Himachal Pradesh High Court
Ghanshyam Alias Sanjay Kumar vs State Of H.P. & Ors on 26 November, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 470 of 2017 Reserved on: 19.11.2018 .
Date of decision: 26.11.2018.
Ghanshyam alias Sanjay Kumar .....petitioner
Versus
State of H.P. & Ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No. For the Petitioner : Mr. Vijay Chaudhary, Advocate.
For the Respondents : Mr. Bhupinder Thakur and Ms. Svaneel Jaswal, Dy. A.Gs., for respondents No. 1 to 4.
Mr. Surinder Saklani, Advocate, for respondent No. 5.
Tarlok Singh Chauhan, Judge.
Aggrieved by the allotment of Fair Price Shop in favour of respondent No. 5 vide order dated 19.12.2016 (Annexure P-6) (for short 'the impugned order'), the petitioner has filed the instant petition for grant of the following substantive reliefs:-
1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 2 (I) That the allotment of Fair Price Shop in favour of respondent No. 5, vide annexure P-6 may kindly be quashed and set aside.
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(II) That the petitioner may kindly be allotted the Fair Price Shop at Gram Panchayat Kadha, Development Block, Drang, being the most deserving candidate.
2. It is the pleaded case of the petitioner that respondent No. 1 vide notification dated 02.08.2014 issued guidelines for opening of new Fair Price Shops in supersession of all previous orders, instructions and guidelines, in order to provide easy access to the Fair Price Shops to the citizens of the State, in compliance of Section 12(2)(e), Section 24(5)(c), Section 40 (2)(i) of the National food Security Act, 2013 and in compliance of H.P. Specified Articles (Regulations and Distribution) Order, 2003.
3. On 02.11.2016, respondent No. 4 issued a public notice inviting applications for opening of Fair Price Shops at four different places including one at village Ghataasani, Gram Panchayat Kadhar, Development Block, Drang, Mandi and in the notice it was specified that the candidates applying for the aforesaid Fair Price Shops shall attach their matriculation certificate, documents pertaining to financial status, whether the applicant is an ex-
serviceman/literate unemployed, certificate regarding no person of family being in government job and certificate showing that the ::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 3 applicant has sufficient storage capacity to keep the articles. All the certificates were to be self attested and without these certificates, the .
application form was liable to be rejected forthwith.
4. In pursuance to the public notice, the petitioner as well as respondent No. 5 applied for the Fair Price Shop to be opened at Ghataasani. The applications so submitted by them were considered by respondent No. 3 in its meeting dated 19.12.2016 and while scrutinising the documents the Committee clearly pointed out that respondent No. 5 had not enclosed the certificate showing the availability of shop and storage capacity and further even the certificates of matriculation and plus two were not self attested, as provided vide public notice. Yet the name of respondent No. 5 was recommended for allotment only on the ground that even though the application submitted by respondent No. 5 was liable to be rejected as the necessary certificates in accordance with the notification have not been submitted but the Members of the Committee protested that since the respondent No. 5 is in merit, therefore, these certificates could be called at a later date. This is clearly evident from the decision as taken in the said meeting, which reads as under:-
lnL; lfpo us lfefr dks voxr djok;k fd Jh 'ksj flga o Jh ?ku';ke ds ljdkj }kjk tkjh fn"k funsZ'kksa ds vuqlkj nl nl vad curs gSA rFkk blds I'pkr nloha ds vadksa ds vk/kkj ij Jh 'ksj flga ds i{k esa ::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 4 mfpr eqY; dh nqdku vkcafVr gksuh gS ijUrq Jh 'ksj flga us nqdku dh miyC/krk ,oa Hk.Mkj.k lac/a kh nLrkost layXu ugha fd;k gSA nloha ,oa ckgjoha ds izek.k i= Hkh lR;kfir ugha djok;s gSa rFkk vkosnu i= fu/kkZfjr .
