Union Of India vs Shankar Prasad Deep Etc.Etc.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.3030-3044 OF 2019 (Arising out of SLP(C) No.696-710 of 2011)

UNION OF INDIA & ORS. APPELLANT(s)

VERSUS

SHANKAR PRASAD DEEP ETC.ETC. RESPONDENT(s)

J U D G M E N T

DR DHANANJAYA Y CHANDRACHUD, J

Leave granted.

The issue in the present appeals pertains to the

rehabilitation of land oustees, whose lands were acquired

between 1984-85 and 1992-93 for the Sambalpur-Talcher

Rail Link Project.

The Union Government in the Ministry of Railways

formulated certain policies on which the claim in the

present appeals rests.

On 24 November 1987, the Railway Board formulated a

policy in the context of its earlier decisions, and laid

down guidelines for offering employment to persons

displaced by the acquisition of land for railway

projects. The letter dated 24 November 1987 stipulated Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2019.03.26 that:

18:10:56 IST Reason:

“(2) The Zonal Railway and Production Units and also project authorities may consider applications received from persons displaced on account of large-scale acquisition of land for 2

projects on the Railways for employment of the displaced person, or his son/daughter or wife for employment in Group ‘C’ or Group IV posts in their organization including engagement of casual labour and give them preferential treatment for such employment, subject to the following conditions:

1. the individual concerned should have been displaced himself or he should be the son/daughter/ward/wife of a person displaced from land on account of acquisition of the land by the Railways for the project.

2. Only one job on such preferential treatment should be offered to one family.

3. This dispensation should be limited to recruitments made from outside in direct recruitment categories and to the first recruitment or within a period of two years after the acquisition of the land, whichever is later.

4. It must also be ensured that the displaced persons did not derive any benefit through the State Government in the form of alternative cultivable land etc.

5. The person concerned should fulfill the qualifications for the post in question and also be found suitable by the appropriate recruitment Committees. In the case of group ‘C’ posts for which recruitment is made through the Railways Service Commission, the Chairman or the Member of the Railways Service Commission should be associated in the recruitment.”

The Railway Board issued another circular on 10

November 19891. The subject of the circular was:

“Appointment to Group ‘C’ and Group ‘D’ posts on the Railways of members of families displaced as a result of acquisition of land for establishment of projects.”

1 No.E(NG)II/89/RC-2/38 3

The circular laid down modalities for inviting

applications from eligible persons belonging to families

which were displaced as a result of the acquisition of

land.

On 8 December 1989, the Railway Board issued another

letter stipulating the procedure to be followed to

implement the policy of offering appointment in Group ‘C’

and Group ‘D’ posts in the Railways to one member of

every family displaced as a result of acquisition. The

circular, inter alia, contains the following

stipulations:

“3. Incidentally, as already clarified in the aforesaid instructions, not more than one job for one family can be given, even if the other conditions are satisfied. Further, once an offer of appointment has been made, in no case should any further application claiming appointment on ground of acquisition of the same piece of land for railway project, be entertained. All the applications received should be properly registered in a register and the final disposal also indicated to keep a proper check.”

The present dispute originates in a batch of Original

Applications which were filed before the Central

Administrative Tribunal at its Cuttack Bench by persons

displaced by acquisition of their lands. The Tribunal,

by its decision dated 20 February 2002, issued a slew of

directions to ensure the rehabilitation of land oustees.

The Tribunal found fault with the Railway Administration

for initiating a selection process for filling up 511

vacancies in Group ‘D’ posts, holding that recourse to 4

direct recruitment was not justified without

accommodating all the land oustees. The Tribunal

observed that those of the land oustees who had applied

and were found to fulfill the educational qualifications

and age requirement will not have to undergo the

selection procedure stipulated in the employment notice

issued on 31 July 1998. Instead, the Tribunal observed

that it would be enough if they are found suitable for

the post by recruitment committee.

The decision of the Tribunal was questioned by the

Union of India before the High Court of Orissa in O.J.C.

