Ashish Kumar Singh Alias Munna ... vs State Of U.P. And 04 Others
2018 Latest Caselaw 6 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 27
 

 
Case :- WRIT - C No. - 13516 of 2018
 

 
Petitioner :- Ashish Kumar Singh Alias Munna Singh
 
Respondent :- State Of U.P. And 04 Others
 
Counsel for Petitioner :- Sanjay Chaturvedi,Dinesh Rai
 
Counsel for Respondent :- C.S.C.,Manoj Kumar Yadav
 

 
Hon'ble Ajay Bhanot,J.

1. A vacancy of a fair price shop dealer arose in village panchayat-Javansipur, District-Jaunpur. Applications were invited from eligible persons for appointment as fair price shop dealer of the said village panchayat by running an advertisement in various dailies on 14.3.2018.

2. The petitioner is aggrieved by the advertisement dated 14.3.2018.

3. The petitioner has assailed the advertisement/order dated 14.3.2018 inviting applications from eligible and desirous candidates to be appointed as fair price shop dealer of village Javansipur, Vikas Khand-Ram Nagar, Tehsil-Mandiyahu, District-Jaunpur in the instant writ petition.

4. Sri Dinesh Rai, learned counsel for the petitioner contends that the authorities have adopted the procedure under para 11 of the Government Order dated 17.8.2002 for appointment of a fair price shop dealer. This is not warranted in law. The Government Order dated 17.8.2002 is only an exception to the regular procedure for appointment. The appointment of a fair price shop dealer has to be made in the adherence to the Government Order 03.07.1990. Learned counsel for the petitioner relies on the judgement of this Court rendered in the case of Neelam Yadav and another Vs. State of U.P. Thru. Secy. Food & Civil Supply Lko. & Ors. in Writ Petition No.1293 (MS) of 2017.

5. Sri Siddharth Singh, learned Additional Chief Standing Counsel for the respondent-State came down in forceful support of the action taken by the state authorities as per the procedure law laid down in the government order dated 17.08.2002. He submits that the conditions precedent for invoking the Government Order dated 17.8.2002 are fully satisfied.

6. Sri Siddharth Singh, learned Additional Chief Standing Counsel relies on the judgements entered by this Court in the case of Pradeep Kumar Shukla Vs. State of U.P. and others in Special Appeal Defective No.308 of 2017 and in the case of Raju (Inre 22020 M/s 2016) Vs. State of U.P. Thru. Prin. Secy., Food & Civil Supplies & 5 Ors. in Special Appeal Defective No.144 of 2017 and in the case of Lakhpati Devi Vs. State of U.P. and others, reported at 2008 (7) ADJ 595 (DB).

7. Heard the learned counsel for the parties. 

8. Certain facts relevant for judgement are established beyond the pale of dispute. There was a vacancy of a fair price shop dealer in village Javansipur, Vikas Khand-Ram Nagar, Tehsil-Mandiyahu, District-Jaunpur. Open meetings of the village panchayat were called on 10.10.2017 and 25.01.2017, but the efforts came a cropper. The meetings could not be conducted because of strident differences between the parties and virulent opposition to such meetings. There was real threat of violence in the meetings. The failure to conduct the meetings in an orderly fashion on repeated occasions was brought to the notice of the competent authority. The Block Development Officer applied his mind to the situation and the aforesaid facts in the record. These facts are not disputed in the writ petition. The Block Development Officer was satisfied that it was not possible to conduct an orderly meeting of the village panchayat in a relevant time frame. He also found that when the meetings were called, situation become grave and there was clear and present danger of violence. The meetings were being postponed repeatedly and consequently the appointment of the fair price shop dealer was being delayed indefinitely. Consequently, the authority adopted the procedure for appointment as prescribed in the Government Order dated 17.08.2002, to expedite the appointment of the fair price shop dealer.

9. The controversy, at hand, relates to choice of the procedure adopted for making the appointment of a fair price shop dealer. But before considering the procedures for appointment, the purpose of the appointment has to be understood.

10. The fair price shop dealer is a pivot on which the public distribution system rests. The essential commodities as well as other beneficial schemes are transmitted to card holders by the agency of the fair price shop dealer. The rights vested in eligible persons under the Food Security Act, 2013 (hereinafter referred to as the 'Act') are brought to fruition through the medium of fair price shop dealer.

