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2021 DIGILAW 173 (JK)

Sandeep Chattoo v. Union Territory of J&K

2021-04-16

ALI MOHAMMAD MAGREY

body2021
Judgment (Oral) Ali Mohammad Magrey, J.- CM No.2174/2021: 1. This application, for the reasons stated and grounds urged therein, is allowed. Since Court proposed to decide the writ petition at motion hearing, therefore, no requirement of making good the deficiency of annexing the requisite Court fee, stamp papers, notarization, etc. 2. CM disposed of as above. Caveat No.511/2021: 3. With the appearance of Mr. D. C. Raina, learned Advocate General with Mr Sajad Ashraf, learned GA, appearing counsel for caveators/respondents, Caveat No.511/2021, as lodged, shall stand discharged, accordingly. WP(C) No.739/2021; CM No. 2175/2021 4. In the instant petition, challenge has been made to the Excise Policy issued by respondent No. 1 vide S.O. 114 dated 31st March, 2021 for the year 2021-22, for e-Auction of Retail Liquor Vends to the extent of his rights qua JKEL-2 at Batwara Srinagar, within the Badami Bagh, Cantonment area, as per the Clauses prescribed in the Excise Policy 2021-22 and the Provisions of J&K Excise Act, 1958, rules framed thereunder, being arbitrary, irrational and contrary to the Act and the Liquor Rules on the grounds detailed out in the writ petition. 5. The material facts leading to filing of the instant writ petition, available from the perusal of the pleadings on record are that the petitioner on fulfilment of the requirements under the provisions of Excise Act, Rules and the policy, was granted license for auction of Retail Sale of Foreign Liquor and Indian Made Foreign, Liquor, including (Beer) for consumption in the premises and off the premises situated Near Broadway Cinema at Batawara, Srinagar, from 31.01.2001 for the year 2000-2001 and thereafter renewed from time to time and valid for the year 2022-2023. 6. 6. Petitioner while holding the license for running the Retail Sale of Foreign Liquor and Indian Made Foreign, Liquor, including (Beer), came to know about the Excise Policy for the year 2021-22, issued in terms of S.O.114 dated 31st March, 2021, having its validity with effect from 1st April, 2021 till 31st March, 2022 with its objective as enshrined under Clause 1 of the policy and believes it to be ultra virus to the parent Act, irrational, volatile to the rights of the petitioner who claims to be facing extreme difficulties due to insignificant, irrational and total ambiguity in the Excise Policy, challenges the same on the following grounds:- i. That the impugned policy is not in consonance with the direction/s passed by the Division Bench of this Court in case titled Balbir Singh and Ors. Vs. State of JK and Ors., the lead case being OWP No. 486/2017 and LPAOW Nos. 11/2017, 20/2017, 21/2017, 22,2017, 23/2017, 44/2017, decided on 28.12.2020, the judgment so far it relates to the petitioner as an existing licensee, leaves no scope for renewal but puts an end / unlawful determination to the already accrued rights of the petitioner qua issuance of the liquor license issued & renewed by the competent authority under the Excise Act, the provisions of the Act & the notification issued under the Act leaves no scope for respondents to come up with the impugn policy, taking away the rights of petitioner when the same was not even the purport of the judgment rendered by the Division Bench of this court, subsequently clarified in the decision rendered in bunch of Review petitions on 06.04.2021. ii. That from the bare perusal of Clause 2.1 of the Excise Policy 2021-22, it transpires that the License for Type-C i.e. JKEL-2 shall be issued by as per the provisions of J&K Excise Act, 1958 and the Rules framed thereunder i.e. SRO 679 J&K Liquor, License and Sale Rules 1984. ii. That from the bare perusal of Clause 2.1 of the Excise Policy 2021-22, it transpires that the License for Type-C i.e. JKEL-2 shall be issued by as per the provisions of J&K Excise Act, 1958 and the Rules framed thereunder i.e. SRO 679 J&K Liquor, License and Sale Rules 1984. The very Notification dated 31st March, 2021 on the basis of which Excise Policy has been issued, it has been categorically stated that it will come into force from 1st April, 2021 and will continue to remain in force till 31st March, 2022 and as per Bid document, Clause 1.8, it has further been stated that all licenses granted under the provisions of Excise Policy 2021-22 shall determine on 31st March of the year following the year of allotment irrespective of their date of allotment. If the aforesaid Excise Policy is taken at its face value, as per clause 2.4.10, which pertains to Minimum Guarantee Revenue (MGR) the licensee who ultimately became successful in bid as H-1 has to deposit MGR for twelve months. iii. That while proposing to auction Retail Liquor Vend JKEL-2 at different locations in terms of Annexure A attached to the Policy and fixation of Minimum Guarantee Revenue and also receipt of bid amount after auction, Clause 2.1 further empower the respondents to grant license JKEL-7A i.e. License for Retail Vend of Beer (Bottled, tinned, draught beer in bar). It is germane to mention here that License for JKEL-2 is given for sale of Indian Made Foreign Liquor, 3K Desi Whisky and includes Beer also. The bidder has to bid for the area as given in the Annexure-I and opening of another vend for beer in any location, is contrary to itself and irrational also. Not only this, Clause 2.1 empowers the Excise Department to issue permission to serve liquor on social occasions at private places even at the locations for which retail liquor vend JKEL-2 has been proposed to be auctioned. On this count also, the Excise Policy 2021-22 is arbitrary and liable to be quashed. iv. That as per Clause 2.4.5, the participation registration fee has been fixed as Rs.25,000/- which is non-refundable and clause 2.4.6 deals with Earnest Money Deposit of Rs.5.00 lacs for each vend. On this count also, the Excise Policy 2021-22 is arbitrary and liable to be quashed. iv. That as per Clause 2.4.5, the participation registration fee has been fixed as Rs.25,000/- which is non-refundable and clause 2.4.6 deals with Earnest Money Deposit of Rs.5.00 lacs for each vend. The Clause 2.4.9 reads as under:- “Payment of bid amount” The successful bidder will be required to deposit an amount equal to 50% of total bid amount under major head 0039 through GRAS/e-collect portal within two days from the date of finalization of bid for a vend and 100% of bid value within seven days of finalization of bid. If the successful bidder fails to comply with the aforesaid condition of payment of bid money in the prescribed period, the earnest money shall state forfeited. In such a case, the liability of the highest bidder will not be limited only to the extent of earnest money tendered by him in the auction process for a particular location, but any other location in which he is a stake holder shall also