MANU/WB/0192/2020

Equivalent Citation: 2020LabIC 1379

IN THE HIGH COURT OF CALCUTTA

G.A. No. 1957 of 2019, A.P.O. No. 127 of 2019 and A.P.O.T. No. 90 of 2019
Decided On: 12.02.2020
Appellants: Eastern Coalfields Ltd. and Ors.
Vs.
Respondent: Sk. Amjad Maji and Ors.
Hon'ble Judges/Coram:
Soumen Sen and Saugata Bhattacharyya, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Shivsankar Banerjee and Sanchita Barman Roy,
Advs.
For Respondents/Defendant: Partha Ghosh, Amal Kumar Dutta and Subhojit Seal,
Advs.
JUDGMENT
Saugata Bhattacharyya, J.
1 . The intra court appeal [A.P.O. No. 127 of 2019] and stay application [G.A. No.
1957 of 2019] are presented by the M/s. Eastern Coalfields Ltd. (hereinafter referred
to as 'ECL') and its Chairman-cum-Managing Director and the Director (Personnel)
questioning the judgment/order dated 3rd May, 2019 passed by the learned Single
Judge whereby the writ petition was allowed by directing the appellants herein within
two weeks from the date of communication of the impugned order to obtain the
police verification report in respect of the writ petitioner and also send the writ
petitioner for medical test and it was also directed that if the reports are favourable,
then the employment was directed to be given to him upon compliance of other
formalities within a period of three months from the date of the communication of the
order. Being aggrieved by and dissatisfied with the direction of providing
employment to the writ petitioner the appellants have preferred the intra court appeal
and the stay application which are disposed of by the common judgment with the
consent of the parties.
2. The writ petitioner namely, Sk. Amjad Maji is the grandson of Sk. Kubed Maji. The
case made out in the writ petition by Sk. Amjad was based on the fact that plots of
land situated within Dag No. 1935, 1925 and 1927 under Khatian No. 468, J.L. No.
23, Mauza Pariharpur, Burdwan measuring more than one acre was purchased by the
concerned authority of the ECL for mining. Under the scheme namely, "Guidelines For
Determining Eligibility of The Candidate To Be Appointed From Land Losers" framed
by the appellants, the proposal for employment of Sk. Kubed (grandfather of the writ
petitioner) was approved vide order dated 16th August, 1993 under Ref. No.
A/Gir/Survey/9/C-6/93/2055, upon Sk. Kubed being found eligible to get such
appointment under the said scheme. The order dated 16th August, 1993 issued by the
appellants on appointment of Sk. Kubed is quoted in the judgment under appeal.
Though it is not spelt out in the writ petition the actual reason for not employing Sk.

