Allahabad High Court
Smt.Kusumlata vs State Of U.P. And 2 Others on 29 November, 2021
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 4 Case :- WRIT - C No. - 21935 of 2021 Petitioner :- Smt. Kusumlata Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- Rakesh Dubey Counsel for Respondent :- C.S.C. Hon'ble Rohit Ranjan Agarwal,J.
1. The question before this Court for consideration is whether married daughters can be considered/eligible for compassionate allotment of dealership of a fair price shop on the death of their father/mother to whom the license to run fair price shop was originally granted by the State.
2. The challenge made in this writ petition is for declaring the word "unmarried" as unconstitutional from the definition of family prescribed under Sub-clause (10) of Clause IV of the Government Order dated 05.08.2019 bearing No. 6/2019/1358/29.06.2019-162 सा0/2001.
3. Facts, in brief, as narrated is that one Nekram, father of the petitioner, was granted license by the district authorities to run the fair price shop at Village Newadi Khurd, Nyay Panchayat Aheripur, Block Maheva, Pargana Bharthana, District Etawah in the year 2005. Unfortunately, he passed away on 15.02.2021 leaving behind his wife Suman Devi, three minor sons and four daughters. Smt. Suman Devi, the widow, applied for the grant of license under compassionate allotment in view of the Government Order dated 05.08.2019. She was informed that as she was not having the requisite qualification, she was not entitled for the appointment as dealer of fair price shop under the government order as Sub-rule 3 of Rule IV provides for eligibility.
4. Facing with financial problem she made an application that dealership may be allotted to her daughter, present petitioner, on 26.05.2021, as she is dully qualified as per the government order. The said application is pending consideration before the authorities.
5. Sri Rakesh Dubey, learned counsel for the petitioner, submitted that the definition of word ''family' under the Government Order dated 05.08.2019 excludes married daughter and only the unmarried daughter, legally separated daughter and widowed daughter is included for the grant of compassionate allotment in case of death of original licensee, which violates Article 14 of the Constitution of India.
6. He submitted that a married daughter cannot be excluded from the definition of family as well as under the category of daughters, and State cannot make any such distinction between the daughter of a person under various category such as unmarried, married, legally separated and widow daughter. He has relied upon the decision of Division Bench of this Court in case of Smt. Vimla Srivastava Vs. State of U.P. & Another [Writ-C No. 60881 of 2015] decided on 04.12.2015 wherein this Court held that exclusion of married daughters from the ambit of expression "family" in Rule 2 (c) of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referred as ''Dying-in-Harness Rules') is illegal and unconstitutional being violative of Article 14 and 15 of the Constitution. Thus, the word "unmarried" in Rule 2 (c) (III) of the Dying-in-Harness Rules was struck down. Reliance has also been placed upon a decision of coordinate Bench of this Court in case of Manjul Srivastava Vs. State of U.P. & Others [Writ-A No. 10928 of 2020] decided on 15.12.2020 wherein this Court held as under;
"21. The severance of the offending part has made the remainder of Section 2(c) (iii) intra vires, purging it of the vice of discrimination on the ground of sex alone. What has remained back is a workable provision and is to be understood in the manner that a daughter, irrespective of her marital status, is to be regarded as a member of the deceased government servant's family, in the same manner as a son, whether married or unmarried. This Court, therefore, holds that in the definition of the deceased's family, the word ''daughter' has to be read unqualified by the marital status of the daughter and it requires no further amendment to the Rules by the Government to make the right of a daughter of the deceased government servant effective under the Rules. The impugned order, therefore, passed on the basis of a reading of Rule 2(c) (iii) of the Rules with the word ''daughter' qualified by the word ''unmarried' since struck down by this Court in Smt. Vimla Srivastava (and followed in Neha Srivastava), is manifestly illegal. It is so as it proceeds on the basis of a statutory provision, that has been declared unconstitutional and void by this Court."
7. It was also submitted that in Section 2 (II) of Code of Civil Procedure 1908 the word "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or suied. According to him the married daughter being the legal representative is entitled for the compassionate allotment and the government order cannot exclude and make discrimination between the married and an unmarried daughter.
8. Learned Standing Counsel, vehemently opposing the writ petition, submitted that the provision on which reliance has been sought by the petitioner is the Dying-in-Harness Rules, which is applicable for the government servants. The judgment of Division Bench in case of Smt. Vimla Srivastava (Supra) was in reference to the service matter wherein the Court had struck down Rule 2 (c) (iii) on the ground that it was violative of Article 14 and 15, but in the present scenario the father of petitioner was granted license to run fair price shop in the village in pursuance to the Control Order which was prevalent at that time in the State.
