Smt. Kusma Devi vs State Of U.P. & Others
2014 Latest Caselaw 9811 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											         A.F.R.
 
							
 
								
 

 
Case :- WRIT - C No. - 23457 of 2008
 

 
Petitioner :- Smt. Kusma Devi
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Arvind Kumar Tewari,K.D. Awasthi
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Rajes Kumar,J.

Hon'ble Shashi Kant,J.

(By the Court)

1- Heard Sri J.N. Mishra holding brief of Sri K.D.Awasthi, learned counsel for the petitioner and Sri Pankaj Rai, learned Chief Standing Counsel for the State of U.P.

2- By means of present writ petition, the petitioner seeks following reliefs :-

a) issue a writ order or direction in the nature of certiorari quashing the G.O. dated 10.08.2007 (Annexure 9 to the writ petitioner).

b) issue a writ order or direction in the nature of certiorari quashing the order of District Supply Officer, Auraiya dated 02.04.2008 (Annexure No. 5 to the writ petition).

c) Issue a writ or direction in the nature of mandamus commanding the respondent to appoint the petitioner as Fair Price Shop Dealer of Gram Panchayat Bilawa Block Ajeetmal, District Auraiya.

d) Issue any such other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

e) Award the cost of the petition in favour of the petitioner."

3- Briefs facts of the case are that the petitioner is permanent resident of Village Bilawa, Tehsil & District Auraiya. By caste, she is Teli and belongs to O.B.C. Category. There was no Fair Price Shop dealer in Gram Panchayat Bilawa, therefore, the Block Development Officer, Ajeetmal, issued an order dated 03.01.2008 in the name of various Pradhan including the Gram Panchayat Bilawa to select a dealer of Fair Price Shop, for their respective Gram Panchayat. The Gram Vikas Adhikari of Gram Panchayat Bilawa called a meeting on 24.01.2008 for the selection of dealer for Fair Price Shop. The agenda of this meeting dated 09.01.2008 was circulated and was also made Public by beat of Drum. In the meeting dated 24.01.2008, two persons i.e. the petitioner and one another Ram Pratap Singh applied for dealership of Fair Price Shop and the petitioner was unanimously selected as dealer of Fair Price Shop. After the selection, the petitioner has completed necessary formalities by submitting documents related to education, Caste Certificate, Residence Certificate, Character Certificate, agreement, identification document along with a Banker Cheque of Rs. 1000/- and pass book of Central Bank of India. After completion of necessary formalities by the petitioner, all the papers were submitted to the Block Development Officer, Ajeetmal by Vikas Adhikari, who sent those documents along with aforesaid Banker Cheque to the District Supply Officer, Auraiya. The District Supply Officer, Auraiya kept all those documents pending with him and ultimately on 02.04.2008 returned them, on the pretext that according to the G.O. Back-log quota have to be fulfilled by appointing dealer of Fair Price Shop, from the applicants of Scheduled Caste.

4- Aggrieved by the impugned order dated 02.04.2008 (Annexure No. 5), the petitioner has filed the present writ petition.

5- We have considered the rival submissions of the learned counsel for the parties and perused the record.

6- Learned counsel for the petitioner submits as follows:-

6.1- In pursuance of the letter no. 157/Up.Z.Adhi/Dukaan Anu./Prastav/07-08 dated 24.7.07 of Sub Divisional Magistrate, Auraiya, the Block Development Officer, Ajeetmal wrote a letter no. 933/Ra. Dealer Niu./07-08 dated 03.08.2008 to Pradhan of various villages, including Pradhan of village Bilawa to convene open meeting of Gram Panchayat and make available proposal regarding Dealer of fair price shop, according to G.O., within three days, for sending the same to Sub Divisional Magistrate, Auraiya. In pursuance of that letter, open meeting of the Gram Panchayat was held on 24.01.2008 in which no Scheduled Caste candidate has applied for the dealership of fair price shop, only Ram Pratap Singh, Brahim by caste and the petitioner, a lady belonging to O.B.C., have applied for the dealership of fair price shop. As Fair Price shop of Gram Panchayat Bilawa belongs to General Category, neither the post of Pradhan nor the aforesaid shop was ever reserved. Keeping view of these facts, the petitioner has been selected as dealer of fair price shop unanimously, in the meeting. After completion of necessary formalities, resolution in favour of the petitioner was submitted to the District Supply Officer by the Block Development Officer, Ajeetmal vide his letter dated 13.03.2008. The District Supply Officer (respondent no. 3) kept the proposal pending with him and ultimately on 02.04.2008 returned the same on a wrong and illegal pretext that according to the G.O., Back-log quota have to be fulfilled by appointing the dealer of fair price shop from the Scheduled Caste persons.