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 Kubed in spite of the said order dated 16th August, 1993 but from paragraph 4(f) of
the affidavit-in-opposition used on behalf of the appellants before the learned Single
Judge it appears that due to death of Sk. Kubed the process of employing him under
land loser category could not be made complete.
3. Thereafter, Sk. Irshad Maji (father of the writ petitioner) laid his claim being the
nominee of Sk. Kubed for being appointed under land loser category in terms of the
said scheme where provisions have been made for providing employment to the
nominee of the deceased land loser. The appellants examined the possibilities of
providing employment to Sk. Irshad which appears from one memo dated 29th
December, 1997 issued by Director (Personnel) ECL addressed to the then General
Secretary, CMU, (INTUC). Clause 2 of the said memo dated 29th December, 1997 is
quoted below:
"2. Case of Sri Irshad Maji son of Sk. Kubed Maji.
Previously employment was approved in the name of Kubed Maji which was
communicated to the area in March, 93. Subsequently, the case was
processed for employment for Irshad Maji s/o. Kubed Maji and all the
clarifications asked from the area has been received and the case is under
process."
4 . From the documents annexed to the pleadings it appears that this memo dated
29th December, 1997 is the sole document relating to employment of Sk. Irshad. Sk.
Irshad in spite of issuance of memo dated 29th December, 1997 by the appellant No.
3 was not provided with employment. No contemporaneous steps were taken by Sk.
Irshad for taking the process of providing appointment in his favour which was
initiated by the appellants to its logical conclusion. From the writ petition it appears
that Sk. Irshad made representation on 25th June, 2012 addressed to the Chief
Personnel Manager, Sripur Area, ECL, Dist. Burdwan requesting for providing
appointment to his son, Sk. Amjad Maji (the writ petitioner) since employment could
not be granted to Sk. Kubed and thereafter to him. It also appears from the said
representation dated 25th June, 2012 that due to some typographical error the
appointment of Sk. Irshad was withheld.
5 . Before appraising the eligibility of the writ petitioner to be appointed under the
said scheme under land loser category we find it apposite to consider the
chronological sequence of facts which would unleash that the claim laid by the writ
petitioner is nothing but stale one. Vide order dated 16th August, 1993 Sk. Kubed
was found eligible to be given appointment under the land loser category in terms of
the relevant provisions of the said scheme. Appointment of Sk. Kubed could not see
the light of the day since he expired. Subsequently, Sk. Irshad being the son of Sk.
Kubed approached the appellants being the nominee of his deceased father for
getting appointment under land loser category. There was initiation of process of
providing appointment to Sk. Irshad as it emanates from the memo dated 29th
December, 1997. It was open to Sk. Irshad to pursue his claim due to delay made by
the appellants in providing employment to him. Astonishingly Sk. Irshad due to
undisclosed reasons did not pursue his right of getting employment being the
nominee of Sk. Kubed thereby relinquished his right in the matter of obtaining public
employment under the said scheme. Had Sk. Irshad pursued his right in pursuit of
getting employment due to denial of same by the appellants he had to establish that
he was the nominee of Sk. Kubed based on which right of Sk. Irshad for getting
employment could have been vindicated before the appropriate forum. However, Sk.

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 Irshad chose not to pursue his claim being the nominee of Sk. Kubed. Meanwhile
sands of time passed away, suddenly on 25th June, 2012 Sk. Irshad made
representation for employment of his son, the writ petitioner, since Sk. Irshad grew
old. If time is counted from the date of issuing memo dated 29th December, 1997 by
the appellant No. 3 on employment of Sk. Irshad it transpires that the said
representation was made by Sk. Irshad after a lapse of approximately 15 years.
6 . It also appears from the affidavit accompanying the writ petition preferred by
Amjad Maji that at the time of filing of the writ petition his age was 25 years but
when the process was initiated for providing appointment to his father namely Sk.
Irshad his age was 8 years which goes to show that there might have been an
attempt on the part of Sk. Irshad to keep the option alive for his son for a period of
15 years to make a prayer before the appellants for securing employment in favour of
his son which is alien to the said scheme of employment under the land loser
category.
7 . The object of providing appointment under the scheme is to compensate land
losers whose lands have been acquired/purchased/used by the appellants for mining
and/or excavation. Therefore, right to get employment under the said scheme by no
stretch of imagination can be acknowledged as vested right on the contrary it is an
exception to the regular process of public employment. On consideration of
chronological facts it could have been appreciated that if Sk. Irshad was the nominee
of Sk. Kubed he could have pursued his right but he cannot preserve such right for
his son for a period of 15 years when the son would become major.
8. On the question of delay and acquiescence in approaching the Court by presenting
the writ petition we find it apposite to place reliance on the judgment of the Hon'ble
Supreme Court reported in MANU/SC/0882/2013 : (2013) 12 SCC 179 (State of
Uttaranchal & Anr. Vs. Shiv Charan Singh Bhandari & Ors.); Paragraphs 22, 25 and
28 are quoted below:
"22. In BSNL v. Ghanshyam Dass a three-Judge Bench of this Court
reiterated the principle stated in Jagdish Lal v. State of Haryana and
proceeded to observe that as the respondents therein preferred to sleep over
their rights and approached the Tribunal in 1997, they would not get the
benefit of the order dated 7-7-1992.
2 5 . In NDMC v. Pan Singh the Court has opined that though there is no
period of limitation provided for filing a writ petition under Article 226 of the
Constitution of India, yet ordinarily a writ petition should be filed within a
reasonable time. In the said case the respondents had filed the writ petition
after seventeen years and the court, as stated earlier, took note of the delay
and laches as relevant factors and set aside the order passed by the High
Court which had exercised the discretionary jurisdiction.
28. Remaining oblivious to the factum of delay and laches and granting relief
is contrary to all settled principles and even would not remotely attract the
concept of discretion. We may hasten to add that the same may not be
applicable in all circumstances where certain categories of fundamental rights
are infringed. But, a stale claim of getting promotional benefits definitely
should not have been entertained by the Tribunal and accepted by the High
Court."
9. On the issue that delay and acquiescence are relevant factors before the Court of

