Ghulam Nabi Mir vs State of Jammu & Kashmir and Others

Muzaffar Hussain Attar, J.—Petitioner's father donated 01 kanal of land to the Respondents for construction of Government Primary School

building at Chattibandi Bala, Bandipora. It is claimed that no compensation was paid to the father of the Petitioner as he was assured and promised

that his son would be appointed on any class IVth post. It is admitted at the Bar that Petitioner is working as a contingent paid Sweeper in the said

school from the year 1985 and thereafter 1997. Representations were filed before the Respondents requesting them to fulfill their promise of

appointing the Petitioner on class IVth post. Petitioner, when he did not get any fruitful response from the Respondents, was constrained to file this

writ petition before this Court seeking a direction to Respondent to consider his claim for being appointed on class IVth post in lieu of the land

donated by his father in strict compliance of SRO 181 notified on 03.06.1988.

On notice issued, Respondents have filed reply affidavit/objections in which it is admitted that Petitioner's father has donated land but it is denied

that any promise was made to him for appointing the Petitioner on class IVth post. It is also pleaded that SRO 181 of 1988 is not applicable to the

facts of this case as the land was donated prior to the date the said SRO was notified.

Heard learned Counsel for the parties. Considered the matter.

Petitioner is working as a contingent paid employee with the Respondent-department ever-since the land was donated to the Respondent

department by the Petitioner's father. SRO 181 of 1988 on which reliance is placed by the Petitioner is reproduced as under:

Jammu and Kashmir Government - Notification

SRO- 181. - In exercise of 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 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 Government for public purpose

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.

On the plain language of the said SRO, it transpires that a policy decision was taken by the Government notified vide SRO 181 on 03.06.1998

wherein it was provided to appoint 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 Government for public purpose, 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. It was also provided that in the event 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.

In terms of aforementioned SRO, a duty is cast on the Respondents to offer appointment to the Petitioner as the land of his father was acquired

by the Government for public purpose and the family was left with 50% or less of their agricultural land which averment made in the writ petition

has not been controverted. The expression ""same having been acquired by the Government"" clearly demonstrates that SRO 181 was applicable to

those cases as well where land was acquired before issuance of SRO 181. This interpretation gets support from plain words of the aforementioned

SRO as the same has been issued in consequence of decision taken by the Government to accommodate one of the family members of such family

whose land has been acquired without compensation and are left with 50% or less of their agricultural land. Petitioner, in such circumstances, was

to be appointed on a class IVth post, being 8th pass. The very fact that the Petitioner was engaged on consolidated basis renders support to his

claim that promise was made to the father of the Petitioner that his son will be appointed on class IVth post.

The State of J&K is a welfare State and creature of Constitution. When it makes a law or extends a promise which prompts a citizen to part

with his immovable property, then on the touchstone of Articles 14, 19 and 21 of the Constitution, a duty is cast on it to fulfill its promise and to

appoint the person in the Government service at the lowest rank of the cadre for which such a person is eligible. The Government, on the one

hand, cannot take away immovable property of the person as to hold and retain the same is Fundamental Right guaranteed under Article 19 of the

Constitution of India and on the other hand, after taking the property cannot turn-around and say that no promise was made. It cannot stand to

reason that a person will give one kanal of land when he is left with 50% or less of his agricultural land without either seeking compensation or any

benefit other than compensation from the Government.

In the facts and circumstances of this case, Government, in view of the mandate contained in Article 14 of the Constitution of India which

guarantees equal protection of law and equality before law, is duty bound to appoint Petitioner on the class IVth post. In the facts and

circumstances of this case, Respondents are thus held duty bound to offer appointment to the Petitioner and appoint him on any class IVth post.

Petitioner having been deprived of this right for all these years and meantime he having turned over aged, in view of the unjust attitude of the

Respondents, the upper age limit for seeking appointment in the Government will be deemed to have been relaxed.

For the above stated reasons this petition is disposed of along with all connected CMPs in the following manner:

By issuance of writ of Mandamus, Respondents are directed to offer appointment to the Petitioner and appoint him on any class 4th post deeming

the upper age bar having been relaxed within a period of two months from the date copy of this order is served on them.