JUDGMENT S. Rafat Alam, J.
1. This is a special appeal under the Rules of the Court arising out of the order of the learned single Judge dated 17.5.1996 in Writ Petition No. 23803 of 1994 whereby the learned single Judge held that the respondents-appellants are under duly to give employment to the members of such families whose land is acquired, irrespective of the fact whether post is available or not and allowed the writ petition and directed the respondent-appellants to provide employment to the petitioner-respondent No. 1 within two weeks from the date certified copy of the order is served upon them.
2. It appears that the land bearing Plot No. 421 having an area of one bigha belonging to the father of the petitioner-respondent No. 1 was acquired in the year 1988. His father, therefore, made a representation on 10.8.1988 (Annexure-8 to the writ petition) before the Deputy Director (Administration), Rajya Krishi Utpadan Mandi Parishad, Allahabad (appellant No. 3) stating that his agricultural land has been acquired for the construction of Krishi Utpadan Mandi Samiti, Ajhuaha, in the district of Allahabad and after that acquisition, he has no means for his livelihood and as such one person of his family should be given appointment in the Krishi Utpadan Mandi Samiti, Ajhuaha in terms of the G.O. dated 15.6.1985 (Annexure-2 to the writ petition). He filed another representation on 11.4.1994 addressed to the Director, Rajya Krishi Utpadan Mandi Parishad, Lucknow, making a request to give appointment to his son, Sohan Lal petitioner-respondent No. 1 against a suitable post in the Krishi Utpadan Mandi Samiti, Ajhuaha, in the district of Allahabad. Thereafter, he moved several representations, the last being 11.4.1994 (Annexure-9 to the writ petition) and when no action was taken the aforesaid writ petition was filed claiming therein that in view of G.O. dated 15.6.1985 the writ petitioner is entitled to be given appointment. The appellants who were the respondent Nos. 1, 2, 3 and 5 filed counter-affidavit and contested the writ petition on the ground inter alia that only a portion of land, i.e., one bigha, of the petitioner's father has been acquired and the major portion, i.e, about two and half acres of land is still available for cultivation with the petitioner's family. It has further been asserted in the counter-affidavit that the petitioner-respondent No. 1 is of 37 years of age, thus over age and, therefore, cannot be appointed in view of the U.P. Agricultural Produce Market Committee (Centralised) Services Regulations, 1984 (for short the Regulation). Besides that he is not unemployed and is engaged in truck business and cultivation and, therefore, his claim is not covered by the aforesaid G.O. dated 15.6.1985.
3. It appears from the record of the writ petition that when it was taken up on 28.7.1994, learned counsel for the respondents were granted six weeks' time to file counter-affidavit and one week thereafter for rejoinder-affidavit and the writ petition was ordered to be listed after expiry of the aforesaid period. By an interim order the petitioner was given opportunity to file representation before the respondent No. 1 within a period of one week and in the event of filing of such representation, the respondent No. 1 (Director) was directed to dispose of the same in accordance with law by a reasoned order within ten days from the date of filing of the representation along with the certified copy of that order. Pursuant to the aforesaid order, the petitioner-respondent No. 1 had filed the representation before the Director which was rejected vide order dated 1.9.1994, a copy whereof is enclosed as Annexure-3 to the counter-affidavit, on the ground. Inter alia, that the G.O. dated 15.6.1985, is applicable only where the land is acquired for the establishment of any industrial unit and if on account of such acquisition the whole family is uprooted in that event one member of the family may be given employment in the industrial unit established on the land acquired for that purpose. It has also been found by the Director that the petitioner-respondent No. 1 has crossed the age prescribed in the Regulation for appointment and the petitioner's family is still in possession of two bighas 17 biswas and 11 biswansi agricultural land and, therefore, he is not entitled to get appointment under the aforesaid G.O. It has also been found by the Director that no post is available for appointment in the Krishi Utpadan Mandi Samiti, Ajhuaha, in the district of Allahabad, hence he rejected the representation of the petitioner. The learned single Judge was of the view that the grounds taken in the order of rejection of representation have no substance, as the land retained by the family is not at all sufficient for the survival of the petitioner's family. The learned single Judge was further of the view that if no post is available, the respondents are under duty to give employment to the members of such family whose land is acquired irrespective of the fact that the post is available or not.
