# Kamlesh Chandra Tiwari v. State of U P & Ors

- **Citation:** (2016) 3 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-02
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-chandra-tiwari-v-state-of-u-p-ors-43598
- **Pages:** 6

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES
his age as 22 years when he sought employment in 1978 and his service book was completed in
1984, duly endorsed by the respondent indicating that his date of birth was 15 February 1956. Twenty
six years thereafter, the respondent sought correction of his date of birth. His submission that he had
submitted his High School certificate when he joined service is clearly belied by his own statement
made in his application for employment that he failed in the High School examination at that stage.
Equally significant in the present case, is the principle which is contained in Rule 2 of the statutory
rules which have been framed in exercise of powers conferred by Article 309 of the Constitution.
Rule 2 provides that in the first instance a date of birth of a Government servant as recorded in the
certificate of his having passed the High School or equivalent examination at the time of his entry into
the Government service shall be deemed to be his correct date of birth for all purposes in relation to
service. Where a Government servant has not passed the High School examination or an equivalent
examination, the date of birth or age recorded in the service book at the time of entry in the service is
to be taken for all purposes as the correct date of birth. Rule 2 also provides that in a situation where
an employee has passed the High School examination after joining the service, the date of birth
entered at the time of his entry in service or age recorded in the service book at the time of his entry
into Government service shall be treated as the correct date of birth.

10. In this background, both on facts as we have indicated and having due regard to the
provisions of law noted above, the learned Single Judge was manifestly in error in entertaining the
writ petition and in directing the grant of relief for correction in the date of birth of the respondent
from 15 February 1956 to 15 February 1959. The writ petition ought not to have been entertained in
the first phase having been filed in 2015, for seeking correction in the date of birth. When the writ
petition was filed, the respondent was virtually on the eve of his retirement. A long time after the
respondent had entered into service, a correction in the date of birth in the service record ought not to
have been entertained.

11. We, accordingly, allow the special appeal and set aside the impugned order and judgment of
the learned Single Judge dated 2 December 2015. In consequence, the writ petition filed by the
respondent shall stand dismissed.

12. There shall be no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 2.3.2016

BEFORE

THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.

Special Appeal No - 154 of 2016

Kamlesh Chandra Tiwari ...Appellant
Versus
State of U P & Ors. ...Respondents
3 All. Kamlesh Chandra Tiwari Vs State Of U.P. & Ors.
753
Counsel for Appellant
Jayant Kumar, Shree Prakash Rai

Counsel for Respondents
CSC, Anadi Krishna Narayana, S N Srivastava

The Uttar Pradesh State Industrial Development Corporation3 acquired land in Village Lawain Khurd,
Tehsil Karchhana, District Allahabad during the 1960's for setting up of an industrial estate. In 1997,
BPCL applied to UPSIDC for land to set up a LPG Bottling Plant in the industrial estate. An agreement
was entered into on 21 October 1997. BPCL in October 1997 requested the district authorities to
apprise it of the names and addresses of persons who had lost their land. BPCL was to consider the
nominees from each cluster/group of families for employment, subject to their meeting the required
criteria of eligibility for employment and suitability. An affidavit was filed on behalf of the appellant
and his co-petitioner on 21 August 1999. The appellant was not found to be eligible for appointment.
This led to the filing of a writ petition. The learned Single Judge has followed the law laid down by a
Full Bench of this Court in Ravindra Kumar Vs District Magistrate, Agra in holding that there was
no vested right on the part of the family whose land had been acquired to claim appointment in the
service of the fourth respondent.

The judgment of the Supreme Court in Butu Prasad Kumbhar Vs Steel Authority of India Ltd5
holds that:

"..petitioners or their ancestors were not deprived of their land without following the procedure
established in law. Their land was taken under the Land Acquisition Act. They were paid compensation
for it. Therefore, the challenge raised on violation of Article 21 is devoid of any merit.

Court held that as per the position of law The condition which has been extracted above, merely
provides that BPCL shall give preference to one or two able bodied persons from the families whose
land has been acquired while employing labour for the unit in the industrial area. The condition does
not specifically provide a reservation or quota but a preference in the matter of employment. The
condition does not preclude BPCL from laying down reasonable terms and conditions to define norms
of eligibility.

The special appeal is accordingly dismissed.

List of Cases Cited:

1. Ravindra Kumar Vs District Magistrate, Agra 2005 (1) UPLBEC 118
2. Butu Prasad Kumbhar Vs Steel Authority of India Ltd (1995) Supp 2 SCC 225

(Delivered by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.
&
Hon'ble Yashwant Varma, J.)

