Dismissed

Maa Durga Aajeevika Shg, Gonda Thru. Secy., Smt. Aarti and Another v. State of U.P. Thru. Addl. Chief/ Prin. Secy., Food and Civil Supplies Deptt. Lucknow and Others

Allahabad HC15 May 2024WRIC/4342/2024

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed a writ petition challenging a decision to declare a fair price shop in an unreserved category. The court held that petitioners, having participated in the selection process based on the unreserved notification, were estopped from subsequently questioning its validity despite alleging violation of government orders regarding reservation.

What did the court decide?

The writ petition challenging the notification dated 27.07.2023 and the selection decision was dismissed.

Maa Durga Aajeevika Shg, Gonda Thru. Secy., Smt… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:37111

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Court No. - 19

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Case :- WRIT - C No. - 4342 of 2024

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Petitioner :- Maa Durga Aajeevika Shg, Gonda Thru. Secy., Smt. Aarti And Another Respondent :- State Of U.P. Thru. Addl. Chief/ Prin. Secy., Food And Civil Supplies Deptt. Lucknow And Others Counsel for Petitioner :- Prashant Kumar Singh,Apoorv Dev,Ashutosh Chaubey Counsel for Respondent :- C.S.C.,Pankaj Gupta

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Prashant Kumar Singh, learned counsel for the petitioners, Sri Pratyush Kumar Tripathi, learned Additional Chief Standing Counsel appearing for the State-respondent nos.1 to 6 and Sri Tushar Gupta, holding brief of Sri Pankaj Gupta, learned counsel for the respondent no.7. Sri Chandresh Mani Shukla, learned counsel states that he is representing Pramod Kumar Chaudhary, who has been selected for grant of fair price shop contract in respect of Village Khajuri, Block Chhapiya, Tehsil Mankapur, District Gonda.

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By means of the instant petition filed unde Article 226 of the Constitution of India, the petitioners have challenged validity of the decision taken in the Tehsil Level Selection Committee held on 11.04.2023 whereby village Khajuri has been declared to be unreserved for selection of fair price shop licensee. The petitioners have also challenged the validity of notification dated 27.07.2023 issued by the Sub-Divisional Magistrate, Mankapur, District Gonda inviting applications for selection of fair price shop licensee for village Khajuri, showing the same as unreserved. The petitioners have further sought a direction for commanding the authorities to

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allot fair price shop of village Khajuri to a person belonging to Scheduled Caste reserved category.

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Submission of learned counsel for the petitioners is that by means of Circular dated 17.08.2022, it was provided that 21% fair price shops will be reserved for perons belonging to Scheduled Caste category, 2% will be reserved for Scheduled Tribes category and 27% will be reserved for persons belonging to Other Backward Clasess category. The system for identification of shops for the purpose of reservation will be the same, as is applicable to the post of Gram Pradhan under Panchayati Raj Scheme. As soon as a shop falls vacant, the same will be allotted to a person of appropriate category.

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On 05.08.2019, another Government Order was issued inter alia providing that the arrangment of reservation applicable for fair price shops will be the same as was there in the year 2015 for the post of Gram Pradhan and also as per the percentage of population in Gram Sabha. Whenever a shop falls vacant in future, it will be alloted to the candidates of appropriate category.

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In a decision taken in the meeting of Tehsil Level Selection Committee held on 21.10.2019, it is recorded that in the panchayat election held in the year 2015, the post of Gram Pradhan Khajuri was unreserved and the fair price shop of Gram Sabha Khajuri was also allotted to a person belonging to unreserved category. However, it had been earmarked for a person belonging to Scheduled Caste category.

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The petitioners claim that the fair price shop was allotted to one Molhu in furtherence of a resolution passed on 27.11.2002. Molhu belonged to reserved category and he continued to hold the shop. In the panchayat election to be held earlier in the year 2021 Khajuri was earmarked for a person belonging to Scheduled Caste category.

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On 20.12.2022 the Sub-Divisional Magistrate, Mankapur, Gonda had passed an order directing the Block Development Officer to hold selection of fair price shop licensees and regarding the shop situate at village Khajuri it was written in the order that this was reserved for a person belonging to Scheduled Caste.

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The petitioners claim that Molhu, the earstwhile licnesee of the fair price shop, died in the year 2022 and the vacancy arose in the year 2022. Learned counsel for the petitioners has submitted that the decision taken in the meeting held on 11.04.2023 declaring the fair price shop of village Khajuri to be unreserved, has been taken in violation of provisions contained in relevant Government Orders.

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Learned counsel representing the prospective allottee of the fair price shop has raised a preliminary objection that in furtherence of notification dated 27.07.2023 issued for selection of fair price shop licensee for village Khajuri showing the same as unreserved, the petitioners had applied and participated in the selection process and it is only after having remained unsucessful in the selection, the petitioners have come forward to challenge the notification dated 27.07.2023. He has relied upon a decision of Hon’ble Supreme Court in the case of Ashok Kumar and another vs. State of Bihar and others, (2017) 4 SCC 357 wherein the Hon’ble Supreme Court relied upon numerous precedents on the points including the cases of Chandra Prakash Tiwari vs. Shakuntala Shukla, (2002) 6 SCC 127, and Union of India vs. S. Vinodh Kumar, (2007) 8 SCC 100 , wherein it was held that it is well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein, are not entitled to question the same.

