Calcutta High Court (Appellete Side)

Union Of India & Ors vs Jahangir Chowdhury & Ors on 1 July, 2021

                                     1



Dated: 01.07.2021       (Through Video Conference)

                          WPCT 28 of 2021
                         Union of India & Ors.
                                  Vs.
                      Jahangir Chowdhury & Ors.
                                 With

                           WPCT 75 of 2020
                         Union of India & Ors.
                                  Vs.
                        Chandi Das Khan & Ors.

                               Mr. Deepak Kumar Singh, adv.
                               Mr. Rabindranath Bag, adv.
                               Mrs. Saptamita Pramanick, adv.
                                                ...For the Petitioners

                               Mr. Sourav Mondal, adv.
                                            .For the respondent no.3

Mr. Achintya Kr. Biswas, adv.

Mrs. Indumouli Banerjee, adv.

...For the respondent in WPCT 75 of 2020

The Court:- Both the writ petitioners are taken up together as

common questions of law and facts are involved in both the writ petitions.

The order under challenge in these two writ petition is arising out of

a common order by which a large number of original applications have

been disposed of by the learned Central Administrative Tribunal.

The Railways authorities have preferred the writ petitions against

two of the applicants who are private respondents in this proceeding in

whose favour order has been passed by the learned Tribunal.

The subject matter of challenge before the tribunal is the decision of

the Railway Authorities not to give employment to the private respondents

under the category of land loser in terms of the policy of the Railway

Board in RBE-99 of 2010. The private respondents claimed to have lost

their land to the Railways for construction of various railway projects

namely, Dankuni Furfurasarif, Arambag-Bowaichandi, Nandigram and

others.

In the original applications the applicants have prayed for

cancellation of the order dated 17th March, 2016 by which the Railway

Authorities have declined to consider their claims for employment under

land loser category in view of the fact that the project for which the land

was acquired could not be utilised.

The applicants before the learned Tribunal has claimed that

pursuant to a notification dated 27th August, 2010 for acquiring land

many land owners including the family of the present respondents have

lost their land for construction of the Railway Project. In terms of the

Railway Board's Circular RBE 99 of 2010 dated 16th July, 2010, the

applicants were entitled to employment in addition to compensation, but

employment was not provided to them. Aggrieved as such, they

approached this Tribunal by filing OA no. 711 of 2015 which was disposed

of by an order dated 17.06.2015 to screen them for employment. Since

the order was not complied with, the applicants served a notice for

contempt, whereafter their claim was turned down by a communication

dated 17.03.2016. Being aggrieved thereby the applicants filed a

contempt application which was dismissed as a Speaking Order was

already issued by that time. They were granted liberty to file proceeding

as per law before appropriate forum. A writ petition was filed before the

Hon'ble High Court of Calcutta against the order was dismissed and,

thereafter they approached this learned Tribunal.

The writ petitioners before the tribunal as well as before us did not

dispute the claim of the original applicants that they lost their land for the

aforesaid railway project. However, the claim of the private respondents

were denied on the ground that the Bowaichandi - Arambag Special New

B.G. Railway Line project was sanctioned long back and the land was

acquired from the respective owner as per Railway Board Circular No.

E(NG)II/2011/RC-5/1 dated 28.09.2010, however, progress of land

acquisition work involved in the said project was stalled as State

Government refused to carry out land acquisition work. It is contended

that in order to execute the said project land was acquired by the Railway

Administration and compensation was paid at the enhanced market rate

to the land loser. The employment is project specific and not otherwise.

In view of the fact that the State Government did not cooperate to carry out the land acquisition work no further advancement of the project could be achieved. It was, however, admitted before the learned Tribunal that "the Genral Manger, South Eastern Railway accorded approval for extending employment assistance to the 28 land loser candidates under Land Loser Scheme in Group - D category at the material time. Those land losers have been appointed and posted other than Bowaichandi Arambag Project area, since, the project is fully stopped due to land acquisition problem on the part of State Government of West Bengal and other administrative constraints."

The private respondents before the learned tribunal as well as

before us has specifically contended that Clause 37A of the Railway

Amendment Act, 2008 clearly indicates the manner in which land

acquisition, its notification and award of compensation is to be executed

in Chapter IVA of the Railways Act, 1989.