1. This special appeal arises from a judgment of the learned Single Judge dated 20
January 2016. The writ petition1 filed by the appellant (and another) seeking a mandamus to
the Bharat Petroleum Corporation Limited2 to provide appointment in pursuance of a
Government Order dated 29 February 1996, has been dismissed.
754 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The Uttar Pradesh State Industrial Development Corporation3 acquired land in
Village Lawain Khurd, Tehsil Karchhana, District Allahabad during the 1960's for setting
up of an industrial estate. In 1997, BPCL applied to UPSIDC for land to set up a LPG
Bottling Plant in the industrial estate. An agreement was entered into on 21 October 1997 by
which a plot of land admeasuring 27.50 acres was allotted to BPCL by UPSIDC. The lease
deed between UPSIDC and BPCL contained the following condition:

"In employing labour for the unit, skilled, semi- skilled and unskilled, the allottee
shall give preference to one or two able bodies persons from the families whose land has
been acquired for the purpose of that Industrial Area."

3. In pursuance of the aforesaid condition, BPCL in October 1997 requested the district
authorities to apprise it of the names and addresses of persons who had lost their land.
Accordingly, the Sub Divisional Magistrate on 6 June 1999 forwarded a list of nineteen
clusters/group of families whose lands had been acquired, treating them as project affected
persons. BPCL was to consider the nominees from each cluster/group of families for
employment, subject to their meeting the required criteria of eligibility for employment and
suitability. On 7 August 1999, a letter was addressed by BPCL to those project affected
families calling upon them to nominate a member of the family. The eligibility criteria
prescribed was as follows:

Educational Qualification Min 7th std. Pass

Age as on 1.8.1999 Min. 18 years Max 30 years (to

 be relaxed by 5 years) for

 SC/ST candidates and by 3
 years for OBC candidates.

Nominee should be a blood relation of the land losers such as:

a) Self

b) Son

c) Grand-son (son's son)."

4. The land losers/nominees were required to present themselves before the Joint
Development Commissioner, Naini on 23 August 1999 together with an affidavit indicating
the details of the land acquired, compensation received and other details. An affidavit was
filed on behalf of the appellant and his co-petitioner on 21 August 1999. The appellant was
not found to be eligible for appointment, inter alia, on the ground that as on 1 August 1999,
he was thirty four years and seven months of age on the cut-off date for screening which
was 1 August 1999 (the date of birth of the appellant being 6 December 1964). This led to
the filing of a writ petition. The learned Single Judge has followed the law laid down by a
Full Bench of this Court in Ravindra Kumar Vs District Magistrate, Agra4 in holding
that there was no vested right on the part of the family whose land had been acquired to
3 All. Kamlesh Chandra Tiwari Vs State Of U.P. & Ors.
755
claim appointment in the service of the fourth respondent. Dealing with the contention of the
appellant that the appellant was entitled to be considered in pursuance of the condition
contained in the lease agreement between UPSIDC and BPCL, the learned Single Judge held
that the minimum criteria of eligibility which was prescribed was neither under challenge
nor could it be said to be unreasonable. The case of the appellant was duly examined in
terms of the criteria and the appellant was held not to fulfill the prescribed norms. Moreover,
the learned Single Judge held that since the land was acquired in 1968 and a period of more
than forty five years have elapsed, the object of granting appointment in lieu of acquisition
of land may not survive anymore. Hence, the writ petition has been dismissed.

5. The learned counsel appearing on behalf of the appellant urges that -

(i) The judgment of the Full Bench in Ravindra Kumar would not be applicable
in the present case because, independently, the lease deed between UPSIDC and BPCL
warrants the grant of a preference in employment by BPCL. Moreover, it is not in dispute
that others, whose claims were found to be eligible, have been granted appointment;

(ii) The condition of eligibility under which an age relaxation of five years has
been granted to persons belonging to SC/ST but not to others, is not lawful since all land
oustees should be entitled to uniform treatment in regard to the age relaxation; and

(iii) Though, the acquisition took place in 1968, BPCL was allotted land by
UPSIDC in 1997 and appointment to other persons whose lands had been acquired was
granted in 1999, i e thirty one years after the acquisition and hence the learned Single Judge
was in error in rejecting the case of the appellant merely on the ground of a passage of time.

