitioners on account of acquisition of the land of their predecessors in interest in the year 1974.

I am not inclined to exercise my discretion in favour of the petitioners in the instant case. The writ petition fails and is hereby dismissed.

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