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2019 DIGILAW 2498 (ALL)

Niraha Devi v. District Magistrate, Gonda

2019-11-07

SANGEETA CHANDRA

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JUDGMENT : Sangeeta Chandra, J. Heard learned Counsel for the petitioner and learned Additional Chief Standing Counsel. 2. The petitioner prays for quashing of the order dated 19.10.2019, filed as annexure-5 to the writ petition, and a direction to the respondent to allot the fair price shop of Gram Panchayat Khamariya Bujurg, Block Chhapiya, Tehsil Mankapur, District- Gonda, to the petitioner as she was duly selected in the open general meeting of the Gaon Sabha held on 25.06.2019. 3. It has been submitted by learned Counsel for the petitioner that on a vacancy created for Gram Panchayat Khamariya Bujurg, an open general meeting of Gaon Sabha was held and the petitioner was selected for grant of fair price shop license. The papers regarding the selection of the petitioner was forwarded by the Village Development Officer to the Block Development Officer and the Block Development Officer forwarded the papers on 06.07.2019 to the Sub Divisional Magistrate, Mankapur, Gonda. However, no decision was taken on such selection for a long time then the petitioner approached this Court by filing the Writ Petition No.28118 of 2019: Niraha Devi Vs. District Magistrate Distt. Gonda and others. This Court disposed of the writ petition stating that the appropriate authority may take a decision regarding allotment of fair price shop to the petitioner, in case she is selected. In case, there are any formalities required to be completed by the petitioner, then the same shall be communicated to the petitioner promptly and the petitioner shall also comply with the same. The direction was issued to complete the entire exercise within a period of 45 days. 4. After the disposal of the aforesaid writ petition on 17.10.2019, the impugned order has been passed on 19.10.2019 taking shelter of the Government Order No.6/2019/1358/29-6-2019-162sa/2001 dated 05.08.2019. In the said Government Order, the eligibility conditions of allotment of fair price shop has been mentioned. In sub para-3 of paragraph 4 of the Government Order, it is mentioned that fair price shop licensee should have passed High School. The petitioner was issued a letter to show whether she had a High School Pass Certificate, to which petitioner did not reply. It was presumed that petitioner had not passed High School, therefore, as per the Government Order, she did not possess eligibility required for allotment of fair price shop. The petitioner was issued a letter to show whether she had a High School Pass Certificate, to which petitioner did not reply. It was presumed that petitioner had not passed High School, therefore, as per the Government Order, she did not possess eligibility required for allotment of fair price shop. The petitioner's application/ selection has been treated to have been cancelled and a direction has been issued to the Block Development Officer to hold an open general meeting of Gram Sabha Khamariya Bujurg, Development Block, Chhapiya, Tehsil Mankapur. 5. It has been further submitted by learned Counsel for the petitioner that the Government Order referred to in the impugned order is dated 05.08.2019, which has been issued after the selection of the petitioner in open general meeting held on 25.06.2019 and it cannot be applied retrospectively. The eligibility conditions of the fair price shop licensee given in earlier Government Order shall apply in the case of the petitioner. 6. From the documents which have been filed in this writ petition, this Court is of the definite opinion that no allotment order was issued to the petitioner. In fact, there was no communication from the office of the Sub Divisional Magistrate, that the proposal in the open general meeting held on 25.06.2019 has been accepted by the District Selection Committee and that the petitioner should complete formalities and deposit the security amount, etc. Unless a communication is made of a allotment, it cannot be treated that selection is completed. The Full Bench of this Court in Kumari Sandhya Singh Vs. State of U.P., (2014) 1 AllLJ 79 , was dealing with the issue "whether mere selection on a date prior to 02.06.2010 will confer a right upon the incumbent to claim appointment and for being sent for training as Shiksha Mitra even after the State Government has imposed a ban on such appointment on 02.06.2010, and the scheme of Shiksha Mitra itself has been dropped by the State Government?". 7. The Full Bench after examining the scheme held that the selection process for Shiksha Mitra comes to an end only when a person is asked to give consent on a prescribed form to enter into a contract to serve as a Shiksha Mitra and not earlier to it. The persons whose names have been recommended for selection do not get clothed with any vested rights to claim appointment as Sikhsa Mitra. The persons whose names have been recommended for selection do not get clothed with any vested rights to claim appointment as Sikhsa Mitra. The Court also held that since no vested right is taken away, therefore, even if the Government Order dated 02.06.2010 is applied to selections which have not come to an end; with the completion of training and exercise of option by a candidate to enter into a contract to serve as Shiksha Mitra, there is no question of depriving a person of any right, nor of retrospective portion of the Government Order. 8. For coming to such a conclusion, reliance was placed by the Full Bench on an another Full Bench decision of this Court in the case of Shiv Kumar Sharma Vs. State of U.P., (2013) 6 AllLJ 366 , wherein the Full Bench had held that a candidate aspiring to seek appointment as a teacher of elementary eduction has to essentially possess T.E.T. Certificate as per the notification dated 23.08.2010 by the N.C.T.E. issued in the exercise of power conferred by the Section 23 of the Act. Admittedly, the appellant only possessed qualification of intermediate and was not qualified to be teacher under the requirements laid down in the notification of the N.C.T.E. dated 23.08.2010. It was alleged that the appellant had been called for training but it was admitted that the appellant could not complete the training in the meantime. 9. In Tagin Litin Vs. State of Aruranchal Pradesh and others, (1996) 5 SCC 83 , the Hon'ble Supreme Court has observed that unless an order of appointment is issued and communicated to a candidate, the selection cannot be said to be completed. For making such observations, it relied upon Constitution Bench judgment rendered in Bachhittar Singh Vs. State of Punjab, (1962) Supp3 SCR 713, wherein Hon'ble Supreme Court has observed that in order to be effective, an order passed by the State or its functionaries must be communicated to the person who would be affected by that order and until the order is so communicated, the said order is only provisional in character and it would be open to the authority concerned to reconsider the matter and alter or rescind the order. 10. 10. In view of the aforesaid law settled by two Full Benches of this Court, unless and until an order is issued by the Sub Divisional Magistrate appointing a fair price shop licensee and a contract is entered into between the parties, no vested right is created in the petitioner to allege that since she was recommended by the open general meeting of the Gram Sabha, the Government Order dated 05.08.2019 cannot be applied retrospectively to her. The selection is only completed when the appointment order is issued or the communication of the decision of appointment is made to the candidate concerned. No doubt, the open general meeting was held on 25.06.2019 before the Government Order dated 05.08.2019 was issued, however the consideration of the petitioner's candidature was actually done by District Selection Committee after 05.08.2019, and therefore, it cannot be said that the selection was completed. 11. In view of the eligibility conditions being changed by the Government Order dated 05.08.2019, the petitioner cannot claim that any legitimate expectation had arisen in her favour with regard to the selection in open general meeting of the Gaon Sabha. There cannot be any estoppel against the law. The policy of the Government being changed by the Government Order dated 05.08.2019, all future appointments which are to be made for fair price shops license will be governed by the eligibility conditions mentioned in the Government Order dated 05.08.2019. The case of the petitioner that Government Order dated 05.08.2019 is inapplicable to the petitioner as her selection was done by the Gaon Sabha in open general meeting dated 25.06.2019, is against the law settled by this Court and the Supreme Court as afore cited, and is therefore rejected. 12. The writ petition is misconceived and is accordingly dismissed.