Dr. Dhananjaya Y. Chandrachud, J.
Leave granted.
This appeal arises from the judgment of a Division Bench
of the High Court of Judicature at Patna dated 3 January 2018
in a Letters Patent Appeal1.
The father of the appellant, Lalan Pandey, had
constructed a two storied house together with a part of a third
floor on Plot No. 1844, appurtenant to Khata No. 228, ad-
measuring 0.06 acres, situated at Mauza-Pakri, Ara in the
Ara-Sasaram Railway Project.
1Letters Patent Appeal No. 1929/2016 in Civil Writ Jurisdiction Case No. 25313/2013
On 7 June 2008, the Collector Bhojpur, Ara submitted a
list of persons displaced in consequence of the project
undertaken by the Railways. The name of the appellant’s father
occurred at serial no. 8 in the list of persons whose
residential houses had been fully demolished. A communication
was issued on 8 August 2008 by the Executive Engineer
(Construction), East Central Railway, Ara to the Deputy Chief
Engineer recommending the case of the appellant for appointment
in service in terms of a policy circular of the Railway Board
dated 19 April 2006.
Since the letter dated 7 August 2008 contains a statement
of relevant facts, the letter is extracted below:-
“The house of Sh. Lalan Pandey s/o Late Ram Naresh
Pandey of village Jagdeo Nagar, Pakri, Ara is
coming centrally in the alignment of Ara-Sasaram
New Railway line with following land details:
Khata No. 228 Khesara No. 1844/32
P.S. No. 236 Pakri (ARA)
The complete demolition of the house is required for
construction of new line at this location.
Sh. Lalan Pandey s/o Late Ram Naresh Pandey has
demolished about 90% part of the house constructed
in a two kattha land with covered area approximate
1110 sq. feet. He had two-storied building with
part construction in third story.
Sh. Lalan Pandey, s/o Late Ram Naresh Pandey is a
completely displaced person due to construction of
new line and his livelihood has suffered due to
displacement. A report on assessment by DLAO/Ara
office regarding size and facilities available at
his demolished house is enclosed for reference.
Vide this office letter under reference above the
application was forwarded for consideration for job
in Railway as per the extant provisions.
His case may be considered for job in Railway in
terms of Railway Board’s letter No. E(NG)
II/2002/RC-5/4 dated 19.04.2006 (copy enclosed)”
Between 2008 and 2011, before he died, the appellant’s
father had an exchange of correspondence with the authorities
for requesting them that the benefit of the policy circular of
19 April 2006 be granted since his entire house had been
demolished. After his father died on 15 May 2011, the
appellant instituted a writ petition before the High Court2
seeking that relief.
After a counter affidavit was filed in the proceedings,
the High Court by its order dated 11 December 2012 directed
that the claim of the appellant should be considered by the
General Manager, East Central Railways, Vaishali at Hazipur for
the grant of Group ‘D’ employment within a period of three
months.
The appellant then submitted a representation which was
rejected by an order dated 20 February 2013. The reasons for
the rejection were as follows:-
“(i) As per Annexure-1 (Railway Board Circular
No. E(NG)II/2002/RC-5/4 dated 19.04.2006) “...no
cognizance by way of offering employment to
displaced persons should be given wherein only a
strip of land for construction of a line has
been acquired...”
(ii) In the impugned case a small piece of land
measuring 0.06 acre only was acquired in the
year 2006 vide Annexure-C (Case NO.01/2005-06).
As such this does not conform to the requirement
of above mentioned Board’s Circular to entitle
the applicant for job in railway.
(iii) The letter of Executive Engineeer/
Construction No. XEN/C Ara/AS-6 dated 08.08.2008
2 Civil Writ Jurisdiction Case No. 4493/2012
cited as Annexure-4 is a routine forwarding
letter for consideration of the claim for job in
railway. It did not contain any express
commitment from administration to provide job to
the claimant.”
The appellant then filed a Second Writ Petition3
challenging an order of rejection. The Writ Petition was
rejected by a learned Single Judge by an Order dated 31 August
2016 which has been affirmed in a Letters Patent Appeal4 by the
Division Bench.
The case of the appellant is based on the policy
circulars of the Union Government in the Ministry of Railways.
