Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3195 (ALL)

SATYAPRABHA DEVI v. STATE OF U. P.

2016-09-19

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Subhash Chandra Yadav, learned counsel for the petitioner, learned standing counsel for the State-respondents and Sri A.K.Rai holding brief of Sri Ashish Kumar Srivastava learned counsel for the gaon sabha. 2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 5.9.2016 by which the Sub-Divisional Officer Sirsaganj has rejected the claim of the petitioner for appointment as fair price shop agent on compassionate ground on the basis of the report submitted by the village pradhan that the petitioner’s husband, who was the fair price shop agent, had no good reputation. However, liberty was given to the petitioner to participate in the open meeting of the gaon sabha. 3. While assailing this order, learned counsel for the petitioner contended that the Government order dated 17.8.2002 is purposive and the purpose is to consider the appointment of dependent of deceased, as fair price shop agent, provided the reputation of her husband (the erstwhile fair price shop agent) had been good. In his submissions, the reputation of the husband of the petitioner was to be tested on the floor of the gaon sabha in the open meeting in view of the Government order dated 3.7.1990 read with 17.8.2002 where insistence has been given to appoint fair price shop agent in the open meeting of the gaon sabha but here the impugned order has been passed only on the basis of the report submitted by the village pradhan. 4. The factum, of appointment of fair price shop agent has to be made in the open meeting of the gaon sabha, has not been disputed either by the learned Standing Counsel or counsel for the gaon sabha. It has also been brought to my notice that the Government order dated 3.7.1990 and 17.8.2002 has neither been repealed nor modified, meaning thereby the appointment of fair price shop agent has to be considered in the open meeting of the gaon sabha not on the basis of the report of the Pradhan only. 5. Here in this case, the petitioner’s husband, who was working as fair price shop agent, died on 1.8.2016. After his death, she has filed an application on 19.8.2016 for appointment as fair price shop agent in place of her husband. The application was filed before the Sub-Divisional Officer, Sirsaganj. 5. Here in this case, the petitioner’s husband, who was working as fair price shop agent, died on 1.8.2016. After his death, she has filed an application on 19.8.2016 for appointment as fair price shop agent in place of her husband. The application was filed before the Sub-Divisional Officer, Sirsaganj. It appears, the Sub-Divisional Officer has obtained report of the gram prahan who reported that the reputation of the petitioner’s husband was not good and considering the same, the petitioner’s application has been rejected with the liberty to the petitioner to participate in the open meeting. Para 4 of the Government order dated 17.8.2002 provides that the conditions mentioned in the Government order dated 3.7.1990 shall remain the same which has not been modified in the Government order dated 17.8.2002. Para 5 of the aforesaid Government order, provides the constitution of the Committee for appointment of fair price shop agent in the rural areas. For convenience, para 5 of the Government order dated 17.8.2002 is quoted herein under: 5- xzkeh.k {ks= esa jk'ku dh nqdkuksa ds vkoaVu gsrq fuEukuqlkj xfBr rglhy Lrjh; lfefr }kjk fd;k tk;sxk %& 1- mi&ftykf/kdkjh v/;{k 2- lEcfU/kr [k.M fodkl vf/kdkjh lnL; 3- vuqlwfpr tkfr@tutkfr ,oa fiNM+h tkfr dk ,d&,d vf/kdkjh tks ftykfèkdkjh }kjk ukfer fd;k tk;s ¼;fn mi;qZDr vf/kdkfj;ksa esa ls dksbZ bl oxZ dk gks rks vyx ls ukekadu djus dh vko';drk ugh gksxh½ lnL; 4- {ks=h; [kk| vf/kdkjh lnL;@la;kstd 6. On being confronted as to whether the aforesaid committee is still in force or the appointment has to be made only by the Sub-Divisional Officer, learned Standing Counsel could not show any Government order from which it cannot be inferred that the constitution of the committee under para 5 of the Government order dated 17.8.2002 has been changed, modified or repealed meaning thereby the Committee is still in force. 7. Here in this case, the petitioner’s application has been rejected only by the Sub-Divisional Officer and not the Committee constituted under para 5 of the Government order dated 17.8.2002. In my considered opinion, the order passed by the Sub-Divisional Officer is without jurisdiction. It is settled that an order passed without jurisdiction is nullity. 8. The matter may be examined from another angle too. In my considered opinion, the order passed by the Sub-Divisional Officer is without jurisdiction. It is settled that an order passed without jurisdiction is nullity. 8. The matter may be examined from another angle too. In the Government order dated 3.7.1990 as well as 17.8.2002, insistence has been given for appointment of fair price shop agent only in the open meeting of the gaon sabha, therefore the opinion of the elected members of the gaon sabha and the village pradhan in order to test the reputation of the erstwhile fair price shop agent is neither required nor they could give an independent opinion regarding reputation of the erstwhile fair price shop agent. The view taken by me finds support from 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. 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. 9. In view of foregoing discussions, the impugned order dated 5.9.2016 passed by the Sub-Divisional Officer Sirsaganj, District Firozabad cannot be sustained in the eyes of law. The writ petition succeeds and is allowed. The impugned order dated 5.9.2016 passed by the Sub-Divisional Officer, is hereby quashed. The concerned Sub-Divisional Officer Sirsaganj District Firozabad/Committee constituted under para 5 of the Government order dated 17.8.2002 is directed to get a fresh opinion of the gaon sabha in its open meeting with respect to the reputation of the erstwhile (deceased) fair price shop agent. The impugned order dated 5.9.2016 passed by the Sub-Divisional Officer, is hereby quashed. The concerned Sub-Divisional Officer Sirsaganj District Firozabad/Committee constituted under para 5 of the Government order dated 17.8.2002 is directed to get a fresh opinion of the gaon sabha in its open meeting with respect to the reputation of the erstwhile (deceased) fair price shop agent. It is also provided that for testing the reputation of the petitioner’s husband for the purposes of the petitioner’s appointment on compassionate ground, an agenda be circulated, for holding the open meeting of the gaon sabha, amongst the members of the gaon sabha.