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 equity in entertaining the writ petition under Article 226 of the Constitution of India
and granting relief, reliance is also placed on another judgment of the Hon'ble
Supreme Court reported in MANU/SC/5073/2006 : (2006) 11 SCC 464 (U.P. Jal
Nigam & Anr. Vs. Jaswant Singh & Anr.); paragraphs 6, 12, 13 to 15; paragraph 12
reads infra:
"12. The statement of law has also been summarised in Halsbury's Laws of
England, para 911, p. 395 as follows:
"In determining whether there has been such delay as to amount to
laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the
defendant's part.
Acquiescence in this sense does not mean standing by while the violation of
a right is in progress, but assent after the violation has been completed and
the claimant has become aware of it. It is unjust to give the claimant a
remedy where, by his conduct, he has done that which might fairly be
regarded as equivalent to a waiver of it; or where by his conduct and
neglect, though not waiving the remedy, he has put the other party in a
position in which it would not be reasonable to place him if the remedy were
afterwards to be asserted. In such cases lapse of time and delay are most
material. Upon these considerations rests the doctrine of laches."
10. While considering the latches and acquiescence on the part of Sk. Irshad we have
already observed that being nominee of Sk. Kubed, Sk. Irshad had the right at the
material point of time to pursue his claim which he chose not to do. Such conduct of
Sk. Irshad leads us to come to a conclusion that Sk. Irshad had relinquished his right
being the nominee of Sk. Kubed. Therefore, the writ petitioner does not have any
existing right at the time of filing writ petition to claim the benefit of employment
under the said scheme by describing himself as nominee's nominee. To fortify the
claim based on the said scheme on behalf of the writ petitioner/respondent No. 1 a
judgment of a coordinate bench reported in MANU/WB/1346/2011 : (2012) 2 CHN
(Cal) 100 (Eastern Coalfields Ltd. Vs. Sk. Nasiruddin) has been relied upon to
demonstrate before us that the nominee's nominee under the said scheme is eligible
to be appointed under land loser category. Paragraph 13 of Sk. Nasiruddin (Supra)
has been placed before us to establish the claim of writ petitioner being nominee's
nominee. A judgment is an authority on what it decides not what is derived
therefrom. In Sk. Nasiruddin (Supra) one Rabbani was nominee of Ijuddin who was
the owner of the plots of land. One application was made by said Rabbani for his
appointment was processed by the competent authority but in pre-employment
medical examination he was found unfit which resulted in granting relief in favour of
Sk. Nasiruddin being the son of Rabbani. In the instant case at our hand Sk. Irshad
was not adjudged as medically unfit for getting appointment and in spite of initiation
of process of identifying the eligibility of Sk. Irshad the same was not concluded
which cast responsibility upon Sk. Irshad to pursue his claim being the nominee of
Sk. Kubed. Therefore, the principle enunciated in Sk. Nasiruddin (Supra) is of no
assistance.
11. Now, we will consider whether the writ petitioner was at all eligible in terms of
the said scheme for securing public employment under land loser category due to the

