Himachal Pradesh High Court
Date Of Decision: 14.11.2024 vs State Of Himachal Pradesh And Others on 14 November, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:12752-DB
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Writ Petition No.6714 of 2022
Date of Decision: 14.11.2024
_____________________________________________________________________
Priyesh Kaistha .........Petitioner
Versus
State of Himachal Pradesh and Others .......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Maan Singh, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General,
with Mr. Ravi Chauhan, Deputy Advocate
General, for respondents No.1, 2 and 5.
Ms. Shreya Chauhan, Advocate, for
respondents No.3 and 4.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition, petitioner has prayed for following main reliefs:
"(I) That the impugned letter dated 5.1.2022 (Annexure P-7) may be quashed and set aside.
(II) That a writ in nature of mandamus may very kindly be issued thereby directing the respondents to implement the Resettlement and Rehabilitation Plan (Annexure P-2) in case of the petitioner by providing employment to him, to a post befitting his educational qualification."
2. For having bird's eye view, facts relevant for proper adjudication of the case at hand are that land of the father of the petitioner came to be acquired for construction of Parbati 2024:HHC:12752-DB 2 Hydroelectric Project, Behali, Tehsil Sainj, District Kullu, Himachal Pradesh, in the year 2003 qua which adequate compensation also stands paid to father of the petitioner. Besides compensation, State of Himachal Pradesh with a view to protect the interest of oustees, framed Resettlement and Rehabilitation Scheme/Plan (for short, 'R&R Scheme/Plan') vide Notification dated 27.04.2006 (Annexure P-
2). Clause 3.0 of afore Scheme deals with employment to one of the member of the project affected family. Since despite there being acquisition of land of the father of the petitioner and his being declared member of projected affected family, no steps ever came to be initiated at the behest of respondent No.3 to provide employment to petitioner, he has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for reliefs, as have been reproduced hereinabove.
3. Pursuant to notices issued in the instant proceedings, respondents have filed reply, wherein factum with regard to acquisition of land of the father of the petitioner for construction of hydro power project as well as recommendation made by Deputy Commissioner, Kullu, for providing employment to the petitioner under Clause 3.0 of R&R Scheme/Plan has not been disputed, rather stands duly admitted. Claim, as put forth by the petitioner herein has been sought to be defeated mainly on two grounds; (i) petitioner has 2024:HHC:12752-DB 3 approached this Court in the instant proceedings after inordinate delay and there is no explanation qua the delay, if any, rendered in the petition; and (ii) pursuant to report given by Deputy Commissioner, Kullu, one of the member of project affected family was eligible to be provided minimum wages and payment under Payment of Wages Act for one thousand days, which though was offered to the petitioner, but he refused to avail the same. Besides above, it has also been claimed on behalf of respondent No.3 that R&R Scheme/Plan sought to be pressed into service stand replaced with the introduction of Livelihood Assistance Scheme, which came into force in the year 2015 and as per same, no claim for providing employment can be accepted, rather monetary assistance can be provided, which though in the case at hand was offered to the petitioner, but he refused to accept the same. It has also been stated in the reply filed by respondent No.3 that in terms of R&R Scheme/Plan, job was offered to the father of the petitioner, but he refused to accept the same and as such, at this stage, his son cannot be permitted to rake-up the issue, which otherwise stand closed.
