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2016 DIGILAW 3148 (ALL)

HANS RAJ v. STATE OF U. P.

2016-09-15

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Sudhir Dixit, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Vijai Bhan Singh holding brief of Sri Anuj Kumar, learned counsel for the Gaon Sabha. 2. Through this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 18.7.2016 passed by the Sub Divisional Officer, Baberu, District Banda by which the petitioner’s claim for appointment as fair price shop agent on compassionate ground has been ignored and Block Development Officer, Block Kamasin has been required to get a fresh resolutin passed for appointment of fair price shop agent.. 3. The facts of this case, in brief, are that the petitioner’s father was running a fair price shop at Raghupur, Gram Panchayat Veera, Block Kamasin, Tehsil Baberu, District Banda. While working as such he died on 31.3.2016. After the death of his father, the petitioner, herein, being the only son, has filed an application on 18.4.2016 for appointment as fair price shop agent, pursuant to the Government Order dated 17.8.2002, but no order was passed on the petitioner’s application. 4. Aggrieved petitioner, herein, has filed Writ C No. 31655 of 2016 (Hans Raj v. State of U.P. and others) which was disposed of vide order dated 14.7.2015 with the direction to the respondent No. 4 therein to pass an appropriate order on the application of the petitioner dated 18.4.2016 and do the needful expeditiously in accordance with law preferably within a period of two months. 5. It is thereafter on 28.6.2016 an open meeting of the Gram Sabha was held but there, it appears, many persons had opposed the appointment of the petitioner as fair price shop agent on the ground that the reputation of the father of the petitioner was not good. In this regard a report was submitted by the Assistant Development Officer. Considering the same, the Sub Divisional Officer, vide order dated 18.7.2016, has directed the Block Development Officer to call for an open meeting again for appointment of fair price shop agent. 6. In this regard a report was submitted by the Assistant Development Officer. Considering the same, the Sub Divisional Officer, vide order dated 18.7.2016, has directed the Block Development Officer to call for an open meeting again for appointment of fair price shop agent. 6. Learned counsel for the petitioner submits that the Sub Divisional Officer has erred in passing the impugned order dated 18.7.2016 for the reason that once the appointment of the petitioner as fair price shop agent on compassionate ground was considered in the open meeting then number of persons, who have supported the petitioner’s case and the number of persons, who have opposed the appointment of the petitioner on compassionate ground ought to have been counted and only relying upon the report of the Assistant Development Officer, which did not contain the number of persons for and against, the impugned order dated 18.7.2016, to get a fresh resolution passed for appointment of fair price shop agent, could not be passed. He also submits that the open meeting was not held as required under law and the alleged meeting was merely an eye wash. 7. I have heard the learned counsel for the parties and perused the report of the Assistant Development Officer. For the purpose of proper adjudication of the case, I find it appropriate to quote paragraph 5 of the report of the Assistant Development Officer, which is reproduced herein below: ^^5- i=koyh ij miyC/k lgk;d fodkl vf/kdkjh] fodkl [k.M dekflu dh vk[;k fnukafdr 28&6&2016 esa voxr djk;k x;k fd fnukad 28&6&2016 dks izkFkfed fo+|ky; jk?kkSiqj esa [kqyh cSBd dk vk;kstu fd;k x;k] cSBd esa mifLFkr vf/kd lnL;ksa us galjkt dk fojks/k fd;k x;k rFkk u;s dksVsnkj ds p;u dk leFkZu fd;k x;k gSA** From the perusal of aforesaid paragraph it is apparent on the face of it that the Assistant Development Officer has not counted the persons who have supported the appointment of the petitioner and number of persons, who have opposed the case of the petitioner. He has only observed that many of them have opposed the appointment of the petitioner on the ground that reputation of petitioner’s father was not good. 8. He has only observed that many of them have opposed the appointment of the petitioner on the ground that reputation of petitioner’s father was not good. 8. In my opinion when it is provided in the Government Order that reputation of the deceased fair price shop agent, for considering the compassionate appointment of his/her dependent as fair price shop agent, has to be tested in the open meeting of the Gaon Sabha, then it is obvious that some persons will oppose the appointment and some of them may support, in that eventuality counting of number of persons, who have supported and who have opposed the case respectively must be noted but here in this case nothing has been done and only relying upon the paragraph 5 of the report of the Assistant Development Officer that many persons present in the meeting have opposed the appointment of the petitioner, the impugned order, has been passed, which in my opinion is patently illegal and arbitrary. 9. The view taken by me, to some extent, finds support from the observation made by the Division Bench judgement of this Court in Suryabhan Yadav v. State of U.P. and others (Writ-C No. 15385 of 2016, decided on 3.5.2016). The relevant para of the judgment is reproduced herein under: “In our considered opinion, there cannot be any exception to the above mentioned procedure prescribed for consideration of grant of license even on compassionate basis which is founded on the strength of the reputation of the deceased license holder. To our mind, this assessment as to the reputation of the deceased license holder and the goodwill has to be gathered only from a resolution passed in this regard in open general meeting of the Gaon Sabha. It has to be collective opinion of the Gaon Sabha and not of any individual authority or Tehsil Level Committee. To our mind, this assessment as to the reputation of the deceased license holder and the goodwill has to be gathered only from a resolution passed in this regard in open general meeting of the Gaon Sabha. It has to be collective opinion of the Gaon Sabha and not of any individual authority or Tehsil Level Committee. The simple reason is that members of the Gaon Sabha have been dealing with the fair price shop licensee and would be in a best position to assess his reputation and goodwill.” Following the aforesaid judgment, this Court in Smt. Satyaprabha Devi v. State of U.P. and others (Writ C No. 44690 of 2016, decided on 19.9.2016, has held that while considering the reputation of the erstwhile fair price shop agent, the only agenda has to be circulated with respect to the consideration of the reputation of the erstwhile fair price shop agent in the open meeting of the gaon sabha and no other person can be considered in the said meeting. However, in the event of failure of reputation, a fresh agenda may be circulated for appointment of fair price shop agent in accordance with law, but not on that very date. 10. As would appear from the discussions made herein above, in the present case the impugned order has been passed only after placing reliance upon the ex parte report of the Assistant Development Officer, which in my considered opinion is contrary to the Government Order dated 17.8.2002 meant for calling of the open meeting for appointment of fair price shop agent. 11. In view of the foregoing discussions, the impugned order dated 18.7.2016 cannot be sustained in the eyes of law. In the result, the writ petition succeeds and is allowed. The order dated 18.7.2016 passed by the Sub Divisional Officer, Baberu, District Banda is hereby quashed. The Sub Divisional Officer is directed to pass a fresh decision in this regard in accordance with law in the light of the observation made, herein above.