JUDGMENT 1. - D.B. Civil Special Appeals No. 147/1992 and 256/1991 arise out of a common judgment passed in S. B. Civil Writ Petitions No. 4642/1990 and 5142/1990 decided by Hon'ble Mr. B. R. Arora, J. on 28-8-1991 and whereas D. B. Civil Special Appeal No. 645/1994 is filed against the judgment passed by Hon'ble Mr. A.K. Mathur, J. whereby S. B. Civil Writ Petition No. 930/1991, out of which this special appeal has arisen had been dismissed in view of the judgment dated 28-8-1991 passed by Hon'ble Mr. B. R. Arora, J. in S. B. Writ Petition No. 4642/1990 and thus, all the three special appeals are basically against the same order and, therefore, are being decided together. 2. The facts of the case are being taken from D.B. Civil Special Appeal No. 147/1992 : M/s. Virender Traders v. The Director Agricultural Marketing . The writ petitioner had filed the writ petition with a prayer to quash the allotment of the shops made by the order dated 16-3-1990 vide Annex. 6 and also the allotment policy adopted therein with a further direction to the respondents to adhere to the merit list prepared in accordance with the applications invited in pursuance of Annexs. 1, 3 and 5 and allot shops accordingly and to quash fresh invitation of applications for 3 shops vide Annex. 12 dated 26-10-1990. The prayers in all the writ petitions involved in the said special appeals were the same and identical. 3. The facts, as stated in the writ petition, are that the respondent No. 2 Krishi Upaj Mandi Samiti, Raisinghnagar District Sri Ganganagar had invited applications for allotment of 107 shops constructed in New Mandi Yard, Raisinghnagar on 2-4-1990 and it was mentioned in Annex. 1 while inviting applications that certain shops are also reversed as per the policy of the Government for Schedule Castes, Scheduled Tribes, Ex-servicemen, Handicapped, Unemployed Graduates etc. etc. It was further mentioned in Annex. 1 that the applicants dealing in seeds, fertilisers, pesticides medicines, agricultural literature cattle feed and bardana shall be allotted small shops and, therefore, all the licensed traders/businessmen, A Class Brokers/Commission Agents and retailers should submit their applications in the prescribed form with turn over for three years, namely, 1987-88, 1988-89 and 1989-90, showing the market fees paid and duration of licence. This advertisement was issued on 2-4-1990. This advertisement was issued on 2-4-1990. It is stated that in pursuance of the said invitation the petitioner had submitted the application in the printed form as issued by the respondents. It is further submitted that the respondents had issued certain directions on 14-3-1989 mentioning therein the guidelines for priority list to be prepared vide Annex. 3. The guidelines as mentioned in Annex. 3 issued by the State of Rajasthan in the Agricultural Marketing Department had laid down certain criteria for preparing the merit list for allotment of the shops. It is mentioned in Annex. 3 that after discussion with the various representatives of the concerned Association, it has ultimately been decided to ear-mark certain marks under the headings average per year turn-over, duration of licence and average payment of market fee. One mark was ear-marked for one year with the maximum of 10 marks to be allotted so far as the duration of the licence was concerned. Similarly 50 marks were earmarked for average payment of market fee and under this head it was decided that only those applicants should be considered who had paid market fee of Rs. 5000/- in a year and persons paying less than Rs. 5000/- of market fee were not to be considered. For every 5000/ -, marks were to be fixed at 21/2i.e. any person paying market fees ranging from Rs. 5,000/-to Rs. 10,000/- shall be allotted 2Vz marks and paying Rs. 10,000/- to Rs. 15,000/- shall be allotted 5 marks up to the maximum of 50 marks for a person paying Rs. 10,0000/- or above. Similarly under the third head, turn over', 40 marks were ear-marked. The maximum of 40 marks were to be allotted to those persons who had turn over of 1 crore or more than one crore. A slab was prepared for allotting 2 marks for every 5 lacs but persons having 5 lacs turn over were not to be considered. The above-said proposal allotting the marks was sent by the Director Agricultural Marketing to the Deputy Secretary to the Government, Agriculture Department on 14-3-1989. Ultimately these instructions were accepted with modification and 40 marks were ear-marked for turn over and for licence duration and market fees' 30 marks each were ear-marked and the criteria as proposed in Annex. 