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2010 DIGILAW 681 (ALL)

ANIL KUMAR SINGH v. STATE OF U. P.

2010-02-23

PRADEEP KANT, S.N.H.ZAIDI

body2010
JUDGMENT By the Court.—Heard the counsel for the petitioner Sri Karunakar Srivastava and Sri Vivek Kumar Shukla for the State. 2. The petitioner’s contention is that though the vacancy of fair price shop dealer was to be filled in by general category candidate but the District Magistrate proposed that the shop be allotted to opposite party No. 4, who was a scheduled caste candidate. We are informed by the counsel for the petitioner that till date, the shop has actually not been allotted, in view of the interim order of this Court, which provided as under : “In the meantime, in case the actual allotment has not been made in favour of opposite party No. 4, the same shall not be made unless it is determined by the S.D.O. that the shop in question has to be allotted to a candidate belonging to reserve category. He shall determine this question first and then shall make allotment of the fair price shop.” 3. Counter-affidavit has been filed by the State, wherein it has been stated that since in the district of Gonda, number of fair price shops were lying vacant in different Gram Panchayats, therefore, after the issuance of Government order dated 10.8.2007, the District Magistrate, Gonda issued an order on 12.12.2007, whereby the vacancies were required to be filled up from the reserved category candidates. In pursuance of the aforesaid order, the District Magistrate issued another order dated 23.2.08 for the purpose of making allotment of the vacant shops in favour of the reserved category candidates for filling up all such vacancies. 4. The question as to whether the vacancy of a particular fair price shop is to be filled in by reserved category candidate or general category candidate, came up for consideration before this Court in various writ petitions and one such order, passed in Civil Misc. Writ Petition No. 6740 (MB) of 2008 : Sarul Nisha v. State of U.P. and others, has also been brought on record. 5. The vacancies of fair price shop have to be identified keeping in mind the nature of constituency in the general elections of Pradhan, lastly held. It is the nature of the constituency for the election of Pradhan, which constitutes the basis for identifying the fair price shop/vacancy for being allotted to either a person belonging to reserved category or to the general category. It is the nature of the constituency for the election of Pradhan, which constitutes the basis for identifying the fair price shop/vacancy for being allotted to either a person belonging to reserved category or to the general category. The caste of Pradhan for that matter would not be relevant for the simple reason that in a general constituency, any person can contest the election, may be belonging to scheduled caste or other backward classes but that would not change the nature of the constituency for election. 6. We, therefore, with the consent of the parties’ counsel dispose of the writ petition finally with the direction that the Sub Divisional Magistrate shall reconsider the identification of the shop/vacancy in question with respect to the category of the shop/vacancy in question of the fair price shop in the light of the judgment of this Court in the Writ Petition No. 8781 (M/B) of 2007, Mahendra Kumar v. State of U.P. and others decided on 9.7.2008, which holds that for identifying the shop/vacancy, the reservation has to be considered in the same manner as it is done in the election of Gram Pradhan. The caste of the Gram Pradhan solely cannot be a ground for holding that the shop lying within his constituency necessarily belongs to the same category to which the elected Gram Pradhan belongs. In fact the nature of the constituency from where the Gram Pradhan has been elected is the deciding factor normally but for the unreserved constituency of Gram Sabha all other shops would fall within the same category to which Gram Pradhan belongs but in a case of unreserved category constituency any person can be elected as Gram Pradhan. 7. In the light of the aforesaid judgment and order, the District Supply Officer shall reconsider the category of the shop/vacancy in question of the fair price shop. We, therefore, quash the order dated 12.3.2008 passed by the District Supply Officer, Gonda. The writ petition is allowed. Since we have quashed the order dated 12.3.2008, as contained in Annexure No. 1, the matter shall be decided afresh by the District Supply Officer expeditiously say within a maximum period of three weeks from the date of receipt of certified copy of this order alongwith a copy of the judgment passed in the aforesaid Writ Petition No. 8781 (M/B) of 2007, before making allotment in favour of any person. Office is directed to issue a copy of the said order passed in Writ Petition No. 8781 (MB) of 2007, while issuing certified copy of this order. ————