Calcutta High Court (Appellete Side)
Md. Abdul Karim & Ors vs The State Of W. B. & Ors on 30 June, 2010
Author: Indira Banerjee
Bench: Indira Banerjee
1
3.
30.06.2010.
d.d. W. P. No.22545 (W) of 2007
with
CAN 2539 of 2010
Md. Abdul Karim & Ors.
Vs.
The State of W. B. & Ors.
Mr. Kamalesh Bhattacharya,
Ms. Husn Ara Begum
.......... For the Petitioners.
Mr. Taraprasad Halder
..... For Respondent No.5.
Ms. Joyeeta Chakraborti ............ For the State.
In this writ application, the petitioners have challenged the exclusion of the petitioners from the list of candidates of the land loser category, prepared for appointment as Assistant Primary School Teacher.
Orders have been sought commanding the District Magistrate, Jalpaiguri and the District Primary School Council, Jalpaiguri to proceed on the basis of the original list containing the names of 126 land losers for appointment to posts of assistant primary school teachers under the exempted category of land losers.
The petitioners claim that their parents and in some cases, the petitioners themselves were owners of plots of land in Jalpaiguri district. The plots of land held by the petitioners and/or their parents, were acquired for different projects, such as, the Teesta Barrage Project.
2Even though the writ petition has been moved collectively by a group of land losers, no particulars have been given of the land held by the respective petitioners and/or their parents. There is only an assertion in paragraph 4 that the petitioners are genuine land losers and are entitled to avail the benefit of reservation of posts under the State and State funded institutions for the exempted category, of land loser candidates, in terms of Notification No.301-Emp., dated 21st August, 2002.
Pursuant to the aforesaid Notification No.301-Emp., dated 21st August, 2002, a list of 126 land loser category candidates was prepared by the District Magistrate, Jalpaiguri and the said list was forwarded to the Director of Employment vide Memo No.119/LA dated 17th February, 2006, for the purpose of employment.
According to the petitioners, the petitioners, from time to time, got call letters in connection with vacancies for appointment to reserved posts of the exempted land loser category.
It, however, appears that some other persons who also claim to belong to the exempted category of land losers, namely, Lakhindra Roy and others filed a writ petition being W.P. No.4786(W) of 2006 in this Court, alleging that the list forwarded vide Memo No.119/LA dated 17th February, 2006 had not been prepared in accordance with Notification No.301-Emp. dated 21st August, 2002. The said writ application was disposed of by a judgment and order dated 4th May, 2006 of His Lordship, the Hon'ble Justice Jyotirmay Bhattacharya.
In the said writ petition, the writ petitioners contended that the District Magistrate, Jalpaiguri had not prepared the list of the exempted categories in terms of the Notification dated 21st August, 3 2002 published in the Kolkata Gazette. From the judgment and order dated 4th May, 2006, it appears that the Court was informed that though the names of the writ petitioners in the aforesaid writ application had been included in the list, the priority list had not been prepared on the basis of the dates of acquisition of the land of the respective land losers in chronological order as a result of which, land losers, who lost their land later, were given priority over land losers who had lost their land earlier.
The writ petitioners in the said writ petition being W.P. No.4786(W) of 2006 had also made a representation to the District Magistrate, Jalpaiguri praying for recasting of the list of exempted candidates of the land loser category, in the manner as provided in clause 3 of the Notification dated 21st August, 2002.
After hearing the parties, the Court disposed of the writ petition by directing the concerned District Magistrate, Jalpaiguri to consider the grievance of the petitioners as contained in their representation and to dispose of the same by passing a reasoned order after giving an opportunity of hearing to the concerned writ petitioners as well as other land losers who were likely to be affected by any alteration in the list, that had already been prepared.
In the light of the grievance that the list had not been prepared in accordance with the Notification, the list was recast by excluding ineligible persons, who had been included in the list. By a Memo No.700/LA dated 13th August, 2007, the District Magistrate, Jalpaiguri prepared a list of 32 candidates included in the earlier list, whose candidatures had been rejected. Before dealing with the grounds of rejection, it would be pertinent to refer to the relevant 4 provisions of the Notification dated 21st August, 2002 set out hereinbelow for convenience:
" 3. Persons belonging to the families of land loser:
Candidate hailing from families who might have been uprooted from their places of residence due to acquisition of homestead land by the Government or whose main source of income substantially affected due to loss of agricultural land as a result of the land in question being acquired by the Government for public purpose shall also be covered in this category.