No.6156 of 2002. The High Court observed that the policy

of the Union Government in the Ministry of Railways

stipulated that one job should be offered on a

preferential basis to a member of the affected family.

The High Court held that out of 511 vacancies, as many as

508 had been filled up by ‘outsiders’ other than land

oustees and, as a matter of fact, except for three

persons, no job was offered to any of the family members.

On this reasoning, the High Court dismissed the Writ

Petition and affirmed the view of the Tribunal.

Assailing the decision of the High Court, the Union

of India is in appeal before this Court.

During the course of the hearing, Mr. A.N.S.

Nadkarni, learned Additional Solicitor General of India,

assailed the judgments of the Tribunal and of the High

Court on the ground that the figures which had been 5

reflected in these judgments were erroneous.

In view of the submissions which were addressed

before this Court, the following order was passed on 14

February 2019:

“In order to enable the Court to have a comprehensive assessment of the situation, we have requested Mr. A.N.S. Nadkarni, learned Additional Solicitor General of India to provide the following details:-

(i) The total number of families which were covered under the Sambalpur-Talcher Rail Link Project;

(ii) The number of persons from amongst the affected families who had applied for employment;

(iii) The number of persons from amongst the affected group who appeared for the written test;

(iv) The number of persons who cleared the written test amongst the above group;

(v) The number of persons who have been actually engaged by the Railway Administration from amongst the group of oustees; and

(vi) The grounds on which those who could not be accommodated were rejected.

This Court shall also be apprised of how many of the remaining persons meet the minimum qualifications and job description (other than the age requirement) as stipulated in the advertisement dated 31 July 1998 (Annexure P-4). This exercise shall be carried out and an additional affidavit shall be filed before the next date of hearing with an advance copy to the learned counsel appearing for the contesting parties.”

In pursuance of the above directions, an additional

affidavit has been filed by the appellants, through the

Senior Divisional Personnel Officer, East Coast Railway,

Sambalpur Division, Odisha.

6

The affidavit contains the following tabulated

statement:

“S.No. Details sought by this Particulars Hon’ble Court

(i) Total number of families 9036 which were covered under the Sambalpur-Talcher Rail Link Project

(ii) The number of persons from 2805 amongst the affected families who had applied for employment

(iii) The number of persons from 652 persons were amongst the affected group shortlisted after who appeared for the scrutinizing the written test Application, but only 553 persons appeared for the written test

(iv) The number of persons who 110 persons cleared cleared the written test the written test amongst the above group

(v) The number of persons who 76 persons were have been actually engaged offered employed by by the Railway the Railway Administration from amongst Administration, but the group of oustees only 66 persons joined service.

7 persons did not join and 3 were declared medically unfit.

(vi) The grounds on which those Grounds for rejection who could not be of 2153 land oustee-

accommodated were rejected applicants:

(1) 1831 persons (No land acquisition certificate enclosed)

(2) 215 persons (Insufficient proof of being land loser in the land acquisition certificate enclosed)

(3) 40 persons (Under qualified) 7

(4) 31 persons (Incomplete application)

(5) 14 persons (Over aged as per Advertisement dt.

31.07.1998)

(6) 13 persons (Under age as per Advertisement dt.

31.07.1998)

(7) 7 persons (Photographs in applications not attested)

(8) 2 persons (Proper caste certificate not enclosed)

Note: Out of 2805 Applicant-land oustees who had applied, 2153 persons were rejected and 652 persons were shortlisted initially.

Number of remaining persons 586 persons other who meet the minimum than those who joined qualifications and job service (652-66) meet description (other than the the minimum age requirement) as qualification and job stipulated in the description and job advertisement dated 31 July description (other 1998 (Annexure P4) than the age requirement)”

It has been stated that as of date, 82 posts remain

unfilled. It has been stated in the affidavit that the 8

finding of the Tribunal and the High Court that 508 out

of 511 vacancies were filled in by ‘outsiders’ (persons

other than land oustees) is an apparent error, since 429

posts were filled in and 82 posts were kept vacant. Out

of these 429 posts, 76 posts were offered to persons from

the land oustees category of whom 66 joined service; 7

did not report and 3 were declared medically unfit. It

has been stated that compensation of Rs 12.11 crores has

been paid to the families of the land oustees.