6.2- Neither the post of Gram Pradhan of Gram Sabha Bilawa was reserved seat nor the fair price shop of the said Gram Sabha was allotted to any of the caste provided in the aforesaid G.O. dated 17.08.2002. It was a general seat and the earlier dealer of fair price shop was also from the General Category. In these circumstances, any resident of the village belonging to any class or caste was entitled to apply for dealership of fair price shop.

6.3- The respondents/authorities concerned have not made any effort to examine that in the facts and circumstances whether fair price shop of the Gram Sabha, Bilawa comes under the criterion for fulfilment of Back-log quota of S.C./S.T. Category under the provisions of G.Os. dated 10.08.2007 read with G.O. dated 17.08.2002.

6.4- In the Gram Panchayat, Bilawa, the population of the General Category persons is on top, Back-ward class on number two, Scheduled Caste is on third number while no Scheduled Tribes persons are living in the village, therefore, if in any circumstances, fair price shop of the said village is required to be reserved, it may be reserved for O.B.C. as per para-4 (2) of the G.O. Dated 17.08.2002.

6.5- The petitioner also belongs to O.B.C. Class and there is reservation for women also, as such, rejection of candidature of petitioner is illegal and against the G.O. Dated 17.08.2002.

6.6- The petitioner was not provided opportunity of hearing prior to passing of the impugned order. As such, order dated 02.04.2008 (Annexure No. 5), passed by the District Supply Officer, Auraiya (respondent no. 3) is wrong, illegal and liable to be quashed.

7- Per contra, Sri Pankaj Rai, learned Chief Standing Counsel contends that operation of the G.O. of 1999 referred in para-8 of the writ petition has been suspended by the Government. At present G.O. No. C.M.-60/29-6-07-1-62 No. 2001 dated 10.08.2007 and G.O. No. 2715/29-6-2002 No.2001 dated 17.08.2002 (hereinafter referred as G.O dated 10.08.2007 and G.O. Dated 17.08.2002 respectively.) are inforce and applicable. Subsequent to the receipt of G.O. dated 10.08.2007 referred above, letter No. 515 dated 06.09.2007 was sent to all Block Development Officers of the District. After review of the instructions given in the G.O. dated 10.08.2007, it was found that number of Fair Price Shops run by persons of General Category and O.B.C. Class are in excess of their prescribed quota. Therefore, the action has been taken for fulfilment of Back-log quota, under para- 11 of the G.O. dated 17.08.2002. The resolution passed in favour of the petitioner, who belongs to O.B.C. Class, was rejected by Sub Divisional Magistrate vide office letter no. 40/Up.Z.A./Dukaan Anu./08 dated 08.04.2008 but earnest money received by Bank Draft of Rs. 1000/- deposited by the petitioner has been released by the District Supply Officer earlier to it. For fulfilment of the Back-log quota, proposals were called from the vacant Gram Panchayats and in this regard, letter no. 130/Z.Pu.A.-Dukaan Anu./2007-08 dated 10.03.2008 has been written to Sub Divisional Magistrate, Auraiya/Vidhuna and all Block Development Officers. Due to non availability of resolutions by concerned Gram Panchayats, applications were invited through newspapers to fill-up 23% quota of S.C./S.T. by lottery system and various dates were fixed for selection of the dealer but due to pendency of the writ petition, selection of dealer could not materialise. Due to non availability of Fair Price Shop,in Gram Panchayat, Bilawa, the card holders of the village have been attached with nearby fair price shops. As such, in view of the G.Os. referred above and in the facts and circumstances of the case, no irregularity or illegality has been committed in not accepting the resolution for allotment of the fair price shop in favour of the petitioner and no interference is required in the matter by this Hon'ble Court.

