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2016 DIGILAW 3480 (ALL)

PAWAN KUMAR v. STATE OF U. P.

2016-10-19

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Tripurari Sharan Shukla, learned counsel for the petitioner, Sri Vishal Tandon, learned standing counsel for the State respondents and Sri D.D.Chauhan, 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 11.4.2016 passed by the Sub-Divisional Officer Itwa District Siddharth Nagar by which the Sub-Divisional Officer has cancelled the appointment of the petitioner as fair price shop agent and directed to consider the matter of the petitioner in the open meeting of the gaon sabha. 3. While assailing the aforesaid order, learned counsel for the petitioner contends that the Sub-Divisional Officer had got no power to review his own order dated 27.2.2016 appointing the petitioner as fair price shop agent. Utmost the order could be challenged before the higher forum even if there was any illegality or defect in decision making process. 4. Refuting the submissions of learned counsel for the petitioner, learned Standing Counsel submitted that there was an inherent lacking in decision making process, therefore the authority concerned has rightly reviewed his order. In his submissions, it is settled that procedural review is permissible if there is a defect in decision making process. In support of his submissions, he has placed reliance upon the judgements of the Apex Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal and others, AIR 1981 SC 606 , as well as of this Court in Mumtaz Ahmad and others v. Deputy Director of Consolidation Lucknow and others, 2015(11) ADJ 134 (LB), M/s. Indo Gulf Industrict v. State of U.P. and others, 2016(3) ADJ 409 and Arjun Prem Kumar Mitra v. U.P. State M.S.M.E.Facilitation Council and others, 2016(6) ADJ 86 . 5. He also submits that assuming the power of review was not available to the Sub-Divisional Officer even then in view of the fact that the appointment of the petitioner was made contrary to the provisions contained in Para 7 of the Government order dated 17.8.2002 and if the order impugned is set aside, another illegal order would revive which would be contrary to the settled principles of law. Learned counsel for the gaon sabha has also raised the argument of the same kind as has been raised by the learned Standing Counsel. 6. Learned counsel for the gaon sabha has also raised the argument of the same kind as has been raised by the learned Standing Counsel. 6. The facts of this case, in brief, are that late Rajendra Prasad, the petitioner’s father was fair price shop agent of Gram Sabha Navel, Block Khuniyav, Tehsil Itwa, District Siddharth Nagar. While working as such he died on 12.2.2016. After his death, the petitioner, herein, has filed an application for his appointment on compassionate ground in view of the provisions contained under para 10 (jha) of the Government order dated 17.8.2002 which provides that after the death of the fair price shop agent, in case the reputation of the erstwhile fair price shop agent has been good, one of his/her dependent may be considered for the appointment as fair price shop agent. 7. The Sub-Divisional Officer, considering the petitioner’s application, has issued appointment letter to the petitioner on 27.2.2016 and required the petitioner to fulfil the formalities so that agreement may be executed. It appears after coming to know the aforesaid appointment of the petitioner, the gaon sabha has passed a resolution to the effect that the reputation of late Rajendra Prasad, the erstwhile fair price shop agent, was not good, therefore no appointment letter could be issued in favour of his son/the petitioner. It was also noted in the resolution that in view of Para 7 of the Government order dated 17.8.2002, the appointment of fair price shop agent has to be considered in the open meeting of the gaon sabha and since there was no such meeting of the gaon sabha,therefore also the appointment letter could not be issued in favour of the petitioner. 8. 8. For appreciating the controversy, it would be necessary to go through the para 7 of the Government order dated 17.8.2002 which is reproduced herein under: **7- xzke lHkkvksa ds mi;qZDRkkuqlkj fpUgkWdu ds i'pkr~ xzkeh.k {ks= esa jk'ku dh nqdkuksa dk p;u xzke lHkk dh [kqyh cSBd eas izLrko ikl djds fd;k tk;sxk rFkk rhu ukeksa dk iSuy mi&ftykf/kdkjh dks v/;{krk esa xfBr lfefr;kW fu;qfDr gsrq izsf"kr fd;k tk;sxkA ;fn vH;fFkZ;ksa dh la[;k rhu ls de gS rks iSuy es nks vFkok ,d dk uke Hkh Hkstk tk ldrk gSA xzkeh.k Js=ksa es ;Fkk LkEHko izR;sd xzke lHkk esa ,d jk'ku dh nqdku gksxh vkSj ;fn xzke lHkk es pkj gtkj ;wfuV ls vf/kd gks rks ,d ls vfèkd nqdku fu;qDr fd;s tkus ij fopkj fd;k tk ldrk gSA** From the perusal of the para 7 of the aforesaid Government order, it is apparent that for appointment of fair price shop agent, an open meeting of the gaon sabha is required to be held and person has to be elected/selected in the open meeting of the gaon sabha. 