be cancelled and the respective deposits made in the form of earnest money or security for such other bids also shall be forfeited and he will not be allowed to participate as a stake holder in any of future allotments.” Apart from it, it has further been stated in clause that in case the successful bidder in one location fails to submit the Minimum Guarantee Revenue, the Earnest Money Deposited for other locations to participate in the bid shall also be forfeited. It is important to mention here that as per law Earnest Money Deposited is always part of the consideration which is to be finally settled inter-se parties and ultimately adjustable with the total consideration. In the present case, the respondent No. 1 stated that earnest money as received by the respondents shall be adjustable as per the discretion of the respondents in respect of any liabilities at the end of the license period, which is contrary to law. Not only this, failure to deposit Minimum Guarantee Revenue at one location by the successful bidder by no stretch of imagination give a right to the respondents under any law to forfeit earnest money in respect of other locations. Not only this, failure to deposit Minimum Guarantee Revenue at one location by the successful bidder by no stretch of imagination give a right to the respondents under any law to forfeit earnest money in respect of other locations. The Excise Policy 2021-22 has not been framed as per the objective enshrined under Clause 1 of the policy but only with a motive to collect huge amount by way of earnest money or by any means whatsoever, as per the whims and wishes of the respondents that too against the spirit of law. On this count also Excise Policy 2021-22 is contrary to J&K Excise Act Svt 1958 and its Rules inasmuch as the conditions laid down in the Policy itself and liable to be struck down. v. That as per law even Administrative Authorities before taking any adverse action against any person are required to at least give a chance of hearing to the other person to explain his position and this is the minimum requirement of law but while framing the Excise Policy 2021-22 it has further been stated in the Clause 2.4.10 that in the event of failure on the part of successful bidder to deposit monthly instalment on due date i.e. 1st day of the month, the Excise and Taxation Officer has an absolute and unbridled power to close the Vend even without giving any notice to the Retail Vendor. It has further been stated that even if there is any exigency related to non-operation of the allotted Vend, the respondent No. 2 is within its power to take any decision with regard to Vend which gives absolute power to the respondent No. 2 to pass any order at the back of the liquor vendor who became successful after participating in the auction process. The clauses framed in the Excise Policy 2021-22 are totally irrational, arbitrary and against public policy, as such, liable to quashed. vi. The clauses framed in the Excise Policy 2021-22 are totally irrational, arbitrary and against public policy, as such, liable to quashed. vi. That none of the action of the government should be a reason for growth in the sale of liquor as per the directive principles enshrined in the Constitution of India, however the sole aim and objective leading in the Excise Policy impugned encouraged sale of liquor which is completely prohibited under law and while framing the Excise Policy and the consequential notifications issued upon the policy is bad in law and requires to be stopped at its threshold by way of judicial review of the act of state. vii. That the sale profit margin attached with the sale of the liquor pursuant to the impugned Excise Policy is not enough to run a business of liquor in the peculiar circumstances of Kashmir Valley, owing to the escalated transportation fair and the payment to the employees which is considerably high in the area like Srinagar than that of Jammu Region of UT, the reasonable classification is not made in the policy which are essential ingredient for framing the excise policy qua the sale of liquor in the Kashmir Valley, were the scope of implementation of excise policy impugned is bleak, unrealistic and in no stretch of imagination is susceptible to be implemented, when its respondents have judicial notice of the fact that in holy month of Ramadan all liquor vends remain shut in valley and also without any sale in a stretch in all law & order circumstances valley is witnessing. The Excise policy on this count is totally irrational & volatile of Article 14, the condition of trade & related stipulations in Jammu, Ladakh and Kashmir are different including the threat attached with the conduction of liquor trade in Kashmir. It may be a comfortable source of earning in region Jammu but records bears testimony of the fact that in Kashmir those who conducts the liquor business are declared as protected persons by the security agencies as being a soft target to the anti-national elements. viii. That as per Excise Policy 2021-22, different location to be auctioned for retail vend JKEL-2 has been mentioned in Annexure-A attached to the Policy and it has further been stated that Minimum Guarantee Revenue (MGR) has to be paid by the vendor as fixed in the Policy itself. viii. That as per Excise Policy 2021-22, different location to be auctioned for retail vend JKEL-2 has been mentioned in Annexure-A attached to the Policy and it has further been stated that Minimum Guarantee Revenue (MGR) has to be paid by the vendor as fixed in the Policy itself. Apart from it, Minimum Guaranteed quantity of JK Desi Whisky is also required to be taken by the vendor as prescribed in the Excise Policy for the Vend of a particular location. However, the potential of the area of each vend to be auctioned has been mentioned in the Excise Policy. The parameters of evaluating the Minimum Guarantee Revenue and Minimum Guarantee Quantity has been fixed for each Vend to be auctioned has not been made known to the bidders nor any reasonable basis for evaluating the parameters stands to have been complied which could make the policy a reasonable one. In-fact, the Excise Policy 2021-22 has been issued in utter haste manner and is totally arbitrary and irrational without even taking into consideration the minimum interest of successful bidder of the location, so as to give a chance to the bidder to access the on spot position with regard to a particular Vend for which a bid by way of auction process is ultimately to be submitted. No one can submit a bid for a particular Vend unless a detailed data with regard to the potential of a particular Vend in a particular area is made known to the public at large, so as to make every bidder vigilant about his chances of regular deposit of Minimum Guaranteed Revenue as well as Minimum Guaranteed Quantity to be taken as per the Policy. In absence of any data having been made available or the same becoming available to the petitioner even