Allahabad High Court
Surendra Kumar vs State Of U.P. & Another on 27 July, 2015
Bench: Tarun Agarwala, Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR RESERVED
Civil Misc. Writ Petition No.13319 of 2014
Surendra Kumar
Vs.
State of U.P. and others
And
Civil Misc. Writ Petition No.18491 of 2015
Mukesh Kumar
Vs.
State of U.P. and others
And
Civil Misc. Writ Petition No.13521 of 2015
Smt. Ansuiya Devi
Vs.
State of U.P. and others
***
Hon'ble Tarun Agarwala, J.
Hon'ble Amar Singh Chauhan, J.
(Per: Tarun Agarwala,J.)
In Writ Petition No.13319 of 2014, the matter relates to allotment of a fair price shop in Gram Panchayat Saraiya Mishra, Block Kaptanganj, District Basti. Initially the fair price shop licence was given to Ram Nayan son of Birju belonging to O.B.C. category. In due course of time, Ram Nayan's wife became the Pradhan of the village and, therefore, incurred a disability for running a fair price shop as per the Government Order. The Sub Divisional Magistrate, accordingly, issued an order dated 15.1.2011 cancelling the shop allotted in favour of Ram Nayan. The appeal filed by Sri Ram Nayan was dismissed by an order dated 1.2.2011. Thereafter, the Block Development Officer initiated proceedings for allotment of the shop. The Gram Panchayat passed a resolution dated 17.10.2013 recommending the name of the petitioner, Surendra Kumar, for allotment of the shop. The petitioner also belonged to the OBC category. The proposal of the Gram Panchayat was rejected by the Sub Divisional Magistrate by the impugned order dated 6.2.2014, on the ground, that back log quota of Scheduled Caste and Scheduled Tribes are required to be filled up and, therefore, the Gram Panchayat should sent a proposal of a name belonging to a Scheduled Caste or Scheduled Tribes category. The petitioner, being aggrieved by the said order, has filed the present writ petition.
During the pendency of the writ petition the District Level Committee held a meeting holding that after considering the horizontal reservation it was found that 76 vacant shops were required to be filled up by Scheduled Caste/Scheduled Tribes category and the balance 37 shops were required to be filled by candidates belonging from General Category. The District Level Committee identified the shop in question through a lottery system as belonging to a General Category and, therefore, issued an advertisement dated 2.2.2015 inviting applications to fill up the shop from a General Category candidate. The petitioner, accordingly, filed an amendment application, which was allowed and also prayed for the quashing of the order dated 27.1.2015 passed by the District Level Committee as well as the advertisement dated 2.2.2015.
The contention of the petitioner, in short, is that the earlier shop was held by an O.B.C. and since the petitioner is an O.B.C., the shop can only be given to an O.B.C. and that the subsequent decision of the District Level Committee to allocate the shop to a general category candidate was wholly illegal in violation of paragraph 4(ii) of the Government Order 17.8.2002. According to the petitioner, paragraph 4(ii) of the Government Order dated 17.8.2002 indicates that the shop would be allotted in the same category as that of the Pradhan.
In this writ petition five counter affidavits and supplementary counter affidavits have been filed by the State adopting different stand. In the main counter affidavit it was contended that the District Magistrate issued an order dated 7.1.2013 to fill up the back log quota of Scheduled Caste and Scheduled Tribe category. On the basis of this order of the District Magistrate, the Block Development Officer directed the Gram Panchayat to send a proposal in accordance with the order of the District Magistrate. It was further contended that the order of the District Magistrate dated 7.1.2013 was based on the Government Order dated 10.8.2007, which directed that the back log quota of Scheduled Caste and Scheduled Tribe has to be filled up. It was contended that based on the Government Order dated 10.8.2007, it was found that 437 shops had been filled up by O.B.C. candidates instead of 316 shops and, therefore, excess number of shops were filled up by O.B.C. candidates. The counter affidavit further indicated that 83 shops were now required to be filled up from Scheduled Caste and Scheduled Tribe category.