9. Para 10 (jha) of the Government order dated 17.8.2002 provides that in the case of death of fair price shop agent, one of the dependent of erstwhile fair price shop agent may be considered for appointment as fair price shop agent provided the reputation of the erstwhile fair price shop agent has been good. For convenience, para 10 (jha) of the Government order dated 17.8.2002 is also reproduced herein under: **10-¼>½ ;fn nqdkunkj vPNh [;kfr dk gks rks mldh e`R;q ds mijkUr nqdku dk vkoaVu mlds vkfJr dks djus ij fopkj fd;k tk ldrk gSA vkfJr dk rkRi;Z iRuh] iq= rFkk vfookfgr iq=h ls gSA** 10. A Division Bench of this Court in Suryabhan Yadav v. State of U.P. and others (Writ-C No. 15385 of 2016, decided on 3.5.2016), considering this aspect of the matter, has observed as 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. 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. 11. Here in this case, it is not in dispute that the case of the petitioner for appointment as fair price shop agent was not considered in the open meeting of the gaon sabha, therefore there was a procedural defect in the appointment of the petitioner. The Apex Court in the case of Grindlays Bank Ltd. (supra) has held that if there is a procedural lapse in decision making process, the authority which has taken decision ignoring the procedure established for the same has right to review its earlier order, not only in that case but in number of cases, same view has been taken. Reference may be had to Kapra Mazdoor Ekta Union v. Management of Birla Cotton Spinning and Weaving Mills Ltd. and another, AIR 2005 SC 1782 , Mumtaz Ahmad, M/s. Indo Gulf Industrict, Arjun Prem Kumar Mitra (supra). 12. Learned Standing counsel submitted that the appointment of the petitioner was made dehors the provisions contained under para 7 of the Government order dated 17.8.2002, therefore even if the order dated 11.4.2016 is set aside another illegal order of the appointment of the petitioner dated 27.2.2016 would revive which is impermissible under law in view of the judgmnets of the Apex Court as well as this Court. Reference may be had to Gadde Venkateswara Rao v. Government of Andhra Pradesh and others, AIR 1966 SC 828 , Champalal Binani v. CIT, West Bengal, AIR 1970 SC 645 , Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others, AIR 1999 SC 3609 , Mallikarjuna Mudhagal Nagappa and others v. State of Karnataka and others, AIR 2000 SC 2976 , Chandra Singh v. State of Rajasthan, AIR 7 2003 SC 2889, S.D.S. Shipping Pvt. Ltd. v. Jay Container Services Co. Pvt. Ltd. and others, 2003 (4) Supreme 44 , State of Uttaranchal and another v. Ajit Singh Bhola and another, (2004) 6 SCC 800 and State of Orissa and another v. Mamata Mohanty, (2011) 3 SCC 436 as well as this Court in Smt. Shanti and another v. Board of Revenue Lko. and 3 others, 2013(8) ADJ 424 , as well as Wasim Raza Khan v. Board of Revenue and others, 2014(4) ADJ 148 , wherein it has been held that if by quashing of an illegal order, another illegal order revives in that eventuality, the Court should not interfere with such orders under the writ jurisdiction. Here in this case, it could not be disputed by learned counsel for the petitioner that the appointment of the petitioner was made ignoring the para 7 of the Government order dated 17.8.2002. Otherwise also, in view of para 5 of the Government order dated 17.8.2002 in a situation where the gaon sabha fails to pass the resolution, a committee has been constituted in the chairmanship of the Sub-Divisional Officer for appointment of fair price shop agent. Here the order dated 27.2.2016 was passed only by the Sub-Divisional Officer, therefore too, the same was unsustainable in the eyes of law. 13. In view of foregoing discussions, I do not find any error in the impugned order dated 11.4.2016 passed by the Sub-Divisional Officer. However, it is provided that the Sub-Divisional Officer shall ensure that an open meeting of the gaon sabha is held at the earliest possible time after munadi and general notice to the members of gaon sabha and there only agenda for considering the goodwill of the petitioner’s father be put for consideration and decision be taken in presence of the Supervisor appointed by the Sub-Divisional Officer/Block Development Officer and if necessary force be also provided for holding the meeting of the gaon sabha. This exercise has to be done by the Sub-Divisional Officer expeditiously but not later than two months from the date of receipt of certified copy of the order of this Court. With the aforesaid observation/direction, this writ petition is disposed of.