Allahabad High Court
Shiv Shankar Shukla vs State Of U.P. & 4 Others on 17 February, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - C No. - 7721 of 2017 Petitioner :- Shiv Shankar Shukla Respondent :- State Of U.P. & 4 Others Counsel for Petitioner :- Sanjai Kumar Pandey Counsel for Respondent :- C.S.C.,Dharam Deo Chauhan Hon'ble Surya Prakash Kesarwani,J.
1. Heard learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
2. This writ petition has been filed challenging the order dated 2.2.2017, passed by respondent no.3, rejecting the application of the petitioner for compassionate allotment of the fair price shop of village panchayat - Chanargaddi, Vikas khand - Naugarh, Tehsil - Shohratgarh, District - Siddharth Nagar.
3. Learned counsel for the petitioner submits that the respondent no.3 has rejected the application of the petitioner in gross violation of the mandate of Clause 10 (jha) of the Government Order dated 17.8.2002. The rejection of application on the ground of reservation, is absolutely misconceived since reservation was not applicable with respect to the fair price shop in question.
4. Learned standing counsel supports the impugned order.
5. I have carefully considered the submission of learned counsel for the parties.
6. Briefly stated facts of the present case are that father of the petitioner, namely, Sri Ram Badan Shukla was fair price shop agent of the aforesaid fair price shop. He died on 2.11.2016. Thereafter, the petitioner moved an application before the respondent no.3, under Clause 10 (jha) of the Government Order dated 17.8.2002 for allotment of the aforesaid fair price shop to him on compassionate ground. Since the request was not considered by the respondent no.3 and as such the petitioner filed a Writ C No.61658 of 2016, which was disposed of by order dated 5.1.2017 as under:
"In view of the above this writ petition is disposed of with a direction to the respondent no.3 to decide the applications of the petitioner dated 5.12.2016 and 19.12.2016, expeditiously preferably within four weeks from the date of production of a certified copy of this order, without being influenced by any of the observations made in the body of this order.
Writ petition is disposed of with the aforesaid directions."
7. The applications of the petitioner dated 5.12.2016 and 19.12.2016 have been rejected by the impugned order dated 2.2.2017, on the ground that since the fair price shop in question fell vacant due to death of fair price shop agent Sri Ram Badan Shukla and consequent cancellation of agreement on 11.11.2016 and as such the fair price shop in question deserves to be settled following the reservation policy. With these observations, the application of the petitioner was rejected by the impugned order dated 2.2.2017.
8. Considering the facts of the case and submission of learned counsels for the parties the following questions arise for consideration :-
I Whether the claim of the petitioner for allotment as fair price shop agent of the village panchayat in question, on compassionate ground, deserves to be considered in terms of Clause 10 (jha) of the Government Order dated 17.8.2002?
II Whether in cases falling under Clause 10 (jha) of the Government Order dated 17.8.2002, policy of reservation for appointment of fair price shop agent shall be applicable?
Question No. I
9. The procedure for appointment of fair price shop agent is given in the Government Order dated 17.8.2002. Special provision for compassionate allotment of fair price has been made in Clause 10 (jha) of the Government Order dated 17.8.2002 as under :
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10. The allotment of a fair price shop to a dependent of the deceased fair price shop agent is a preferential allotment provided under Clause 10 (jha) of the Government Order dated 17.8.2002. The said clause merely requires examination as to whether the reputation of the deceased agent was good. The assessment of "good reputation" of the deceased agent can be gathered only in an open meeting of the concerned village panchayat. The assessment of goodwill/good reputation of the deceased fair price shop agent must be made by the collective opinion of the village Panchayat and not by the individual opinion of any authority or the Tehsil Level Committee. The assessment so made has to be considered by the Tehsil Level Committee.
11. In the case of Shiv Kumar Vs. Up Ziladhikari, Chandauli and others (2014) 8 A.D.J. 693 (D.B.)(para 22) a Division Bench of this Court considered the controversy with regard to the appointment of fair price shop agent on compassionate ground and held as under :
"To our mind there is no exception of the abovementioned procedure carved out for consideration of grant of licence on compassionate basis founded on the strength of the reputation of the deceased licence holder. This assessment as to the reputation of the deceased licence holder and his goodwill has to be gathered only from the resolution of the open meeting of the Gaon Sabha. It has to be the collective opinion of the Gaon Sabha, and not the individual opinion of any authority or the Tehsil Level Committee. We are of the considered opinion that even in a matter of an individual consideration of compassionate grant of licence under Clause 10 of the Government Order of 2002, it is necessary to hold an open meeting of the Gaon Sabha. It is only after such a resolution is passed that the same has to be considered by the Tehsil Level Committee and then a decision to be taken by the Deputy District Magistrate."