The dispute in the present case arose from a process

of selection commenced on 31 July 1998 through an

employment notice2 of the then South Eastern Railway for

recruitment of Gangmen in Group ‘D’ posts in the

Engineering Department of the Sambalpur Division. The

advertisement stipulated that the candidates should have

passed the 8th standard besides which age requirements

were set out. The advertisement stipulated that the

selection procedure would be decided by the Additional

Divisional Railway Manager (ADRM).

Thereafter, on 5 February 1999, an employment notice3

was issued by the Divisional Railway Manager, Sambalpur

in terms of the earlier notice so as to permit the land

oustees of the Sambalpur-Talcher Rail Link Project to

apply directly against the notification dated 31 July

1998, if they were otherwise eligible. However, all the

2 No.SHP/3/98 3 No.SBP/1/99 9

terms and conditions published in the earlier

notification remained unchanged.

The policy of the Railway Board envisages that

appointments are to be made only on the fulfillment of

the conditions specified in the instructions (Clause 1 of

the letter dated 8 December 1989). Moreover, the

instructions stipulate that the dispensation to give

preferential treatment to land oustees in employment is

to be limited to recruitments made from outside in direct

recruitment categories, subject to the terms and

conditions stipulated. The instructions also stipulate

that candidates must fulfill the qualifications for the

post and should be found suitable by the appropriate

recruitment committees.

In view of the terms and conditions, stipulated in

the relevant instructions and circulars which have been

noted earlier, it is not possible to accede to the view

of the Tribunal that the land oustees are not required to

undergo the process of selection. Though the

instructions provided for the grant of preferential

treatment, this is subject to the fulfillment of all

other terms and conditions, stipulated in the

instructions. While laying down a policy for

preferential treatment, the Union Government was entitled

to stipulate the conditions subject to which a claim for

appointment in Group ‘C’ and Group ‘D’ posts for the land

oustees could be considered. The Tribunal exceeded the 10

limits of its adjudicatory authority by virtually

substituting its own directions for the policy which was

formulated by the Union Government. Such an exercise, by

its very nature, is impermissible. The terms on which a

policy of offering employment to the land oustees should

be framed is a matter to be decided by the Ministry of

Railways. Once this exercise has been carried out, it

was, in our view, neither appropriate nor proper for the

Tribunal to trench upon that area.

From the facts, which have been disclosed on

affidavit, in pursuance of the previous order dated 14

February 2019, it emerges that out of 9,036 families

which were covered by the Sambalpur-Talcher Rail Link

Project, 2,805 persons had applied for employment. 652

persons were shortlisted, out of whom 553 persons

appeared for the written test. 110 persons cleared the

written test, out of whom 76 were offered employment. 66

persons joined service.

We were concerned about the reasons which weighed in

the rejection of 2,153 land oustees – applicants, who

were not shortlisted. The tabulated statement, which has

been extracted earlier, indicates the grounds for

rejection, which are as follows:

(i) 1,831 persons had not enclosed land acquisition

certificates;

(ii) 215 persons had furnished insufficient proof of

being land losers in the land acquisition;

11 (iii) 40 persons did not have the minimum

qualifications;

(iv) 31 persons had submitted incomplete

applications;

(v) 14 persons were over-aged;

(vi) 13 persons were reported under-age;

(vii) 7 persons had not attested their photographs;

and

(viii) 2 persons had not submitted caste certificates.

We are of the view that it would be extremely

technical to reject the applications without a sufficient

opportunity to the land oustees to comply with the terms

and conditions, including the submission of proof of

being land oustees. As a matter of fact, the policy

which has been formulated by the Ministry of Railways

contemplates that as land acquisition is done through the

civil authorities, the village sarpanch or tehsildar

should be associated with the verification of the claim

of the oustees. Placing the entire burden on the land

oustees would result in a deprivation of the benefit of

the policy. Having laid down a salutary policy, it is

necessary, in our view, that the Ministry of Railways

must coordinate its activities with the local

administration so as to ensure due verification of the

claims made by the applicants.