A supplementary counter affidavit dated 28.11.2014 was filed indicating that out of 464 shops in the Tehsil, 26 shops were vacant and applying the reservation policy 50 shops from Scheduled Caste and Scheduled Tribe category quota were required to be filled up. Another supplementary counter affidavit dated 22.4.2015 was filed indicating that as per the Government Order dated 10.8.2007, the back log quota from Scheduled Caste/Scheduled Tribes candidates were required to be filled up and that out of 1194 shops in District Basti, 77 shops were required to be filled up through back log quota and that excess shops were allotted to O.B.C. candidates. Another supplementary counter affidavit dated April 2015 was filed indicating that the District Level Committee identified the shop in question through a lottery system to be filled up by a General Category candidate. Another counter affidavit in May, 2015 was filed by the Under Secretary, indicating that for enforcement of the Government Order and for identification of the shops as per the Government Order dated 17.8.2002, the District Magistrate and the District Supply Officer are responsible. It is also stated that the Government Order dated 10.8.2007 is still in force.
In writ petition No.18491 of 2015, the shop in question relates to Gram Panchayat Nainana, Village Swaroop Nagar, Nainana Jat, Tehsil and District Agra. In this petition, the fair price shop was held by a Scheduled Caste candidate, which was cancelled. Since the shop remained vacant for more than two months, a resolution was passed by the Gram Panchayat on 27.2.2015 for allotment of the shop in favour of the petitioner Mukesh Kumar, who also belonged to the Scheduled Caste category. The Block Development Officer forwarded the recommendation to the Sub Divisional Magistrate by its order dated 25.2.2015.
The Sub Divisional Magistrate Sadar, Agra passed the impugned order dated 6.3.2015 rejecting the proposal, on the ground, that since the Gram Pradhan of the village belongs to an O.B.C. category, the fair price shop can only be allotted to an O.B.C. candidate and not to a Scheduled Caste candidate. The Sub Divisional Magistrate, therefore, directed the Gram Pranchayat to send a proposal of a candidate which belongs to an O.B.C. category. The petitioner, Mukesh Kumar, being aggrieved by the said order, has filed the writ petition.
In this petition the State Government has filed a counter affidavit contending that in view of paragraph 4(ii) of the Government Order dated 17.8.2002, the fair price shop licence can be given to a person who belongs to the same category as that of the Gram Pradhan, that is to say, that if the Gram Pradhan of that village is an O.B.C. then the fair price shop licence can only be given to an O.B.C. candidate.
Writ Petition No.13521 of 2015 relates to Village Barka, Block Chandaus, Tehsil Gabhana, District Aligarh. In this writ petition the shop was allotted to Kamal Singh, who belongs to an O.B.C. category. This shop was cancelled by an order dated 29.8.2007. He filed an appeal which was allowed by an order dated 15.1.2015 and his shop was restored. The petitioner, Smt. Anusuiya Devi, contends that after the shop was cancelled in the year 2007, the Gram Panchayat issued a proposal dated 24.10.2007 in favour of the petitioner, based on which, an allotment order dated 5.11.2007 was issued in favour of the petitioner by the Sub Divisional Magistrate, which allotment order was not subject to any restriction with regard to the appeal filed by Kamal Singh. By the impugned order dated 10.2.2015, the allotment order of the petitioner was cancelled and the licence was given to Kamal Singh. The petitioner, being aggrieved by the said order, has filed the present writ petition contending that his allotment order was not subject to the result of the appeal filed by Kamal Singh. Further, after the cancellation of the licence of Kamal Singh, the village was declared a Scheduled Caste constituency for women for the purpose of election of the Gram Pradhan, based on which, the proposal of the petitioner was given as a Scheduled Caste candidate. The petitioner contended that in view of paragraph 4(ii) of the Government Order dated 17.8.2002 the shop can only be given to a Scheduled Caste category candidate since the Pradhan of the village also belongs to a Scheduled Caste category. Further, the shop can only be given to a women candidate in view of the re-organisation of the village under the Panchayat Raj Act and could not be allotted to a male person, Kamal Singh, respondent No.3. It was also urged that the village has more than 4000 units and, therefore, both Kamal Singh and the petitioner can be given a licence.