Initially by a Circular dated 1 January 1983, the Railway Board
dealt with appointment to Group ‘C’ and ‘D’ posts in the
Railways of members of families who are displaced as a result
of the acquisition of land for the establishment of projects.
Certain guidelines were framed under the policy circular under
which it was envisaged that Zonal Railways and project
authorities may consider applications received from persons
displaced on account of large scale acquisition of land for
railway projects, so as to provide employment to a displaced
person or a son, daughter or spouse in Group ‘C’ or Group ‘IV’
posts.
The guidelines are as follows:-
“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 projects.
3 Civil Writ Jurisdiction Case No. 25313/2013 4 LPA No. 1929/2016
2. The 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.
3. It must also be ensured that the displaced
person did not derive any benefit through the State
Government in the form of alternative cultivable
land etc.
4. The person concerned should fulfil the
qualification 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 Railway Service
Commission, the Chairman or the Member of the
Railway Service Commission should be associated in
the recruitment.”
Subsequently on 19 April 2006, a circular was issued by
the Railway Board in which the earlier guidelines were adverted
to and the issue was revisited. The circular, insofar as it is
relevant, reads thus:
“2. The whole issue has been deliberated upon at
length in the full board meeting and it has been
decided that no cognizance by way of offering
employment to displaced persons should be given
wherein only a strip of land (viz., for
construction of a line) has been acquired but the
same can be considered in Group D posts only
wherein large area, house or substantial livelihood
has been taken away/snapped in the process.
3. It has further been decided by the board that
past cases where recruitments are already in
process or where any commitment has been given to
provide employment by the competent authority, such
recruitment process should be finalised and
employment provided in Group D posts only to
eligible persons.”
In the Writ Petition which the petitioner filed before
the High Court, the prayer for mandamus was specifically based
on the Railway Board Circular dated 19 April 2006. The
relevant averments in the writ petition reads thus;
“9. That it is submitted that the Collector,
Bhojpur, Ara vide Memo No. 211 dated 07.06.2008 sent
a list of persons whose house was demolished with
recommendation for employment and the list finds
place the name of Lalan Pandey. The Executive
Engineer, Cons., E.C. Railway, Ara has written a
letter dated 08.08.2008 to Dy. Chief Engineer,
Con./E.C. Railway/Danapur mentioning therein that
Lalan Pandey is a completely displaced person due to
construction of new line and his livelihood has
suffered due to displacement. It was requested for
consideration of the Petitioner’s case for job in
Railways in terms of Railway Board’s letter dated
19.04.2006.”
The response of the Railways to the above averment
contained no denial of the averments contained in paragraph 9.
Paragraph 10 of the response reads as follows:-
“10. That with regard to statement made in paragraph
9 of the writ petition it is stated that the same is
a matter of records, hence there is no comments.”
The learned Single Judge rejected the writ petition,
observing that a claim for appointment in service, apart from
an entitlement to compensation for the acquisition of land, is
by way of an exception. The High Court also held that the
policy circular could not be applied since the acquisition in
question was made prior to 2006.
The Letters Patent Appeal was rejected by the Division
Bench relying upon the statement of the counsel for the
Railways that employment had not been provided even in a single
case for acquisition of land for the Ara Sasaram Railway
project.
Learned counsel for the appellant has, while assailing
these findings submitted that the acquisition was in year 2006
and the case of the appellant is squarely governed by the
policy circular. It was urged before this Court that the
grounds which weighed with the authorities in rejecting the
representation are contained in the speaking order dated 20
February 2013 of the General Manager of the East Central
Railway which was passed in pursuance of the direction of the
High Court. It was urged that the policy circular, contrary to
what is stated in the order, would encompass the case of the
appellant since the entirety of the house belonging to the
appellant had been demolished. Hence the fact that only a strip
of land was involved would not disentitle the appellant for the
grant of relief.
On the other hand, Ms. Vibha Dutta Makhija, learned
senior counsel appearing on behalf of the respondents submitted
that the policy circular dated 1 January 1983 as well as the
subsequent policy circular dated 19 April 2006 must be read
together. It was urged that as a matter of fact, para 3 of the
policy circular dated 19 April 2006 stipulated that past cases
where recruitments were already in process and where commitment
had been given to provide employment should be finalised and
employment be provided in Group ‘D’ posts only to the eligible
persons. In the circumstances, it was urged that the
appellant was not entitled to the benefit of the policy
circular.
