JUDGMENT M. Katju, A.C.J.
1. This Full Bench has been constituted by Hon'blc the Acting Chief Justice by order dated 22.9.2004 in view of the reference to a Full Bench made by a Division Bench in Writ Petition No. 29679 of 1999, Ravindra Kumar v. District Magistrate. Agra by order dated 17.2.2001 in which the following questions have been referred to the Full Bench :
"1. Whether Government Orders/Circulars providing employment to one member of a family whose land has been acquired (over and above the compensation awarded under law) is valid or not?
2. Whether the acquiring bodies for whose benefit the land is acquired are bound by these Government Orders/Circulars.
3. Whether a writ can be issued directing the acquiring body to consider the claim in accordance with the Government. Orders/Circulars."
2. We have heard the learned Counsel for the parties.
3. The facts of the case arc that some land of the petitioner and his brothers was acquired under the Land Acquisition Act for the purpose of a Housing Scheme. It is alleged in paragraph 6 of the writ petition that at the time of acquiring the land of the petitioner the Land Acquisition Officer assured the petitioner that he will be adjusted in the service of the Agra Development Authority, but that was not done. The petitioner has relied on the Government Order/Circular of the State Government dated 28.12.1974 which provides for giving appointment to a member of the family of persons whose land has been acquired vide Annexure III to the petition. A perusal of the said circular shows that it is mentioned therein that when the land is acquired one member of the family should be given a job in the relevant scheme. In paragraph 3 of the circular it is mentioned that compensation should be paid without delay.
4. In paragraph 8 of the petition reference has been made to the various representations made by the petitioner vide Anncxures IV, V and VI to the writ petition. In these representations the prayer has been made that one member of the family of the petitioner should be given a job. The petitioner has relied on a decision of a learned Single Judge in Umesh Chandra Srivastava v. District Magistrate, Gorakhpur, decided on 14.12.1994. The petitioner has alleged that he is unemployed and hence a mandamus be issued directing that appointment be given to him.
5. A counter-affidavit has been filed on behalf of the State Government and we have perused the same. In paragraph 8 it is denied that the Land Acquisition Officer assured the petitioner that he will be adjusted in service in the office of the Agra Development Authority. It is stated that the petitioner never moved any representation before the District Magistrate or Special Land Acquisition Officer except the letter dated 24.7.2000 Anncxure C A. 1.
6. A counter-affidavit has also been filed on behalf of the Agra Development Authority. In paragraph 6 it is stated that the share of the petitioner in the land acquired is only 12biswas and 10 biswansi which too he has transferred prior to the receipt of the compensation. It is denied that any representation was made by the petitioner. It is stated that the G.O. in question is neither applicable nor workable and there is no provision in the Lana Acquisition Act for giving a job. The Agra Development Authority never entered into any agreement with the acquiring body or any other person in this connection. It is denied that the petitioner is entitled to the relief prayed for. The petitioner is gainfully employed as registered stamp vendor in the Collectorate, Agra. In paragraph 12 it is denied that the petitioner's family is suffering.
7. We have also perused the rejoinder affidavit.
8. In our opinion there is no merit in this petition.
9. It is not denied that the petitioner has received full compensation as provided under Section 23 of the Land Acquisition Act which means an amount equal to full market value of the land with interest as well as solatium under Section 23(2) which is equal to 30% of the market value. That being so we cannot understand under which law a person can get a job in addition to this compensation.
10. The Land Acquisition Act takes care of the difficulties of a person whose land has been acquired by granting 30% solatium under Section 23(2) in addition to the market value of the land which has been acquired. Thus, if the market value of the land acquired is Rs. 1 Lac, the owner will get not only Rs. 1 Lac but an additional Rs. 30,000/- i.e. he will get Rs. 1.30 Lac with interest at 12% from the date of the notification under Section 4 to the date of the award or the date of taking possession whichever is earlier, vide Section 23(1 -A). ' :
11. This grant of solatium in addition to the full market value of the land has obviously been made to cater to the difficulties of the person whose land has been acquired. There is no provision in the Land Acquisition Act to grant a job in addition to the amounts specified in Section 23. Hence any Government Order for providing a job in addition to that is in our opinion violative of the provisions of the Land Acquisition Act, for such a Government Order will amount to amendment of Section 23, which will be illegal.
12. In Writ Petition No. 27690 of 1991, Dau Dayal v. Agra Development Authority and others, decided on 23.3.1995 Hon'ble G.P. Mathur, J. held that as there is no provision for granting a job in addition to the compensation provided for in Section 23 of the Land Acquisition Act, no such job can be granted.
13. We fully agree with the view taken by Hon'ble G.P. Mathur, J. in the aforesaid decision. It is well known that there is already surplus staff in most Government Departments and Public Sector Undertakings, and further jobs cannot be given in this manner as that would only be putting a greater burden on the tax payers, and there would be violation of Article 16 of the Constitution.