izi= ij izLrqr ugha fd;k gSA mUgksus ;g Hkh voxr djok;k fd mDr nLrkostksa ds vHkko esa Jh 'ksj flga dks mfpr ewY; dh nqdku vkcafVr ugha dh tk ldrh D;ksfa d izpkj izlkj dks Hksts x;s i= dh 'krksZ ds vuqlkj mDr nLrkostksa dks gksuk vko';d gS ugh arks vkosnu i= vLohd`r@jnn ekuk tk,xkA ijUrq lfefr ds lnL;ksa us bldk fojks/k djrs gq, dgk fd D;ksafd izkFkhZ esfjV esa gS vr% mlls mDr nLrkost eaxk, tk ldrs gSa blfy, lfefr us loZlEefr ls Jh 'ksj flga ds i{k esa mfpr ewY; dh nqdku vkcafVr dh rFkk ftyk fu;a=d [kk| ukxfjd vkiwfrZ ,oa miHkksDrk ekeys e.Mh dks vkns'k fn, fd izkFkhZ dks ,d lIrkg dk le; nsdj mDr nLrkost eaxok,A ;fn izkFkhZ ,d lIrkg ds Hkhrj nLrkost ugha nsrk gS rks Jh ?ku';ke ds i{k esa mfpr ewY; dh nqdku vkcafVr dj nh tk, rFkk vkxkeh dk;Zokgh vey esa ykbZ tk;sA
5. It is this action of the respondents that has been assailed by the petitioner on the ground that respondents had no discretionary power to dilute or waive the conditions, which were mandatory in nature particularly when it is admitted that not only the application filed by respondent No. 5 was not on the prescribed form but he had not enclosed therewith the necessary documents including one showing the availability of shop and storage capacity of the articles, apart from other the self attested copy of the matriculation certificate etc. It was, thus, claimed that the action of respondent No. 5 and the ::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 5 Members of the Committee was illegal, unjust and smacks of malafide.
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6. The official respondents i.e. respondents No. 1 to 4 have filed their reply wherein the factual matrix of the case have not been denied and the only contention put-forth is that pursuant to public notice dated 02.11.2016, four applications including the application of the petitioner as well as the application of respondent No. 5 were received in the office of the reply respondent with regard to the opening of the Fair Price Shop at Ghataasani and on the basis of the merits i.e. higher marks, the Fair Price Shop was approved in favour of respondent No. 5 by Public Distribution Committee in its meeting held on 19.12.2016. As per the guidelines issued by the government vide notification dated 02.08.2014, it was clearly mentioned that in case of tie, preference will be given to the applicant having higher percentage in the examination of matriculation. However, it would be noticed that the material averments regarding there being illegality, malafides, favourtism etc. have not been specifically controverted by the official respondents.
7. The private respondent No. 5 has filed a separate reply, wherein preliminary submission regarding the maintainability, non-
exhaustive of alternate remedy and the petitioner having concealed the material facts have been raised. On merits, it is contended that ::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 6 replying respondent had submitted all the documents, after the time was granted, again the documents were submitted, as has been held .
in the meeting of Public Distribution Committee. Therefore, it was only the replying respondent who was eligible to be allotted the Fair Price Shop.
8. The petitioner has filed rejoinder to the reply, wherein, the averments made in the petition have been reiterated and re-affirmed while those of the reply(ies) have been denied.
I have heard learned counsel for the parties and have gone through the material placed on record.
9. The moot question in this case is whether the official respondents, more particularly, respondent No. 3 i.e. Public Distribution System Committee had the discretion to entertain much less allot the Fair Price Shop in favour of respondent No. 5, when admittedly the application filed by the said respondent was not on prescribed form, did not accompany the self attested certificate of matriculation, and further did not accompany the certificate of availability of shop and storage capacity. The answer to the same is obviously in the negative for the reason that in the public notice issued on 02.11.2016, it was clearly and unequivocally mentioned that the application not accompanied by the requisite certificates as specified therein were liable to be rejected and no discretion ::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 7 whatsoever was conferred on any person or authority to even entertain much less consider such application.