3 in so far as the turnover is concerned was kept intact. Ultimately these instructions were accepted with modification and 40 marks were ear-marked for turn over and for licence duration and market fees' 30 marks each were ear-marked and the criteria as proposed in Annex. 3 in so far as the turnover is concerned was kept intact. But the marks in regard to the duration of licence period was changed for licensed traders/A Class Commission Agents and the maximum marks were raised from 10 to 30 i.e. the proposal was accepted with modification that instead of one mark 3 marks were to be given for one year duration of licence and maximum of 30 marks up to 10 years or more and similarly on the point of market fees a change was made i.e. instead of 21/2marks for every 5000/- market fee it was reduced to 11/2mark for every 5000/- market fee and up to the maximum of 40 marks instead of 50 marks as proposed by Annex. 3. The final criteria as laid down for making the merit list has been mentioned in Annex. 5. It was also mentioned in Clause (7) of Annex. 5 that the merit list shall remain in existence till all the traders/A Class Commission Agents are adjusted. 4. It is submitted that out of 107 shops to be allotted in the New Mandi Yard of Raisinghnagar 36 shops were of the size of 25' x 90', 45 shops were of the size of 22' x 25' and the remaining 26 shops were of the size of 8' x 10'. Because of the reason that the number of applicants were much more than the shops available therefore, it was thought proper that the 36 shops of the size of 25' x 90' be halved and converted into 72 shops. These 72 shops were allotted as per priority list. Similarly 45 shops of the size of 22' x 25' were also bifurcated into two parts and 90 shops were made out of 45 shops and these shops were also allotted on 4-8-1990. Out of the remaining 26 shops of the size of 8' x 10' only 12 shops were allotted on 4-8-1990 and 14 shops remained un-allotted. A decision was taken by the Committee on 16-10-1990 for finding out the way to allot the remaining 14 shops. In the decision dated 16-10-1990, Annex. Out of the remaining 26 shops of the size of 8' x 10' only 12 shops were allotted on 4-8-1990 and 14 shops remained un-allotted. A decision was taken by the Committee on 16-10-1990 for finding out the way to allot the remaining 14 shops. In the decision dated 16-10-1990, Annex. 6 attached to the writ petition, it has been mentioned that out of these 14 shops 10 shops are still incomplete and there were still 40 persons to be adjusted against these 14 shops. In clauses 3 and 4 of Annex. 6 it has been specifically mentioned that those applicants who had not specifically mentioned in the application form for allotment of these small priority sundry shops, they will not be allotted the said small shops. It was further decided by the Committee that new applications be invited for allotment of the remaining shops from A class commission agents and in Annex. 6 itself it was decided that the application forms of the petitioners M/s. Virender Traders whose name has been mentioned at S. No. 23, M/s. Pankaj Bogi & Co. whose name is mentioned at S. No. 16 and M/s. Vishnoi Fertilisers whose name is mentioned at S. No. 21 of Annex. 6 be rejected only on the ground that in their application forms they had not specifically asked for the allotment of small shops. It was further mentioned in Annex. 6 a decision taken by the Committee on 16-10-1990 that big shops will only be allotted to those persons who had licence on 31 -3-1990 as mentioned in condition No. 2 of Annex. 6. It is stated by the petitioner that because of Annex. 6 he was not allotted any shop and his application was rejected. It is also submitted by the petitioner that the respondent No. 3 Firm Mahendrapal Balveer Kumar has been allotted the shop illegally because of the reason that he had commenced the business only on 31-3-1990. The grievance of the petitioner was the decision taken as per Annex. 6 to exclude all those persons who had not mentioned about the allotment of a particular shop i.e. of small shop is totally contrary to the policy decision Annexs. 1,3 and 5 and, therefore, the action of the respondents was totally arbitrary. The petitioner had applied for supply of the list of allottee's as per the merit prepared vide his application Annex. 1,3 and 5 and, therefore, the action of the respondents was totally arbitrary. The petitioner had applied for supply of the list of allottee's as per the merit prepared vide his application Annex. 