8- Learned counsel for the petitioner further submits that:-

8.1- In respect of Fair Price Shop, Government had issued orders dated 03.05.1999, 18.05.1999, 30.07.1999 and 10.08.1999. There is no provision for reservation in the above G.Os. The proposal has been invited by the Block Development Officer on the basis of the letter dated 24.07.2007 of the Sub Divisional Magistrate, Auraiya. Admittedly, on that date, there was no existence of the G.O. dated 10.08.2007. There is no provision for reservation in various G.Os. referred above and in the meeting dated 24.01.2008, no candidate of Scheduled Caste has offered his candidature for dealership. Only two applicants, one the petitioner (lady belonging to O.B.C. Class) and other Ram Pratap Singh, (Brahmin by Caste belonging to General Category) have offered their candidature for dealership of fair price shop and ultimately, the petitioner has been selected for dealership of fair price shop unanimously.

8.2- The meeting dated 04.01.2008 in which, the petitioner has been selected for dealership of fair price shop, was convened on the basis of letter of Sub Divisional Magistrate dated 24.07.2007, referred above, and not in reference to letter no. 515 dated 06.09.2007, as claimed by the respondents.

8.3- In these facts and circumstances, the selection of the petitioner for dealership of fair price shop could not be said by any stretch of imagination, in violation to G.O.s dated 17.08.2002 and 10.08.2007 or violative of any reservation policy.

8.4- The petitioner has not been provided any opportunity of hearing prior to passing of order dated 02.04.2008 by the District Supply Officer, Auraiya and alleged order dated 08.04.2008 passed by the Sub Divisional Magistrate, Auraiya, even copy of the order dated 08.04.2008 has not been made available to the petitioner. As such above orders dated 02.04.2008 and 08.04.2008 are wrong, illegal and liable to be quashed due to being passed in utter violation of principles of natural justice.

8.5- In any event of the matter, the petitioner is entitled for being appointed as dealer of fair price shop in Gram Panchayat, Bilawa.

8.6- In support of his contentions, learned counsel for the petitioner has placed reliance on the decision of this Court rendered in Writ Petition No. 6740 (MB) of 2008 decided on 01.08.2008 in case of Sarun Nisha Vs. The State of U.P. and others and a Division Bench judgement reported in 2010 (4) ADJ 764 (DB) (LB) in the case of Anil Kumar Singh vs. State of U.P. and others. In these judgments, this Court has quashed the order passed by the authorities concerned and directed to reconsider the category of shop/vacancy and question of allotment of fair price shop in the light of observations made in the Writ Petition No. 8781 (M/B) of 2007, Mahendra Kumar vs. State of U.P. and others which is as follows :

"for identifying the shop/vacancy, the reservation has to be considered in the same manner as it is done in the election of Gram Pradhan. The caste of the Gram Pradhan solely cannot be a ground for holding that the shop lying within his constituency necessarily belongs to the same category to which the elected Gram Pradhan belongs. In fact the nature of the constituency from where the Gram Pradhan has been elected is the deciding factor normally but for the unreserved constituency of Gram Sabha all other shops would fall within the same category to which Gram Pradhan belongs but in a case of unreserved category constituency any person can be elected as Gram Pradhan".

9- For proper appreciation of the controversy involved in the present writ petition, paragraphs- 9 and 15 of the writ petition, paragraphs 13, 18 and 21 of the counter affidavit and paragraph- 14 of the rejoinder affidavit are relevant and reproduced herein- below :

Paragraphs- 9 and 15 of the Writ Petition. :

"Para -9 ..... Neither the post of Gram Pradhan and of Gram Shaba Bilawa was reserved seat nor the fair price shop of Gram Panchayat Bilawa was allotted to any of the caste provided in the aforesaid G.O. dated 17.08.2002. It was a general seat and the quota the dealer also belong to the General Category.

.............