In the counter affidavit, it was contended by the State that since the appeal of Kamal Singh was allowed his licence was restored and since there was only one sanctioned shop the licence of the petitioner was cancelled since it was only allotted to the petitioner pursuant to the cancellation of the licence of Kamal Singh. It was also contended that the reservation as per the Government Order dated 17.8.2002 is required to be seen only at the time of allotment of the shop and that the Government Order dated 17.8.2002 further stipulated that the shops allotted to a person belonging to a particular category would not be disturbed.
In the light of the aforesaid stand, the Court has heard Sri Anant Kumar Srivastava, Sri Mukesh Chandra Gupta and Sri S.A.Kazmi for the petitioners and Sri Suresh Singh Additional Chief Standing Counsel and Sri Ajit Singh, the learned standing counsel for the State as well as Sri Manish Joshi, the learned counsel for the private respondents.
In order to appreciate the submission of the parties, it would be worthwhile to peruse the Government Orders dated 17.8.2003 and 10.8.2007. Prior to the issuance of Government Order dated 17.8.2003, reservation was not applicable in the allotment of a fair price shop. Reservation was issued for the first time in Government Order dated 17.8.2002. As per para 2 of the Government Order dated 17.8.2002, 50% of the shops would be reserved, 21% for Scheduled Caste, 2% for the Scheduled Tribes and 27% for Other Backward Classes. Para 3 stipulates that horizontal reservation would apply for women family members of soldiers killed or injured in war, freedom fighters and their widows and handicapped persons.
Para 4 provides the procedure for applying the reservation. As per para 4(i), a Block would be treated as one unit and the total number of sanctioned shops in a Block would be calculated and identified. This has been modified by para 3 of Government Order dated 10.8.2007, and now, the reservation would be made on the basis of the total number of sanctioned shops calculated and identified in a District instead in a Block.
Para 4(2) of the Government Order dated 17.8.2002 stipulates that the reservation policy would be applied in the same manner as is done for the election of the Gram Pradhan under the Panchayat Raj system. The identification of the shop is to be done on the basis of the descending order of population, i.e., the number of persons belonging to one reserved category in the Gram Sabha would be the basis for determination and identification of the particular shop for the purpose of reservation.
At this stage, it would be appropriate to refer to the provisions of U.P. Panchyat Raj Act, 1947. Section 11-A provides various categories of reservations, i.e., vertically and horizontally for reservation in the post of a Pradhan. Similarly Section 12(5) provides reservation in every Gram Panchayat. For facility, Section 11-A and 12(5) of the Act is extracted hereunder:
[11-A. Pradhan and [* * *] of Gram Panchayat - [(1) There shall be a Pradhan of the Gram Panchayat who shall be the Chairperson thereof].
(2) The State Government shall, by order, reserve offices of Pradhans for the Scheduled Castes, the Scheduled Tribes, and the backward classes;
Provided that the number of offices of Pradhan reserved for the Scheduled Tribes and the backward classes in the State shall bear, as nearly as may be, the same proportion to the total number of such offices as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or the backward classes in the State bears to the population of the State.
Provided further that the reservation for the backward classes shall not exceed twenty-seven per cent of the total number of offices of Pradhans.
[Provided also that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner.]
(3) Not less than one-third of the total number of offices of Pradhans reserved under sub-section (2) shall be reserved for women belonging to the Scheduled Castes, the Scheduled Tribes and the backward classes.
(4) Not less than one-third of the total number of offices of Pradhans, including the number of offices of Pradhan reserved under sub-section (3), shall be reserved for women.