7 but the same has not been supplied to him as yet even though he had deposited such amount for supply of the merit list. It is submitted that the respondents are deliberately not making the list available to the petitioner for the reason that if the list is supplied there may appear some illegalities or irregularities in the allotment of shops. The petitioner submits that his turn over was Rs. 88,000/- for the period from 1988-89 and 1989-90 and for the period from 1-4-1990 to 16-10-1990 his turn over was Rs. 7,00,000/-. The average turn over of the petitioner was 6.75 lacs. He states that applying the formula as laid down in Annex. 3 and 5 he comes on higher merit than the respondent No. 3. It was submitted that earlier while allotting the 12 shops out of the 26 small shops the criteria laid down was different and for the remaining 14 shops a different criteria had been adopted by the respondents. 5. The respondents have filed a written-statement in the present case. The material facts mentioned therein are not denied. It was admitted that those persons who are doing the business of cattle feed, seeds, fertilisers, pesticides etc. are also required to apply in the same proforma for allotment of the sundry shops. It is stated that the businessmen who wanted the sundry shops were required to give the proper details as required under Annex. R. 3/1, a letter issued by the Government of Rajasthan on 27-2-1984 whereby under Clause 2 of the said letter it is mentioned that the applicants dealing in seeds, fertilisers, pesticides, medicines shall have to attach a copy of the licence issued by the respective department. It is stated in para 3 of the written statement that the petitioner had not mentioned his priority as per the condition No. 3 of the guidelines dated 27-2-1984 Annex. R. 3/1. A true english translation of the condition aforesaid as mentioned in Annex. R. 3/1 reads as under:- "That the applicant shall specifically mention the nature of business he wants to start in the shop." 6. R. 3/1. A true english translation of the condition aforesaid as mentioned in Annex. R. 3/1 reads as under:- "That the applicant shall specifically mention the nature of business he wants to start in the shop." 6. It is said in para 6 of the written statement that because of the reason that the applicant did not mention the priority of the shop i.e. big or small shop, therefore, the petitioners application was considered along with the application form and was rejected. It is stated that the guidelines were further modified vide Annex. R. 3/2 on 22-2-1990 which is otherwise said to have been signed on 16-4-1990 and dispatched on 7-5-1990 as is clear from Annex R. 3/2 and, therefore, as per clause 3 of the guidelines dated 22-2-1990 Annex. R. 3/2, some marks were to be deducted while making the merit list so far as the petitioner was concerned. It is mentioned in clause 3 of Annex. R. 3/2 that if any businessman has not done any business in any year then, in that situation one mark shall be deducted for one year i.e. if any person has not done any business after getting the licence within 3 years then 3 marks would be deducted from the marks allotted for turn-over. It is admitted that 11 sundry shops were allotted on the basis of merit to A Class brokers/businessmen and the Director vide order dated 30-8-1988 specifically verified the position that if A Class broker or businessman will be allotted a sundry shop or a godown in the absence of shop then on construction of further new shops, the shops will be allotted on priority basis. It is specifically stated in para 13 of the written statement that vide Annex. 1 dated 2-4-1990 the petitioner was required to give option for choosing big shop or sundry shop and because of the reason that no such option was given, therefore, he was not entitled to allotment of shop on that ground. It is admitted that by notice dated 26-10-1990 the applications had been invited afresh for allotment of 3 sundry shops from A Class brokers vide Annex. R. 3/6. 7. On the pleadings of the parties, the learned single Judge in his judgment dated 28-8-1991. under challenge in appeal before us, while discussing whether the Committee had deviated by passing the order dated 16-10-1990 Annex. R. 3/6. 7. On the pleadings of the parties, the learned single Judge in his judgment dated 28-8-1991. under challenge in appeal before us, while discussing whether the Committee had deviated by passing the order dated 16-10-1990 Annex. 6 from the policy as laid down in Annexs. 