Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1304 (ALL)

NARGISH v. STATE OF U. P.

2018-05-23

DILIP B.BHOSALE, SUNEET KUMAR

body2018
JUDGMENT By the Court.—Heard Sri Anjani Kumar Dubey, learned counsel for the appellant. Sri V.K. Kushwaha, learned counsel appearing for the opposite party No. 5 and Sri R.N. Pandey, Additional Chief Standing Counsel for the respondent-State. 2. The instant intra-Court appeal is directed against the order dated 17.4.2018 passed in Writ-C No. 13456 of 2018 (Nargish v. State of U.P. and others), whereby, the learned Single Judge declined to interfere with the order dated 2.4.2018 passed by the Sub Divisional Magistrate, Tirwa, Kannauj the order impugned in the writ petition passed in compliance of the judgment and order dated 16.3.2018 passed in Writ-C No. 9783 of 2018 (Ashish Shukla v. State of U.P. and others) instituted by respondent No. 5. The dispute pertains to the appointment of fair price shop dealership. The respondent No. 5 claims benefit/reservation under the category of Dependent of Freedom Fighters, whereas, the contention of the learned counsel for the appellant is that the respondent No. 5 does not fall under the said category as mandated in terms of Government Order dated 17.8.2002 which provides for horizontal reservation for special category of persons in the allotment of fair price shop dealership. 3. The respondent No. 5 had earlier approached this Court by filing a petition (Writ-C No. 9783 of 2018) assailing the order dated 28.12.2017 passed by the Sub Divisional Magistrate rejecting the claim of the respondent No. 5 on the ground that he is not covered under the category of reservation provided vide Government Order dated 17.8.2002. This Court set aside the order of the Sub Divisional Magistrate and allowed the writ petition. Operative portion of the order reads thus: “The Sub Divisional Magistrate shall reconsider the case of the petitioner in the light of observations made herein-above and pass appropriate orders within a period of three weeks from the date a certified copy of this order is produced before him.” 4. Pursuant thereof, the Sub Divisional Magistrate passed the order dated 2.4.2018 directing holding of open meeting of the village panchayat for appointment of fair price shop dealers from the category of Freedom Fighter and their dependents only. The order was challenged by the appellant which has been rejected by the impugned order. Pursuant thereof, the Sub Divisional Magistrate passed the order dated 2.4.2018 directing holding of open meeting of the village panchayat for appointment of fair price shop dealers from the category of Freedom Fighter and their dependents only. The order was challenged by the appellant which has been rejected by the impugned order. The relevant portion of the impugned order is extracted: “Per contra Sri Siddharth Singh, learned Additional Chief Standing Counsel submitted that order impugned passed by the S.D.M., Tirwa, District Kannauj was in compliance of the order passed by this Court on 16.3.2018 in Writ-C No. 9783 of 2018, Ashish Shukla v. State of U.P. and others. He further contends that the order dated 2.4.2018 passed by the S.D.M., Tirwa, Kannauj is consistent with the directions given by this Court in the case of Ashish Shukla (supra). I see merit in the submissions of the learned Additional Chief Standing Counsel. The order impugned was issued in compliance of the order of this Court rendered in the case of Ashish Shukla (supra). A perusal of the order shows that the terms of the order are consistent with the directions of this Court in case of Ashish Shukla (supra).” 5. Learned counsel for the appellant submits that reservation for allotment of fair price shop dealership in rural areas is provided vide Government Order dated 17.8.2002. The Government Order provides for vertical reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes and within the reserved category horizontal reservation has been provided to: (i) women; (ii) family members of the deceased or injured soldiers; (iii) freedom fighter or his wife; (iv) handicapped persons. In the backdrop of the Government Order it is urged that there is no reservation provided for dependents of freedom fighters, it is contended that the respondent No. 5 admittedly is not a freedom fighter nor a family member of a deceased or an injured soldier but a dependent of a freedom fighter, a category not covered under the Government Order dated 17.8.2002. 6. Learned Standing Counsel appearing for the State respondents supports the contention of the learned counsel for the appellant and submits that the Government Order does not cover dependents of a freedom fighter as a category providing for horizontal reservation. The reservation is provided to the freedom fighter himself or to his wife. 6. Learned Standing Counsel appearing for the State respondents supports the contention of the learned counsel for the appellant and submits that the Government Order does not cover dependents of a freedom fighter as a category providing for horizontal reservation. The reservation is provided to the freedom fighter himself or to his wife. In other words it is not provided to the dependents of the freedom fighter. 