4. Shri B.D. Madhyan, learned counsel appearing on behalf of the appellant vehemently argued that the appointments in Mandi Samiti are governed by the statutory regulation. It is submitted that the regulation does not envisage appointment on compassionate ground, on account of acquisition of land and the Government Order upon which the petitioners-respondents have placed reliance cannot override the statutory provisions ; even !f for the argument's sake it is assumed but not admitted that the Government Order in question is applicable in the facts of the case, in that event the benefit is to be extended only to those land holders whose entire land have been acquired. Whereas, admittedly, in the case in hand a portion of the holding of the respondent's father has been acquired and as such he is not covered by the said Government Order. It is further submitted that the petitioner-respondent is guilty of laches and negligence inasmuch as he filed the writ petition claiming appointment after lapse of seven years from the date of acquisition of land, which disentitles him to get relief under the extraordinary Jurisdiction of this Court under Article 226 of the Constitution. It is also submitted that there is no post available and there is already surplus staff due to which the appellant was compelled to terminate the services of more than one thousand employees.
5. On the other hand, learned counsel appearing on behalf of the respondents strenuously sought to argue that the Mandi Samiti being instrumentality of the State, all the Government Orders are applicable and binding on it. He further submitted that the Government Order clearly provides that one person of the uprooted family is entitled to be appointed if the whole or part of the land is acquired and, therefore, the learned single Judge has rightly allowed the writ petition.
6. It is 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 or 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 pubic employment or appointment is also recognised which is commonly known as appointment on compassionate ground which is evolved purely on humanitarian ground and in the interest of justice, rule is made to meet certain contingencies and to give appointment to a dependant of an employee dying-in-harness and leaving his family in penury and without any means of livelihood.
7. In the case in hand, the appointment is claimed on the basis of Government Orders dated 15.6.1985, 12.5.1988. 29.6.1988 and 31.7.1988 copies whereof are enclosed as Annexure-2 to the writ petition. A close reading of these Government Orders clearly shows that only preference is to be given to a family member of the displaced person whose land is acquired for the purpose of setting up industry or an industrial unit or for project of the State. Therefore, where the land is acquired for establishing an industry in that event, members of the displaced family should be given preference in the matter of appointment in that industry or institution, which is set up on the acquired land, provided other things being equal. It does not provide that if no post is available in that event, a post shall be created for giving such appointment.
8. In the counter-affidavit, the stand of the respondent-appellant is that only a portion of the land of the petitioner's father is acquired and the major portion is still with the petitioner's family thus, the Government Order in question does not apply in the case of the petitioner. It has also been stated in the counter-affidavit that the petitioner has crossed the maximum age limit prescribed in the service regulation and, therefore, he is over age and cannot be appointed. This averment has not been denied in the rejoinder-affidavit that the petitioner has not crossed the age limit prescribed for appointment and, therefore, admittedly, the petitioner was over age at the time of filing of the writ petition.
9. The Government Order dated 15.6.1985, upon which heavy reliance has been placed by Mr. R.K. Ojha, learned counsel for the petitioner-respondent No. 1 is also of no help for the reason that admittedly the Government Order is not issued under any statutory provision and as such, it has no statutory force. It is merely administrative Instruction laying down guidelines to provide appointment to a member of displaced family and such instructions not having any statutory force cannot be enforced by issuing mandamus. The non-observance of such instruction/ Government Order does not confer any right to a person to approach the Court for its enforcement.