4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Maan Singh, learned counsel representing the petitioner is that though in the year 2013, name of the father of the petitioner was recommended by 2024:HHC:12752-DB 4 Deputy Commissioner, Kullu, to respondent No.3 for providing employment, but since father of the petitioner at relevant point of time had refused to take the employment with further request to give such employment to his son i.e. petitioner and thereafter Deputy Commissioner, Kullu, again recommended the case of the petitioner to give him employment in lieu of his father, there was no occasion, if any, for respondent No.3 to offer him monetary assistance in terms of Livelihood Assistance Scheme, which came to be promulgated in the year 2015. While making this Court peruse documents adduced on record by petitioner, especially Annexure P-3 and P-4, Mr. Maan Singh, learned counsel representing the petitioner submitted that once father of the petitioner refused to accept the proposal of the job, Land Acquisition Officer of respondent No.3-department itself recommended the case of the petitioner for employment in terms of Clause 3 of R&R Scheme/Plan, which proposal was not only accepted by Deputy Commissioner, Kullu, rather Deputy Commissioner, Kullu, vide communication dated 31.03.2014 specifically recommended the case of the petitioner to respondent No.3 for providing employment to petitioner in place of offer made to his father. He submitted that though after initiation of aforesaid proposal at the behest of Deputy Commissioner, Kullu, petitioner repeatedly requested respondent No.3 to provide him employment, but in vain. However, suddenly in the year 2022, an offer came to be made to petitioner for providing him 2024:HHC:12752-DB 5 monetary assistance in terms of Livelihood Assistance Scheme, formulated by respondent No.3 in the year 2015, under which, otherwise in no circumstance, case of the petitioner could have been covered, especially when his name already stood recommended vide communication dated 31.03.2014 issued by Deputy Commissioner, Kullu.
5. While making this Court peruse documents adduced on record at the behest of respondent No.3 along with its reply, Mr. Maan Singh, further submitted that in number of cases, respondent No.3 apart from providing employment to members of project affected family, also provide monetary assistance and as such, it cannot be said that petitioner herein, whose father at one point of time had admittedly been offered appointment, cannot be provided employment. He further submitted that proposal/offer made by respondent No.3 to provide monetary assistance to petitioner was not accepted by the petitioner vide communication dated 08.04.2022 (Annexure P-8), but thereafter, neither petitioner was provided employment in terms of R&R Scheme/Plan, nor till date, he has been provided any kind of monetary assistance in terms of Policy of 2015.
6. To the contrary, Ms. Shreya Chauhan, learned counsel representing respondent No.3 while justifying the impugned action of respondent No.3 vehemently argued that in terms of Clause 3 of R&R 2024:HHC:12752-DB 6 Scheme/Plan, offer of employment could have been made only to father of petitioner, who despite there being offer made in his favour, refused to accept the same and as such, no illegality can be said to have been committed by respondent No.3 while rejecting the claim of the petitioner for employment. Ms. Chauhan, learned counsel representing respondent No.3 further submitted that though in the year 2014, name of the petitioner was recommended by Deputy Commissioner, Kullu, but since such recommendation was not accepted by respondent No.3 and thereafter his name was again recommended by Deputy Commissioner, Kullu, for grant of monetary assistance in terms of 2015 Policy, coupled with the fact that after issuance of communication dated 31.03.2014 at the behest of Deputy Commissioner, Kullu, no legal proceedings, if any, were initiated at the behest of petitioner for not providing him employment in terms of R&R Scheme/Plan, present petition having been filed by him otherwise deserves to be rejected on the ground of delay and laches.
7. Ms. Shreya Chauhan, learned counsel representing respondent No.3 while referring to reply filed by respondent No.3 also attempted to argue that otherwise also, on account of acquisition of land, petitioner or his family never became landless and as such, he is otherwise not entitled to seek employment, rather, on account of acquisition of his land, he could only have been provided monetary 2024:HHC:12752-DB 7 assistance in terms of Policy of 2015, which he refused to accept. Ms. Chauhan, learned counsel representing respondent No.3 further submitted that project in question was commissioned in the year 2014 and now it is in operation/maintenance stage and as such, there is otherwise no room for adjustment, if any, of the petitioner, because in that eventuality, supernumerary post would be required to be created and in case prayer made on behalf of the petitioner at this belated stage is accepted, it would not only open pandora-box, rather would also set bad precedent.