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 plots of land of his grandfather purchased/acquired/used by the ECL for mining
purpose. For such exercises the "Guidelines For Determining Eligibility of The
Candidates To Be Appointed From Land Losers" is required to be quoted below:
"GUIDELINES FOR DETERMINING ELIGIBILITY OF
THE CANDIDATES TO BE APPOINTED FROM LAND LOSERS
(Three points criteria A, B & C be noted carefully)
For the land purchased/acquired/used between the period from 8.9.1975 to
12.8.83 for eligibility:-
i) Minimum one acre of land is required for one employment and in
case of more than 3 acres maximum 2 employments from a family. If
any person is employed earlier under L.L. Scheme that should be
taken into account for determining eligibility of employment.
ii) The land should belong to the same family.
iii) The nominee should be near relation and be dependent to the land
loser upper age limit is 35 yrs. and should be physically fit on medical
examination.
iv) All land losers must belong to the same family and the land should
be in possession of the Company.
For the land purchased/acquired/used during the period from 13.8.83 to
31.12.84.
i) In addition to the norms mentioned it 'A' the land owners must
have at least 5 yrs. ownership over the land. For the land purchased
from 1.1.85 and thereafter.
i) For eligibility there must be at least minimum 2 acres of irrigated 3
acres of non-irrigated land taken from a family in case the nominee is
Matriculate or above the Area of land required may be reduced to 2
acres for non-irrigated land also and should agree to be appointed as
Trainee.
ii) The nominee should be linear dependent of the land loser, of
upper age limit 35 yrs. and medically fit.
iii) As per practice the instant cases eligibility may be considered with
ratio 2:1 irrespective of class of land.
In the cases where different class of land is acquired at different times the
eligibility should be determined on the basis of the provisions applicable on
the date of land purchased of the land.
No female should be selected for employment. In case of unavailable
circumstances female may be selected if she is found suitable and eligible and
agreeable in writing for training as Nurse or Midwife.
In case of necessity if a person is required to be selected viating any of the
above norms, special sanction of the authority is be taken.

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 1) Employment will be offered to the nominee of the land owner for
each one acre of land when the land has been used/damaged upto
31.12.84.
2) For the period from 13.8.83 to 31.12.84 for one employment
against one acre of land, 5 yrs ownership will be required for the land
on date of use/damage.
3) From 1.1.85 onwards for eligibility of one employment minimum
two acres of land will be required.
4) In all cases of employment the land should belong to the same
family.
5) The married female members though they belong to separate
families but have got ownership over the land as a share holder of
the paternal property will be considered as member of family for
tagging of that parcel of land.
6) It is clarified that no employment will be offered to a female land
loser/nominee. The female land loser can nominate a male member of
her family.
7) In the case pertaining to the period where minimum one acre of
land is required for eligibility maximum two persons are eligible for
employment from a family from whom more than 3 acres of land is
taken.
8) The number of employments per family shall not exceed two
irrespective of the quality of land.
9) Tagging of land for the purpose of employment will be allowed
only after the company has used the last parcel of the total land and
the norms will be applicable as prevalent in the last parcel of land.
10) Employment will not be considered for ownership of used land
i.e., land purchased/acquired after the use of the land for the
purpose of employment. They will get the value of the land.
11) The actual date of use of land has got to be specified i.e., the
actual date of starting of caving operation in case of underground
working/excavation or in case of opencast, or where construction is
done, the date when the construction has started.
12) Where the land in question is below two acres, market rate will
be paid and the case will be disposed off accordingly."
(Emphasis supplied)
1 2 . Under the criteria as laid down under 'A' it is provided in the said
guidelines/scheme that the land needs to be purchased/acquired/used during the
period from 8th September, 1975 to 12th August, 1983. Since it is admitted in
paragraph 4(a) of the affidavit-in-opposition affirmed on behalf of the appellants
before the learned Single Judge that the plots of land in question were used by the
ECL during the year 1973-1977 the criteria laid down under 'A' is applicable in case