if he were to make any effort, would result in the class of persons who are or have held JKEL-2 license, they alone will have the data available, as such making them competent to assess the potentiality of a vend and exclude petitioner as an intending bidder from even predicating any bid amount that would be a competitive bid to be offered. The impugned policy to that extent as such is violative of Article 14 as it is creating a class who had access to the data relating to revenue potentiality of a vend. The impugned policy to that extent as such is violative of Article 14 as it is creating a class who had access to the data relating to revenue potentiality of a vend. The classification thus so which gets made is arbitrary, illegal and unconstitutional as the policy when implemented would only result in such classification, thus violating petitioner’s right of equality as is guaranteed under Article 14. In fact, the policy when it is put to execution by reference to other provisions and instances as having been quoted earlier and will be quoted here after would be a policy hit by vice of arbitrariness and thus unconstitutionality. On this ground as well the impugned policy is liable to be quashed. It is also worthwhile to mention here that as per Annexure-A of the aforesaid Excise Policy, only areas are mentioned where licenses by way of auctions are to be given and after the license, power is given to the respondents to make verifications of the site of the license. Neither any mode nor any method has been prescribed by the respondents about the verification of the site on which license is to be operated. No time bound verification is made as per the Excise Policy 2021-22 It is further submitted that under the J&K Excise Act 1958 and its Rules License is issued to a particular place and site plan has to be submitted along with completion of all formalities as envisaged under SRO 679 i.e. J&K Liquor, License and Sale Rules, 1984 but while framing the Excise Policy for the year 2021-22 the respondent have stated that after the auction of the liquor vend, the licensee has to arrange the particular place which is ultimately to be verified by the Committee formulated by the respondent No.2. The total discretion given to the respondents to accept or deny a particular location without having any say to the successful bidder even after the deposit of Minimum Guaranteed Revenue within seven days from the date of bid will not protect the bidder to start the Vend. The Excise Policy framed is totally irrational and arbitrary. The total discretion given to the respondents to accept or deny a particular location without having any say to the successful bidder even after the deposit of Minimum Guaranteed Revenue within seven days from the date of bid will not protect the bidder to start the Vend. The Excise Policy framed is totally irrational and arbitrary. The petitioner is put to totally at the mercy of Excise Department and even if for any reason whatsoever, the Vend as proposed by the bidder is not made functional, the vendor is supposed to deposit the Minimum Guaranteed Revenue within three days for making arrangement for another place and if another location is not arranged within thirty days, the license shall be cancelled and entire amount deposited shall be forfeited. This Excise Policy framed for the year 2021-22 is contrary to J&K Liquor, License and Sales Rules, 1984 and also statutory provisions of J&K Excise Act, Svt 1958 as such, liable to be quashed. ix. That as per Rule 30 of J&K Liquor License and Sale Rules, 1984, the procedure has to be followed before the license for Retail Liquor Vend is to be granted. Rule 4 of the said Rules, further states that Retail Liquor Vend can be granted by way of fixed fee or by auction or by private contract. The Excise Policy 2021-22 proposed to auction Retail Liquor Vend by way of auction and it has further been stated that provisions of Excise Act, Svt 1958 and its Rules shall apply fully. Rule 30(5) of J&K Liquor, License and Sale Rules 1984 states that if the site of the proposed license is near the Railway Station, Educational institution, Hospital area or any large factory or workshop, the Deputy Excise Commissioner shall ask for the opinion of said authorities. Apart from it, other procedure is also prescribed in Rule 30 for grant of license and also the licenses near the religious places but as per Excise Policy 2021-22, it has been stated that the site of license if is near public institutions and if objections are raised by local public or public institution, the vendor has to arrange alternative site in the same area. This clause 2.4.11 run contrary to Rule 30 of J&K Liquor, License and Sale Rules, 1984 and total arbitrary, powers given to the respondent No.2 to forfeit the Minimum Guaranteed Revenue even if the liquor vend remain un-operational without the fault on part of bidder. This Excise Policy in outcome of total arbitrariness and contrary to J&K Excise Act, 1958 and its Rules. x. That while framing the Excise Policy 2021-22, the provisions of Excise Act 1958 and 3&K Liquor, License and Sale Rules 1984 have been also made applicable. The Rule 35 of the J&K Liquor, License and Sale Rules 1984 deals with determination of fee by auction and Rule 37 prescribed the procedure for auction of licenses. However as per Excise Policy 2021-22, the entire procedure as laid down under the Rules have been given goodbye and the Excise Policy is totally contrary to the Rules framed in the year 1984 and also contrary to Section 62 of the J&K Excise Act 1958, as such, arbitrary irrational and liable to be quashed. xi. That as per a lawful practice, whenever an auction is made in respect is liquor vend, the successful bidder is given a right to fix the Maximum Price of the liquor for its sale, however, only minimum sale price is fixed by the Excise Department in case of auction of liquor vend but as per Excise Policy 2021-22, the respondents are given absolute power to fix Maximum Retail Price of the liquor to be sold in the vend. The margin of profit as per Excise Policy is fixed on purchase price and no purchase value of the product of any liquor has been shown under the Excise Policy. The vendor has to arrange the shop, other infrastructure, necessary salesman as to be approved by the Excise Department if necessary for running the liquor vend. The fixation of Minimum Guaranteed Revenue, Minimum Guaranteed Quantity of JK Desi Whisky and giving a power to Excise Department to license other areas for sale of beer as per JKEL-7A leaves no room for the petitioner to assess the approximate sale to be generated in the Vend, for the purposes of making a bid. The Excise Policy is silent about the previous data of the potential of the area, as such, totally arbitrary, irrational and contrary to statutory provisions of Excise Act. xii. The Excise Policy is silent about the previous data of the potential of the area, as such, totally arbitrary, irrational