8. Mr. Vishal Panwar, learned Additional Advocate General while referring to the reply filed on behalf of respondent/State fairly stated that vide communication dated 31.03.2014, Deputy Commissioner, Kullu, has recommended the case of the petitioner for appointment in terms of Clause 3 of R&R Scheme/Plan and such recommendation is binding upon the respondent No.3. He further submitted that though documents adduced on record by respondent No.3 suggest that name of the petitioner was again recommended by Deputy Commissioner, Kullu, for providing monetary assistance, but probably that was done on account of report given by respondent No.3 itself that on account of acquisition, family of the petitioner never became landless, which fact otherwise appears to be contrary to the report submitted by Deputy Commissioner, Kullu.
2024:HHC:12752-DB 8
9. I have heard the parties and gone through the record. Before ascertaining the correctness of submissions, as noted hereinabove, made on behalf of learned counsel representing the parties, this Court deems it fit to take note of preface of R&R Scheme/Plan as well as Clause 3 of Scheme, which reads as under:
"3.0 Employment:
3.1 One member of each Project Affected Family rendered landless will be provided employment by the Project Authority in the category of skilled/semi-skilled/un-skilled workmen subject to fulfilling the requisite criteria/qualification and as and when any fresh recruitment is done in these categories. It would be ensured that land oustees eligible for employment as mentioned above are given chance first and normal recruitment would be made only if none are available from amongst them. However, persons, who are allotted shops shall not be eligible for benefit of employment and vice-versa.
The following criteria will be adhered to by the Deputy Commissioner concerned for providing of preference while sponsoring the names for employment.
(i) Affected families, whose entire land has been acquired.
(ii) Affected families, who have become landless on account of acquisition of land by the Project.
(iii) Others.
Within these categories preference will be given on the basis of quantum of land acquired. Those, who lose more land will come first.
3.2 Secondary employment There may be families, who are not covered under the Project Affected Family rendered landless/houseless/shopless as given at 1.5(c)(i), (c)(ii), c(iii) and (d) but their land is acquired for the 2024:HHC:12752-DB 9 project, they shall have to be helped in starting some gainful occupation or getting training. Therefore, such families, who may not be accommodated in direct employment, the Project Authorities will help them in any one of the following manner. 3.2.1 Merit Scholarship Scheme for the Wards of Project Affected Families (PAFs), who may be pursuing vocational or professional couse shall be introduced by Project Authorities as per Scheme to be drafted by the Project in consultation with Government of Himachal Pradesh.
3.2.2 The Project Authorities will also consider to award petty contracts to the cooperatives of eligible families on preferential basis so that some may be engaged in such jobs. Further, the Project Authorities will advise their contractors to engage eligible persons from affected families on a preferential basis wherever possible during construction stage.
3.2.3 The Project Affected Families (including rural artisans/small traders and self-employed persons) will be assisted to start various suitable self-employed occupations, which include dairy farming, poultry, weaving, bakery, handicraft, cottage industries unit/shops and hiring of vehicles to the Corporation. The Project Authority will provide a grant of Rs.36,000/- per family towards seed capital. The grant will be given once only.
"Only those families, who have not been provided with employment in the Project or have not been allotted any shop will be eligible for this grant."
Explanation:
The Deputy Commissioner, Kullu will certify effect on source of livelihood in case of rural artisans, small traders and self employed persons for eligibility of the grant. 3.2.4 The Project Authority will provide support service for Project Affected Families interested in horticulture, agriculture and veterinary.
2024:HHC:12752-DB 10 3.2.5 Free of cost cooker to each project affected family would be provided by the Project."
10. As per aforesaid provision of Scheme, one member of each project affected family is entitled to be provided employment by project authority in the category of skilled/semi-skilled/unskilled workman, subject to his/her fulfilling the requisite criteria/qualification. Bare reading of aforesaid provision in its entirety clearly reveals that as and when any fresh recruitment is done in the aforesaid categories, first option would be given to the member of family rendered landless and in case no person is available under the aforesaid category, project proponent can make appointment from outside. Specific criteria has been provided in the aforesaid provision, enabling Deputy Commissioner concerned to identify the persons, who have been rendered landless on account of acquisition of their land for the construction of hydro power project. Admittedly, in the case at hand, as has been noted hereinabove, petitioner along with other seventeen persons, who on account of acquisition of land had become landless, as is evident from the documents adduced on record, obtained by petitioner under Right to Information Act, came to be recommended for permanent employment (available at page No.61 of the paper-book onward).