1, 3 and 5, has held that because of the reason that the petitioners had not mentioned their priorities in regard to the allotment of a particular category of shop, therefore, their applications were rightly rejected later on. The learned single Judge has held that it was wrong to say that the applications in general were invited and it was not required to give option either for a big or for a sundry shop. Because of the reason that it had been specifically mentioned in the notice, inviting applications, that the applications are invited for sundry shops also and therefore, the respondents were not wrong in rejecting the applications of the petitioners along with other applications which had not specifically mentioned the nature of the shops to be allotted to them. The learned single Judge has justified the exercise of the powers by the respondent No. 2 in making allotment of the shops of 11 persons in the meeting held on 16-10-1990 and for inviting the applications for allotment of remaining 3 shops on the grounds mentioned above. Being aggrieved by the order of the learned single Judge, the present special appeals have been filed. 8. The question which arises for consideration is whether the respondents were bound by the policy decision and the advertisement Annex. 1, 3 and 5 and despite the policy decision had been taken by the State Government which was to be followed by the respondent No. 2, whether the respondent No. 2 was justified and legally authorised to use its discretion by taking decision in the meeting dated 16-10-1990 and make certain changes in the policy decision itself as has been impliedly done in the present case. 9. To know the real facts and to find out whether proper application of mind has been made while allotting the shops to the traders, the respondents were directed to bring the complete priority list made in this behalf. But the respondents have failed to produce the same on the ground that much of the record is in the custody of the Vigilance Department in some enquiry. But the respondents have failed to produce the same on the ground that much of the record is in the custody of the Vigilance Department in some enquiry. None of the parties was able to clarify as to what has happened to that enquiry. However, the respondents were directed to produce whatever record is in its possession and some record has been produced which contained the application forms of certain persons who have been allotted the shops and also of certain other persons who have not been allotted the shops including the applications of the present writ petitions/appellants. 10. The first question which arises for consideration is whether the prescribed form which had been prescribed by the respondents, contained therein any column to be answered, by the applicants for showing the priority or preference to the big or sundry shop. The form has been attached with the writ petition as annexure and even otherwise the original forms have also been produced. It is an admitted fact that there is no such column for mentioning the priority of a particular shop and this question is answered in favour of the petitioner that in case there was no column for mentioning the priority for a particular shop, the applicants are not supposed to mention the same until and unless they were specifically asked to do so. It is admitted that small shops/sundry shops are meant for dealers in cattle feed, seeds, fertilisers, pesticides medicines etc. etc. and it has been specifically mentioned in Annex. 1 that the dealers in such traders shall be allotted the small/sundry shops. If it be so, if a dealer had applied for having been dealing or doing the business in such trades as per Annex. 1. the clause of allotment of small/sundry shops shall automatically be made applicable to them for the reasons that the dealers in such trades are to be allotted only the small/sundry shops as per Annex. 1. Therefore, there was hardly any occasion for the dealer in such trades to say that they are applying for small/sundry shops as Annex. 1 itself specifies that the dealers in such trades shall be allotted only small/sundry shops. The defence of the respondents in the written-statement that some guidelines have been provided in some letter of 27-2-1984 Annex. R. 3/1 by the Director and under clause 3 of this Annex. 