Para-15....... As already stated the Gram Panchayat Bilawa was a General Seat and the Fair Price dealer earlier also belong to the General Category. The Ajeetmal Block has 72 Fair Price Shops out of this only 4 shops have been allotted to the women candidates thus there was vacancy in the women quota also. The G.O. 2002 which provides for reservation says that the reservation shall be made in the similar way in which the post of Pradhan have been reserved i.e. in the descending order is relation of population of Village. In Gram Panchayat Bilawa the General Category persons are on top and thereafter or other Back-ward class persons and then comes S.C. Persons. There is no scheduled Tribes person in the aforesaid Gram Panchayat thus even if the reservation rule is to be applied the O.B.C. come on No.2 in relation to population and thereafter comes Scheduled Caste. The petitioner belongs to O.B.C. and was thus entitled for being appointed as the Fair Price Shop dealer."

Paragraphs 13 , 18 and 21 of the counter affidavit :

Þ13- ;g fd ;kfpdk ds izLrj la[;k&9 esa of.kZr dFku ds izfrmRrj esa ;g dguk gS fd 'kklukns'k la[;k&lh0,e0&60 @ 29& 6&07&1&62 [email protected] 2001 fnukad 10-08-2007 izkIr gksus ij fn;s x;s funsZ'kksa ds vuq:i dk;Zjr mfpr nj dh nqdkuksa dh leh{kk djus ij vuqlwfpr tkfr @ vuqlwfpr tutkfr dh nqdkuksa dk izfr'kr de gksus ij vuqlwfpr tkfr @ vuqlwfpr tutkfr dk vkj{k.k iw.kZ djus gsrq mfpr nj nqdkuksa fu;qDr fd;s tkus dh dk;Zokgh vey esa yk;h x;hA

................

18- ;g fd ;kfpdk ds izLrj la[;k&15 esa of.kZr ;kph dk dFku vlR; o fujk/kkj gksus ds dkj.k ekU; ugha gS rFkk vLohdkj gSA ;gka ;g mYys[kuh; gS fd 'kklukns'k la[;k&lh0,e0&60 @ 29 & 6&07&1&62 lk0 @ 2001 fnukad 10-08-2007 izkIr gksus ij fn;s x;s funsZ'kksa ds vuq:i leh{kksijkUr izFke n`"V;k vuqlwfpr tkfr @ vuqlwfpr tutkfr dk dksVk iw.kZ djus gsrq fu;ekuqlkj dk;Zokgh vey esa yk;h x;hA

.................

21- ;g fd ;kfpdk ds izLrj la[;k&18] 19 o 20 ,oa ;kfpdk ds leFkZu esa of.kZr fd;s x;s vk/kkj furkUr vlR;] Hkzked o fujk/kkj gksus ds dkj.k Lohdkj ;ksX; ugha gSaA ;gka ;g mYys[kuh; gS fd miftykf/kdkjh] vthrey ds mDr i= fnukad 06-09-2007 ds dze esa [k.M fodkl vf/kdkjh] vthrey] vkSjS;k us vius i=kad&2515 fnukad 13-03-2008 }kjk Jherh dq'kek nsoh dk izLrko mi ftykf/kdkjh] vthery vkSjS;k dks Hkstk] fdUrq 'kklukns'k la[;k & lh0,e0&60 @ 29 & 6&07&1&62 lk0 @ 2001 fnukad 10-08-2007 ls ftys esa izpfyr nqdkuksa esa vkj{k.k dk izfr'kr iw.kZ fd;s tkus gsrq izkIr funsZ'kkuqlkj leh{kksijkUr ,l0Vh0 @ ,l0Vh0 dk izfr'kr dkQh fuEu gksus ds dkj.k [k.M fodkl vf/kdkjh] vthery] vkSjS;k }kjk izsf"kr mDr izLrko dks miftykf/kdkjh] vthrey vkSjS;k }kjk vLohdkj fd;k x;k rFkk ,l0Vh0 @ ,l0Vh0 ls vkosnu i= vkeaf=r fd;s x;s] rkfd ,l0lh0 @ ,l0 Vh0 dk vkj{k.k rRdky iw.kZ fd;k tk ldsA vr% ;kph }kjk ekaxk x;k vuqrks"k ikus dh vf/kdkjh ugh gSA ;kph us orZeku ;kfpdk okLrfod rF;ksa dks fNikdj vuqPNsn 226 ds vUrxZr vuqfpr ykHk izkIr djus ds mn~ns'; ls ekuuh; U;k;ky; ds le{k ;ksftr dh gSA vr% ;kph dh ;kfpdk vk/kkjghu o cyghu gksus ds dkj.k iks"k.kh; ugha gS rFkk U;k;fggr esa lO;; fujLr fd;s tkus ;ksX; gSA vr% ekuuh; U;k;ky; ls fouez izkFkZuk gS fd ;kph dh ;kfpdk lO;; fujLr djus dh d`ik dh tk;Aß

