Case: UNION OF INDIA Vs. SHANKAR PRASAD DEEP ETC.ETC

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. 13. 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. 14. The affidavit contains the following tabulated statement: table 15. It has been stated that as of date, 82 posts remain unfilled. It has been stated in the affidavit that the 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 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. 16. The dispute in the present case arose from a process of selection commenced on 31 July 1998 through an employment notice 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 8 th 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). 17. Thereafter, on 5 February 1999, an employment notice 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 terms and conditions published in the earlier notification remained unchanged. 18. 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. 19. 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 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. 20. 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. 21. 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; (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. 22. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. 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 reflected in these judgments were erroneous18. 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 committees19. 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 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 area20. 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 service22. 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.