9. At present the State has enforced the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 (hereinafter referred to as 'the Control Order, 2016') which has been issued exercising the power under Section 3 of the Essential Commodities Act, 1955 (hereinafter called as "Act of 1955") as well as the National Food Security Act, 2013 (hereinafter referred as "Act of 2013").
10. According to learned Standing Counsel the dealer is appointed by the State Government after an agreement is executed between the district authorities and the licensee to run the fair price shop. The existence of dealership depends upon the continuance of the license, which is not a matter of right but its existence upon the agreement executed between the parties. Once the agreement comes to an end no one can claim as a matter of right to continue to proceed with the license.
11. He further urged that petitioner has been married and is residing at Village and Post Rajpur, Tehsil Chakarnagar, District Etawah, and thus not being the resident of the same village where the fair price shop exists, the license for dealership cannot be granted. He further contended that purpose for not including the married daughters is for the reason that after marriage the daughter leaves the village or the district, where the fair price shop is situated, and the object of setting up of fair price shop is for supply of essential commodities and foodgrains to the card holders attached to the shop living in the village or area, which cannot be run by a person not residing in the same vicinity.
12. He further contended that license for running the fair price shop is only granted to the person residing in the village where fair price shop is to be allotted. Clause IV (5) of the Government Order dated 05.08.2019 specifically provides that the fair price shop is to be allotted only to a local resident. As the petitioner herself has disclosed that she is not the resident of the village in which fair price shop exist and the allotment has to be made, her claim cannot be considered in the light of the statutory provisions.
13. Having heard rival submissions and perusal of record. Before proceeding to decide the issue raised in the writ petition a brief background in respect of the establishment and running of fair price shop is necessary for better appreciation. The Essential Commodities Act was enacted with the object for control of production, supply and distribution of essential commodities.
14. Section 3 of Act of 1955 provided power to the State Government to issue order for controlling and regulating the production, supply and distribution of the essential commodities. It was in exercise of this power under Section 3 of Act of 1955 that U.P. Scheduled Commodities (Regulation of Distribution) Order, 1989 was issued.
15. Thereafter came the U.P. Scheduled Commodities Distribution Order 1990 and Clause 24 of the Order provided for ''rescission' of earlier Uttar Pradesh Foodgrains and Other Essential Articles Distribution Order, 1977 and Uttar Pradesh Scheduled Commodities (Regulation of Distribution) Order, 1989.
16. The U.P. Scheduled Commodities Distribution Order 1990 occupied the field for regulating and controlling the distribution of essential commodities in the State till it was superseded by Uttar Pradesh Scheduled Commodities Distribution Order, 2004 (hereinafter called as "Order of 2004").
17. The Government of India in the year 2013 implemented the National Food Security Act keeping in mind Article 47 of the Constitution of India, which mandates the States with duty to raise the level of nutrition and standard of living and to improve public health. For the first time the Government recognized the right to food of an individual. The Government implemented Targeted Public Distribution System under which foodgrains is provided to the "eligible household" at subsidised rates. Following the Act of 2013 National Food Security Rules 2015 were implemented and, thereafter, the State Government also framed the U.P. State Food Security Rules, 2015 exercising the power under Section 40 of the Act of 2013.
18. The Central Government thereafter enacted "The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter called as "Act of 2016") for providing good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto. The validity of said Act was challenged before Supreme Court of India in case of K.S.Puttaswamy (Retired) and Another (AADHAAR) vs. Union of India and Another (2019) 1 SCC 1, and Apex Court upheld the validity of Act of 2016.
19. After the enactment of Act of 2013, and Act of 2016, the State Government having already framed the Rules of 2015, came out with the Control Order 2016 superseding the earlier Government Order of 20.12.2004 as well as all the Government Orders issued prior to coming of this Order.
20. The Control Order of 2016 in Clause 2 (b) defines the word "Agent", 2 (n) "Fair Price Shop", 2 (o) "Fair Price Shop Owner" and 2 (p) defines the "Family", which are extracted here as under;
"2. Definitions.- In this order, unless the contaxt otherwise requires,-
....
(b) "Agent" means a person or a co-operative society or a corporation of the State Government authorized to run a Fair Price Shop under the provision of this Order;
....