(5) The offices of the Pradhans reserved under this section shall be allotted by rotation to different Gram Panchayats in such order as may be prescribed.
(6) The reservation of the offices of Pradhans for the Scheduled Castes and the Scheduled Tribes under this Section shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.
Explanation - It is clarified that nothing in this section shall prevent persons belonging to the Scheduled Castes, the Scheduled Tribes, the backward classes and the women from contesting election to unreserved seats.]"
"12(5) (a) In very Gram Panchayat, seats shall be reserved for the Scheduled Castes, the Scheduled Tribes and the backward classes and the number of seats so reserved shall, as nearly as may be, bear the same proportion to the total number of seats in the Gram Panchayat, as the population of the Scheduled Castes in the Panchayat area or of the Scheduled Tribes in the Panchayat area or of the backward classes in the Panchayat area bears to the total population of such area and such seats may be allotted by rotation to different territorial constituencies in the Gram Panchayat in such order as may be prescribed :
Provided that the reservation for the backward classes shall not exceed twenty-seven per cent of the total number of seats in the Gram Panchayat:
[Provided further that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner.]
(b) Not less than one-third of the seats reserved under Clause (a) shall be reserved for the women belonging respectively to the Scheduled Castes, the Scheduled Tribes and the backward classes.
(c) Not less than one-third of the total number of seats in the Gram Panchayat, including the number of seats reserved for women under Clause (b), shall be reserved for women and such seats may be allotted by rotation to different territorial constituencies in a Gram Panchayat in such order as may be prescribed.
(d) The reservation of seats for the Scheduled Castes and the Scheduled Tribes shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.
Explanation - It is clarified that nothing in this section shall prevent the persons belonging to the Scheduled Castes, the Scheduled Tribes and the backward classes and the women for contesting election to unreserved seats"
The procedure for determining the post of Pradhan for a particular category has been made provided under the U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules, 1994. For facility, Rules 3 and 4 of the Rules are extracted hereunder:-
"3. Number of seats and offices to be reserved.- In computing the number of seats or offices of Pradhans to be reserved for the Scheduled Tribes, the Scheduled Castes or the Backward Classes in accordance with the provisions of sub-section (5) of Section 12 or sub-sections (2) or (4) of Section 11-A of the Act, if the remainder is not less than half of the divisor, the quotient shall be increased by one, and if the remainder is less than half of the divisor, it shall be ignored and the number so arrived at shall be the number of seats or offices of Prahans to be reserved for the Scheduled Tribes or the Scheduled Castes or the Backward Classes, as the case may be:
Provided that the number of seats or offices of Pradhans reserved for the Backward Classes shall not exceed twenty-seven percent of the total number of seats or offices of Pradhans, as the case may be.
4. Allotment of seats by rotation.- (1) Subject to the provisions of other sub-rules, the seats reserved in a Gram Panchayat shall be allotted to different territorial constituencies in the Gram Panchayat in the following order:
(a) Women belonging to the Scheduled Tribes;
(b) the Scheduled Tribes;
(c) women belonging to the Scheduled Castes;
(d) the Scheduled Castes;
(e) women belonging to the Backward Classes;
(f) the Backward Classes; and
(g) women.
(2) If on the basis of population of the Scheduled Tribes or of the Scheduled Castes or of the Backward Classes in a Panchayat area, only one seat can be reserved for the Scheduled Tribes or for the Scheduled Castes or for the Backward Classes, as the case may be, such seat shall go to a woman belonging to the Scheduled Tribes or to the Scheduled Castes or the Backward Classes, as the case may be.
(3) If on the basis of population in a Panchayat area, a seat cannot be reserved for the Scheduled Tribes or for Scheduled Castes or for the Backward Classes, the order mentioned in sub-rule (1) shall be so adhered to as if there was no reference in it to the Scheduled Tribes or to the Scheduled Castes or to the Backward Classes, as the case may be.