Paragraph 14 of the rejoinder affidavit :

"....... The respondents were under obligation to determine whether shop for dealer is falls under reserved category or not in pursuance of the existing low for the time being in for since dated 10.08.2007 was not in existence when the proposal was demanded."

10- It is clear from the perusal of above referred paragraphs of the writ petition, counter affidavit and rejoinder affidavit that main controversy involved in this writ petition is as to whether all vacancies occurred before and after 10.08.2007 shall be subject of fulfilment of Back-log quota of reserved class irrespective to the fact that they fall under reserved category or not ?

11- To find answer of the above question, the G.Os. dated 17.08.2002 and 10.08.2007 are relevant and have been filed as Annexure-7 and Annexure-9 to the writ petition and Annexure C.A.-3 and C.A.-4 to the counter affidavit.

12- Relevant provisions of the G.O. dated 17.08.2002 shall be discussed later, at appropriate stage.

13- The G.O. dated 10.08.2007 has been issued to emphasis fulfilment of Back-log quota of reserved classes.

13.1- It has been stated in paragraph-2 of this G.O. that it has been brought to the notice of the Government that at the District Level, in the allotment of fair price shops, the provisions for implementation of reservation policy are not properly followed, due to that number of beneficiaries of reserved classes could not be achieved. Action in the matter to achieve the above target on priority basis is required. This is also noted in this G.O. that large number of fair price shops in various Districts of State are lying vacant and for allotment of those implementation of reservation is must.

13.2- It is directed in paragraph-3 of this G.O. that in allotment of fair price shop, under public distribution system, the reservation should be calculated on the basis of total sanctioned shops in the District and it should be calculated that total how many fair price shops are in the Districts and according to reservation how many shops come under which reserved class, if shops allotted to any reserved class are lesser in comparison to sanctioned quota of that particular class, then Back-log quota of reserved category be fulfilled within three months through special derive. District Magistrate and District Supply Officer were made responsible for any inaction. It is also mentioned in it that Chief Secretary will review the matter after three months.

13.3- As per paragraph- 4, this order will be equally applicable in allotment of fair price shops in rural areas as well as urban areas.

14- In above referred paragraphs-9 and 15 of the writ petition the petitioner has stated that post of Gram Pradhan and dealership of fair price shops was never reserved for any particular class in pursuance of the G.O. Dated 17.08.2002. Elected Gram Pradhan of the village Bilawa belong to general category and as such it does not fall in reserved category meaning thereby dealership of fair price shop of village Bilawa comes under unreserved category and any person of the village belong to any class or caste may apply for the dealership of fair price shop after completing necessary formalities as provided in paragraph-9 of the G.O. dated 17.08.2002, in reply to above in paragraphs-13, 18 and 21 of the counter affidavit above facts are said to be wrong and false, but no specific facts and material have been brought by the respondents before the court, which may show that averments of paragraphs 9 and 15 of the writ petition are wrong. In para-14 of the rejoinder affidavit, it is claimed that respondents were under obligation to determine as to whether dealership of fair price shop, Bilawa falls under reserved category or not ? In pursuance of existing law for the time being till issuance of the G.O. Dated 10.08.2007.

15- From perusal of the above referred provisions of the G.O. dated 17.08.2002 and 10.08.2007, it is clear that in the G.O. dated 10.08.2007, there is no provision which may enable the respondents/concerned authorities to fulfil Back-log quota of reserved category, (in the present case, Back-log quota of Scheduled Caste) in the dealership of every vacant fair price shop irrespective of the fact that it falls under reserved category of Scheduled Caste or not. In paragraph-3 of G.O. dated 10.08.2007, it has been provided that in case number of actual fair price shops allotted to beneficiaries of particular reserved class is found short in comparison to allocated reservation quota of particular reserved class then, it may be fulfilled within three months through special derive. There is no mention or whisper in the G.O. dated 10.08.2007 that Back-log quota of any particular reserved class be fulfilled by ignoring or by passing all the norms provided in the G.O. Dated 17.08.2002.