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10. The relevant portion of the notice reads as under:-
bPNqd O;fDr;ks@ a LakLFkkvksa ls vuqjks/k gS fd os viuk vkosnu fu/kkZfjr izi= ij fnukad 25-11-2016 rd ftyk fu;=ad] [kk|] ukxfjd vkiwfrZ ,oa miHkksDrk ekeys e.Mh ds dk;kZy; esa izLrqr djsaA mDr fnukad ds I'pkr dksbZ Hkh vkosnu ;k nLrkost Lohdkj ugha fd;s tk,axAsa vkosnu djus ds fy, U;wure ;ksX;rk eSfVªd gSA vkosnu i= ds lkFk eSfVªd dk izek.k i=] foRrh; fLFkfr ls lacf/kr nLrkost vkosnd HkwriwoZ lSfud @f'kf{kr jkstxkj gksus dh fLFkfr esa Lo;a rFkk ifjokj ds fdlh Hkh lnL; ds fu;fer jkstxkj esa u gksus lac/a kh izek.k i= vkSj nqdku dh miyC/krk ,oa Hk.Mkj.k lac/a kh nLrkost ds Lo;a lR;kfir izfr;ka layXu dh tkuh vfuok;Z gS ftuds fcuk vkosnu vLohd`r @jnn dj fn;k tk,xkA blds vfrfjDr mPp 'kS{kf.kd izek.k i= ;fn vkosnd chih,y @,l lh@vkschlh@,lVh ifjokj ls lca/k j[krk@ j[krh gS rks bl lnaHkZ esa izek.k i= HkwriwoZ lSfud izek.k i= viaxrk izek.k i= ;fn vkosnd mlh okMZ dk gS ftlesa mfpr ewY; dh nqdku [kksyh tkuh izLrkfor gS rks bl lac/a k esa xzke iapk;r }kjk tkjh izek.k i=] fo/kok @,dy ukjh ls lacfa /kr nLrkost tks Hkh miyC/k gks] fd Lo;a lR;kfir Nk;kizfr;ka Hkh vkosnu i= ds layXu djuk lqfuf'pr djsaA rkfd esfjV r; dh tk ldsA
11. Therefore, in absence of there being any authority or power to consider an incomplete application and thereafter extend the time for submission of documents, is clearly an abuse of the process of authority and, therefore, the action being totally arbitrary liable to be quashed and set aside.
::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 812. It is not in dispute that respondents are State within the meaning of Article 12 of the Constitution of India and, therefore, .
cannot act like a private individual, which are free to act in a manner whatsoever it likes unless it is interdicted by law. It needs no reiteration that the State or its instrumentalities have to strictly fall within four corners of the law and all its activities are governed by the rules, regulations, instructions etc. It is, therefore, high time that respondent No. 3 and its officers realise that public offices both big and small are sacrosanct. Such offices are meant for use and not for abuse and in case the repositories of such offices spoils the rule, then the law is not that powerless and would steps in to quash such arbitrary orders.
13. It was way back in the year 1936 that the Hon'ble Privy Council in the celebrated case of Nazir Ahmad vs. King Emperor, 1936 Privy Council 253, categorically laid down that if an action is required to be taken in a particular manner it had to be taken in the manner only or not at all.
14. Having invited the applications vide public notice dated 02.11.2016, these applications could have been entertained only if these were in order and otherwise fully complied with the conditions of the public notice. No residuary or other right or discretion remained with the respondents to, firstly, entertain an incomplete and defective ::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 9 application of respondent No. 5 and thereafter extend time to him to submit the certificates at a later date.
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15. There had to be a strict adherence to the conditions laid down in the public notice, therefore, the application with incomplete or insufficient documents had to be rejected or else the action would not only be arbitrary and would be a case of rank favourtism.
16. It is vehemently argued by Mr. Surinder Saklani, learned counsel for respondent No. 5 that the writ petition should not have been entertained because the petitioner has an alternate remedy.
There is no force in this contention as it is more than settled that the availability of alternate remedy has always been considered to be a rule and self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of alternate remedy, it is within the jurisdiction of the High Court to grant relief under Article 226 of the Constitution.
17. That apart, this Court cannot lose sight of the fact that respondent No. 5 is running a Fair Price Shop and further his right has been protected by the order of status quo that has been granted by this Court on 21.03.2017 and, therefore, it would always be in interest to prolong the litigation, which obviously cannot be permitted as no litigant can have right to convert the litigation into a fruitful industry.
::: Downloaded on - 27/11/2018 22:57:25 :::HCHP 1018. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and consequently the .
allotment of a Fair Price Shop in favour of respondent No. 5 is quashed and set aside. Consequently, the Fair Price Shop is directed to be allotted to the petitioner as he is the most eligible and meritorious candidate as has been acknowledged by the Public Distribution Committee, in its meeting held on 19.12.2016.
19. The petition is allowed in the aforesaid terms, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) th 26 November, 2018 Judge (sanjeev) ::: Downloaded on - 27/11/2018 22:57:25 :::HCHP