7. We have carefully perused the Government Order dated 17.8.2002 with the assistance of the learned counsel for the parties. 8. The Government Order provides for vertical reservation in the following manner: (i) Scheduled Caste-21%; (ii) Scheduled Tribes-2%; (iii) Other Backward Class-27%. Within the aforesaid reservation category following horizontal reservation to special category has been provided: (i) women-20% (ii) family members of the deceased soldiers, family members of the injured soldiers and ex-service men-8% (iii) freedom fighters and their wife-5% (iv) handicapped persons-2%. 9. Learned counsel appearing for the respondent No. 5 submits that a certificate was issued by the District Magistrate, Kannauj on 10.2.2005 declaring him to be dependent of his grandfather-Sri Chandrika Prasad a freedom fighter. Chandrika Prasad is survived by his widow Smt. Maya Devi who is receiving freedom fighter pension. It is thus clear that the respondent No. 5 is not a freedom fighter nor a family member of ex-service men; family member of deceased soldier or an injured soldier. He is dependent of freedom fighter, a category not to be found in the Government Order providing for horizontal reservation in allotment of fair price shop. It is not within the domain of the Court to add or include a category of person under the category of reservation. It is within the exclusive jurisdiction of the executive to provide for reservation to a class of persons by enacting a statute or by an executive order. Dependents of freedom fighter may have been conferred reservation in public employment but have not been included as a category in the allotment of fair price shop. The Government Order is not under challenge, in the circumstances it was not open to the Court in Ashish Shukla (supra) to have conferred a right upon the fifth respondent which was not traceable the Government Order covering the field of reservation in the allotment of fair price shop. 10. The Government Order is not under challenge, in the circumstances it was not open to the Court in Ashish Shukla (supra) to have conferred a right upon the fifth respondent which was not traceable the Government Order covering the field of reservation in the allotment of fair price shop. 10. On specific query learned counsel for the respondent No. 5 does not dispute that the dependent of freedom fighter is not covered under the Government Order dated 17.8.2002 but submits that he is entitled to be considered pursuant to the decision rendered by the Court in Ashish Shukla. 11. It appears that the Government Order was not placed before the learned Single Judge and it was not pointed out that the dependents of freedom fighter are not covered under the category providing for horizontal reservation. The impugned order has been passed merely following the earlier judgment and order passed in Ashish Shukla. The decision rendered in Ashish Shukla is on misreading of the Government Order providing for reservation to certain class of persons. The Government Order, as we have noticed, does not provide for reservation to dependents of freedom fighter, in the circumstances Ashish Shukla (supra) is not a binding precedent being Per incuriam. ‘Per incuriam’ are those decisions which are given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusions that have been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. 12. It is also well-settled, if intricacies of relevant provisions are either not noticed or brought to the notice of the Court or if the view is expressed without analysing the said provision or the settled position of law, such a view cannot be treated as binding precedent. (Refer: India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., AIR 1990 SC 85 , State of West Bengal v. Kesoram Industries Ltd. and others, (2004) 10 SCC 201 : ( AIR 2005 SC 1646 : 2004 AIR SCW 5998) and Narmada Bachao Andolan v. State of Madhya Pradesh and another, AIR 2011 SC 1989 ). 13. (Refer: India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., AIR 1990 SC 85 , State of West Bengal v. Kesoram Industries Ltd. and others, (2004) 10 SCC 201 : ( AIR 2005 SC 1646 : 2004 AIR SCW 5998) and Narmada Bachao Andolan v. State of Madhya Pradesh and another, AIR 2011 SC 1989 ). 13. Having due regard to the provisions of the Government Order dated 17.8.2002, the respondent No. 5 admittedly is not covered under any of the category of horizontal reservation provided therein. In the circumstances, we are constrained in upholding the impugned order, accordingly, the impugned order is set aside. Order dated 17.4.2018 passed by the Sub Divisional Magistrate impugned in the writ petition is set aside and quashed. The writ petition is allowed. The respondent No. 2, Sub Divisional Magistrate, Tirwa, Kannauj is directed to proceed in accordance with law and conclude the process of allotment of fair price shop dealership within eight weeks from the date of filing of certified copy of this order. The appeal is, accordingly, disposed of.