16- As per paragraph-8 of the G.O. dated 17.08.2002 vacancies of reserved class be filled by the applicant of same class by due process and in no condition, vacancy of reserved class be changed in unreserved class, meaning thereby that all fair price shops reserved under Scheduled Caste Category in pursuance of G.O. dated 17.08.2002 were either have been filled by the persons belonging to Scheduled Caste or are lying vacant. All subsequent vacancies occurred in the Scheduled Caste quota were also required to be filled by the person belonging to Scheduled Caste. In these circumstances, there is no occasion for low number of beneficiaries in comparison to number of shops allocated to Scheduled Caste category and if there is any such shortage, then, there are also unfilled vacancies of fair price shops reserved for Scheduled Caste beneficiaries. Therefore, Back-log quota of Scheduled Caste at first instance should be filled by the vacant fair price shops, earmarked for allotment to the beneficiaries of Scheduled Caste and if after that additional fair price shops required for allotment to the beneficiaries of Scheduled Caste, then future vacancies of the Class('s) who are in excess of his/their quota be also allotted to the beneficiaries of Scheduled Caste, as per provision of paragraph- 4 (2) of the G.O. dated 17.08.2002. Otherwise it is neither possible not permissible to fulfil the Back-log quota of Scheduled Caste from the unreserved fair price shops or from the fair price shops of other reserved class. As such, prior to fulfilment of Back-log quota of Scheduled Caste, it is must to determine that vacant fair price shop('s) come under the category of Scheduled Caste quota or not ? And whether particular fair price shop falls under criterion to fulfil Back-log quota of Scheduled Caste.

17- But apparently, exercise to determine that fair price shops of village Bilawa falls under reserved category or not and if that falls under reserved category, then it may be reserved for Scheduled Caste or not, has not been done.

18- These facts are not considered by the respondents that earlier fair price shop was under the General Category. Elected Pradhan of the village was also of the General Category and fair price shop of Gram Panchayat Bilawa never reserved for Scheduled Caste or any other reserved category. In these circumstances, as per the provisions of G.O. Dated 17.08.2002, said fair price shop falls under General Category and as per paragraph-9, after completing the necessary formalities, person belonging to any caste and class was eligible to apply in General Category. As such resolution passed in favour of the petitioner is not violating or overriding any provision, only by the reason that the petitioner is a lady belongs to O.B.C. Category.

19- As per paragraph- 8 of the G.O. dated 17.08.2002, in no condition any reserved category shop can be converted in unreserved category i.e. General Category likewise in ordinary course, fair price shop of unreserved category can also not be converted in reserved category or any particular reserved category. Number of shops run by General Category is over-saturated, i.e. above 50% . On being so it may be reserved according to paragraph-4 (2) of the G.O. dated 17.08.2002 for O.B.C., (second largest population of the village) and in case quota of General Category and O.B.C. Category both over-saturated only then it may be reserved for Scheduled Caste.

20- Prior to fulfilment of Back-log quota of reserved category in pursuance of the instructions contained in G.O. dated 10.08.2007, respondents/concerned authorities are expected to take following steps:

(I)To determine total number of fair price shops in the District Auraiya. (paragraph-3)

(II)To determine reservation of each class (paragraph-1)

(III)Identification of shops for horizontal reservation. (paragraph-1)

(IV)To find out number of allotted shops to persons belonging to various classes (paragraph-3)

(V)To determine shortage of the shops allotted to any particular reserved class in comparison to quota allotted to it. (paragraph-3)

(VI)If, it is found that shops allotted to beneficiary of any reserved class are less in comparison to the quota allotted to that particular reserved class then Back-log quota have to be fulfilled by special derive within three months (paragraph-3).

21- While making the above exercise, respondents/concerned authorities are also expected to keep in their mind following important instructions contained in various paragraphs of the G.O. dated 17.08.2002 :

(I) For the purposes of the reservation in the Tehsil, a Block will be treated to be one unit and all sanctioned shops of each Block will be calculated for the purpose of reservation and identified according to paragraph-2 and paragraph-3 of this G.O. {paragraph-4 (1)}.