1 itself specifies that the dealers in such trades shall be allotted only small/sundry shops. The defence of the respondents in the written-statement that some guidelines have been provided in some letter of 27-2-1984 Annex. R. 3/1 by the Director and under clause 3 of this Annex. R. 3/1, the petitioner was supposed to specify the category or priority for a particular shop to be allotted A bare reading of Clause 3 which has been reproduced above clearly shows that there is no such requirement. The only requirement that the dealer is to comply with, is to say as to for what business he wants the allotment of the shop. This has .been so complied by the applicants. Even otherwise Annex R. 3/1 is an inter se letter between the department and it had never been published. A citizen or an applicant cannot know the existence or nature of any instructions/conditions issued by the Government which, a citizen or applicant is obliged to comply with, until and unless it is made public. Even though Clause 3 of Annex R. 3/1 is relied on by the respondents does not say that the applicant is supposed to mention the priority/category of the shop for which tho application is to ho submitted but still any instructions kept by the department in the Government file and not published are not binding and the applicant cannot be penalised for its non-compliance, if the applicant was never made aware of such instructions. If the Government wants that the applicant or any citizen must comply with certain instructions or policy while applying for a particular shop, it is the bounden duty of the respondents to have made it public as well. Admittedly if was never published. We have specifically asked the respondents whether Annex. R. 3/1 was ever made public, the counsel for the respondents was not in a position to affirm the same. Another defence by the respondents that the applicant-petitioner was not given the required marks because of another instructions dated 22-2-1990 which are said to be signed on 16-4-1990 and dispatched on 7- 5-1990. Annex. R. 3/2 is also not applicable in the present case for the reasons as enumerated above while dealing with the instructions Annex. R. 3/1. It is also pertinent to note that the advertisement is of the prior date than the issuance of the instructions Annex. Annex. R. 3/2 is also not applicable in the present case for the reasons as enumerated above while dealing with the instructions Annex. R. 3/1. It is also pertinent to note that the advertisement is of the prior date than the issuance of the instructions Annex. R. 3/2 and the guidelines for allotment Annex. 3 dated 14-3-1989 and Annex. 5. It is not understandable if a policy had been made either under Annex. 3 or Annex. 5, how can the criteria be changed to the prejudice of the applicants by passing an executive order by the Committee. Thus, the action of the respondents to deprive any of the applicants of any of the marks to which they were otherwise entitled to because of departmental letter Annex. R. 3/2 dated 22-2-1990 signed on 16-4-1990 and dispatched on 7-5-1990 cannot modify the policy decision Annex. 3 or Annex. 5. 11. For the purpose to verify whether the applicants who had been allotted the shops had mentioned the category or priority of the shops to be allotted to them, the respondents were directed to produce whatever record it had got in its possession. Some record has been produced and we had gone through the application forms of certain applicants and the allotment letters issued to them. In the application form of M/s. Anil Trading Co. who has been allotted shop No. 13, he has not mentioned any priority of the shop but still he has been allotted the shop. Similarly the traders, namely, M/s. Rajesh Enterprises has been allotted shop No. 12, M/s. Ajit Singh Jaswant Singh who has been allotted shop No. 10-G, M/s. Singia Trading Co., who has been allotted shop No. 31-A, M/s. Mahendrapal Balveer Kumar who has been allotted shop No. 70-A, M/s. Balmukund & Co., who has allotted shop No. 16, M/s. Rajendra Oil and Floor Mills, who has been allotted shop No. 15, have not earmarked or mentioned or requested for any category or priority of the shop either big or small in the application forms submitted by them but still they have been allotted the shops mentioned therein in the allotment order. Another file of Shop No. 21 in regard to M/s. Namdeo Beej Store has been produced which does not even contain any application form of the applicant put still there is agreement in the file in regard to allotment of Shop No. 21 in his favour entered into on 17-10-1990. 12. The above are some of the examples to show that even though certain allottee's have not mentioned the category or priority, may be for the reason, that there was no column in the application form to mention the category or priority, or may be for the reason that no category or priority was required to be mentioned for the dealers dealing in seeds, cattle fee, fertilisers, pesticides medicines etc. etc. as these dealers were to be allotted small/ sundry shops, still the allotments were made to some of them. If is also admitted that sundry shops were allotted on 4-8-1990 to certain persons on the criteria as laid down either in Annex. 