(n) "Fair Price Shop" means a shop set up as directed by the State Government under this order for distribution of foodgrains, sugar, kerosene oil etc. under various orders of Central and State Government;
(o) "Fair Price Shop Owner" means a person and includes a co-operative society authorized to run a fair price shop appointed under provisions of this order;
(p) "Family" means group of following persons,-
- Head of the Family,
- Husband/wife, including legally adopted children,
- Adult children, who are fully dependent on the head of the family,
- Unmarried, legally separated and widow daughters, and
- Fully dependent mother/Father of the head of the family."
21. Pursuant to the Control Order of 2016 the State Government issued a Government Order dated 05.08.2019 in regard to the allotment of license of vacant fair price shop and the reservation applicable therein. Sub-clause (10) of Clause IV provides that the definition of family as occurring in the Control Order of 2016 will also apply in case of the allotment of license of vacant shop which is as under;
"ग्राम प्रधान के परिवार के सदस्यों के पक्ष में उचित दर की दुकान के आवंटन का प्रस्ताव नहीं किया जायेगा। परिवार की परिभाषा, जैसा कि उ0 प्र आवश्यक वास्तु (वितरण के विनियमन का नियंत्रण ) आदेश २०१६ में दी गई है, निम्नानुसार होगी :-
- परिवार का मुखिया,
- पति/पत्नी विधिक रूप से अपनाये गये दत्तक संतान सहित।
- संतान जो परिवार के मुखिया पर पूर्ण रूप से आश्रित हो।
- अविवाहित, विधिक रूप से पृथक और विधवा बेटी, और
- परिवार के मुखिया पर पूर्ण रूप से आश्रित माता/पिता"
22. The definition of family occurring in the Control Order of 2016 is not para materia to the definition of family occurring in Rule 2 (c) of the Dying-in-Harness Rules, which is extracted here as under;
"2(c) "family" shall include the following relations of the deceased Government servant:
(i) Wife or husband;
(ii) Sons/adopted sons;
(iii) Unmarried daughters, unmarried adopted daughters, widowed daughters and widowed daughters-in-law;
(iv) Unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried;
(v) aforementioned relations of such missing Government servant who has been declared as "dead" by the competent Court;
Provided that if a person belonging to any of the above mentioned relations of the deceased Government servant is not available or is found to be physically and mentally unfit and thus ineligible for employment in Government service, then only in such situation the word "family" shall also include the grandsons and the unmarried granddaughters of the deceased Government servant dependent on him."
23. Under the definition of family in Dying-in-Harness Rules sons/adopted sons have been included in the definition of family whether they are dependent or not upon the head of the family. While the Control Order of 2016 takes care of the fact that the family includes head of the family alongwith all the children whether minor or major, who are totally dependent upon the head of the family, which includes both sons and daughters.
24. There is no distinction under the Control Order of 2016 between the sons and daughters and all those persons who are dependent upon the head of the family are considered under the umbrella of family. Interestingly, the dependent parents i.e. father/mother of the head of the family are also included in the definition which is not there under the Dying-in-Harness Rules.
25. The purpose for excluding the married daughter from the canopy of family under the Control Order of 2016 is that a fair price shop runs upon a license granted by the State agencies in favour of a dealer pursuant to which an agreement is executed. The dealer is an agent of the State who is to help in distribution of foodgrains and other essential commodities to the card holders belonging to "eligible household" and "Antyodaya household".
26. The dealership of fair price shop is given by the State for ensuring the supply of foodgrains by the Government of India as well as the State Government to the citizens fulfilling the object of Article 47 of the Constitution of India. The dealership of fair price shop is not a vested right and petitioner cannot claim it to be a fundamental right to carry on such a business, but the very existence of dealership dependents upon the execution of an agreement with the State authorities.
27. Once the daughter is married outside the village and resides in a different matrimonial village the dealership cannot be granted to her under the compassionate allotment on the death of her father/mother as it is not possible for her to run the shop and distribute the essential commodities to the card holders residing at her paternal village.
28. The parity claimed for recruiting the dependents of government servants under Dying-in-Harness Rules is distinguishable in the present set of case, as the Division Bench of this Court found that the Legislature had made distinction between the sons and daughters, while the married son was made eligible under the Dying-in-Harness Rules for compassionate appointment but the married daughter was excluded from the zone of consideration.
29. Under the Control Order of 2016 no such distinction exists between the sons and daughters and all the children who are dependent upon the head of the family including the father and mother of the head of the family are embraced with the definition of the word "family".