11. It is also not in dispute that though after recommendation of name of father of the petitioner, offer of appointment was made by 2024:HHC:12752-DB 11 respondent No.3, but he while appearing before interview committee on 30.07.2013 specifically requested that in place of his name, name of his son i.e. petitioner may be considered for employment. However, at relevant time, Committee informed father of the petitioner and other similarly situate persons that Committee cannot consider the candidature of the persons, other than the names, as received from Deputy Commissioner, Kullu vide communication dated 06.05.2013 (note available at page No.65 of the paper-book). After aforesaid observation made by Selection Committee, father of the petitioner again approached Land Acquisition Officer of respondent No.3, who vide communication dated 04.12.2013 (Annexure P-3) recommended the name of the petitioner to Deputy Commissioner, Kullu, for employment.
12. Bare perusal of aforesaid communication clearly reveals that Land Acquisition Officer of respondent No.3 having taken note of affidavit given by the father of the petitioner that he shall have no objection in case employment in his place is given to his son, recommended the name of the petitioner for employment to Deputy Commissioner, Kullu, who further taking note of afore recommendation made by Land Acquisition Officer of respondent No.3, recommended the case of the petitioner to respondent No.3 vide communication dated 31.03.2014 (Annexure P-4). If the aforesaid 2024:HHC:12752-DB 12 communication is read in its entirety, it clearly reveals that name of the petitioner came to be recommended by Deputy Commissioner, Kullu, who is otherwise competent authority to recommend the name of member of project affected family under R&R Scheme/Plan. Afore authority having taken note of fact that petitioner and his family have become landless on account of acquisition of their land for construction of hydro power project recommened the case of the petitioner. After issuance of aforesaid communication dated 31.03.2014, no steps, if any, were ever came to be taken at the behest of respondent No.3 to provide employment to the petitioner, as such, petitioner is compelled to approach this Court in the instant proceedings.
13. Though, Ms. Shreya Chauhan, learned counsel representing respondent No.3 vehemently argued that after issuance of aforesaid communication, no effort, if any, was ever made by petitioner to ensure compliance of aforesaid communication, rather, matter was reopened by the petitioner once he completed his degree of civil engineering. However, this Court is not persuaded to agree with Ms. Chauhan for the reason that once recommendation dated 31.03.2014 was made by Deputy Commissioner, Kullu, in terms of R&R Scheme/Plan, there was otherwise no occasion, if any, for petitioner to pursue his case, rather duty was casted upon respondent 2024:HHC:12752-DB 13 No.3 to pass appropriate order thereby offering appointment. In the instant case, respondent No.3 on one pretext or other, kept on delaying the case of the petitioner. Though, at this juncture, Ms. Shreya Chauhan, learned counsel representing the respondent No.3 invited attention of this Court to judgment passed by Hon'ble Apex Court in Civil Appeal No.6664 of 2023, titled Bichitrananda Behera Vs. State of Orissa and Others, decided on 11.10.2023, to state that delay and laches is a wider aspect in service matter and cannot be ignored in routine manner, but having perused aforesaid judgment, where it has been held that a belated service-related claim will be rejected on the ground of delay and laches, this Court has no hesitation to conclude that judgment pressed into service has no application in the case at hand for the reason that after issuance of communication dated 31.03.2014 by Deputy Commissioner, Kullu, no steps, if any, was required to be taken at the behest of petitioner, rather, appropriate orders for offering employment were to be passed by respondent No.3, who interestingly neither passed order thereby offering employment to the petitioner, nor rejected the case of the petitioner at any point of time.
