- (1.) S. R. Singh, J. By means of this petition, the petitioner, Pramod Kumar Singh, has sought for issuance of a writ of mandamus commanding the respondents to appoint him against existing vacancy in the post of Sinch Paryavekshak in the Department. The basis on which the relief aforestated has been claimed by the petitioner is that his father Sri Dina Nath Singh a marginal farmer having a very small holding or agricultural land in his native village besides a building site, all of which were acquired by the State Government in 1967 in connection with a lift canal project and as a result of the acquisition, it is alleged, the petitioner's father Sri Dina Nath Singh became a displaced person and the petitioner, it is further alleged, is entitled to be appointed as 'sinch Paryavekshak' in the Department on the strength of G. O. No. 23/26/1976-Karmik-2, dated 7-9-1976, a copy of which has been annexed as Annexure-1 to the writ petition. The defence, in opposition of the relief claimed, is that the land acquired in 1967 for the purposes of construction of the canal included a very small piece of the land belonging to the petitioner for he was paid compensation and that the G. O. issued by the State Government for giving appointment to one member of the family of a person whose land has been acquired applied only in the case of acquisition for the purposes of setting up an industry. Reliance has been placed on the G. O. , dated 15-6- 1985 read with G. O. dated 22-10-1992 (Annexure-C. A.-l and C. A.-2 respectively to the counter affidavit filed by Sri Ghanshyam Das Garg, Executive Engineer, Sharda Sahayak Khand-32, Azamgarh ). It is further stated in the counter affidavit that the petitioner's father was displaced from abadi site admeasuring 10 decimal land did not form his agricultural land. As such the petitioner was not entitled to a job as a matter of right merely on the strength of G. O. relied upon by him.
(2.) LEARNED counsel appearing for the petitioner as also the learned standing counsel were heard. It transpires from the record of the writ petition that earlier also the petitioner had approached this court for the same relief which he has claimed in the instant writ petition. The earlier writ petition, it being writ petition No. 10190 of 1963, was disposed of vide judgment dated 14-5-1993 with a direction that the representation dated 29-10-1992 made by the peti tioner for redressal of his grievance be disposed of by the appropriate authority within three months from the date of production of a certified copy of the said judgment. In compliance with direction by High Court the appropriate authority, viz. Executive Engineer, Sharda Sahayak Khand-32, Azamgarh has disposed of the petitioner's representation vide order dated 13-8-1993. The said order in so far as it is relevant for the purposes of the present writ petition reads as under ; A conspectus of the order dated 13-8-1993 passed by the Executive Engineer, Sharda Sahayafc Khand- 32, Azamgarh makes it abundantly clear that recruitment to the post of Sinch Paryvekshak (Amin) is regulated by the Amn Sewa Niayamawali, 1954, statutory character of which has not been disputed by the learned counsel for the petitioner. The said Service rules provide two sources of recruitment to the post of Sinch Phryavekshak : (1) by promotion from amongst Sinchpals ; and (2) by direct recruitment. The Rules aforesaid do not appear to have been amended appropriately so as to incorparate therein a provision in consonance with the G. O. dated 7-9-1976 (Annerure-1 to the writ petition) or the G. O. dated 15-6-1985 and 22-10-1992 annexed as Annexures-C. A. 1 and G. A. 2 respectively to the counter affidavit regarding appointment of a member of the family of a displaced person whose land has been acquired for public purposes. As such no mandamus can be issued commanding the respondents to appoint the petitioner on the post of Sinch Paryavekshak in that it would amount to mandating them to act in a manner which may result in breach of statutory Service Rules. /. and K. Public Service Commission v. Dr. Narinder Mohan and others, JT 1993 (6) SC 593, is an authority on the point. In that case the direction given by the High Court to regularise ad hoc service of the respondents therein was held to be illegal in view of the fact that such a direction would tantamount to carving out a third mode of selection not comprehended by the relevant Service Rules. The Supreme Court held that the Rules prescribed only two modes of recruitment, viz. , direct recruitment or promotion by selection and any direction to the Government to make appointment by regularising ad hoc service would abrogate