30. In Smt. Vimla Srivastava (Supra) the Division Bench had beautifully noticed the distinction which has been made in our society between the son and daughter. Relevant paragraphs are extracted here as under;
"The issue before the Court is whether marriage is a social circumstance which is relevant in defining the ambit of the expression "family" and whether the fact that a daughter is married can constitutionally be a permissible ground to deny her the benefit of compassionate appointment. The matter can be looked at from a variety of perspectives. Implicit in the definition which has been adopted by the state in Rule 2 (c) is an assumption that while a son continues to be a member of the family and that upon marriage, he does not cease to be a part of the family of his father, a daughter upon marriage ceases to be a part of the family of her father. It is discriminatory and constitutionally impermissible for the State to make that assumption and to use marriage as a rationale for practicing an act of hostile discrimination by denying benefits to a daughter when equivalent benefits are granted to a son in terms of compassionate appointment. Marriage does not determine the continuance of the relationship of a child, whether a son or a daughter, with the parents. A son continues to be a son both before and after marriage. A daughter continues to be a daughter. This relationship is not effaced either in fact or in law upon marriage. Marriage does not bring about a severance of the relationship between a father and mother and their son or between parents and their daughter. These relationships are not governed or defined by marital status. The State has based its defence in its reply and the foundation of the exclusion on a paternalistic notion of the role and status of a woman. These patriarchal notions must answer the test of the guarantee of equality under Article 14 and must be held answerable to the recognition of gender identity under Article 15."
31. The Division Bench after noticing the decisions of various High Courts in respect of discrimination between different sex had struck down the word "unmarried" in Rule 2 (c) (iii) of Dying-in-Harness Rules being unconstitutional and violative of Article 14 and 15 of the Constitution. Relying on the said judgment coordinate Bench of this Court in Manjul Srivastava (Supra) had also taken similar view.
32. But the present dispute is in regard to allotment of a dealership of fair price shop on the death of father of petitioner, who is married and residing at a different village. The authorities had not refused to grant dealership to the eligible dependents of the deceased Nekram. The argument raised by learned counsel as to legal representative as provided in Section 2 (II) of the Code of Civil Procedure which includes the petitioner does not have any relevance in present scenario as the existence of dealership arises out of an agreement between the parties. Once the agreement has come to an end on the death of Nekram the license can only be granted on fulfilling the conditions laid down in the Government Order dated 05.08.2019. Sub-clause 5 of Clause IV categorically provides that applicant has to be local resident.
33. The concept of allotting dealership to a local resident is firstly that he is acquainted with the most of the card holders as they are living in same village and secondly his availability in attending and running the fair price shop. The Government as well as the Apex Court have recognized that right to food is part of Article 21 of the Constitution. In case, dealership is given to an outsider who is unable to run the fair price shop due to his/her unavailability the very purpose for enacting the Act of 2013 and Control Order of 2016 would be rendered otiose.
34. That Sub-clause 5 of Clause IV of the government order of 2019 specifically provides that applicant should be a local resident. Petitioner is admittedly a resident of a different village, and not of the village where the fair price shop is to be allotted. The validity of the said condition of the government order has not been challenged in the writ petition, and only challenge has been made to declare the word "unmarried" as unconstitutional from the definition of family prescribed under Sub-clause 10 of Clause IV.
35. Once the government order specifically provides the applicant to be the resident of the same village where the shop has to be allotted, no such allotment can be made to an outsider. The argument of petitioner's counsel that married daughter should also be included in the definition of the word "family", in the present scenario cannot be accepted as the license is granted only on the fulfillment of the conditions prescribed under the government order of 2019. Petitioner being not able to fulfill the essential conditions cannot be granted such license.
36. More so, the Control Order of 2016 does not make any distinction between the sons and daughters of a license holder, as in case of Rule 2 (c) of the Dying-in-Harness Rules. The definition of family occurring in the Control Order of 2016 as well as the government order of 2019 embraces the word "dependant child", which also includes the dependant father and mother. Argument that married daughter had been excluded creates gender bias cannot be accepted, as the very purpose is the distribution of food grains to the card holders attached to the ration shop situated in village. Once the daughter of a licensee is married outside the village, she cannot continue to run the fair price shop and distribute ration. The sole purpose of enacting the Act of 2013 and the Control Order of 2016 is that the food reaches the last person of the society and a licensee being only an agent of the State through which the target is achieved by both the Central Government and the State Government.
37. Having considered the facts and circumstances of the case, this Court finds that no ground is made for declaring the word "unmarried" as unconstitutional from the definition of family provided under Sub-clause 10 of Clause IV of the Government Order dated 05.08.2019.
38. Writ petition fails and is hereby dismissed.
Order Date :- 29.11.2021 Shekhar