Our attention is drawn to the land loser certificates issued to the

private respondents specifically certifying them as land losers, in

accordance with RBE 99 of 2010. Our attention is also drawn to RB 99 of

2010 which deals with appointment of land loser affected due to railway

projects. The said circular refers to a screening committee who shall

examine the claim for employment. The screening criteria relevant for the

present purposes are indicated below:-

(i) The applicant shall be a person (sole owner of land or son/daughter/husband/wife of the sole owner) whose land or a portion thereof has been acquired for the project in case the land is owned by more than one person, the Competent authority, as defined in the Railway (Amendment) Act 2008/Land Acquisition Officer, will decide who shall be considered as applicant. Only one job shall be offered to an applicant from the land loser family.

(ii) It must be ensured that the displaced person has not received any land from the State Government in lieu of his/her land acquired/being acquired for the project.

2. Railway administration should request the concerned Competent Authority/Land Acquisition Officer to issue certificate/s to those persons whose land has been acquired to facilitate proper verification of the claims.

4. the applicant should normally fulfil the eligibility and other conditions prescribed for the post against direct recruitment quota from open market. In special cases, General Manager of

the Railway can relax these conditions, and in respect of educational qualifications, applicants with read/write only capability shall also be considered. (emphasis supplied)

The Call letters for screening shows that the original applicants

were considered under the land losers category due to land acquisition for

special railway project in Group D category and they were provisionally

allowed to appear in the screening test before screening committee on the

date mentioned in the respective call letters in October 2015 the Board

subsequently, in RBE 193/2019 recall its earlier policy of employment to

affected land losers. The said policy however, makes it clear that it would

be effected on the date of issuance of the said letter.

The learned Counsel for the private respondents has rightly

submitted that the reasons furnished for not giving employment is not

based on the aforesaid circular but on a specious plea that the work in

the project did not commence. Reliance has been placed on "Mohinder

Singh Gill and another vs. The Chief Election Commissioner, New

Delhi and others, reported in AIR 1978 SC 851 to contend that, "when

a statutory functionary makes an order based on certain grounds its

validity must be judged by the reasons so mentioned and cannot be

supplemented by fresh reasons in the shape of affidavit or otherwise.

Otherwise, an order bad in the beginning may, by the time it comes to

court on account of a challenge, get validated by additional grounds later

brought out."

Further they have also relied on a judgment in State of Karnataka

& Ors. vs. C. Lalitha reported in (2006) 2 SCC 747, wherein it was held

that "all persons similarly situated should be treated similarly irrespective

of the fact that only one person has approached the court."

The aforesaid submission is made in view of the fact that 28 land

losers similarly placed if they could be accommodated against other

project as admitted by the writ petitioners then there could be no reason

for depriving the applicants of similar reliefs. Our attention is also drawn

to the earlier order of the learned Tribunal in OA 711 of 2015 in which the

learned Tribunal observed:-

"the respondents should do well to see that the case of the applicants are screened and considered as per the scheme and if found suitable legally then necessary benefits may be accorded, as otherwise, they may be informed of their unsuitability, within a period of 4 months from the date of receipt of this order."

It is an admitted position that the private respondents are standing

on the same footing as that of 28 land losers who were given appointment

in other projects. This will be discernible from the letter dated 6th

January, 2014 from the office of the Chief Personnel Officer under RTI Act

which reads:

"South Easter Railway

Office of the Chief Personnel Officer, 11, Garden Reach Road, Kolkata- 43

No. SER/P-HQ/740/1/RTI/AKM/415/2013 Dated:06.01.2014

To Abul Kalam Mondal, S/o, Golam Kader Mondal, Vill & P.O. - Guir, Dist- Burdwan(WB), Pin-713423

Sub: Letter under Right to Information under RTI Act, 2005.

Ref: Your Letter no. Nil dated 11.11.2013

When reference to your letter cited above, it is stated that the same has been carefully examined and information/documents as received from concerned department is furnished below for your ready reference.

It is stated that approval of the General Manager has so far been communicated for 28 Land Loser Candidates as per enclosed list (Annexure-1) pertaining to Bowaichandi- Arambag Project of Adra Division for consideration of their appointment in Gr-D, subject to fulfilment of other terms and conditions.

On the above contention, if you are not satisfied with the information furnished, you may prefer an appeal to the Appellate Authority and Addl. General Manager/S.E. Railway/11, Garden Reach Road, Kolkata-43, as per provision of RTI Act, 2005.

Enclo:As Above (Dr.Mahua Verma) Public Information Officer(I) & Chief Personnel Officer (Admin)"

These 28 persons were appointed by Adra Division against land

acquisition in Bowaichandi - Arambag New Railway Line Project duly

approved by DRM/Adra.