[(4) The number of seats as provided in Rule 3 shall be allotted to different territorial constituencies on the basis of population in the descending order, that is from amongst the territorial constituencies in a Gram Panchayat, the territorial constituency having the largest population of the Scheduled Tribes shall be allotted to them, and the territorial constituencies having the largest population of the Scheduled Castes shall be allotted to them and the territorial constituency having the largest population of the Backward Classes shall be allotted to them, and in the subsequent election the allotment shall be made in the aforesaid manner so however that as far as may be, the territorial constituency allotted in the previous elections to the Scheduled Tribes shall not be allotted to the Scheduled Tribes, and the territorial constituency allotted to the Scheduled Castes shall not be allotted to the Schedules Castes and the territorial constituency allotted to the Backward Classes shall not be allotted to the Backward Classes:
Provided that if in any election, the population of the Scheduled Tribes, or of the Scheduled Castes or of the Backward Classes cannot be ascertained territorial constituency-wise, the descending order may be determined on the basis of number of families in the territorial constituencies, of the Scheduled Tribes, or of the Scheduled Castes or of the Backward Classes, as the case may be.]
(5) Not less than one-third of the territorial constituencies allotted to the Scheduled Tribes, the Scheduled Castes or the Backward Classes under sub-rule (4) shall be allotted to the women belonging to the Scheduled Tribes, the Scheduled Castes or the Backward Classes, as the case may be.
[(6) Not less than one-third of the total number of territorial constituencies including the number of territorial constituencies reserved for women under sub-rule (5) shall be allotted to women under sub-rule (5) shall be allotted to women, so however that the territorial constituencies having the largest population excluding the population of the Scheduled Tribes, the Scheduled Castes and the Backward Classes shall be allotted to them and in the subsequent election the allotment shall be made in the aforesaid manner so however that, as far as may be, the territorial constituencies allotted to women in the previous election shall not be allotted to women.]
Thus para 4(2) of the Government Order dated 17.8.2002 read with Sections 11-A, 12(5) and Rules 3 and 4 of the Rules of 1994 makes it apparently clear that the number of seats in a district shall be identified for a particular category on the basis of the population in the descending order, i.e., the number of persons belonging to one reserved category in the Gram Sabha would be the basis of determination and identification of a particular shop for reservation.
Para 4(3) stipulates that after identification existing shops will not be disturbed, but would be allotted to a person of that category only when a vacancy arises. For example, if the shop is identified for a Scheduled Caste Category and the shop, at the present, is not vacant, but is being managed by a general category person, in that event, the allottee belonging to a General Category, will not be disturbed and that the shop would only be filled up by a S.C. Category person only when the vacancy arises in future.
Para 8 of the Government Order of 2002 further indicates that the shops so identified for a reserved category will only be filled up from that category and will never be made unreserved. Para 9 stipulates that any person belonging to any class may apply for shop which has been identified for an unreserved category.
The Government Order of 10.8.2007 modifies the Government Order dated 17.8.2002 to the extent that identification of the shops and application of the reservation policy would apply for a district instead of in a Block. The Government Order of 2007 further stipulated that the Government Order dated 17.8.2002 had not been properly implemented and therefore made the District Magistrate and the District Supply Officer responsible for proper implementation of the Government Order dated 17.8.2002. The Government Order of 2007 further directed that if adequate representation of a particular reserved category had not been achieved, the Government directed the District Magistrate or the District Supply Officer to fill up the back log quota of that particular category within a period of three months.