and contrary to statutory provisions of Excise Act. xii. That while framing the Excise Policy 2021-22, it has been laid down in Clause 3 of the bid document that any person who is not debarred from holding license for the sale of any intoxicants in J&K, Punjab, Delhi, Haryana, UT of Chandigarh or Himachal Pradesh is free to participate in the auction person provided other conditions, as envisaged in the said clause are fulfilled. There is no reasonable nexus for treating a person to participate in the auction process in the event of his commission of no default for the areas mentioned above and the other areas of the country. A defaulter is a defaulter and as per law any person who is defaulter in any of the State or Union Territory of India, has no right to participate in the auction process. The selective areas chosen by the respondents for the purposes of defaulter in respect of intoxicants itself render the policy irrational, arbitrary and contrary to settled law, as such, liable to be quashed. xiii. That as per Clause 2.4.12 of Excise Policy 2021-22 pertains to provision for opening of Liquor Vends at Tourist places and the same has been separately incorporated. The Excise Department is empowered to setup liquor vends at Tourist locations irrespective of the fact that as per Annexure-A of the aforesaid Excise Policy, different vends have tourist potential and opening of separate liquor vends in addition to auction of liquor vend in respective areas run contrary to the very provisions of the Excise Policy, as well as Excise Act and its Rules. It is further submitted that in the aforesaid Clause, the Excise Department is given power to even open liquor vends at 3K Cable Car Corporation place, which leads to religious place “Moh Maya Temple’. The policy framed by the respondent No.1 is totally arbitrary, irrational and against settled statutory provisions of law. It is further submitted that opening of further vends at tourist areas or opening of vends for sale of beer JKEL-7A amounts to directly affecting the Minimum Guaranteed Revenue as payable by the successful bidder in the location as mentioned in Annexure-A of the Excise Policy and same run contrary to said clauses of the Excise Policy. It is further submitted that opening of further vends at tourist areas or opening of vends for sale of beer JKEL-7A amounts to directly affecting the Minimum Guaranteed Revenue as payable by the successful bidder in the location as mentioned in Annexure-A of the Excise Policy and same run contrary to said clauses of the Excise Policy. On one hand Minimum Guaranteed Revenue and Minimum Guaranteed Quantity is fixed for the proposed auctioned vend and simultaneously power is retained to open liquor vends in the same area, as such, Excise Policy is contrary in itself and totally arbitrary as well as irrational liable to be quashed. xiv. That as per Clause 4.4 of the Excise Policy 2021- 22, if any manufacturer or wholesaler fails or refuses to provide supply of liquor to Type C License i.e. JKEL-2, he shall be liable for fine for each day of delay and in case liquor is not provided beyond three days, the license of the defaulting licensee shall be liable for suspension. As per this clause, no protection to the JKEL-2 licensee who in-fact will be sufferer on account of wilful or other acts of manufacturer or wholesaler, has been given rendering the petitioner license to be without liquor to be sold in his Vend despite the fact that Minimum Guaranteed Revenue has been deposited by the vendor. xv. That as per Clause 1.2 of the Excise Policy 2021- 22, the License fee has been assessed for a year as per bid received in e-Auction and the license will be granted for eleven months with effect from 1st May 2021 to 31st March, 2022. This itself is contrary to Excise Act and its Rules. Not only this as per Clause 1.1, additional license fee has been payable for Type C license also, which amounts to double license fee to be paid by the licensee who remained successful in the auction process that too against the spirit of law. Not only this, as per clause 2.4 of the Policy, it has further been stated that to promote ease of doing business, each license has to make necessary provision for IT and non-IT infrastructure for online service for management system of production, import, trade / sale of liquor. Not only this, as per clause 2.4 of the Policy, it has further been stated that to promote ease of doing business, each license has to make necessary provision for IT and non-IT infrastructure for online service for management system of production, import, trade / sale of liquor. It is submitted that JKEL-2 is a license which was initially known as OFF license and as per this clause 2.4, online sale of liquor is made permissible which run contrary to provisions of Excise Act and its Rules, as such, policy is totally arbitrary, irrational and in-fact, against the objectives as shown in clause 1 of the policy and liable to be quashed. xvi. That while framing the Excise Policy 2021-22, the respondent No.1 has totally failed to consider unprecedented situation like Covid-19 or any other act of God, which render the liquor vend non-functional, so as to protect the petitioner but on the other hand it has been stated that for whatsoever reasons the liquor vend become non-functional or closed, the bidder shall be bound to pay the Minimum Guaranteed Revenue and all amount deposited shall be forfeited. This Excise Policy in-fact is against Article 47 of the Constitution of India inasmuch as the provisions of Excise Act and its Rules, as such, liable to be quashed out-rightly. xvii. That the Excite Policy 2021-22 is totally silent about the manner and mode of getting the No Objection Certificates from the District Magistrate in respect of premises as arranged by the successful bidder for a particular location. No time has been fixed for issuance of No Objection Certificate by the concerned District Magistrate and even no criteria has been laid down. If any delay on the part of District Magistrate in issuance of No Objection Certificate for a particular location, the adverse financial impact on the successful bidder has not been taken care of under the Excise Policy, as such the Excise Policy deserves to be quashed. 7. Mr. If any delay on the part of District Magistrate in issuance of No Objection Certificate for a particular location, the adverse financial impact on the successful bidder has not been taken care of under the Excise Policy, as such the Excise Policy deserves to be quashed. 