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2008 Supreme(J&K) 333
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Manmohan Sarin,Mohd. Yaqoob Mir, JJ.
Bashir Ahmad Lone - Appellant
Versus
State Of J&K & Ors. - Respondent
LPA No. 9/2008 And CMP No. 28/2008
Decided On : 10 October, 2008
Advocate For Appellant: M.M. Dar
Advocate For Respondent: B.A. Dar
The main legal point established in the judgment is that the appellant's right to employment under SRO 181 remained intact despite the withdrawal of SRO 214, and the doctrine of promissory estoppel applied to prevent the extinguishment of the appellant's right.
Headnote:
Mandamus - Employment Entitlement - SRO 181, SRO 214, Circular No. 24-GAD of 1991 - The judgment discusses the applicability of SRO 181 and SRO 214 in the context of employment entitlement for land donation, and the doctrine of promissory estoppel. It highlights the legal provisions of SRO 181 and SRO 214, their withdrawal, and the implications of the circular. The court's decision is influenced by the principles of promissory estoppel and previous case law.
Fact of the Case:
The appellant sought a writ of mandamus for employment entitlement and service benefits based on SRO 181, which was withdrawn in 1991. The land donated by the appellant for a Water Reservoir was utilized, but employment was not provided. The court found that the appellant's right accrued under SRO 181 and was not extinguished by the withdrawal of SRO 214.
Finding of the Court:
The court found that the appellant's right to employment under SRO 181 remained intact despite the withdrawal of SRO 214. It also held that the doctrine of promissory estoppel applied, and the delay in filing the writ petition was condoned to prevent miscarriage of justice.
Issues: The issues revolved around the applicability of SRO 181 and SRO 214, the entitlement to employment based on land donation, and the impact of the circular on major projects. The delay in filing the writ petition was also a key issue.
Ratio Decidendi: The court's decision was based on the principles of promissory estoppel, the accrued right of the appellant under SRO 181, and the condonation of delay to prevent miscarriage of justice.
Final Decision: The appeal was allowed, and the court directed the respondents to offer employment to the appellant within three months or pay reasonable monthly compensation for land use. The delay in filing the writ petition was condoned.
2. The Learned Single Judge noting that the writ petition claiming relief had been filed in the year 1997 while SRO 181 had been withdrawn in the year 1991, dismissed the writ petition. Learned Single Judge held that since the appellant did not file any petition for enforcement of his right during the period the said SRO was in force and had filed the petition after the SRO had been withdrawn, he had lost his right. Hence petition was dismissed.
3. The genesis of the controversy lies in the appellant and his predecessor having donated one kanal twelve marlas of land for a public purpose, i.e., building of a Water Reservoir. The said land was more than 50% of the total land holding of the appellant and his family members. In terms of the SRO 181, one member of the family of the appellant was entitled to employment. For facility of reference, SRO 181 is reproduced hereinafter:
"Government of Jammu and Kashmir
General Department
Notification
Srinagar, the 3rd June 1988
SRO 181: - In exercise of the 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 member 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 purposes, 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.
By order of the Governor.
Sd/-
(Qazi Mohd Amin)
Secretary to Government.
General Department
No. GD(MTG)RB/56/79 dated 3-6-1988"
4. The above SRO was withdrawn by SRO no. 214 dated 11th July, 1991. SRO 214 is also reproduced below for facility of reference:-
Government of Jammu & Kashmir
General Administration Department.
Notification
Srinagar, the 11th July, 1991.
SRO 214: - In exercise of the powers conferred by section 124 of the Constitution of Jammu and Kashmir, the Governor is pleased to rescind the notification SRO 181 dated 3.6.1988:
Provided that any appointment made under the provisions of the said notification shall continue to remain valid; and no fresh appointments shall be made in cases which are under process at the time of issuance of this notification.
By order of the Governor.
Sd/-
(Ajit Kumar)
Commr./Secretary to Govt.
General Admn. Department.
No: GAD(Mtg)RB/56/79 Dated 11-07-1991"
5. A clarificatory circular was also issued by the State Government authorities on 25th of July, 1991, it stipulated that whenever any major project in the public or private sector is set up it may be ensured that the provision in the project itself is made for giving employment to at least one member of the family whose land is acquired. The said circular is also reproduced for facility of reference: -
"Government of Jammu and Kashmir
General Administration Department.
Circular No: 24-Gad of 1991.
Dated: 25-07-1991.
Attention of all Additional Chief Secretaries/Commissioner Secretaries to Govt. and Heads of the Departments invited towards SRO 214 dated 11.07.1991, when under the benefit