10. It is settled legal position that the Government orders not issued under any statutory provision or under any provision of the Constitution, are merely in the nature of administrative instructions for the guidance of the department and are issued under the executive power of the State provided under Article 162 of the Constitution, which does not confer any power on the State Government to frame rules but it only indicates the scope of the executive power of the State under which the State Government can give administrative instructions. In order to find out as to whether such instructions or Government orders have the force of statutory rules, it has to be seen that it has been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. Learned counsel for the respondent No. 1 could not show us any statutory provision or constitutional provision under which the Government Order dated 15.6.1985 has been issued by the State Government and, therefore, at best, it could be said to have been issued in exercise of the power under Article 162 of the Constitution. It is well settled legal position that any instruction issued by the State Government in exercise of its power under Article 162 of the Constitution, which does not confer any rule making power are mere administrative instructions and are not statutory rules and breach of such executive instruction or disobedience thereof do not confer any right on a person like the petitioner-respondent No. 1 to knock the door of this Court invoking jurisdiction under Articles 226/227 of the Constitution for the relief, on the ground of breach of that instructions or guidelines. Reference may be made to the judgment of the Apex Court rendered in the case of G, J. Fernandez v. State of Mysore, AIR 1967 SC 1753. The position, however, would be different if the State Government or its authority acts arbitrarily or discriminatorily while applying such guidelines between individuals, in that event it becomes violative of Article 14 of the Constitution of India and thus such action being discriminatory, arbitrary or mala fide can be interfered with under the writ jurisdiction of this Court.
11. The State Government has framed U.P. Agricultural Produce Market Committees (Centralised) Services Regulations. 1984 (hereinafter referred to as Regulation) which governs the appointment of employees of market committee. Part III of the Regulation provides that the recruitment may be made either from open market by direct recruitment or by promotion. It further lays down the manner and procedure, such as constitution of selection committee, determination of vacancies, advertisement in one or two leading newspapers inviting applications from eligible candidates and also to notify the vacancy to the employment exchange thereafter to prepare the list according to the merit of the candidates following the reservation policy.
12. There is no provision under the regulation to offer appointment to a member of the displaced family whose land has been acquired for the construction of the market committee. Therefore, the Government Order relied on by the petitioner-respondent No. 1 cannot override the provisions of the statutory rules governing appointments in the market committee.
13. Land Acquisition Act is a self contained Act and provides the procedure to be followed for acquisition as well as for assessment of valuation and payment of fair and just compensation as per market value whose land is acquired. In addition to that market value of the land interest @ 12% is also paid from the date of publication of the Notification.
Besides that a sum of 30% on such market value is also paid as solatium for distress and for inconvenience or difficulties caused to the person on account of compulsory acquisition of the land. Therefore, a person whose land is acquired, not only gets adequate compensation as per market value of the land but also gets interest on the amount of compensation @ 12% from the date of notification under Section 4 of the Act as well as an amount of solatium, which is 30% of the amount of compensation. Admittedly, the father of the petitioner-respondent No. 1 has received the amount of compensation for the land in question as per market value of the land along with interest and solatium. Neither the Land Acquisition Act under the provisions of which the land of the petitioner's father is acquired nor the regulation provides that in the event of acquisition of the land, one of the family member of the land holder shall be given employment in addition to the amount of compensation. It has also not been asserted nor argued before this Court that at the time of acquisition of the land, any assurance or promise was made to the respondent No. 1 or his father to provide job to one of his family members. Therefore, in the absence of any statutory provisions or any promise, the petitioner-respondent No. 1 cannot claim appointment as a matter of right nor the appellant can make such appointment without following the procedure provided in the Regulation.
14. We are of the view that the learned single Judge erred in issuing the mandamus commanding the appellants to provide employment to the writ petitioner-respondent No. 1 and the writ petition has no merit and should have been dismissed in limine.
15. In view of the discussions made above, this appeal succeeds and is hereby allowed. The order of the learned single Judge dated 17.5.1996, is set aside and the writ petition is dismissed but without costs.