12. In the case of Subash Vs. State of U.P. and others 2015 (1) JCLR 184 (Alld)(10) another Division Bench also explained Clause 10 (jha) of the Government Order dated 17.8.2002 as under :
"The compassionate allotment of the fair price shop under Clause 10 (Jha) is a preferential allotment. Under the said Clause it is to be examined whether the reputation of the erstwhile licencee was good or not. In case, on the basis of material available on record and the resolution passed by the Gram Sabha it is found that reputation of the erstwhile licencee was good, the dependent would be entitled for compassionate allotment of the shop on a preferential basis. Therefore, we are of the view that in an open meeting of the Gram Sabha, which is one of the requirements under the Government Order for the settlement of the shop, the agenda for consideration should be that whether the reputation of the father of the petitioner was good or not and on such agenda, the opinion of the villagers should be taken. There was no such agenda in the open meeting of the Gram Panchayat. Therefore, we are of the view that the meeting dated 13.10.2014 and the resolution passed therein is not in consonance with Clause 10 (Jha) of the Government Order dated 17.8.2002 and the impugned order dated 20.10.2014 based on the resolution dated 13.10.2014 is also not legally sustainable."
13. Similar view has been taken by another Division Bench in the case of Balwan Singh Vs. State of U.P. and others 2015(2) JCLR 697 (All)(DB)(para 4) as under:
"The law on this issue has been settled by a series of decisions of this Court namely Shiv Kumar Vs. UP Ziladhikari Chakiya and others [2014 (5) AWC 4556], Subhash Vs. State of U.P. and others [2015 (3) ALJ 144] and a recent decision of this Bench in Writ Petition No. 38150 of 2014 (Kamta Prasad Vs. State of U.P. and three others) in which it was held that the assessment as to the reputation of the deceased license holder and his goodwill has to be gathered only from the resolution of the open meeting of the Gaon Sabha."
14. In the case of Suryabhan Yadav Vs. State of U.P. and 2 others (2017) 2 A.D.J. 118 another Division Bench considered similar controversy and held as under:
"In our considered opinion, there cannot be any exception to the above mentioned procedure prescribed for consideration of grant of license even on compassionate basis which is founded on the strength of the reputation of the deceased license holder. To our mind, this assessment as to the reputation of the deceased license holder and the goodwill has to be gathered only from a resolution passed in this regard in open general meeting of the Gaon Sabha. It has to be collective opinion of the Gaon Sabha and not of any individual authority or Tehsil Level Committee. The simple reason is that members of the Gaon Sabha have been dealing with the fair price shop licensee and would be in a best position to assess his reputation and goodwill.
In view of the above facts and circumstances, we are of the considered opinion that even in the matter of grant of license on compassionate basis in case of individual under Clause 10 (Jha) of the Government Order dated 17.08.2002, it is necessary to hold an open general meeting of the Gaon Sabha and it is only after the resolution is passed in the said meeting approving of the reputation and goodwill of the deceased license holder, the case of the dependent claiming appointment on compassionate ground can be considered by the Tehsil Level Committee and accordingly the decision is to be taken.
In such view of the matter, the writ petition is disposed of finally by directing the Sub Divisional Magistrate to hold an open general meeting of the Gaon Sabha to consider the agenda whether the reputation and goodwill of the erstwhile licensee, father of the petitioner, was good or not. Such meeting may be convened within four weeks from the date of presentation of a certified copy of this order. The Sub Divisional Magistrate is further directed to pass suitable orders on the basis of resolution which may be passed by the Gaon Sabha in its meeting within a further period of two weeks thereon in accordance with law."
15. Thus in my considered view compassionate allotment of fair price shop under Clause 10 (jha) of the Government Order dated 17.8.2002 is a preferential allotment which provides that a dependent of deceased fair price shop agent may be considered for allotment of the fair price shop if the reputation of the decdeased agent was good. The assessment of the reputation of the deceased fair price shop agent has to be gathered only from a resolution of the village panchayat concerned in an open meeting. The assessment of reputation has to be made by the collective opinion of the gaon sabha and not of any individual authority or Tehsil Level Committee. The members of the gaon sabha deal with the fair price shop agent and, therefore, they would be in the best position to assess the reputation and good will of the deceased fair price shop agent. Once the reputation of the deceased fair price shop agent is found to be good by a resolution of the village panchayat then his dependent would be entitled for consideration of his application for appointment as agent on compassionate ground i.e. on a preferential basis.
Question No. 2 .