6. The basic principle of law which has been enunciated in the judgment of the Full
Bench in Ravindra Kumar (supra) is that public employment must follow norms of
equality of opportunity, failing which there would be a violation of Articles 14 and 16.
Certain exceptions are permissible as in the case of compassionate appointment. Where the
land has been acquired under the Land Acquisition Act 1894, the landholder who is
deprived of his land shall be entitled to the payment of compensation and in the absence of a
statutory provision, appointment cannot be claimed as a matter of right. Hence, any
government order or circular providing employment to one member of a family whose land
has been acquired would be invalid. The Full Bench has laid down the following principles:

"20. It is a general rule that appointments in the public services should be made by
inviting applications through open advertisement and strictly on merit so that every citizen
should get equal opportunity in the matter of appointment. This rule should be adhered to in
the matter of any public employment or appointment. Neither the State Government nor its
instrumentality nor any public authority can deviate from this common rule of appointment
and if any other procedure or mode is adopted, it would be violative of Articles 14 and 16 of
the Constitution of India which ensures and guarantees equal opportunity to all citizens in
the matter of appointment to any office or of any other employment under the State.
However, some exceptions to the general rule for public employment or appointment is also
756 INDIAN LAW REPORTS ALLAHABAD SERIES
recognized which is commonly known as appointment on compassionate ground which is
evolved purely on humanitarian ground and in the interest of justice. This rule was made to
meet certain contingencies and to give appointment to a dependant of an employee dying-inharness to prevent his family from destitution ... Neither the Land Acquisition Act nor the
regulations provides that in the event of acquisition of the land one of the family members of
the landholder shall be given employment in addition to the amount of compensation.
Therefore, in the absence of any statutory provision or any promise, the petitioner
respondent cannot claim appointment as a matter of right nor can the respondent make such
appointment."

7 he conclusion of the Full Bench was in the following terms:

"1. The Government Orders/Circulars providing employment to one member of a
family of a person whose land has been acquired (over and above the compensation awarded
under the law) are invalid

2. The acquiring body for whose benefit the land is acquired are not bound by such
Government Order/Circular.

3. No writ can be issued directing the acquiring body to consider the claim in
accordance with the aforesaid Order/Government Circular."

8. The judgment of the Supreme Court in Butu Prasad Kumbhar Vs Steel Authority
of India Ltd holds thus:

"...Needless to say that petitioners or their ancestors were not deprived of their
land without following the procedure established in law. Their land was taken under the
Land Acquisition Act. They were paid compensation for it. Therefore, the challenge raised
on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State
to ensure that no citizen is deprived of his livelihood does not extend to provide employment
to every member of each family displaced in consequence of acquisition of land. Rourkela
Plant was established for the growth of the country. It is one of the prestigious steel plants. It
is established in public sector. The Government has paid market value for the land acquired.
Even if the Government or the steel plant would not have offered any employment to any
person it would not have resulted in violation of any fundamental right. Yet considering the
poverty of the persons who were displaced both the Central and the State Government took
steps to ensure that each family was protected by giving employment to at least one member
in the plant. We fail to appreciate how such a step by the Government is violative of Article
21. The claim of the petitioners that unless each adult member is given employment or the
future generation is ensured of a preferential claim it would be arbitrary or contrary with the
constitutional guarantee is indeed stretching Article 21 without any regard to its scope and
ambit as explained by this Court. Truly speaking it is just the other way. Acceptance of such
a demand would be against Article 14."
3 All. Surij Pal Singh Vs State Of U.P. & Ors.
757

9. In view of the above position of law, the matter would now have to be considered
from the perspective of the condition in the lease deed between UPSIDC and BPCL. The
condition which has been extracted above, merely provides that BPCL shall give preference
to one or two able bodied persons from the families whose land has been acquired while
employing labour for the unit in the industrial area. The condition does not specifically
provide a reservation or quota but a preference in the matter of employment. The condition
does not preclude BPCL from laying down reasonable terms and conditions to define norms
of eligibility. The norms which were prescribed by BPCL, as stated in the counter affidavit,
stipulated an educational requirement of having passed the seventh standard and a minimum
and maximum age requirement. The criteria has not been questioned in writ proceedings
before the learned Single Judge as being unreasonable or ultra vires. Nor can the criteria be
held to suffer from manifest unreasonableness or perversity. We find no substance in the
submission that the age relaxation in favour of SC/ST candidates of five years and of three
years in favour of OBC candidates must be extended to the general category. Such an age
relaxation to the reserved category cannot be held to be unreasonable. In the present case,
the appellant did not fulfill the eligibility criteria specified by BPCL.

10. In this view of the matter, the appellant having been considered in terms of the
policy and having been found to be ineligible, no fault could have been found in the
decision. The finding of the learned Single Judge that no employment could be granted after
a lapse of nearly forty five years from the date of acquisition shades into the background
since, even in terms of the policy as laid down for employment by BPCL, the case of the
appellant was evaluated and he was not found to be eligible.

11. For these reasons, we find no merit in the special appeal. The special appeal is
accordingly dismissed. There shall be no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2016

BEFORE

THE HON'BLE HULUVADI G. RAMESH, J.
THE HON'BLE RAGHVENDRA KUMAR, J.

Special Appeal No. - 652 of 2014

Surij Pal Singh ...Appellant
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Appellant
Siddharth Khare, Ashok Khare

Counsel for Respondents
C.S.C.,Ashok Gupta, Ashok Kumar