14. Interestingly, again in the year 2022, having taken note of Policy formulated in the year 2015 namely Livelihood Assistance Scheme, respondent No.3 offered some monetary assistance to the 2024:HHC:12752-DB 14 father of the petitioner, which otherwise could not have been done in the case of the petitioner. Though reply filed by respondent No.3 as well as documents annexed therewith reveals that in the year 2015, Scheme, named hereinabove, had come in existence, whereby apart from providing employment to one eligible person from each identified project affected family, monetary assistance was also agreed to be paid to such families whose land though was acquired for construction of hydro power project, but they had not become landless, however, there is nothing to suggest that with the introduction of afore Scheme, earlier R&R Scheme/Plan had ceased to exist.
15. Though, Ms. Shreya Chauhan, learned counsel representing respondent No.3 while referring to aforesaid Scheme vehemently argued that as per aforesaid Scheme, no offer of employment can be made, but this Court having perused aforesaid Scheme is not in agreement with Ms. Shreya Chauhan because afore Scheme itself provides for offering employment to one of the member of identified project affected family, in case such family has rendered landless on account of the acquisition of their land. It would be apt to take note of Clause 4.1 to 4.3 of policy namely Livelihood Assistance Scheme (Annexure P-3/3), which reads as under:
"4.1 One eligible person from each identified PAFs as finalised by the DC, Kullu for the purpose of employment, shall be provided Livelihood Assistance equivalent to minimum un-skilled 2024:HHC:12752-DB 15 wage of GoHP/Central Government whichever is higher on monthly instalment basis till he/she attains the age of superannuation.
4.2 Livelihood Assistance equivalent to 200 days of un-skilled wages as per minimum wages of GoHP/Central Government whichever is higher on monthly instalment basis shall be provided to those PAFs who are left with zero balance land but hae been excluded for the purpose of employment. 4.3 Livelihood Assistance of 1000 days of un-skilled wages as per minimum wages of GoHP/Central Government whichever is higher on monthly instalment basis shall be provided to all the remaining PAFs."
16. Bare perusal of Clause 4.1 itself talks about offering employment to one person from each identified project affected family, as finalized by Deputy Commissioner, Kullu. Though Clause 4.2 & 4.3 talks about Livelihood Assistance equivalent to 2000 days and 1000 days of unskilled wages as per minimum wages of Government of Himachal Pradesh or Central Government, but not in such cases where on account of acquisition, person or his family claiming employment became landless. Clause 4.2 & 4.3 would be applicable in those cases where though land of project affected family was acquired for purpose of construction of hydro power project, but on account of the same, they were not rendered landless.
17. Careful perusal of communication dated 24.08.2015 issued under the signatures of Deputy Commissioner, Kullu (Annexure R-3/4) annexed with the reply filed by respondent No.3 2024:HHC:12752-DB 16 though suggest that name of the petitioner came to be recommended under aforesaid Scheme of 2015, but list of member of project affected family annexed with aforesaid communication clearly reveals that on account of acquisition of land of the petitioner or his family, petitioner and his family had become landless because it has been specifically mentioned in the list attached with the aforesaid communication that no land left, meaning thereby that on account of acquisition, petitioner and his family had become landless.
18. Though, Ms. Shreya Chauhan, learned counsel representing respondent No.3 attempted to argue that since case of the petitioner came to be recommended by Deputy Commissioner, Kullu, vide communication dated 24.08.2015 in terms of Livelihood Assistance Scheme, recommendation, if any, made in the year 2013 by Deputy Commissioner, Kullu, thereby recommending the name of the petitioner for his employment, is of no relevance, however, this Court is not persuaded to agree with Ms. Chauhan for the reason that bare perusal of the communication dated 24.08.2015 though suggests that name of the petitioner again came to be recommended for one time cash package under R&R Scheme/Plan, but by that time, neither earlier Scheme of 2006 had expired nor specific provision contained in earlier Scheme with regard to providing employment to one of the member of project affected family was taken away in the Policy of 2024:HHC:12752-DB 17 2015, as has been taken note hereinafter, rather in Policy of 2015, specific provision again came to be made that employment shall be offered to one of the member of the project affected family, if on account of acquisition of land, such member of his family is rendered landless. Though having perused communication dated 24.08.2015, this Court finds that Deputy Commissioner, Kullu, again recommended the case of the petitioner in terms of 2015 Scheme, but that would not mean that earlier recommendation made in his favour vide communication dated 31.03.2014 (Annexure P-4) shall become redundant, rather same continue to be in force till the time no decision, if any, is taken by respondent No.3.