11. The role of the fair price shop dealer in distribution of essential commodities and in realizing the objects of the National Food Security Act is indispensable. Accordingly, a clear and the transparent procedure was provided for appointment of a fair price shop dealer. The procedure for appointment of a fair price shop dealer is prescribed in the Government Order dated 3.7.1990. The relevant provisions of the Government order dated 3.7.1990 are extracted hereunder:

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12. The government order 3.7.1990 contemplates that the appointment of a fair price shop dealer will be made upon a recommendation by the Gaon Sabha. An open meeting of the Gaon Sabha will be called for the purpose of appointment of a fair price shop dealer. The names of the applicant candidates shall be put to vote. The name of the candidate securing the majority votes of the members of the Gaon Sabha shall be recommended for appointment as fair price shop dealer. The process of appointment of the fair price dealer will enter the next phase after the candidate recommended by the Gaon Sabha is approved by the Tehsil Level Committee. The competent authority of the State Government shall execute a contract with the person so nominated. A formal letter of appointment to such candidate is issued in the aftermath of the execution of the contract.

13. The working of the said procedure for appointment of a fair price shop dealer, as provided in the Government Order dated 03.07.1990 came to reckon with the realities of village life.

14. The government order dated 3.7.1990 makes the process of appointment transparent, but it also makes the same competitive. The procedure is made participatory but it creates partisanship as well. While the intention is to ensure the accountability of the dealer to the beneficiary public, the process of appointment is overborne by factionalism at times. On some occasions the factionalism come to the fore while purpose of the appointment takes a back seat.

15. In certain exceptional situations, the differences in the factions are so strident that the competing parties create circumstances which are not conducive to hold an open meeting. A meeting cannot be called under the real threats of violence and cannot be conducted in the face of acts of violence. In these circumstances, the conduct of the meeting will not be free and the result of the voting will not be fair. Sometimes the resolution of the village panchayat becomes disputed and the appointment is put on hold. Adherence to the procedure of the government order dated 3.7.1990, in these facts would indefinitely delay the appointment of a fair price shop dealer as an open meeting of the village panchayat would be repeatedly postponed.

16. In these situations, to insist on making an appointment of a fair price shop dealer in an open meeting of the village panchayat would not be in public interest.

17. The delay in appointment of a fair price shop dealer would impair the public distribution system. The benefits would not reach the eligible persons and the rights of the beneficiaries under the National Food Security Act, would be in jeopardy.

18. The mandate of the National Food Security Act can be carried out and the efficacy of the public distribution system can be ensured only if the appointment of the fair price shop dealer is made with promptitude and despatch.

19. With this wealth of practical experience in the working of the government order dated 3.7.1990, the Government took a pragmatic decision to ensure that the rights of the eligible persons under the National Food Scheme Act and the beneficiaries under various government schemes are not held prisoner to the procedure for appointment of fair price shop dealer. The purpose of appointment of fair price shop dealer cannot be defeated by the procedure for appointment of a fair price shop dealer. To meet the exigencies of such situations, the government order dated 17.8.2002 came into existence. The Government Order dated 17.8.2002 is extracted hereunder:

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20. When the procedure under the Government Order dated 17.08.2002 is adopted the appointment of a fair price shop dealer is made by draw of lots from the names of the eligible candidates. The Government Order dated 17.08.2012 creates a summary procedure for an expeditious appointment. The process of appointment is insulated from pulls and pressures of competing factions which at times stall the appointment.

21. The Government Order dated 17.8.2002 came to be considered in various judgments rendered by this Court. There was some divergence in judicial opinion. Learned Single Judge in the case of Neelam Yadav (supra) held thus:

"21. The question involved in the writ petition is as to what procedure shall be followed by the concerning authorities while invoking clause 11 of the Government Order dated 17.08.2002 for grant of fair price shop license.

22. It is to be noted that the Government Order dated 17.08.2002 itself clearly provides that the fair price shop license is to be granted on the proposal of the Gaon Sabha in the open meeting and the requirement of the proposal sent by the Gaon Sabha as such is a condition precedent to grant fair price shop license. In case the allotment of fair price shop license has been done without getting a proposal of the Gaon Sabha; then, it cannot be said to be as per the procedure prescribed.

23. Rule 46 of the Rules2 provides that meeting of Gaon Sabha shall be chaired by the Pradhan and in his absence by the Up-Pradhan and in case of absence of both from any such meeting, the person nominated under Rule 46-A of the Rules shall preside at the meeting or in case the Pradhan has not made a nomination, the Prescribed Authority may nominate any member. Rule 46, 46-A and 46-B of the Rules, for convenience, are reproduced below:

"46. Temporary President of a meeting.- The Pradhan, and in his absence the Up-Pradhan, shall preside at the meetings of the Gaon Sabha and Gaon Panchayat and in case of the absence of both from any such meeting, the members nominated under Rule 46-A shall preside at the meeting or in case the Pradhan has not made such a nomination, the Prescribed Authority may nominate any member.