3 or Annex. 5 and for the remaining shops the Committee had no jurisdiction to change the policy in the meeting held on 16-10-1990 and the Committee was bound to follow the same policy which was followed while allotting the shops in response to the same advertisement i.e. Annex. 1 dated 2-4-1990. The action of the Committee in taking a decision on 16-10-1990 which modified the earlier policy to the prejudice of the applicants or the remaining applicants amounted to discriminatory treatment violating Article 14 of the Constitution of India and, thus, the resolution of the Committee dated 16-10-1990 cannot be sustained in law and it is to be quashed so far as the decision of rejecting the applications of the petitioners and other persons is concerned, when the applications were rejected only on the ground that they have not specifically mentioned in the forms about the priority or category of the shops which was not required to be mentioned as there was no such column in the prescribed proforma and may be no column was required to be provided in view of the language used in Annex. 1 itself. If Annex. 6 is quashed in this regard, the remaining un-allotted sundry shops shall have to be allotted as per the merit prepared either on the basis of Annex. 3 or Annex. 1 itself. If Annex. 6 is quashed in this regard, the remaining un-allotted sundry shops shall have to be allotted as per the merit prepared either on the basis of Annex. 3 or Annex. 5 in the similar way as it was prepared and allotments were made earlier in August, 1990. The respondents are bound to allot the shops strictly on merits as per the seniority or merit to be prepared under the guidelines on the criteria which were available at the time of issuance of the advertisement Annex. 1 and under which guidelines or criteria the allotments were also made so far as the big shops and the 11 sundry/small shops are concerned. The remaining shops are to be allotted on the same guidelines as were adopted earlier on 4-8-1990 and any subsequent decision of the Committee contrary to the guidelines issued by the Government are not binding. 13. Annex. 6 i.e. resolution dated 16-10-1990 so far as it rejects the applications of the petitioners for allotment of small shop and tor inviting new applications are concerned, is to be quashed being discriminatory for the reason that the applications could not be rejected on the ground mentioned therein as many similarly situated persons who have applied in response to the same advertisement, and for the same allotment of the shops, number of persons whose forms were similarly filed up as that of petitioners the details of which have been given above, were considered and allotted the shops in similar circumstances. 14. For the reasons and in view of the above discussion the action of the respondents cannot be sustained and, therefore, in the circumstances and facts of the case, the order of the learned single Judge, in all the D. B. Civil Special Appeals mentioned above, is Set aside with the direction that the resolution dated 16-10-1990 is quashed so far as it rejects the applications of the petitioners and other similarly situated persons for allotment of shops is concerned, and so far as the inviting of fresh applications for the remaining shops is concerned. The respondents are directed to consider the names of the petitioners and prepare the merit as per the policy Annex. 3 or Annex. 5 which was adopted while allotting these very shops in response to the advertisement Annex. 1 for the allotment of shops. 15. The respondents are directed to consider the names of the petitioners and prepare the merit as per the policy Annex. 3 or Annex. 5 which was adopted while allotting these very shops in response to the advertisement Annex. 1 for the allotment of shops. 15. The petitioners have also prayed for cancellation of the allotment already made on 4-8-1990, that prayer cannot be acceded to for the reason that none of the allottee's has been made parties to the writ petition, no interference is required so far as the original allotment on the declared policy as contained in Annex. 3 or Annex. 5 is concerned. 16. The writ petitions are allowed and the order of the learned single Judge is set aside, the special appeals are allowed to the extent as mentioned above. The respondents shall take necessary steps for finalising the allotment of the remaining shops within three months from the date of receipt of this order.Petitions allowed. *******