Only one member from an uprooted/affected family shall be eligible for consideration against vacancies reserved for the exempted categories. The beneficiary should be an awardee of compensation for acquisition of land or member of the family of the awardee.
This shall be applicable only in respect of cases where the land in question has been acquired by the State Government or after 17th October, 1977.
3. Persons belonging to the families of Land Loser (1) For the purpose of enlistment of eligible persons of this category the government may constitute a screening committee for District/Sub-Division. The Screening Committee will prepare a combined list in order of priority for families affected by acquisition of land and forward the same to the District Magistrate concerned. Till such Committee is formed the District Magistrate concerned will prepare list of eligible persons of this category.
(2) Only one member of as family of land loser will be eligible for consideration for enlistment in the exempted category. The beneficiary should be either an awardee of compensation for acquisition of land or a member of his family as may be nominated by the awardee.
(3) The order of priority in the list will be determined by the date of acquisition in chronological order.
(4) The priority list should contain the name of the persons seeking employment, the nature and quantum of land acquired and quantum of land owned by the family, the employment status and earnings of the members of the family. The date of birth, educational standard of the enlisted persons 5 should be indicated in the list. If any such persons belongs to the Scheduled Caste/Scheduled Tribe or Backward Class that should be indicated against his name. In case of persons with disabilities the nature of disability may be indicated.
(5) In case any doubt regarding the eligibility of a person/or other connected issue reference may be made to the Labour Department for clarification and/or decision.
(6) The District Magistrate concerned will forward the list of eligible persons to the director of Employment, West Bengal, and advise the enlisted ;persons to enroll their names in the exempted category Cell of the Directorate of Employment, West Bengal, at 67 Bentink Street, Kolkata-700069, by producing supporting papers. List of eligible of the category of land losers already prepared and maintained by the District Magistrate in terms of the earlier Circulars issued by the Labour Department shall also be forwarded to the Director of Employment, West Bengal. The District Magistrate concerned advise such enlisted persons to get their names enrolled in the Exempted Category Cell of the Directorate of Employment by producing supporting papers.
(7) The Director of Employment, West Bengal will maintain the list of eligible persons belonging to exempted category of land losers as enrolled in the exempted category Cell of the Directorate of Employment. "
As per the Notification, only one member of family of the land loser could be considered for enlistment in the exempted category. The beneficiary either had to be an awardee of compensation for acquisition of land or a nominated member of the family of the awardee. The order of priority in the list had to be determined as per the date of acquisition in chronological order.
From the aforesaid provisions quoted above, it is clear that only candidates from families that might have been uprooted from the places of residence due to acquisition of homestead land by the Government and whose main source of income had substantially been affected due to loss of agricultural land as a result of the land 6 being acquired by the Government, were to be included in the land loser category. At the cost of repetition, it is reiterated that the condition precedent for appointment in the land loser category was that the candidate should either have been uprooted from his place of residence due to acquisition of homestead land by the Government, or alternatively, the main source of income would substantially have to be affected due to loss of agricultural land as a result of the acquisition.
The list of 32 candidates enclosed with the impugned Memo No.700/LA dated 13th August, 2007 contains briefly the grounds of rejection of the candidatures as land loser category candidates. In case of the candidates whose names appeared from serial nos.1 to 7, 10, 12, 13, 16, 23, 25 and 27 to 32 the quantum of land acquired was below the required percentage. In case of the candidate named in serial no.8, the father of the candidate was working in LIC. In case of candidates at serial no.9 and 24, their respective fathers were Group 'D' employees. In case of the candidate at serial no.11, the mother was working as Group 'D' staff. In case of candidates at serial nos.14 and 15, the land losers were Bargadars. In case of the candidate at serial no.17, compensation was only in respect of trees, by consent of the land owner, as the awardee of compensation was not the land owner. The husbands of the candidates named in serial nos.18 and 19 were government employees. The candidates named at serial nos.21 and 26 were found to be married daughters and in case of candidate named at serial no.22, the sister had already been enlisted as a land loser. A candidate ought not to be excluded on the ground of being a married daughter, if she otherwise fulfills the criteria for appointment. The discrimination against a married daughter would necessarily be violative of Article 14 of the 7 Constitution of India, when married sons are not excluded. However, the candidates concerned have not challenged their exclusion.