14. In Butu Prasad Kumbhar and Ors. v. Steel Authority of India Ltd. and others, JT 1995(3) SC 428. it was held that there is no requirement under Article 21 of the Constitution to provide employment to a member of the family displaced by the acquisition of land. In Director, Mandi Pahshad v. Sohan Lal, 2003 ALJ 540, a Division Bench of this Court held that when the petitioner has received compensation under the Land Acquisition Act he cannot claim appointment in addition. The Government Order not being issued under a statutory provisions cannot have any statutory force. In Bihar Eastern Gangetic Fishermen Co-opera- tive Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149 (ide paragraph 15) the Supreme Court observed :
"In order that mandamus may be issued to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance."
15. In the present case, we have not been shown any statutory provision requiring a job to be given to one member of the family of the person whose land has been acquired. In Ravindra Kumar v. District Magistrate, Agra, Civil Misc. Writ Petition No. 29679 of 1999, decided on 21.7.1999 one. of us (M. Katju,.J.) has taken a similar view. .
16. Learned Counsel for the respondents in this Appeal has relied on the judgment of a learned Single Judge of this Court (Hon'ble R.A, Sharma. J) in Umesh Chandra Srivastava v. District Magistrate, Gorakhpur, Civil Misc. Writ . Petition No. 28795 of 1992. decided on 14.2.1994. In that decision it was observed by the learned Single Judge :--. , "Land is the source of livelihood of vast population of this country and if if .is acquired by the Government, its owner is. definitely deprived of the source of livelihood and grant of compensation under the Act, though may give him some solace cannot be a substitute of the land, which has been acquired. It is on this ground that the .Government, which runs a Welfare State and is responsible for the well being of the people, has laid down the policy by the above G.O. providing for employment against inferior post to at least one person of the family, whose, land has been acquired. The decision of the Government is fully in consonance with the concept of the Welfare State and the provisions of the Constitution. Such a decision is liable to be respected by the Department or the Authority for whose benefit the land is acquired by the Government."
17. With profound respect to the learned Single Judge we arc not in agreement With the view he has taken, The learned Single Judge has adopted an approach which is more emotional rather than legal. A writ is issued for violation of law or enforcement of some legal duty, and not on such vague and general considerations that since the Government is a Welfare State it has to provide a job to a person whose land is acquired. As already stated above, the person whose land is acquired is not only given full market value with interest from the date of the Notification under Section 4, but is also given 30% solatium on top of that. If the Legislature intended that apart from the above, the affected person should also be provided a job to a member of his family then such a provision would have been made in the . Land Acquisition Act.
18. Learned Counsel for the, respondents has relied on the Supreme Court decisions in,Calcutta Port Trust v. Deba Prosad Bag, AIR 1994 SC 2137 and Banwasi Seva Ashram v. State of U.P., AIR 1992 SC 920.
19. In our opinion, the aforesaid decisions do not lay down any principle of ' law that on acquisition of land under the Land Acquisition Act apart from giving them compensation under the Act a job has also to be provided. It is well settled that a mere direction in a judgment without laying down any principle of law is not a precedent vide Delhi Administration v. Manohar Lal, AIR 2002 SC 3088, Indian Council of Agricultural Research v. Raja Balwant Singh College, 2003 (1) ESC 424 etc. Hence the aforesaid decisions are not precedents,
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 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-in-harness to prevent his family from destitution.
21. The Land Acquisition Act is a self-contained Code and provides the procedure to be followed for acquisition as well as for assessment of the valuation and payment of fair and just compensation as per market value of the person whose land is acquired. In addition to that market value of the land interest @ 12% is also given from the date of publication of the Notification vide Section 23(1-A). 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 vide Section 23(2) of the Act. 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 (a) 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. 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.
22. There is no provision under the Land Acquisition Act under which the Circular dated 28.12.1974 could be issued. Whatever compensation has to be given for acquisition of the land is provided under the Land Acquisition Act itself which is a self-contained Code. Any G.O. providing for any further benefit not mentioned in the Land Acquisition Act would be inconsistent with the intention of Parliament as contained in the Land Acquisition Act. Hence any such GO. would be violative of the Land Acquisition Act and would hence be invalid. Such a G.O. will also violate Article 16 of the Constitution as already mentioned above.
23. That apart, in our opinion, the aforesaid G.O. is wholly unworkable. The record shows mat the petitioner had onlv 12 biswas and ten biswansi land in his share which was acquired. Thus only about half a bigha of the petitioner's land was acquired in the present case. If the Circular dated 28.12.1974 is given a literal interpretation it would mean that if even one square yard land of a person is acquired one of his family members would have to be given employment. This would be wholly unreasonable and arbitrary.
24. The number of jobs available in this country is very limited and jobs cannot be given in this manner violating Article 16 of the Constitution.
25. In view of the above we answer the questions referred to us as follows :
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.
26. For the reasons given above there is no merit in this petition. It is dismissed.