16. A consistent view has been taken by this Court that appointment of a fair price shop agent on compassionate ground in terms of Clause 10 (jha) of the Government Order dated 17.8.2002 is a preferential allotment to be made after gathering the reputation of the deceased fair price shop agent which may be expressed only by a resolution of the village panchayat concerned in a open meeting. The policy of reservation for appointment as fair price shop agent may be considered only when a regular appointment is to be made and not otherwise. Where a vacancy occurs due to death of a fair price shop agent and conditions provided in the aforesaid Government Order dated 17.8.2002 for appointment on compassionate ground stand fulfilled then appointment on compassionate ground shall be considered first under Clause 10 (jha) of the Government Order dated 17.8.2002. Such appointment would not be covered by the rule of reservation as it is a special appointment on compassionate ground.
17. Similar question also came for consideration before a Division Bench in the case of Smt. Meera Pandey Vs. State of U.P. 2013 (3) AWC 2939 (paras 5 and 6) and it was held as held:
"At this juncture, the question arises as to what should be the position where the deceased dealer was of the category other than that for which reservation of a particular class/category of society for a fresh dealer has been provided for. In our opinion, the policy of reservation for appointment as dealer will be considered only when a regular appointment is to be made and not otherwise. Where the vacancy of any dealership of a fair price shop has occurred because of the death of the dealer and the conditions provided in the Government Order for appointment on compassionate basis stand fulfilled, the appointment on compassionate ground is to be considered first under paragraph 10 (Jha) of the Government Order dated 17.08.2002. If any other interpretation than this is given to the above Government order, the provision of the Government order shall become a nullity and the same can be availed by the dependents of the deceased dealer only in a case where the dealer was of the category for which the reservation is provided and not otherwise. Such can not be the purpose as obviously para 10 (Jha) of the Government order has been inserted to safeguard the interest of the dependents of the deceased dealer. As such without considering the position of reservation which has not been provided for his case of compassionate appointment, the concerned authority shall look to the welfare of the dependents of the deceased dealer, otherwise the entire purpose of providing for such appointment would be frustrated.The interpretation which has been given by the impugned order is opposed to the public policy of safeguarding the interests of the dependents of the deceased-dealer.
We are thus of the view that appointment under paragraph 10 (Jha) of the Government Order dated 17.08.2002 would not be covered by the Rule of reservation as it is a special appointment on compassionate ground and only condition which has to be considered is that the deceased-fair price shop dealer had a good reputation and the applicant is the dependant of such deceased-dealer."
(Emphasis supplied by me)
18. Another Division Bench in the case of Lalta Prasad @ Ram Kewal Vs. State of U.P. & others 2014(3) JCLR 571(All) also considered similar question and held as under:-
"In our considered opinion, the argument of the learned counsel for the petitioner cannot be accepted on this score for the reason that the claim of the respondent no. 6 arises out of the class of compassionate claims which is a separate class under the Government Order. This in no way takes away the rights of any other reserved category inasmuch as such a category is not capable of being compared with other categories of reservation.
The second contention of the learned counsel for the the petitioner however requires a consideration, the reason being that such allotment has to be made only in the open meeting of the Gaon Sabha and on the basis of the criteria that has been laid down in the Government Orders and that has been discussed in detail by us in a recent Division Bench judgment in the case of Shiv Kumar Vs. Up-Ziladhiari Chakia District Chandauli and others in Writ Petition No. 40973 of 2014 decided on 20.8.2014."
(Emphasis supplied by me)
19. In view of the above discussion, to answer the question no.2; I have no hesitation to hold that the policy of reservation shall not be applicable to appointment of a fair price shop agent on compassionate ground falling under Clause 10 (jha) of the Government Order, dated 17.8.2002. The policy of reservation shall be followed only when a regular appointment is made and not otherwise. In cases falling under Clause 10 (jha) of the aforesaid Government Order, the only requirement for consideration of the application is to gather the reputation of a deceased fair price shop agent which can be gathered only by a resolution of the village panchayat concerned in an open meeting.
20. In view of he above discussion, the impugned order dated 2.2.2017 is hereby quashed. The matter is remitted back to the respondent no.3 to ensure that an open meeting of the village panchayat is convened within eight weeks from today to obtain opinion of the village panchayat by a resolution with respect to the reputation of the deceased fair price shop agent, namely, the father of the petitioner. On receipt of the resolution the respondent no.3 shall further proceed to consider the question of the petitioner for appointment as fair price shop agent on compassionate ground and shall pass appropriate order in accordance with law within a further period of three weeks.
21. Writ petition is allowed with the directions aforementioned.
Order Date :- 17.2.2017/vkg