Himachal Pradesh High Court
Raj Sharma And Anr vs State Of Himachal Pradesh And Ors on 14 September, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No. 6405 of 2022
Date of Decision: 14.9.2023
_____________________________________________________________________
Raj Sharma and Anr.
.........Petitioners
Versus
State of Himachal Pradesh and Ors.
of
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioners:
rt Mr. Atul Jhingan, Advocate.
For the respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General
with Mr. Ravi Chauhan, Deputy Advocate
General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated 30.5.2022, whereby representation having been filed by the petitioner pursuant to directions contained in judgment dated 22.4.2022, passed by the Division Bench of this Court in CWP No. 2447 of 2022 Raj Sharma and Ors. v. State of Himachal Pradesh, came to be dismissed, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein to set-
aside aforesaid order and issue direction to the respondents to allot Fair Price Shop in question to the petitioner.
2. Precisely, the facts of the case as emerge from the record are that late father of the petitioner Sh. Mast Ram was allotted a Fair ::: Downloaded on - 20/09/2023 20:33:07 :::CIS -2- Price Shop at Village Chong, PO Jallugram, Tehsil Bhuntar, District .
Kullu, Himachal Pradesh on 4.3.2004 under the Public Distribution System. Aforesaid allotment/authorization was renewed from time to time on the payment of requisite fee and lastly, same was renewed on 31.12.2020 for a further period of five years till 31.12.2025, but unfortunately, petitioner's father late Sh. Mast Ram expired and of thereafter, petitioner was running the depot, but he was advised to get the depot allotted in his name. Being legal representative of his father rt late Sh. Mast Ram, petitioner made an application on 3.1.2022 for allotment of Public Distribution System Depot in his name, but since no action was being taken on his application, he was compelled to approach this Court in CWP No. 2447/2022, which ultimately came to be disposed of vide judgment dated 22.4.2022, passed by the Division Bench of this Court, whereby this Court while permitting the petitioner to file representation issued a direction to the respondents to consider and decide the application for change of PDS depot in terms of provisions contained in notification dated 31.3.2021. Now, in terms of aforesaid direction issued by the Division Bench of this Court, representation having been filed by the petitioner stands decided, but since prayer made in the court has not been acceded by the authority concerned, petitioner has approached this Court in the instant proceedings ::: Downloaded on - 20/09/2023 20:33:07 :::CIS -3-
3. Pursuant to notice issued in the instant proceedings, .
respondents have filed reply, wherein facts as have been noticed herein, have not been disputed, rather stand admitted. In the reply/affidavit filed by respondents No. 1 and 2, it has been stated that case of the petitioner for allotment of Fair Price Shop being legal representative of Shri Mast Ram could not be accepted for the reason of that his elder brother namely Pradeep Kumar is in government service and age of the petitioner is more than 45 years.
4. rt Mr. B.C. Verma, learned Additional Advocate General while making this Court peruse provisions contained in clause 12 of notification dated 31.3.2021, submitted that though there is provision to allot Fair Price Shop to the LRs of the Fair Price Shop holder, but for that purpose, applicant is required to establish on record that none of the family member of the applicant is in regular employment and apart from this, he is also required to place on record NOC by other LRs for allotment of Fair Price Shop in his favour. He further invited attention of this court to clause-6 of the aforesaid notification to state that person applied for FPS must be in the age of 18 to 45 years, but since in the case at hand, age of the petitioner is above 45 years, his prayer for allotment otherwise could not be accepted.
5. Though interestingly, applicant in his application stated that Fair Price Shop allotted in his father's favour, be allotted to him or either his wife, but since petitioner had already crossed age of 45 ::: Downloaded on - 20/09/2023 20:33:07 :::CIS -4- years and his wife does not fall in the category of Legal Heirs of the .
deceased father of the petitioner, prayer for allotment of Fair Price Shop came to be rejected. Factum with regard to employment of brother of the petitioner in government service stands duly admitted in the rejoinder filed by the petitioner to the reply filed by respondents No.1 to 3. It has been categorically stated in the rejoinder that though of elder brother of the petitioner is in government service, but he resides separately. Respondent No.4 in his reply has also stated that elder rt brother of the petitioner is in government service and as such, he otherwise is not entitled for allotment of the Fair Price Shop in question after the death of his father.
6. At this stage, it would be apt to take note of clauses 6 and 12 of the notification, which read as under:
"6. The PDC shall maintain the record of allotment of FPS. The individual FPS Holder should have minimum qualification of Matriculation from a recognized Board/University. In cases of Individual applicants, the procedure of selection will be as under:-
1. Matriculation 5 Marks.
2. Higher Education 2 Marks (+2 or above).
3. Same Ward 3 marks
4. SC/ST/OBC/BPL 3 Marks (if the applicant fllas within more than one category only 3 marks will be given.) In case of tie, preference will be given to the applicant having higher percentage in the examination of Matriculation. If there is still a tie, then preference will be given to the applicant ::: Downloaded on - 20/09/2023 20:33:07 :::CIS -5- having higher age. Persons applying for FPS must be of age of 18-45 years. FPS holder will retire at an age of 65 years.
.
For the FPS allotted to the Public Institutions or Public bodies, the salesperson should possess minimum qualification of matriculation from recognized Board/University). Retirement age of salesperson of Public Institutions r Public Bodies shall not be more than 65 years.
of After retirement of individual EPS holder the District Controller, FCS&CA will invite applications at this own level and will put up the applications received within the time limit before PDC. Process may be started before the retirement of EPS holder as it rt may take some time for allotment of EPS to new applicant subject to the condition that FPS to new applicant will b e allotted only after retirement of the existing FPS holder. In case of retirement of salesman of public institution or public bodies, new salesman shall be appointed by the concerned institution or public body in a transparent manner.
Provided that these qualifications shall be applicable for the new FPS holders only and not for the existing FPS holders."
12. In case the FPS is being proposed to be given to the legal heir of any FPS holder due to the death of the FPS holder, the same may be allotted at the level of PDC, subject to the condition that none of the family member of the legal heir is in regular employment and he has to submit the no objection certificate of other legal heirs for allotment of FPS in his favour."
7. Clause 6 clearly reveals that person applying for Fair Price Shop should be of age between 18 to 45 years, meaning thereby, person having crossed age of 45 years is not eligible to apply for Fair Price Shop, but there appears to be merit in the contention of Mr. Atul ::: Downloaded on - 20/09/2023 20:33:07 :::CIS -6- Jhingan, learned counsel for the petitioner that petitioner herein was .
not making prayer for fresh allotment, rather his prayer was to allot Fair Price Shop in his favour being LR of Sh. Mast Ram, who otherwise stood allotted Fair Price Shop till 31.3.2025. However, clause-12 clearly provides that person seeking allotment of Fair Price Shop being legal representative of the original allottee is required to establish on of record that none from his family is in govt. service, however, in the instant case as has been taken note herein above, elder brother of the rt petitioner is in government service and as such, petitioner is otherwise not eligible for allotment of Fair Price Shop in place of his father in terms of clause-12.
8. Consequently, in view of the detailed discussion made herein above, this Court finds no illegality and infirmity in the impugned order passed by the learned Deputy Commissioner, Kullu, which otherwise appears to be based upon correct interpretation of clauses12 of the Scheme/notification detailed herein above. In view of the above, present petition is dismissed being devoid of any merits.
September 14, 2023 (Sandeep Sharma)
manjit Judge
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