the requirement of Rules. The Supreme Court has observed as under : ". . . . . . . . . . . . Moreover, when the rules prescribe direct recruitment every eligible candidate is entitled to be considered and requirement (should be made?) by open advertisement which is one of the well accepted mode of recruitment. Inviting applications for recruitment to fill in notified vacancies is consistent with the right to apply for by qualified and eligible persons and considera tion of their claim to an office or post under the State is a guaran teed right given under Articles 14 and 16 of the Constitution. . . . " 5. That apart all that the G. O. dated 7-9-1976 provides is that all other things being equal the members of the families displaced due to acquisi tion of land would be given preferrence subject to the rule of equality of opportunity in the matter of employment at the time of selection for recruitment in the lowest scale of Class III and Class IV posts. By a subse quent G. O. dated 21-2-1980 reference to in Paragraph 2 of the G. O. dated 15-6-1985 (Annexure-C. A.-l to the counter affidavit) a provision has been made to the effect that at least one member of the displaced family be given appointment to any post not falling within the purview of the Public Service Commission but by G. O. dated 22-10-1992 (Annexure-C. A.-2 to the counter affidavit) it has been clarified that the provision for appointment pf a member of the displaced family would not apply to a case where land has been acquired not for establishing any industrial unit but for construction of canal and other projects undertaken by the Irrigation Department. From this also it is clear that the petitioner was not entitled to be appointed as Sinch Paryavekshak as of right merely because his father was displaced from his abadi site in 1976. 6. In view of what has been stated above, I am of the firm view that the petitioner cannot claim, as of right, entitlement to be appointed on the post of Sinch Paryavekshak (Amin) against the vacancy existing under the 4th respon dent. It is true that U. P. Vidhan Parishad Vittiya Evam Prashashkiya Vilamb Samiti had recommended for appointment of the petitioner on the post of Sinch Paryavekshak (Amin), but this court cannot issue a writ of mandamus comman ding the 4th respondent to offer appointment to the petitioner on the said post merely on the strength of the recommendation of the aforesaid Samiti in that the petitioner, as stated above, acquired no right to be appointed on the post in question except in the manner prescribed by rules. Issuance of any such direction or mandamus would result in breach of statutory rules. The order contained in the communication dated 2-11-1991 addressed by the Superin tending Engineer to the concerned Executive Engineer too does not help the petitioner inasmuch as by means of the said letter the concerned Executive Engineer had been required to take necessary action in accordance with the rules for appointment of the petitioner on the post of Sinch Paryvekshak (Amin) in view of the recommendation made by the U. P. Vidahn Parishad Vittiya Evam Prashashkiya Vilamb Samiti. It is true that it was in consideration of the decision taken by the said Samiti and of the communication dated 2-11-1991 that a post of Sinch Paryavekshafc was transferred from Sinchai Khand-Pratham, Lakhimpur Khiri and allotted to Sharda Sahayak Khand-32, Azamgarh by the Chief Engineer Adhisthan- 5 ka Anubhag, Irrigation Department, U. P. vide office order dated November 17, 1992 (Annexure-12 to the writ petition) and by order dated 18-11-1992 the aforesaid post was reserved for implementation of the recommenda tion made by the aforesaid Samiti, but the fact remains that the appointment has to be made within the framework of the rules and the concerned Executive Engineer has been, in my opinion, sympathetic enough to hold, in his order dated 13-8-1993, that the petitioner would be given appointment against the 4th vacancy only after giving three promotions to Sinchpals as per Amin Sewa Niyamawali, 1954. The order dated 13-6-1993 does not suffer from any infirmity and is also not sought to be quashed by the petitioner. The mandamus sought for cannot be issued except on pairv oe violating the law. However, I have no manner of doubt that as and when the turn of appointment by direct recruitment comes in accordance with Service Rules, the petitioner would be offered appointment on the post of Sinch Paryavekshak against the 4th vacancy as and when it occurs in accordance with the order dated 13-8-1993. 7. In the result the writ petition fails and is dismissed subject to the observations aforesaid. Petition dismissed. .;