In the light of the Government Order's dated 17.8.2002 and 10.8.2007, we find that the district authorities are implementing the reservation policy incorrectly. They are applying the reservation only when a vacancy arises. The calculation and the identification of the shop starts when a vacancy arises. If another vacancy arises after three months with regard to another shop in the same district, a fresh exercise is done. The authorities are allocating a shop to a particular category merely because the Pradhan belongs to that particular category. Different districts are implementing the reservation policy in a different manner. In one district, the District Magistrate and its subordinate officers are implementing the reservation policy by allotting the shop to a person who belongs to the category of a Pradhan. In another district, the District Magistrate wants to fill the back log quota by filing the vacancy from a Scheduled Caste/Scheduled Tribes Category person without seeing as to whether that shop was identified for a Scheduled Caste/Scheduled Tribes category or not.
Thus, the initial stand of the respondents in Writ Petition No.13319 of 2014 that the shop was required to be filled up by a Scheduled Caste/ Scheduled Tribes category person in order to fill up the back log quota as per District Magistrate's direction was patently erroneous. The respondents' modified stand that the shop should be allotted to a General category candidate since excess shops were filled up by Other Backward Category persons was also erroneous. The stand of the petitioner that since the Pradhan of the village was an OBC, the shop is, therefore, was required to be filled up from an OBC person is also wrong.
Similarly, the stand of the respondent in Writ Petition No.18491 of 2015 to till up the vacancy from an O.B.C. person on the ground that the Pradhan is an OBC is wholly illegal. In the same way, the stand of the petitioner in Writ Petition No.13521 of 2015 is untenable and cannot be accepted. Once the appeal of the Kamal Singh was allowed, his license was rightly restored. The allotment of the shop to the petitioner Smt. Anusuiya Devi was deemed to be subject to the appeal filed by Kamal Singh.
In Writ Petition No.8781 (M/B) of 2007, Mahendra Kumar vs. State of U.P. others, decided on 9.7.2008, the Division Bench explained para 4(2) of the Government Order dated 17.8.202 as under:
"The identification of the vacancies for the purpose of extending the benefit of reservation, thus, requires that the shops be identified, if they are vacant for the purpose, in the same manner in which reservation is applied, in the matter of reservation with respect to the office of the Pradhan in the Gram Sabha. Sub clause (1) of aforesaid clause-4 says that in the descending order of population the reservation policy would be applied in the same manner as it is done for the election of the Gram Pradhan under the Panchayati Raj system.
The identification is to be done on the basis of descending order of population i.e. the number of persons belonging to one reserved category in the Gram Sabha is the basis for determination and identification of a particular shop/vacancies for reservation. It also says that the reservation shall not exceed 50%.
In clause 3(Ka) of clause-9 it is said that In an unreserved Gram Sabha, any person belonging to any class after fulfilling the necessary conditions/formalities can apply for allotment of fair price shop.
Needless to mention that there is no reservation of general category nor there can be any reservation for general category. Reservation is only for reserved categories and in the reserved category, a general person cannot apply nor will be eligible for the allotment but for any shop/vacancy which is open for being filled in by a general category person i.e. which is unreserved, any person belonging to any caste/class may be scheduled caste, scheduled tribe or other backward class can still apply and they would be entitled for being considered as if they do not belong to their category, but in accordance with the rules, applicable in unreserved vacancy."
and further held:-
"The determination of vacancy namely identifying the shops/vacancies where the persons belonging to reserved category could be appointed as dealer is, thus, to be done strictly in accordance with the Government order dated 17th August 2002."
Similarly in Anil Kumar Singh vs. State of U.P. and others, 2010(4) ADJ 764 another Division Bench held:
"The vacancies of fair price shop have to be identified keeping in mind the nature of constituency in the general elections of Pradhan, lastly held. It is the nature of the constituency for the election of Pradhan, which constitutes the basis for identifying the fair price shop/vacancy for being allotted to either a person belonging to reserved category or to the general category. The caste of Pradhan for that matter would not be relevant for the simple reason that in a general constituency, any person can contest the election, may be belonging to scheduled caste or other backward classes but that would not change the nature of the constituency for election."
and further held:
" 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."
