Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 2404 (ALL)

MANISH BAJPAI v. STATE OF Uttar Pradesh

2017-10-24

AJIT KUMAR, SUDHIR AGARWAL

body2017
JUDGMENT By the Court.—Petitioner’s claims for allotment of Fair Price Shop as dependent of deceased’s fair price shop dealer. The claim has been rejected on the ground that definition of ‘dependents’ defined in Government Order dated 7.4.2004 does not include grandson. 2. It is contended that definition of “members of family” is illustrative and therefore, the grandson should also be deemed to be included therein. Reliance has been placed on decision of this Court in Urmila Devi v. Uttar Pradesh Power Corporation Ltd., 2003 (3) UPLBEC 2582 . In the writ petition for the purpose of definition of “family members”/’relatives’, petitioner has relied on Government Order dated 17th August, 2002 and has filed a copy thereof as Annexure 6 to the writ petition. 3. In the counter-affidavit, respondents have appended a copy of Government Order dated 7.4.2004, which according to them would hold the field in the case in hand. Relevant extract of aforesaid Government Order reads as under : Þmi;qZDr fo"k;d 'kklukns'k la[;k & 2714@29&6&2002&162 lk0 2002 fnukad&17 vxLr] 2002 ,oa 'kklukns'k la[;k&2715@29&6&2002&162 lk0@2001] fnukad 17 vxLr] 2002 dk d`i;k lUnHkZ xzg.k djsa ftuds dze'k% izLrj&7 ,oa izLrj&10 esa e`rd vkfJr ds :i esa iRuh] iq= rFkk vfookfgr iq=h dks lfEefyr fd;k x;k gSA 2& bl laca/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd lE;d fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd mfpr nj nqdkuksa ds vkoaVu esa e`rd vkfJr ds :i esa iRuh] iq= ,oa vfookfgr iq=h ds vfrfjDr e`rd vkfJr ij fuHkZj vfookfgr cgu vkSj fo/kok ekrk] ;fn e`r jk'ku nqdkunkj vfookfgr FkkA dks Hkh lfEefyr fd;k tk;sA 3& d`i;k lkoZtfud forj.k iz.kkyh ds vUrxZr xzkeh.k@uxjh; {ks= dh mfpr nj dh nqdkuksa ds vkoaVu ds lEcU/k esa 'kklukns'k fnukad&17 vxLr] 2002 ds lEcfU/kr izLrjksa dks mDr lhek rd la'kksfèkr le>k tk;sA 'kklukns'kksa esa vU; 'krsZ ;Fkkor jgsxhAß (Emphasis added) “Kindly refer to G.O. No. 2714/29-6-2002-162 Sa 2002, dated 1 7th August, 2002 and G.O. No. 2715/29-06-2002-162 Sa/2001, dated 17th August, 2002 on the above mentioned subject; in paras 7 and 10 whereof wife, son and unmarried daughter have been included as dependants of deceased. 2. 2. In this respect I am directed to say that it has been decided after due cosideration that in case of fair price shopkeeper being unmarried, in the allotment of fair price shops, besides wife, son and unmarried daughter, unmarried sister and widowed mother dependent on the deceased be also included as dependants of the deceased. 3. As regards the allotment of fair price shops in rural/urban area under the Public Distribution System, concerned paras of Government Order dated 17th August, 2002 may please be taken to have been amended to the said extent. Other terms contained in the Government Orders shall remain as they are.” (English translation by this Court) 4. It clearly shows that earlier, dependents of deceased were wife, son and un-married daughter. Subsequently, in the description of dependents of deceased un-married sister, widowed mother have also been included. This inclusion has been made in paragraphs No. 7 and 10 of earlier Government order No. 2714/29-6-2002-162 sa 2002, dated 17th August, 2002. A copy of Government Order dated 17th August, 2002 is on record as Annexure 5 to the writ petition and relevant extract of paragraph No. 10 thereof reads as under : Þ10- xzkeh.k {ks= esa jk'ku dh nqdkuksa dk p;u fuEufyf[kr vfuok;Z vgZrkvksa ,oa 'krksaZ dks n`f"Vxr j[krs gq, fd;k tk;sxk %& ¼d½ &&&&&&&&&&&& ¼>½ ;fn nqdkunkj vPNh [;kfr dk gks rks mldh e`R;q ds mijkUr nqdku dk vkoaVu mlds vkfJr ds djus ij fopkj fd;k tk ldrk gSA vkfJr dk rkRi;Z iRuh] iq= rFkk vfookfgr iq=h ls gSAß (Emphasis added). “10. Selection of ration shops in the rural area shall be done, taking into account the following mandatory qualifications and terms : (A) .................................................. (I) In case of shopkeeper being of good repute, consideration may be given to the allotment of the shop to his dependant subsequent to his death. Dependant means wife, son and unmarried daughter.” (English translation by this Court) 5. A bare perusal of aforesaid Government Order makes it clear that meaning of ‘dependents’ is wife, son and un-married daughter. With the inclusion of two more relatives i.e. un-married sister, widowed mother, now there are five relatives who come within the category of ‘dependents’. There is nothing to show that description of ‘dependents’ is illustrative or inclusive. 6. A bare perusal of aforesaid Government Order makes it clear that meaning of ‘dependents’ is wife, son and un-married daughter. With the inclusion of two more relatives i.e. un-married sister, widowed mother, now there are five relatives who come within the category of ‘dependents’. There is nothing to show that description of ‘dependents’ is illustrative or inclusive. 