7. Mr. Mohsin Qadri, learned senior counsel submits that Rule 14 of the Rules provides that licensee has a right to get his license renewed, as far as the issue regarding right of any person to trade in liquor is concerned, the submission is that though it would not be a matter of right to get the license renewed but in Jammu and Kashmir, as a matter of course, all licenses for liquor vends are being renewed from time to time, which is provided under Rule 14 of the Liquor license and Sale Rules, 1984. It is further submitted that the policies being in the form of Statutory Rules and Orders (SRO) has been framed in exercise of powers derived under the Act and the Rules. Referring to various clauses of the policy, it was submitted that these run totally contrary to the provisions of the Rules and as the policy is arbitrary, irrational and volatile to the rights of the petitioner. No policy, which is subordinate to the Rules, in case the power is derived therefrom, can run contrary to the provisions contained therein. Once the Rules provide for grant of license for one year, the clause in the policy that it shall not be renewed, cannot be legally sustained. Once the rules provide for grant of license for one year and also for renewal subsequent thereto, there cannot be any deviation from such rules. 8. Mr. Mohsin Qadri, learned senior counsel appearing for the petitioner submits that certain vends which are continuing for last 50-60 years and their licenses have been renewed on fulfilment of certain conditions from time to time, therefore, same procedure is to be followed in case of petitioner who though having no absolute right to claim renewal but same cannot be taken away by insertion of clauses in the policy, contrary to the rules. Learned senior counsel further submits that the impugned policy being inconsonance with the directions passed by the Division Bench of this Court in batch of petition/LPAs, the lead case being OWP No. 486/2017, leaves no scope for renewal including rights of petitioner qua issuance of liquor license issued and renewed by the competent authority under the Excise Act. It is submitted that the provisions of the Act and rules leaves no scope for the respondents to come up with the impugned policy, which goes against the purport of the Judgment rendered by this Court. 9. Mr. Mohsin Qadri, learned senior counsel submits that various existing license holders have approached this Court by way of review petitions, seeking review of Judgment dated 28.12.2020 rendered in the case (supra), who were never the parties in the litigation and during the pendency of the review petition, when the same was heard and reserved for Judgment, the Government came with the impugned Excise Policy, which is against the judicial propriety. He further submits that the Division Bench, while disposing of the review petition in terms of Judgment dated 06.04.2021, has specifically dealt with the cases of the applicants in paragraph 29 to 33, qua renewal of the cases of the already existing licensees. It is submitted that the policy is against the directions of the Division Bench, qua existing licensees, seeking renewal as permissible under rules. 10. Mr. Mohsin Qadri, learned senior counsel submits that petitioner is only person, permitted to run the trade of liquor in Badami Bagh Cantonment area by the Cantonment Board, therefore, there is no scope for auction of the vend for this area. 11. Mr. D.C. Raina, learned Advocate General, appearing counsel for the respondents-caveators has vehemently resisted the maintainability of the writ petition for the reliefs claimed, as amounting to seeking reversal of the Division Bench Judgment in the writ petition before the Single Bench, as the issues qua framing of Excise policy stands settled by the Division Bench of this Court, arising out of the Judgment passed by the Single Bench in Sandya Devi’s case. Learned Advocate General further submits that the Excise Policy 2021-22 impugned in the writ petition has been framed in exercise of powers derived under the Act and the Rules and the same is in conformity with the provisions of the rules and made in compliance with the Judgment of the Division Bench, having earned finality after dismissal of the SLP Diary No(s) 3698/2021. He further submits that there cannot be automatic renewal of the license as the provisions of the Rules do not envisage that situation. He further submits that the Excise policy 2021-22 is in tune with the provisions of the Act and rules and as per Scheme of law laid down by the Division Bench in the Judgment in case titled Balbir Singh and Ors. Vs. State of JK and Ors., dated 28.12.2020. He further submits that the normal validity of a regular license is one year and though provisions of Rules 4 and 14 of the Rules provide for renewal of the license, however, the same is not as a matter of right, but is to be seen in the light of the provisions of Rule 16, 26, 27 thereof. Mr. Raina, learned Advocate General further submits that as per the scheme of law, and the Judgments of the Hon’ble Apex Court and this Court no person has a fundamental right to do trade or business in intoxicants and can claim renewal as a matter of right. He further submits that the Hon’ble Apex Court has time and again opined that there is no fundamental rights to do trade or business in liquor but conferred by the State. 12. Heard learned counsel for the parties, perused the records and considered the matter. 13. The trade of liquor and intoxicating drugs in the Union Territory of J&K, is governed by the Jammu and Kashmir Excise Act, Svt. 1958 and the Rules, known as J&K Liquor Licence and Sales Rules, 1984. Earlier, there was a dual system adopted by the State to regulate the trade of liquor the Indian Made Foreign Liquor was sold through separate retail vends on a fixed annual licence fee whereas the Country made Liquor was sold exclusively through identified vends with the privilege of trading granted in open auction conducted yearly and/or through departmental operations as per the provisions of J&K Excise Act and the Rules made thereunder. 14. 14. For opening of a vend for the purposes of sale of Indian Made Foreign Liquor (IMFL), a person desirous of trading in the commodity was required to apply to the Excise Commissioner, who had the competence/authority to grant a license after the applicant fulfilled the requisite formalities and the Excise Commissioner satisfied himself about the need for the grant of license to the person/premises. But with the intervention of Courts, the respondents regulated the trade by notifying policies from time to time which became further subject matter of this Court in various writ petitions/LPAs finally decided on 28.12.2020, the lead case being OWP No. 486/2017 and LPAOW No. 11/2017, along with clubbed matters, respondent No. 1, in compliance of Judgment of Division Bench of this Court notified the Excise Policy 2021-22, impugned in the instant writ petition. 15. Whether petitioner’s right stands violated by formulation of the Excise policy 2021-22, providing him a chance of competing the process of e-Auction for grant of license to run Retail Sale of Foreign Liquor and Indian Made Foreign, Liquor, including (Beer) at Batwara, Srinagar, within the Badami Bagh Cantonment, Board, instead of allow him to run such trade under the already renewed license till 2023, or to get his license renewed as per past policy, is the question to be replied. 