Consequently, we direct that, notwithstanding the

earlier rejection of the claims of 2,153 land oustees, 12

steps should be taken for re-verification of all the

claims of persons who were rejected in the past.

Sufficient opportunity shall be granted to them to submit

applications afresh along with requisite certificates.

We direct that fresh applications be called within a

period of three months. An advertisement shall be issued

for that purpose with due publicity in the area. The

applications submitted in pursuance to the advertisement

by land oustees of the Sambalpur-Talcher Link Rail

Project shall be reconsidered as against the 82 vacancies

and in addition thereto, against any other vacancies that

may presently exist in respect of the Sambalpur Division

and those which may arise in the next two years. The

selection process shall be completed within the next six

months. The railway administration shall pro-actively

engage with the State administrative machinery in

ensuring proper verification of all claims.

Applicants would be entitled to an age relaxation of

15 years. The applications of other land oustees apart

from 2,153 land oustees reflected in the tabulated chart

shall also be duly considered by the Divisional Manager.

However, applicants would be required to fulfill all

other prescriptions, including educational

qualifications, appearing at the written test, minimum

age requirements and medical fitness. The written test

shall be held exclusively for the applicants from among

the land oustees. We clarify that there shall be no 13

displacement of the candidates who were appointed in the

process of direct recruitment.

The appeals shall stand allowed. The judgments of

the High Court and the Tribunal are set aside. There

shall be an order in terms of the directions given above.

Applications for impleadment/intervention are

allowed. There shall be no order as to costs.

.............................J. (DR DHANANJAYA Y CHANDRACHUD)

.............................J. (HEMANT GUPTA)

NEW DELHI MARCH 14, 2019 14

ITEM NO.1 COURT NO.11 SECTION XI-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CIVIL APPEAL Nos.3030-3044 OF 2019 (Arising out of SLP(C) No.696-710 of 2011)

UNION OF INDIA & ORS. APPELLANT(s)

VERSUS

SHANKAR PRASAD DEEP ETC.ETC. RESPONDENT(s)

(WITH APPLN.(S) FOR INTERVENTION/IMPLEADMENT)

Date : 14-03-2019 These appeals were called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE HEMANT GUPTA

For Petitioner(s) Mr. A.N.S. Nadkarni, ASG Ms. V. Mohana, Sr. Adv.

Mr. Salvador Santosh Rebello, Adv. Mr. Akshay Amritanshu, Adv. Ms. Ankita Sharma, Adv.

Mr. R.B. Yadav, Adv.

Mrs. Anil Katiyar, AOR

For Respondent(s) Mr. Devansh A. Mohta, Adv.

Mr. Nilakanta Nayak, Adv.

Mr. Amit Yadav, Adv.

Mr. Kaushal Navoyan Mishra, Adv. Mr. A.P. Mayee, Adv.

Mr. R.P. Bhatt, Sr. Adv.

Mr. Tejaswi Kumar Pradhan, AOR

Mr. Kumar Gaurav, Adv.

Mr. Robin Khokhar, Adv.

Mr. B.N. Dubey, Adv.

Mr. P. Dayal, Adv.

Ms. Ritu Renitval, Adv.

Mr. Rameshwar Prasad Goyal, AOR

Mr. Aniruddha P. Mayee, AOR

Mr. Sibo Sankar Mishra, AOR 15

Ms. Nidhi, AOR

Mr. Garvesh Kabra, AOR Ms. Poga Kabra, Adv.

Ms. Maithili Shubhangi, Adv.

Mr. Shibashish Misra, Adv. Mr. Chandan Kumar Mandal, Adv.

Mr. Somanatha Padhan, Adv. Mr. Ashok Anand, Adv.

for Ms. Anagha S. Desai, Adv.

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeals shall stand allowed in terms of the

signed reportable judgment.

Applications for impleadment/intervention are

allowed. There shall be no order as to costs.

Pending application, if any, stands disposed of.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER

(Signed reportable judgment is placed on the file)