If both the Pradhan and the Prescribed Authority fail to nominate any such member, the members of the Gaon Sabha and Gaon Panchayat present at the meeting may elect any member of the Gaon Panchayat to preside at the meeting.

46-A. Nomination of temporary Pradhan.- For the purpose of discharging the functions of a Pradhan in the absence of both the Pradhan and Up-Pradhan of a Gaon Sabha and the Pradhan may nominate in writing a member of the Gaon Panchayat and the member, so nominated, shall during such absence exercise all the powers and perform all duties of the Pradhan conferred or assigned by or under the Act.

46-B. Where both the Pradhan and the Up-Pradhan of a Gaon Sabha are suspended, Prescribed Authority may nominate in writing a suitable member of the Gaon Panchayat as temporary Pradhan of the Gaon Sabha to exercise all the powers and perform all the duties of the Pradhan and until such date as either of them is reinstated, or if both of them are removed from office, until such date as a new Pradhan or Up-Pradhan is elected. "

24. The U.P. Panchayat Raj Rules as such stipulates the situation where the meeting of Gaon Sabha is to be held in absence of Pradhan or Up-Pradhan for the discharge of functions of Gaon Sabha and the prescribed authority has been given power of nomination. As such, it is very much clear that in such situations where the Pradhan fails to hold open meeting of the Gaon Sabha to consider the allotment of fair price shop license or where due to certain reasons an open meeting of Gaon Sabha under the Chairmanship of the elected Pradhan could not be held or where a dispute has arisen in the open meeting regarding the selection of fair price shop licensee and proposal could not be passed, the Prescribed Authority i.e., the competent authority can interfere and get an open meeting held by adopting the procedure as prescribed under Rule 46 of the Rules. He may get an open meeting of Gaon Sabha held by nominating himself or any other Officer subordinate to him to chair the said meeting.

25. Therefore, in a given situation where the Gaon Sabha has failed to pass any proposal or where a dispute has arisen in an open meeting and no proposal could be passed, the procedure required to be followed is that the competent authority shall get an open meeting of the Gaon Sabha held as per Rule 46 of the Rules or shall get an open meeting of the Gaon Sabha held in his own presence or in the presence of an Officer nominated by him by making a nomination in this regard and shall get a proposal passed by the Gaon Sabha recommending the name/names of person for the grant of fair price shop license. The competent authority may deploy required police force to maintain the law and order for the purpose of holding the open meeting of Gaon Sabha in a proper manner. The said proposal shall be sent to the Committee headed by the Sub Divisional Magistrate and on the recommendation of the said Committee the allotment of fair price shop license shall be made"

22 However, a different view was taken by the learned Division Bench of this Court in the case of Pradeep Kumar Shukla (supra).

"Bare perusal of the Government Order dated 17.8.2002 clearly provides for selection of fair price shop agent for village panchayats by resolution of village panchayat in its open meeting. No doubt in the said Government Order an exception to the normal rule in settling the fair price shops has been carved out in para 11, which authorises the District Magistrate to direct for allotment of fair price shops on recommendation of a committee constituted as per the Government Orders under the Chairmanship of the Up-Ziladhikari, where a village panchayat either does not pass a resolution or where there arises dispute in passing resolution. Except in these two circumstances, District Magistrate or the Committee constituted under the Chairmanship of Up-Ziladhikari have no authority to make allotment of fair price shop in any village panchayat, without resolution of the village panchayats in its open meeting as per statutory provisions including Rule 46, 46 A and 46 B of the U.P. Panchayat Raj Rules 1947.

It appears from the record in question that on account of various difficulties the fair price shops in District Basti could not be settled as per the provisions enshrined in the Government Order dated 17.8.2002. Once this situation has been brought into the notice of the competent authority that on account of non-settlement of fair price shops the public at large was sufferring and not receiving essential commodities, then just to expedite and taking into account the provisions contained under para 11 of the G.O. dated 17.8.2002 an advertisement was made on 8.8.2016 inviting applications for settlement of vacant fair price shops in the district. Admittedly in pursuance of the said advertisement the petitioner as well as contesting respondent had applied and deposited the requisite amount and finally the District Level Selection Committee in its meeting dated 4.10.2016 had accorded approval in favour of the petitioner-appellant."

