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REPORTABLE  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO. 1958 OF 2019 (@ SLP(C) No. 32810 of 2018)

ANIL KUMAR                                      Petitioner(s)

                               VERSUS

UNION OF INDIA & ORS.                           Respondent(s)

JUDGMENT

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

District  of  Sasaram  in  Bihar.    The  land  over  which  the

residential house was constructed was acquired in 2006 for the

Ara-Sasaram Railway Project.    

1Letters Patent Appeal No. 1929/2016 in Civil Writ Jurisdiction Case No. 25313/2013

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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)

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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

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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

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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

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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

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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.

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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

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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.

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The appeal is, accordingly, allowed.   There shall be no

order as to costs.

Pending application(s), if any, shall stand disposed of.

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

  …...…................J.   (NAVIN SINHA)

NEW DELHI, February 22, 2019

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ITEM NO.52               COURT NO.12               SECTION XVI

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

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.

CORAM :  HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE NAVIN SINHA

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.

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)