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In response to the preliminary objection, learned counsel for the petitioners admits that the petitioners had participated in the selection process but his submission is that as the selection has been held in

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violation of the provisions contained in the relevant Governemnt Orders, the petitioners’ participation in the selection process does not create an estoppel against their rights to challenge the illegality committed in the selection process.

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Learned counsel for the petitioners has relied upon a deicision rendered by Hon’ble Supreme Court in the case of Dr (Major) Meeta Sahai vs. State of Bihar and others , (2019) 20 SCC 17 wherein the Hon’ble Supreme Court has held as under:-

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“16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumra Shahi v. State of Bihar, observing as follows:-

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“16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.”

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The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

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17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection proces.”

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In Dr. (Major) Meeta Sahai (supra), the Hon’ble Supreme Court has recognized the well established principle of estoppel which prevents a candidate from challenging the selection process after having failed in it. However, the Hon’ble Supreme Court carved out an exception to the aforesaid general principle for the cases where the candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom.

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In the present case, the petitioners do not allege misconstruction of any statutory rules and the contention of the petitioners is merely that illegalities have been committed in implementation of certain Governemnt Orders, which are not statutory rules. Therefore, this Court is of the view that having participated in the selection process initiated by issuance of notification dated 27.07.2023, the petitioners are estopped from assailing the validity of the notification dated 27.07.2023.

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The petitioners claim that the decision taken in the meeting of Tehsil Level Selection Committee held on 11.04.2023 declaring the fair price shop of village Khajuri was not in their knowledge and therefore they could not assail the same earlier. However, the notification dated 27.07.2023, in furtherence whereof, the petitiones had applied for grant of fair price shop license in their favour while the same was shown as unreserved, was well within the knowledge of the petitioners and it was open for them to have challenged the same. The petitioners took a conscious decision not to challenge the same and they took a calculated chance of being selected for grant of fair price shop license of village Khajuri. It is only after having remained unsuccessful in the selection that the petitioners have come forward to challenge the notification.

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Keeping in view the aforesaid facts and in view of the law laid down by Hon’ble Supreme Court in the cases of Ashok Kumar

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(supra) and Dr. (Major) Meeta Sahai (supra), the petitioners are estopped from challenging the validity of the notification dated 27.07.2023.

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However, even on merits, it appears that the relevant government orders provide that the scheme of reservation of fair price shop licensees will be the same as is applicable in reservation of village Pradhans in the year 2015. The office of village Pradhan of village Khajuri was unreserved in the year 2015.

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Learned counsel for the petitioners has relied upon a decision rendered by the Division Bench of this Court in the case of Anil Singh vs State of U.P. and others (2010) 4 ADJ 764 . The question involved in that writ petition was regarding the application of scheme of reservation in furtherence of Government Order dated 10.08.2007 and this Court held that the vacacncies of fair price shop have to be identified keeping in mind the nature of constituency in the general elections of Pradhan lastly held. A copy of the aforesaid order has been annexed with the writ petition which merely states that the policy of reservation in grant of fair price shop licenses had been intoduced by the earlier Government Orders and it was not being implemented properly. It does not laid down the manner of identification of shops for being reserved. Presently the allotment of shops and application of reservation therein is not being done in furtherence of Government Order dated 10.08.2007; rather it is being done in furtherence of the Government Order dated 05.08.2019 which categorically provides that scheme of reservation in allotment of fair price shop licenses will be the same as was applicable regarding post of Gram Pradhan in the year 2015.

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Therefore, the judgment in the case of Anil Kumar Singh (supra) is not applicable in the present scenerio.

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Learned Additional Chief Standing Counsel submits that eroneously the fair price shop of village Khajuri was mentioned to be reserved for Scheduled Caste category in the earlier decision taken in the meeting held on 16.08.2022, which mistake has been corrected in the subsequent meeting held on 11.04.2023, therefore, prima facie no illegality appears to have been committed by the authorities and no prejudice has been caused to the petitioners.

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The writ petition lacks merits and the same is hereby dismissed.

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Order Date :- 15.5.2024 Renu/-

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Digitally signed by :- RENU AGARWAL High Court of Judicature at Allahabad, Lucknow Bench

Maa Durga Aajeevika Shg, Gonda Thru. Secy., Smt. Aarti and Another v. State of U.P. Thru. Addl. Chief/ Prin. Secy., Food and Civil Supplies Deptt. Lucknow and Others

Case brief

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Maa Durga Aajeevika Shg, Gonda Thru. Secy., Smt. Aarti and Another v. State of U.P. Thru. Addl. Chief/ Prin. Secy., Food and Civil Supplies Deptt. Lucknow and Others

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