19. As has been taken note hereinabove, respondent No.3 instead of deciding recommendation made in favour of petitioner vide communication dated 31.03.2014, invited petitioner to accept monetary package in terms of 2015 Scheme, which otherwise could not have been made applicable in the case of the petitioner for two reasons; (i) name of the petitioner herein already stood recommended for employment in terms of R&R Scheme/Plan of year 2006, and; (ii) even in Policy of 2015, provision of providing employment to member of project affected family exists. Since Deputy Commissioner, Kullu, in his earlier recommendation dated 31.03.2014, after verifying from the record, that on account of acquisition, family of petitioner had become 2024:HHC:12752-DB 18 landless, had made recommendation for providing employment, rightful claim of the petitioner cannot be permitted to be defeated by respondent No.3 on the pretext that Scheme of 2006 is substituted by Scheme of 2015. Though this Court is of the definite view that in year 2015, one time cash package under R&R Scheme/Plan was brought into force, but that was not in supersession of earlier R&R Scheme/Plan. Bare reading of one time cash package under 2015 Scheme, placed on record by respondent No.3, nowhere suggest that same has substituted earlier R&R Scheme/Plan, rather bare perusal of same clearly reveals that it was issued in continuation of earlier Policy of 2006 to provide benefit to such of the project affected families, whose land was though acquired for construction of hydro power project, but they had not become landless on account of acquisition.
20. Leaving everything aside, this Court is of the definite view that as per R&R Scheme/Plan as well as subsequent Scheme of 2015, recommendation of Deputy Commissioner is of utmost importance. Once recommendation is made by Deputy Commissioner to provide employment, respondent No.3 has no occasion to reject the same on the ground that person recommended by the Deputy Commissioner is not eligible for one reason or other. Though, in the instant case, effort has been made by respondent No.3 to establish on record that on 2024:HHC:12752-DB 19 account of acquisition of land of the petitioner, petitioner and his family had never become landless, but such assertion, if any, made by respondent No.3 is totally contrary to the recommendation of Deputy Commissioner, Kullu, who on two occasions, first on 31.03.2014 and thereafter on 24.08.2015, recommended the name of the petitioner for offering him employment.
21. Though, at this stage, Ms. Shreya Chauhan, learned counsel representing respondent No.3 again attempted to argue that fence-sitters cannot be granted relief, but as has been taken note hereinabove, after issuance of recommendation dated 31.03.2014, necessary action, if any, was to be taken by respondent No.3 and nothing was left to be done by the petitioner, who was completely at the mercy of respondent No.3. Moreover, pleadings as well as documents adduced on record clearly reveals that recommendation dated 31.03.2014 made by Deputy Commissioner, Kullu, thereby recommending the name of the petitioner for employment was never dealt with by respondent No.3. Respondent No.3 never wrote back to Deputy Commissioner, Kullu, that petitioner is not eligible for employment, rather, again in the year 2022, respondent No.3 itself offered monetary package to the petitioner in terms of 2015 Policy, meaning thereby, claim of employment was still pending adjudication 2024:HHC:12752-DB 20 before respondent No.3, who otherwise had been delaying the same on one pretext or the other.
22. Consequently, in view of detailed discussion made hereinabove, this Court finds merit in the present petition and accordingly the same is allowed. Respondent No.3 is directed to offer appointment to the petitioner in terms of recommendation made by Deputy Commissioner, Kullu, vide communication dated 31.03.2014, forthwith. Petition stands disposed of, along with pending applications, if any.
November 14, 2024. (Sandeep Sharma),
Rajeev Raturi Judge