In Smt. Kusma Devi vs. State of U.P.and others, 2015 (1) ADJ 697, another Division Bench held that back log quota of Scheduled Caste should be filled from these shops identified for Scheduled Caste and that it was not permissible to fill the back log quota of Scheduled Caste from the General Category shops or shops reserved for O.B.C. Category. The Division Bench held that prior to filling the back log quota of Scheduled Caste, the authorities were required to identify the number of shops for Scheduled Caste quota.
In the light of the aforesaid, we are of the opinion that the identification of the shops has to be done at the initial stage, namely, that the shops have to be identified for a particular category whether it is vacant or is not vacant. All the shops in the district are to be identified either as a General Category, Schedule Caste or Scheduled Tribe or O.B.C. Category. Once the identification is done, the authorities are required to fill up the vacancy accordingly. If the shop which has been identified for a Scheduled Caste then the shop is required to be filled up by a Scheduled Caste candidate as and when the vacancy arises. If the shop is identified as an unreserved category, any person belonging to General Category, or reserved category could apply.
We are also of the view that the direction of the State Government in the Government Order dated 10.8.2007 to fill up the back log within three months no longer survives as on date. The said direction has lapsed and cannot be utilised by the authorities after the expiry of three months.
In view of the aforesaid, the impugned orders passed in Writ Petition No.13319 of 2014 and Writ Petition No.18491 of 2015 cannot be sustained and are quashed. The writ petitions are allowed. Writ Petition No.13521 of 2015 is dismissed.
Since the Government Order's are not being followed, we direct the authorities in the instant case to follow the following direction and fill the existing vacancies within three months:-
(1) As per the Government Order dated 17.8.2002 and modified by Government Order dated 10.8.2007, all the shops in the district are required to be calculated.
(2) After calculation, 50% of the shops are required to be reserved.
(3) For reservation, all the shops in the district, whether vacant or not vacant have to be identified in the manner as specified under Section 11-A(2) and (4), 12(5) of the U.P. Panchayat Raj Act read with Rules 3 and 4 of the U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules, 1994. The authorities are required to apply horizontal and vertical reservation.
(4) Once all the shops are identified, action to fill up the shops would be taken only on the vacant shops. Shops which are not vacant will not be touched and steps to fill up such shops would be taken as and when a vacancy arises.
(5) Vacant shops will be filled up from that category identified for such purpose. For example, if the shop has been identified for Scheduled Caste Category, the allotment will be done to a person belonging to a Scheduled Caste Category. If the shop is identified for an unreserved category, any person of any category, whether unreserved or reserved could apply. If a shop is identified for an OBC Category, but is not vacant and the allottee running the shop is Scheduled Caste or of an unreserved category, no action will be taken and, as and when the shop becomes vacant, steps to fill up the shop from an OBC person will take place.
We also find that the position is the same in other districts of this State. In order to bring uniformity, the exercise to identify the shops has to be taken as a one time measure. We accordingly direct the Chief Secretary and Principal Secretary Food and Civil Supply Department, Government of U.P. to issue a Government Order directing all the District Magistrate and/or the District Supply Officer to follow the directions as given above while implementing the Government Order dated 17.8.2002 and 10.8.2007. Necessary directions be given to all the District Magistrate and/or the District Supply Officer in the State of U.P. within two weeks from the date of the receipt of a certified copy of this order. The District Magistrate or District Supply Officer will thereafter implement the Government Order dated 17.8.2002 and 10.8.2007 in the manner stated aforesaid within three months thereafter.
The Registrar General is directed to send certified copies of this order to the Chief Secretary and Principal Secretary, Food and Civil Supply Department, Government of U.P. within 10 days from today. Sri Suresh Singh, the learned Additional Chief Standing Counsel will also intimate the Chief Secretary and Principal Secretary, Food and Supply Department about this order within 10 days from today.
Dated: 27 . 7 .2015.
AKJ.
(Amar Singh Chauhan, J.) (Tarun Agarwala, J.)
