# Director Mandi Parishad, Lucknow and others v. Sohan Lal and another

- **Citation:** (2002) 3 ILRA 1000
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-11-21
- **Case number:** Special Appeal No. 495 of 1996
- **Bench:** S.K. Sen, C.J. S. Rafat Alam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/director-mandi-parishad-lucknow-and-others-v-sohan-lal-and-another-39913
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226-
Appointment- Land acquired for Mandi
Samiti-
adequate
compensation
alongwith 12% interest apart from 30%
solatiam for distress also provided- No
promise for giving appointment at initial
stage of acquisition- in absence of
statutory provision- appointment can not
be claimed as a matter of right.

Held- Para 13

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.
Case law discussed.
AIR 1967 SC-1753

## Text

http://www.allahabadhighcourt.nic.in
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S. RAFAT ALAM, J.

Special Appeal No. 495 of 1996

Director Mandi Parishad, Lucknow and
others

 ...Appellants
Versus
Sohan Lal and another ...Respondents

Counsel for the Appellants:
Sri B.D. Madhyan
Sri Satish Madhyan

Counsel for the Respondents:
Sri R.K. Ojha
Sri A.K. Tiwari
S.C.

Constitution
of
India,
Article
226-
Appointment- Land acquired for Mandi
Samiti-
adequate
compensation
alongwith 12% interest apart from 30%
solatiam for distress also provided- No
promise for giving appointment at initial
stage of acquisition- in absence of
statutory provision- appointment can not
be claimed as a matter of right.

Held- Para 13

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.
Case law discussed.
AIR 1967 SC-1753
(Delivered by Hon'ble 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 duty 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 respondents-
appellants to give employment to the
pettoner- 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 No. 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
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3 All] Director Mandi Parishad, Lucknow and others V. Sohan Lal and another 1001
Allahabad. Thereafter, he moved several
representation, the last being 11.4.1994
(Annexure No. 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
respondents no. 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 petitioners '
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.
Agriculture 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
No. 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 agriculture 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 Utapadan 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. Sri B.D. Madhyan, learned
counsel appearing on behalf of the
appellant vehemently argued that the
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1002 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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 can not over ride the statutory
provisions, even if for 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 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, 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
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3 All] Director Mandi Parishad, Lucknow and others V. Sohan Lal and another 1003
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 petitioners'
father is acquired and the major portion is
still with the petitioners' 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 not statutory force. It is
merely administrative instructions 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 orders does not confer any
right to a person to approach the Court for
its enforcement.

10. It is settled legal position that the
Government order 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
dis-obedience thereof did not confer any
right on a person like the petitioner-
respondent no.1 to knock the door of this
Court invoking jurisdiction under Articles
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1004 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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 versus State of Mysore, AIR
1967 Supreme Court 1753. The position,
however, would be different if the State
Government or its authority acts arbitrary
or discriminatory 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 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
this 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 alongwith 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-
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3 All] Director Mandi Parishad, Lucknow and others V. Sohan Lal and another 1005
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
writ petition is dismissed but without
costs.
---------