16. Admittedly, in terms of the Judgment of the Division Bench, passed in case titled Balbir Singh and Ors., Vs. State of JK and Ors., the clauses of Excise policy for the year 2017-18, 2018-19 and 2019-20, providing for renewal upto five years stands struck down, therefore, the contention of the petitioner that he has a right to run the business under the license, valid till 2023 has no substance. The contention of the petitioner that renewal of license for trade in liquor is permissible in terms of Rule 14 of Liquor license and Sale Rules, 1984, read with provisions of the Act and rules, is to be examined by taking note of the relevant provisions of the Act: 14. Every license issued under the provisions of the Jammu and Kashmir Excise Act and the rules framed thereunder shall be renewed before the expiry of its period of validity if the Licensing Authority approved the continuation of license through the same licensee and in respect of the same premises. Every license issued under the provisions of the Jammu and Kashmir Excise Act and the rules framed thereunder shall be renewed before the expiry of its period of validity if the Licensing Authority approved the continuation of license through the same licensee and in respect of the same premises. A new license shall, however, be required where a license has determined by reasons of surrender, cancellation or / order of non-renewal or for any other reason or where it is proposed that a license in respect of premises or persons not previously licensed, should be issued; Provided that no license shall be deemed to have been renewed on its expiry unless the Licensing Authority issues the express orders for its continuation; Provided further that: (a) a new license is not required on account of the addition or removal of a partner, on the application of all the partners or the change of representative of a company or society; (b) a license continue in favour of the legal licensee for the remaining period of the licensee shall not be deemed to be a new license; (c) If the premises of a license are changed during the period of its currency the license may be continued for the remaining period of the term on existing fee on the direction of the authority competent to grant such license. (d) the authority competent to grant the license can for good and sufficient reasons, transfer the license in favour of a legal heir of the licensee for remaining period of the term. 15. All applications, for the grant or renewal of licences, which require, the orders of the Excise Commissioner under these rules, should be received through the proper channel in the Excise Commissioner’s Office before the end of October in each year: Provided that applications for the grant of licenses in Form JKEL 3 or JKEL 4 may in urgent case, where they do not adversely affect any existing licence, be submitted at any time during the year. 16. No person to whom a license has been granted shall be entitled to claim as a matter of right any renewal thereof and no claim shall lie for damages for otherwise in consequence of any refusal to renew a licence on the expiry of the period for which it remains in force. 16. No person to whom a license has been granted shall be entitled to claim as a matter of right any renewal thereof and no claim shall lie for damages for otherwise in consequence of any refusal to renew a licence on the expiry of the period for which it remains in force. The Excise and Taxation Officer Incharge of Excise Range shall lay before the Deputy Excise Commissioner by the 10th of January each year a list of all licences requiring renewal. The list shall be accompanied in the case of licences granted on assessed fee, by a certificate of sales, in the case of bottling licenses by a similar certificate showing litres (London proof) bottled upto December 31. x x x x 26. Licenses for the vend by wholesale and retail of any liquor may only be given for a period of one year from the 1st of April, to the 31st of March following, provided that: (a) a license may be given from any date to the 31st March, following (b) the Excise Commissioner may sanction for shorter periods such licenses or classes as he thinks fit (c) The excise commissioner may by order, direct that the subject to such conditions and limitations as may be mentioned in such order, the period of any class of licenses shall be extended for a period not exceeding one month. 27. All licences shall unless it is otherwise provided determine on the 31st of March, next following the grant. x x x x 30. Procedure to be followed and matters to be ascertained before any licence is granted for the retail vend of liquor, for consumption on the premises and off the premises in case of fixed fee leviable licences. 1. When it is proposed to grant a licence for the retail vend of liquor for consumption on/off any premises, which were not licensed in the preceding year, the Deputy Excise Commissioner of the Province shall take all reasonable steps to ascertain the opinion of persons, who reside or have property in the neighbourhood and are likely to be affected by the proposal. 2. The Deputy Excise Commissioner shall cause a notice posted of the proposal at or near the site proposed for the new licence. 3. 2. The Deputy Excise Commissioner shall cause a notice posted of the proposal at or near the site proposed for the new licence. 3. If the proposed premises are in a municipal area or a town area, or notified area, the Deputy Excise Commissioner shall lay the proposal, in writing before the committee of the Municipality, Town area or Notified area. 4. The Deputy Excise Commissioner shall also ask for the opinion of District Magistrate. 5. If the site of the proposed licence is near a Railway Station educational institution, hospital area or any large factory, mill or workshop, the Deputy Excise Commissioner shall ask for the opinion of the Railways, educational or hospital authorities or commercial firms concerned. 6. If any objection is preferred to the proposal within two month from the date of, the notice and reference, referred to in sub rule 2 of this rule, the Deputy Excise Commissioner or a gazetted officer deputed by him shall enquire into it. The inquiry shall, if possible, be made on the spot. If it is not possible to make an inquiry on the spot, an inquiry shall be made in a formal proceeding at which evidence tendered for or against the proposal shall be recorded. The date and place of the inquiry shall be published in the notice prescribed above. 7. The final report, together with the opinion of the Commissioner of the Local Bodies concerned and the District Magistrate (provided this opinion is furnished within two months and in respect of licence JKEL-413 within two weeks from the date of the reference mentioned in sub-rule (3) and (4) of this rule, shall be forwarded by the Deputy Excise Commissioner to the Excise Commissioner. 