6. A similar pari-materia provision in respect of appointment of Shiksha Mitra has also been considered by this Court in a Division Bench judgment rendered in Gyan Pratap Singh v. State of Uttar Pradesh and others, 2005 (2) ESC 1199 , wherein it has been held that the list of relatives is exhaustive and not illustrative. 7. Now coming to the decision cited in support of his claim by petitioner i.e. Urmila Devi (Supra), I find that this Single Judge decision has been considred in intra Court appeal by a Full Bench of this Court in Uttar Pradesh Power Corporation Ltd. v. Smt. Urmila Devi, 2011(3) ESC 1585 (All)(FB) : 2011(3) ADJ 432 (FB), wherein it has been held that Single Judge decision in Urmila Devi (Supra) no longer subsits, having already been overruled by a Division Bench in Basic Shiksha Adhikari, Hardoi v. Madhu Mishra and others, 2010(2) ADJ 13 (LB)(NOC). The view expressed by Full Bench reads as under : “We may mention that, at the preliminary hearing, our attention was invited to a Division Bench judgment of this Court in the case of Basic Shiksha Adhikari, Hardoi v. Madhu Mishra and others, 2010(2) ADJ 13 (LB)(NOC), where the question for consideration was ‘whether a widowed daughter-in-law can claim appointment under the Dying in Harness Rules? The learned Bench, after considering the definition of the word ‘family’, was pleased to hold that the decisions in Smt. Urmila Devi v. Uttar Pradesh Power Corporation and others, 2003 (4) AWC 3205 and Sanyogita Rai (Smt.) v. State of Uttar Pradesh and others, 2006(5) ADJ 501 , are not in conformity with the well-settled principles of law and they are, accordingly, overruled. In other words, the judgment in Urmila Devi (supra) no longer subsists. It is, therefore, clear that the reference as such, would not be maintainable.” 8. Therefore, the decision relied on by learned counsel for petitioner is misconceived, since it has already been overruled by a larger Bench and is not a good law and ought not have been cited at all. It is, therefore, clear that the reference as such, would not be maintainable.” 8. Therefore, the decision relied on by learned counsel for petitioner is misconceived, since it has already been overruled by a larger Bench and is not a good law and ought not have been cited at all. 9. It is also worthy to mention that Division Bench decision in Basic Shiksha Adhikari, Hardoi v. Madhu Mishra and others (Supra), again, came up for consideration before a Full Bench in State of Uttar Pradesh through Special Secretary, Revenue Anubhag and others v. Hodil Singh, 2013(5) ADJ 577 (FB) : 2013(3) UPLBEC 2398 . Therein also, this Court has observed that decision in Smt. Urmila Devi v. Uttar Pradesh Power Corporation Ltd. (Supra) rendred by learned Single Judge stands overruled by Division Bench decision in Basic Shiksha Adhikari, Hardoi v. Madhu Mishra and others (Supra). 10. Thereafter, the Court considered correctness of the decision in Basic Shiksha Adhikari, Hardoi v. Madhu Mishra and others (Supra) and up held the same by holding that the definition of ‘family’ in Rule 2(c) of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, is exhaustive and mere use of word ‘inclusive’ in the definition clause is nothing but it is in the sense of ‘means’ and is exhaustive. The Full Bench held as under : “In view of the above discussions, the irrestible conclusion is that word ‘include’ used in the definition clause has been used by the Rules Framers in the sense of ‘means’ and the definition, as it stands, is exhaustive. It is, however, always open to the appropriate Government to amend the definition of the family so as to include any other relations of the deceased Government servant which it thinks fit to be included for fulfilment of the purpose and object of the Rules. Thus, our answer to the reference is that definition of the family in rule 2 (c) of Uttar Pradesh Recruitment of Dependants of Governent Servant Dying-in-Harness Rules, 1974 is exhaustive.” 11. In view of above, I find no infirmity in the view taken by authorities below. Thus, our answer to the reference is that definition of the family in rule 2 (c) of Uttar Pradesh Recruitment of Dependants of Governent Servant Dying-in-Harness Rules, 1974 is exhaustive.” 11. In view of above, I find no infirmity in the view taken by authorities below. The grandson not having been described as a member of ‘family’ or ‘dependent’ in the relevant Government Order, as discussed above, the petitioner was not entitled for allotment of shop in question after death of the holder of fair price shop license who was grandfather of petitioner. 12. In view thereof, we find that order of 17.6.2015 passed by State rejecting the petitioner’s claim has no manifest error warranting any interference. 13. Petition lacks merit and is accordingly dismissed.