The Order dated 17th March, 2016, inter alia, says:-

"However, progress of Land Acquisition work involved with Project has been stalled at this stage as State Govt. of West Bengal has refused to carryout land acquisition work. Consequently, no further advancement of the Project can be achieved as on date. In view of that facts since project itself is not progressing, the employment against land loser cannot be processed."

These reasons does not hold good in view of the fact that the

persons similarly situated as that of the private respondents were given

employment in other projects as the project itself did not progress. The 28

land losers were also part of the same project and if those 28 land losers

could be accommodated in spite of the fact that the project itself did not

progress the claim of the present land losers for being employed in other

projects could not be denied.

In this regard it is important to take note of the findings of the

tribunal arrived at on consideration of the materials on record. The said

findings are:

"(8) From the records we discern the following:

(i) That, inarguably and indubitably the applicants are the land losers, whose lands have been acquired by the Railways to construct a Railway project (here Bowaichandi Arambag Special New B.G. Project Railway line). They were thus dispossessed of their land to facilitate construction of a Railway Project.

(ii) That their right to employment under Railways' land loser scheme flows from RBE 99 of 2010 extracted supra, that was prevalent at the material time when land was acquired. It was under a clear assurance of employment flowing from the Railway Policy that they agreed to part with their source of livelihood.

(iii) That the respondents were already directed in the earlier O.A. to screen the applicants and consider them as per scheme, and it found suitably legally, to accord necessary benefits to them.

(iv) The respondents had never sought for any liberty to not follow the direction on the ground that the project for which land was acquired did not turn out viable. The respondents are therefore in clear contempt.

(v) Moreover, 28 identically circumstanced land losers who were dispossessed due to proposed construction of Bowaichandi Arambag New BG Line and had supposedly lost their source of livelihood have been

appointed/ accommodated against other viable projects in compliance of the provision in RBE 99 of 2010. Therefore, the respondents are estopped by their conduct to deny employment to the present land losers on the ground that the project in question has been stalled.

(vi) Admittedly, the project got stalled, but even after the project got stalled, 28 land losers under the same project were accommodated, elsewhere and therefore respondents have arbitrarily meted out discrimination against the present applicants. They have attempted to create a class within a class, which is not permissible in law.

(vii) The applicants right to employment is fortified by the RBE 99 of 2010 as well as the decision rendered in the previous OA to screen them and consider them as per scheme and to accord them necessary benefits, as also the fact that employment has been provided to identically placed land losers. Hence they are entitled to identical relief.

(viii) We further discern that the Railways are conspicuous by their silence on the reasons why the present applicants, when other have been accommodated already, that too, after the project in question was stalled, cannot be accommodated against its other similar viable projects. Railways by depriving the present applicants their right flowing from RBE 99 of 2010, due to subsequent circular introduced with prospective effect, are resorting to macro-compartmentalisation on the basis of a micro distinction or no distinction at all, which is grossly unfair.

(ix) The respondents have not rejected the claim of the applicant upon due screening. They have simply refused to screen them as the project in question, has been stalled. (emphasis supplied)

(9) In WPCT 74 of 2016, the Hon'ble High Court at Calcutta while considering an identical matter of a land loser who was denied employment by Railways on the ground of age bar, has directed as under:

"21. It is evident from the materials on record that even land losers, who were 47 years old, have been offered appointment. The respondent no. 1 was 46 years old on the date he approached the tribunal for the first time. When his claim was rejected by the first order dated July 15, 2014, age bar was not cited as a ground therefore. What we find is that there were absence of certain documents/papers for which the claim of the respondent no.1 could not be put up before the screening committee for screening. If indeed that was the reasons for regretting his prayer, the petitioners ought to have asked the respondent no.1 to supply the documents, which were not there in the file, instead of closing his right to

claim appointment. We therefore, propose to pass the following further directions to close the breach:

(i) within a period of seven days from date of receipt of a copy of this judgment and order, the chief Personnel Officer shall intimate the respondent no.1 which of the documents are required from his end for ensuring placement of his claim before the screening committee.

(ii) Within a month of receipt of such intimation, the respondent no.1 shall produce the necessary documents/papers before the Chief personnel officer and upon receipt of such document /papers the claim of the respondent no.1 shall be placed before the screening committee for an appropriate decision.

(iii) Bearing in mind the fact that other land losers have been offered appointment even upon attaining 47 years of age we hope and trust that the screening committee shall not cite age bar as a ground for not considering the claim of the re spondent no. 1 and if a power of relaxation is indeed available to consider invocation of such power if the merits of the case so warrants and