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 of the writ petitioner. Clause (i) of 'A' provides minimum one acre of land is required
for one employment and in case of more than three acres of land maximum two
employments from a family. Clause (ii) speaks of necessity of the land being owned
by same family and clause (iii) says nominee should be near relation and dependent
to the land loser. It also says about the age limit as well as necessity to remain
physically fit for getting the employment. Clause (9) of the said scheme permits
tagging of land for the purpose of employment after the company has used the last
parcel of the total land and norms will be applicable as prevalent in the last parcel of
the land. Clause (10) says employment will not be considered for ownership of used
land i.e., land purchased/acquired after the use of the land for the purpose of
employment and in case of such purchase/acquisition after the use of the land the
owner would get the value of the land in lieu of employment.
13. We have carefully gone through the paragraphs in the writ petition but we are
unable to find any assertion on the part of the writ petitioner in support of his claim
of employment that required quantum of one acre of land as per the said scheme was
owned/possessed/purchased by Sk. Kubed (grandfather of the writ petitioner) prior
to use of the said lands during the year 1973-1977. On the contrary the appellants in
paragraph 4(a) of the affidavit-in-opposition filed before the learned Single Judge
made specific statements that the appellants vide deed of conveyance dated 4th
March, 1983 purchased 0.07 acres of land and also by another deed of conveyance
dated 8th January, 1985 purchased 0.66 + 0.275 acres of land from Sk. Kubed which
corroborates that the appellants had purchased total 1.005 (0.07 + 0.66 + 0.275)
acres of land and used the same during the period of 1973-1977. Out of said 1.005
acres of land Sk. Kubed obtained ownership of 0.125 acres (Plot No. 1925 - 0.055
and Plot No. 1927 - 0.07 acre) of land in the year 1982. Paragraph No. 4(a) of the
affidavit-in-opposition is quoted below:
"4. (a) Eastern coalfields Limited authority by a Deed of Conveyance dated
4th March, 1983 purchased 0.07 acres of land and also by another Deed of
Conveyance dated 8th January, 1985 had purchased 0.66 + 0.275 acres of
land from the grandfather of the petitioner and such purchase was made by
Eastern Coalfields Limited authority by paying the valuable consideration
therefore. It is thus evident that Eastern Coalfields Limited authority had
purchased the total 1.005 acres of land used the above land during the year
1973-1977. Out of which the petitioner's grandfather Sk. Kubed Maji got
ownership over 0.125 Acres (Plot No. 1925 - 0.055 and Plot No. 1927 - 0.07
Acre) of land in the year 1982. Therefore, ownership has come over 0.125
Acres after date of use."
14. Paragraph No. 4(a) of the affidavit-in-opposition of the appellant has been dealt
with by the writ petitioner in paragraph No. 5 of his affidavit-in-reply where we do
not find any effective denial of the statements made by the appellants relating to
ownership of 0.125 acres of land by Sk. Kubed obtained by purchase in the year 1982
which is after use of the said land during the period 1973-1977. Only feeble attempt
is made by the writ petitioner in the said paragraph No. 5 that some plots of land
were inherited by Sk. Kubed from his ancestors without describing the quantum of
land inherited/purchased/acquired by Sk. Kubed prior to user by the appellants. The
manner in which paragraph No. 4(a) has been dealt with by the writ petitioner in his
affidavit-in-reply in paragraph No. 5 leads us to infer that 0.125 acres of land was
purchased by Sk. Kubed in the year 1982. It is not the case of the writ petitioner that
beside said 0.125 acres of land Sk. Kubed had the ownership of one acre land prior
to use of the said land by the appellants.