The policy circular dated 1 January 1983 was specifically
adverted to in the subsequent circular dated 19 April 2006.
The subsequent circular stipulates that the Railway Board had
decided that the policy to offer employment to displaced
persons should not cover displaced persons where only a strip
of land had been acquired. At the same time, it stipulated that
the claim can be considered for appointment against a Group ‘D’
post where a “large area, house or substantial livelihood has
been taken away/snapped in the process”. The case of the
appellant fell within the ambit of paragraph 2 of the circular
dated 19 April 2006. In rejecting the application of the
appellant, the ground which weighed with the Railway
Authorities was that only a strip of land belonging to the
appellant had been acquired. This is not a correct reading of
the circular. The circular contemplates that when a large area,
house or substantial livelihood have been taken away, the case
for providing alternative employment in a Group ‘D’ post would
be considered. Those phrases are disjunctive. The entire house
of the appellant was demolished. It was stated that there was
no specific guideline from the Railway authorities to provide a
job in lieu of acquisition of land in Ara-Sasaram project.
This was not a valid ground to reject the claim, once there was
a general policy circular dated 19 April 2006 which held the
field.
In the counter affidavit that was filed before the High
Court, an additional ground was sought to be urged namely that
it was only if an exception is granted by the Ministry of
Railways that the application would be considered for
appointment in accordance with the prevailing norms. There is
no justification for this submission since it would result in
the exercise of a pick and choose approach, contrary to the
policy circular dated 19 April 2006.
For the above reasons, we have come to the conclusion
that the rejection of the claim of the appellant was contrary
to the terms of the binding policy circular formulated by the
Union of India in the Ministry of Railways. Undoubtedly, the
grant of appointment to persons displaced as a result of
acquisition is a matter which is within the purview of the
policy discretion. No mandamus can lie in the absence of a
policy. However, where a policy has been laid down by the
Union government as in the present case, the terms of the
policy can be enforced. The rejection of the claim of the
Appellant was for extraneous reasons and based on irrelevant
considerations. Government in the Ministry of Railways
formulated a policy. The failure of implementation results in
a failure of social justice. The policy circulars were
substantive attempts to enhance social welfare. Denial of
benefits to the appellant has led to a long and tortuous road
to justice.
For the above reasons, we allow the appeal and set aside
the impugned judgment and order of the High Court dated 3
January 2018. In the facts and circumstances of the case, in
consequence, we direct that the claim of the appellant for
appointment to a Group ‘D’ post shall be implemented within a
period of two months from today by granting an age relaxation,
if required.
The appeal is, accordingly, allowed. There shall be no
order as to costs.
Pending application(s), if any, shall stand disposed of.
NEW DELHI, February 22, 2019
Petition(s) for Special Leave to Appeal (C) No(s). 32810/2018
(Arising out of impugned final judgment and order dated 03-01-2018 in LPA No. 1929/2016 passed by the High Court Of Judicature At Patna)
ANIL KUMAR Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s) (IA No.168975/2018-EXEMPTION FROM FILING O.T. )
Date : 22-02-2019 This petition was called on for hearing today.
For Petitioner(s) Mr. Uday Gupta, Adv.
Ms. Shivani Lal, Adv.
Mr. Hiren Dasan, Adv.
Mr. M.K. Tripathi, Adv.
Mr. Sulalit Sisodia, Adv.
Mrs. Sarla Chandra, AOR
For Respondent(s) Ms. Vibha Datta Makhija, Sr. Adv.
Mr. Dhruv Pall, Adv.
Ms. Aprajita Mukherjee, Adv.
Mr. Samarth Khanna, Adv.
Mr. Bharat Singh, Adv.
Mr. Raj Bahadur, Adv.
Mr. M.P. Gupta, Adv.
Mrs. Anil Katiyar, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed reportable
judgment.
Pending application(s), if any, shall stand disposed of.
(Signed reportable judgment is placed on the file)