Note : By G.O. dated 10.08.2007 total sanctioned shops of the 'District' was made criterion for calculation of the reservation instead of 'Block'.

(II) In descending order of population, as reservation has been applied for the post of Pradhan in Panchayati Raj Vayvastha, same process of reservation will be adopted in identification of fair price shop. This will also be main criterion for reservation of fair price shops in rural areas. {paragraph-4 (2)}.

(III) At present maintaining status-quo about all the working shops, for vacant shops reservation have to be applied as follows :

(Ka)- Reservation will be given up to 50% of total sanctioned shops.

(Kha)- In future when the shops under reserved category will vacant that will be allotted to the applicant of same category. {paragraph-4 (3)}.

(IV) The terms and conditions of G.O. dated 03.07.1990, G.O. No. 3967/29-Khand-6 will also be applicable and if there is any conflict among the aforesaid G.O. and present G.O., then terms and conditions of present G.O. will be given preference. {paragraph-4 (4)}.

(V) Vacancy of reserved class will be filled by the applicant of same class by due process and in no condition vacancy of reserved class will be changed in unreserved class. (paragraph-8).

(VI) In unreserved class of Gram Sabha any person belonging to any class may apply after completion of necessary formalities. (paragraph-9).

(VII)In rural areas where Gram Sabha is not passing the resolution or at the place where dispute has arisen, in the public interest, District Magistrate may allot the fair price shops on the recommendations of Committee organised under Chairmanship of Sub Divisional Magistrate according to G.Os, for such Gram Sabha. (paragraph-11).

(VIII)If the village fall under the unreserved category only Caste of Elected Pradhan will not be the sole criterion to decide the category of village for allotment of fair price shop, in the light of judgements of this Court in the cases of Sarun Nisha (Supra), Anil Kumar Singh (Supra) and Mahendra Kumar (Supra) because in fact the nature of the constituency from where the Gram Pradhan has been elected is the deciding factor normally but for the unreserved constituency of Gram Sabha all other shops would fall within the same category to which Gram Pradhan belongs but in a case of unreserved category constituency any person can be elected as Gram Pradhan.

22- No doubt, in the present case, it has been stated at so many places in the counter affidavit that fair price shops in District Auraiya run by persons of General Category and O.B.C. Category are over subscribed while, number of fair price shops run by S.C./S.T. Category are very low and as such 23% quota prescribed for S.C./S.T. Category are not fulfilled but in this regard, necessary facts and figures have not been produced by the respondents before the Court.

23- It appears from the perusal of the order dated 02.4.2008 that prior to passing of that order, no proper opportunity of hearing has been provided to the petitioner, as far alleged order dated 8.4.2008 passed by Sub Divisional Magistrate, Auraiya, as claimed by the respondents, in para-8 of the counter affidavit, is concerned, it has not been produced before the Court. In these circumstances, it may be safely presumed here that neither any opportunity of hearing prior to passing of that order has been provided to the petitioner, nor copy of that order has been provided to her, even order dated 08.04.2008 has not been brought on record by the respondents.

24- It may also be observed here that the meeting dated 24.01.2008 in which resolution for selection of dealership has been passed in favour of the petitioner was convened on the basis of the letter of Block Development Officer dated 03.08.2008, which was written in reference of the office letter no. 157/Up.Z.Adhi/Dukaan Anu./Prastav/07-08 dated 24.07.07 passed by Sub Divisional Magistrate, Auraiya and not in pursuance of letter no. 515 dated 06.09.2008. As such, wrong facts about the resolution passed in the meeting dated 24.01.2008 has been taken into consideration by the Sub Divisional Magistrate, while passing the alleged order dated 08.04.2008.

25- For the discussion made above, we are of the view that the orders dated 02.04.2008 and 08.04.2008 are not sustainable in the eyes of the law and are liable to be quashed.

26- The writ petition is allowed. The order dated 02.04.2008 (Annexure-5 to the writ petition) is quashed. The respondent is directed to settle the shop within a period of two months in accordance to law.

27- We are not passing any order for costs.

Order dated :11.12.2014

Monika