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 15. The right of the writ petitioner to obtain public employment pursuant to the said
scheme depends upon satisfying the eligibility criteria laid down in the said scheme
coupled with fulfillment of conditions as stipulated therein. When clause (10) of the
said scheme as quoted above makes a covenant that employment will not be
considered for ownership of used land i.e., a land purchased/acquired after the use of
the land for the purpose of employment; the writ petitioner herein is not found to be
fit notwithstanding being nominee's nominee in view of purchase of land by his
grandfather (Sk. Kubed Maji) in the year 1982 measuring 0.125 acres.
16. We have also considered clause (9) of the said scheme which speaks of tagging
of land for the purpose of employment is permissible only after the company has
used the last parcel of the total land. Conjoint reading of clause (9) and clause (10)
would reveal a situation in identifying the eligibility of a candidate to get employment
under the said scheme that tagging of land is permissible provided proposed land to
be tagged is acquired or purchased prior to use of the said piece of land. In the
present case the tagging of 0.125 acres of land with other plots of land of Sk. Kubed
could make the writ petitioner eligible to secure appointment if 0.125 acres of land
being purchased/acquired by Sk. Kubed prior to use of the said land by the
appellants.
17. It also appears from paragraph No. 4(1) of the affidavit-in-opposition filed by the
appellants before the learned Single Judge that ECL had paid the entire land value at
the time of executing the deed of conveyance dated 4th March, 1983 and 8th January,
1985 measuring 1.005 acres to the grandfather of the writ petitioner. Such statement
relating to payment of land value upon executing deeds of gift is not effectively
denied by the writ petitioner in his affidavit-in-reply. Since the valuation of the land
has not been an issue in the writ petition we are not tasked to examine the question
whether plots of land were purchased by the appellants upon making payment to the
said Sk. Kubed Maji after making proper valuation.
18. In support of the case of the writ petitioner reliance has also been made upon
one unreported judgment dated 13th December, 2012 delivered by a coordinate
bench in G.A. No. 3038 of 2012, A.P.O.T. No. 536 of 2012, W.P. No. 1640 of 2004
(Eastern Coalfields Ltd. Vs. Smt. Dipali Dawn (Rakshit) & Ors.). The issue cropped up
before the coordinate bench was whether brother of the writ petitioner should be
regarded as linear dependent of the land loser in the matter of providing employment
under the scheme. The coordinate bench after considering the relevant clauses of the
said scheme decided that in considering the facts of that case the brother of the writ
petitioner need not be linear dependent but the candidate has to be closely related to
the land loser and thereby granted relief in favour of the writ petitioner. Considering
the facts of the case in Smt. Dipali Dawn (Supra) the said decision of the coordinate
bench does not apply in the present case.
1 9 . The judgment of a coordinate bench reported in MANU/WB/1108/2019 : AIR
ONLINE (2019) Cal 191 (Eastern Coalfields Ltd. Vs. Banshi Dhibar) is an authority on
purchase/acquisition/use of land during the period from 13th August, 1983 to 31st
December, 1984 in terms of 'B' of the said scheme. The coordinate bench while
deciding the issue raised before it considered the condition under clause B(i) on the
necessity of having five years ownership over the land before the purchase of the
said land during the period from 13th August, 1983 to 31st December, 1984, prior to
13th August, 1983. In the present case we are considering the eligibility of the writ
petitioner in terms of 'A' of the said scheme which provides purchase/acquisition/use
of the land during the period from 8th September, 1975 to 12th August, 1983 and as

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 such the decision rendered in Banshi Dhibar (Supra) does not apply considering the
facts involved in the present appeal.
2 0 . On the contrary on behalf of the appellants reliance has been placed on the
judgment of a coordinate bench dated 26th September, 2019 delivered in MAT 853 of
2019 with CAN 7081 of 2019 (Eastern Coalfields Ltd. & Ors. Vs. Debkumar Mukherjee
& Ors.) along with two other similar appeals. In this case also the coordinate bench
was considering applicability of provisions under point 'B' of the said scheme which
lays down criteria for determining the eligibility of the candidate to be appointed
under land loser category in case purchase/acquisition/use of the land in question for
the period from 13th August, 1983 to 31st December, 1984. But the case at our hand
we are considering in view of purchase of 0.125 acres of land in the year 1982 by the
grandfather of the writ petitioner after the use of the land during the period from
1973 to 1977 whether writ petitioner can be considered as eligible for securing
employment. Since the tests required to be applied in the present case and the cases
considered by the coordinate bench in Debkumar Mukherjee (Supra) are different, the
decision rendered in Debkumar Mukherjee (Supra) is not apposite while determining
the issue in this appeal.
21. It is pellucid from 'A' (ii) of the said scheme that land should belong to the same
family. On production of deeds of conveyance before the learned Single Judge,
observation was made in the judgment under appeal that part of plot No. 1925 was
purchased by Sk. Kubed from a cousin on 20th November, 1982 which corroborates
the statement made in paragraph No. 4(a) of the affidavit-in-opposition relating to
purchase of land by Sk. Kubed measuring 0.125 acres in the year 1982. Had the said
cousin been member of the family of Sk. Kubed there was no need to purchase the
said plot of land by Sk. Kubed in the year 1982 which goes to show that transfer of
ownership by executing the conveyance deed in favour of Sk. Kubed in the year 1982
was not restricted within the family but the same was purchased from a person who
was not a part of the family of Sk. Kubed. Therefore, the restriction as contemplated
under clause (10) of the said scheme squarely applies against the writ petitioner.
2 2 . In above conspectus the appeal and the stay application are allowed
consequently the writ petition is dismissed. The order dated 3rd May, 2019 passed by
the learned Single Judge is set-aside.
23. Urgent certified copy of the judgment and order, if applied for, be supplied to the
parties upon compliance with all requisite formalities.
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