Ms. Joyeeta Chakraborti, appearing on behalf of the State, drew the attention of this Court to the minutes of a meeting held by the District Magistrate laying down the criteria for enlistment. Ms. Husn Ara Begum, led by Mr. Kamalesh Bhattacharyya appearing on behalf of the petitioners, on the other hand, submitted that the Notification dated 21st August, 2002 did not provide for imposition of conditions of eligibility for enrolment as an exempted candidate.
The notification does not authorize the District Magistrate to set any condition de hors the notification referred to hereinabove. It is doubtful whether the condition excluding the married daughters could have been imposed by the District Magistrate. However, as observed above, no married daughter has challenged the exclusion.
The District Magistrate has set the criteria of loss of atleast 0.10 acre of land in case of persons having land 1.00 acre. The aforesaid condition is in furtherance of paragraph 3 of the Notification dated 21st August. 2002, in terms of which only those land losers whose main source of income has substantially been affected due to loss of land as a result of acquisition, might be covered in the land loser category. The criteria for the benefit of reservation in the exempted category of land losers is substantial loss of income by reason of acquisition of land, and not any loss of income. If the quantum of land acquired is below one percent of the total land, it cannot be said that income from land has substantially been affected. The District Magistrate has set a uniform standard, which will, in effect, prevent discrimination. Absence of a uniform 8 criteria would enable the authorities to allow one candidate and reject another whimsically, without any rational basis.
In case of candidates whose parents are government employees or retired government employees getting pension, it cannot be said that their main source of income has substantially been affected due to loss of agricultural land as a result of acquisition.
The list has been rectified pursuant to an order of Court. Reasons for exclusion have been given. The earlier list was apparently not in conformity with the Notification dated 21st August, 2002. The rectification does not call for any interference.
Ms. Begum submits that the petitioner no.13, Madan Mohan Sarkar has been given appointment notwithstanding the order of the Court that appointment should not be given without express leave of Court. The appointment of the petitioner no.13 may be liable to be cancelled if the same is in contravention of an order of this Court, as submitted by Ms. Begum. However, the fact that one of the petitioners might have been wrongfully appointed, does not confer any right to others to claim equality to a wrong and/or an irregularity.
On this writ application being moved, an interim order was passed directing that the petitioners be permitted to appear for the selection test. However, this Court expressly directed that no appointment should be given without leave of Court. To avoid prejudice to any of the petitioners, who might later be found to have wrongfully been excluded, this Court directed that they be allowed to participate in the recruitment process. This Court expressly 9 observed that the issues raised were required to be examined on affidavits.
Participation in the selection process pursuant to an interim order does not confer any vested right to appointment. In any case, this Court made it clear that if, after preparation of the panel, it was found that the petitioners had secured a place which brought them within the zone of consideration for appointment, they would not be appointed without leave of Court. If the petitioners failed to secure a place within the zone of consideration for appointment, the respondents were given liberty to finalize the selection process and to appoint candidates from the panel according to law.
Appointment against a reserved category is in itself a departure from the rule of equality. Only candidates who strictly come within the exempted category, can claim the benefit of appointment to a reserved category. Those, who do not qualify as exempted land loser category, candidates can always compete as general category candidates, if they are otherwise eligible.
As observed above, this Court finds no legal infirmity in the exclusion of candidates except for the exclusion of the married daughters, who are not parties to these proceedings. The candidates, who appeared for the selection pursuant to the interim order of this Court, and qualified for appointment, would not be entitled to appointment in the exempted land loser category.
The writ application is thus without merits and the same is dismissed.
The connected application being CAN 2539 of 2010 is disposed of accordingly.
Ms. Begum prays for stay of operation of this order. The prayer for stay is considered and refused.10
Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
( Indira Banerjee, J )