23. Like view was also taken by this Court in the case of Lakhpati Devi (supra).

"3. We have considered the matter and do not find any illegality or irregularity. The Government Order dated 17.8.2002 vide para 11 provides that where no resolution is passed by Gram Sabha or where there is any dispute with respect to such resolution of Gaon Sabha, it will be open to the District Magistrate to get fair price shop allotted on the recommendation of the committee presided by the Sub-Divisonal Magistrate. The procedure of selection by such committee is not provided in any of the Government Orders and para 10 of Government order dated 17th August, 2002 only provides certain eligibility conditions which should be kept in mind while making selection. In the circumstances, if there are more than one applicant fulfilling the said conditions of eligibility etc., we do not find any illegality if the selection committee has made its recommendation by adopting lottery system and selected a person in accordance therewith. Moreover, there is no allegation of mala fide or favouritism against anyone in the present writ petition and the impugned order clearly shows that it is the selection committee which has adopted the lottery system."

24. The judgement of Neelam Yadav(supra) entered by the learned Single Judge also came to be considered by the Division Bench of this Court in the case of Raju (supra), which reads as under:

"Having considered the aforesaid submissions raised, the first legal issue that needs to be addressed to is the manner in which the open meeting of the Gaon Sabha is to be held for the purpose of selecting a licensee to run a Fair Price Shop in a village. Learned Standing Counsel is correct in his submissions that as per the Clause - 11 of the Government Order dated 17th August, 2002, if the selection has to be made, it should be made through an open meeting of the Gaon Sabha but in the event the open meeting is not held or the meeting is disputed, then in that event under the directions of the District Magistrate, the Committee headed by the Sub-Divisional Magistrate is authorised to nominate and allot a Fair Price Shop to a person who may be eligible otherwise under the relevant Government Order. He submits that compulsory holding of a meeting, therefore, in such a contingency may not be a requirement for the purpose of holding an open meeting of the Gaon Sabha.

We have considered the submissions raised and we find that for the limited purpose of allotment of a Fair Price Shop through a resolution by the Gaon Sabha, the meeting has to be convened in terms of the said Government Order. It is only on the failure of the Gaon Sabha to take a decision or to hold a meeting that the Clause - 11 has to be invoked by virtue whereof, the Committee headed by the Sub-Divisional Magistrate is empowered to make allotments. The legal issue, therefore, as determined in the case of Neelam Yadav (Supra) may, therefore, not require a re-consideration even if we do not approve of the reasoning given therein as in the present case, in the background that the meeting dated 26.05.2016 that was conducted and which has been found to be valid is a resolution which on inspection by the Sub-Divisional Magistrate on 16.09.2016 has been found to be valid as per the order dated 18.09.2016. The said order dated 18.09.2016 even though was brought to the notice of the appellant as urged, during the pendency of the review petition, was not challenged. In the absence of any challenge having been raised to the order dated 18th September, 2016 it will not be possible for this Court to grant any relief to the appellant."

25. However, there is a word of caution. The provisions of the para-11 of the government order dated 17.8.2002 are only an exception to the general rule. The rule being to appoint a fair price shop dealer by holding an open meeting of the village panchayat under the Government Order dated 03.02.1990. The Government order dated 3.7.1990 is the rule while the government order dated 17.8.2002 is the exception.

26. The provisions and the government order dated 17.8.2002 cannot be used to frustrate the purpose of the government order 3.7.1990. The exception, if invoked as a matter of routine, will defeat the rule and frustrate the policy. The policy embodied in the Government Order dated 03.07.1990 is to ensure transparency in appointment and accountability in functioning of the fair price shop dealer.

27. For invoking the procedure prescribed in the Government Order dated 17.08.2002, the pre-requisites have to be clearly established. There should be an emergent situation, for instance where a meeting of village panchayat cannot be held or where the resolution of the village panchayat is disputed. Such emergent situation delays the appointment of the fair price shop dealer. These facts should be supported by credible material in the record. The authority should apply its independent mind to the same before resort to the procedure for appointment under the Government Order dated 17.08.2002.

28. In the present case, it has been found in the factual narrative in the preceding paragraphs that there was an emergent situation. There was clear and present danger of violence which prevented the calling of a meeting and threatened its orderly conduct. On two occasions the meeting had to be postponed and could not be conducted in an orderly fashion. Consequently, the appointment of the fair price shop dealer was put on hold for an indefinite period. The authority applied its mind to the situation at hand and material in the record. The credibility and correctness of the material before the authority has not been disputed. In these facts the invocation of the procedure for appointment in the Government Order dated 17.08.2002 is justified.

29. In the light of the above discussion in the preceding paragraphs, no infirmity in the order assailed in the writ petition has been found.

30. The writ petition lacks merit and is dismissed.

Order Date :- 17.4.2018

Ashish Tripathi