8. Pending completion of the procedure, here-in-above, the Excise Commissioner, may if the situation so warrants in the interest of Government revenue, grant a temporary licence for retail vending of liquor at a premises, previously notified by the department, for a period not exceeding four months, to be followed either by grant of a regular licence, licence under the rules on completion of the procedure or termination of the temporary licence in the event of non-completion of the procedure.” 17. As per the Scheme of the rules, a set procedure is required to be followed and certain formalities completed before any license is granted for retail vend of liquor for consumption on and off the premises, which is detailed out further in Sub Rule 8 of Rule 30, which was inserted in the Rules w.e.f. 26.02.2004, provides that pending completion of the formalities, the Excise Commissioner, in the interest of Government revenue, can grant temporary licence for retail vending of liquor for a period not exceeding four months. Rule 14 of the rules provides for renewal of the licenses before the expiry of period of validity. No license is deemed to be renewed unless the Licensing Authority issues express order in that regard. Rule 15, provides for procedure for filing application for grant or renewal of license. To further deal with the claim of the petitioner, it has become necessary to take note of already settled position of law, as to whether right to trade in liquor is fundamental rights. The Hon’ble Supreme Court in Har Shanker and Ors. etc. v. The Deputy Excise and Taxation Commissioner and others etc., reported as AIR 1975 Supreme Court 1121. The relevant paras therefrom are extracted below:- 53. In our opinion, the true position governing dealings in intoxicants is as stated and reflected in the Constitution Bench decisions of this Court in Balsara’s case, 1951 SCR 682 : (AIR 1951 Supreme Court 318); cooverjee’s case, 1954 SCR 873 (AIR 1954 Supreme Court 220); Kidwai’s case, 1957 SCR 295 : (AIR 1957 Supreme Court 414); Nagendra Nath’s case, 1958 5CR 1240 : (AIR 1958 Supreme Court 398); Amar Chokraborty’s case, (1973)] 5CR 533 : ( AIR 1972 Supreme Court 1863) and the RMDC case, 1957 5CR 874 : (AIR 1957 Supreme Court 699) as interpreted in Harinarayan Jaiswal’s case, (1972)3 SCR 784 : (AIR 1972 Supreme Court 1816) and Nashirwar’s case, (AIR 1975 Supreme Court 360). There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants.” 37. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants.” 37. The issue was further considered in AIR 1987 SC 251 , wherein while reiterating the law laid down in Har Shanker’s case (supra), it was observed that when the State decides to grant such right or privilege to others, it cannot escape the rigour of Article 14 of the Constitution of India. It cannot act arbitrarily or at its sweet will. Grant of licenses to manufacture or sale of liquor would essentially be a matter of economic policy wherein the Courts normally do not to be plainly arbitrary, irrational or extracted below :- 32.......Now it is true and it is well settled by several decisions of this Court including the decision in Har Shanker v. Deputy Excise & Taxation Commr., (1975) 3 SCR 254 : (AIR 1975 Supreme Court 1121), that there is no fundamental right in a citizen to carry on trade or business in liquor. The State under its regulatory power has the power to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export., import, sale and possession. No one can claim as against the State the right to carry on trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor. But when the State decides to grant such right or privilege to others, the State cannot escape the rigour of Article 14. It cannot act arbitrarily or at its sweet will. It must comply with the equality clause while granting the exclusive right or privilege manufacturing or selling liquor. It is, therefore, not possible to uphold the contention of the State Government and respondents Nos. 5-11 that Article 14 can have no application in a case where The license to manufacture or sell liquor is being granted by the State Government. The State cannot ride roughshod over the requirement of that Article. 33. It is, therefore, not possible to uphold the contention of the State Government and respondents Nos. 5-11 that Article 14 can have no application in a case where The license to manufacture or sell liquor is being granted by the State Government. The State cannot ride roughshod over the requirement of that Article. 33. But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licenses for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity, allow a large measure of latitude to the State Government in determining its policy of regulating manufacture and trade in liquor. Moreover, the grant of licenses for manufacture and, sale of liquor would essentially be a matter of economic policy where the Court would hesitate to intervene and strike down what the State Government had done, unless it appears to be plainly arbitrary, irrational or mala fide. We had occasion to consider the scope of interference by the Court under Article 14 while dealing with laws relating to economic activities in R.K. Garg V. Union of India, (1982) 1 SCR 947 : (AIR 1981 Supreme Court 2138). We pointed out in that case that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. We observed that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire which do not admit of solution through any doctrinaire or strait jacket formula and this is particularly true in case or legislation dealing with economic matters, where having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. We quoted with approval the followed admonition given by Frankfurter, J. in Morey v. Doub, (1957) 354 US 457: In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct. We quoted with approval the followed admonition given by Frankfurter, J. in Morey v. Doub, (1957) 354 US 457: In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events - self-limitation can be seen to be path to judicial wisdom and institutional prestige and stability. What we said in that case in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high and pedestal as legislative judgment in so far as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what may call trial and error method and, therefore, its validity cannot be tested on any rigid a priori consideration or on the application of any straitjacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or play’ in the-joints to the executive.-The problem of Government as pointed out by the Supreme Court of the United States in Metropolis Theatre Company v. State of Chicago, (1912)57L Ed 730. “are practical ones and may, justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is pest is not discernible, the wisdom of any choice may be disputed of condemned. Mere errors of Government are not subject to our judicial review. It is only its palpably arbitrary exercise which can be declared void. The Government, as was said in Permain Basin Area Rates cases, (1968) 20 L Ed (2d) 312, is entitled to make pragmatic adjustments which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or malafide. It is against the background of these observations and keeping them in mind that we must now proceed to deal with the contention of the petitioners based on Article 14 of the Constitution. (Emphasis supplied) 38. The aforesaid principle was reiterated in (1995)1 SCC 574 , titled as M/s Khoday Distilleries Ltd. and others vs State of Karnataka &Ors. Para No. 62 therefrom is extracted below:- 62. We therefore, hold that a citizen has no fundamental right to trade or business in such liquor. The State can prohibit completely the trade or business in potable liquor since liquor as beverage is res extra commercium. The State may also create a monopoly in itself for trade of business in such liquor. The State can further place restrictions and limitations on such trade or business in articles res commercium. The view taken by this Court in K.K. Narula case as well as in the second Synthetics and Chemicals Ltd. Case is not contrary to the aforesaid view which has been consistently taken by this Court so far. 39. The same view was expressed in a subsequent judgment by Hon’ble the Supreme Court in (2004) 11 SCC 26 , titled as State Of Punjab and another v. Devans Modern Breweries Ltd. and another. 18. The fact that the licenses already granted were being renewed as a matter of course, contrary to the provisions of law, formed the basis for the respondents to take corrective steps and act in accordance with law and not follow the practice which is contrary to law. This is so because the clauses in Excise policy for the year 2017-18, 2018-19 and 2019-20, providing for renewal of licenses for five years having been found to be contrary to the Rules were struck down by the Division Bench of this Court in case (supra) titled Balbir Singh and Ors. Vs. State of JK and Ors., and the Government was given liberty to frame new Excise Policy for the year 2021-22, taking care of all the aspects. 19. Trade in liquor cannot be claimed as a matter of right. Vs. State of JK and Ors., and the Government was given liberty to frame new Excise Policy for the year 2021-22, taking care of all the aspects. 19. Trade in liquor cannot be claimed as a matter of right. It is so as Hon’ble the Supreme Court has time and again opined that there is no fundamental right to trade in liquor. It is a right conferred by the State and consequently there is no scope for claiming renewal of license which in the past was followed as a matter of course and such practice being contrary to law, cannot be sought to be enforced in Court, therefore, there is no merit in the argument advanced by Mr. Mohsin Qadri, learned senior counsel, seeking setting aside the impugned Excise policy on the strength of the grounds, which are not available to the petitioner under law. 20. The claim of the petitioner, seeking renewal of license on the strength of the provisions of the Act, rules and the interpretation of the Judgment of the Division Bench is not permissible as the said issue stands already concluded by the Division Bench of this Court in a decision delivered on 28.12.2020, therefore, the contention of learned Advocate General having substance, that issue cannot be reopened in the writ petition before the Single Bench, which is not permissible under law. There cannot be automatic renewal of license as the provisions of the rules do not envisage that situation. Normal validity of a regular license is one year which expires in March 31st every year, though provisions of Rule 14 of the Rules provide for renewal of the license, however, same is not matter of right if seen in the light of provisions of Rule 16 thereof, so the respondent No. 1, has rightly framed the Excise Policy 2021-22. 21. 21. Article 47 of the Constitution of India, which is part of directive principles of State policy provides that the State shall endeavour to bring about prohibition of consumption except for medicinal purposes of intoxicating drinks and of drugs, which are injurious to health and such State policies regulated in terms of the provisions of the Excise Act, Rules and Judgments of Hon’ble the Supreme Court, trade in liquor is restricted and is regulated by the policies of the Government and merely because petitioner has opened his liquor vend at a particular place will not mean that he has earned any fundamental right to trade as guaranteed under the Constitution of India on permanent basis. His right is only to compete the process of auction and if declared successful, can be allowed to run the trade of liquor that too for the specified period and beyond that there is no guarantee. The argument advanced by the senior counsel appearing for the petitioner that petitioner has absolute right to seek renewal of his license for all times to come as being authorized by law, is not only misconceived but misdirected also. There is no scope for such arguments as being without merit, as same is against the law laid down by Hon’ble the Supreme Court and taken note of in this Judgment. 22. Petitioner’s right for running trade of Retail Sale of Foreign Liquor and Indian Made Foreign Liquor, including (Beer), at Batawara, Srinagar, within Badami Bagh, cantonment area, is not a fundamental or legal right to trade, as declared by this Court on the strength of already laid down law by Hon’ble the Supreme Court, therefore, violation of right is sine-qua-non for maintaining the writ petition for the relief claimed. This view is also supported by the Judgment of Hon’ble the Supreme Court of the country, while dealing with the scope of ‘grant of writs, in case titled ‘State of Kerala V. Smt. A. Lakshmikutty & Ors.; (1986) 4 Supreme Court Cases 632’, at Paragraph No.34, has observed as under: “34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury’s Laws of England, 4th edn., vol. 1, paragarph 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed: “It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation. The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court. Article 233 requires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct recruitment.” The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies.” 23. Again, in the case of ‘State of U.P. & Ors. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies.” 23. Again, in the case of ‘State of U.P. & Ors. V. Harish Chandra & Ors.; (1996) 9 Supreme Court Cases 309’, at Paragraph No.10, the Hon’ble Supreme Court has held thus: “10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, it any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not.” 24. In view of above background, I do not find any merit in the instant writ petition for the relief claimed, as such, the writ petition shall stand dismissed in limini along with all connected CM(s). However, no order at to costs.