Allowed

Sandeep H R v. State of Karnataka

Karnataka HC5 Dec 2022WP/6347/2022

Case brief

AI extract

What is this about?

In this writ petition, the Court allowed the petition and quashed the endorsement rejecting the petitioner's application for transfer of Fair Price Shop authorization on compassionate grounds. Relying on coordinate judgments, the Court held that educational qualification and age restrictions cannot apply to compassionate transfer cases.

What did the court decide?

Quashed the impugned endorsement; directed Respondent No.2 to reconsider the application for transfer of authorization within 12 weeks.

Sandeep H R Vs State of Karnataka — Public Procurement and Tenders | Karnataka HC (2022)

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WP No. 6347 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 6347 OF 2022 (GM-PDS)

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BETWEEN:

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SANDEEP H.R., AGED ABOUT 32 YEARS, S/O LATE M.RAMU, R/AT HADYA VILLAGE, DUDDA HOBLI, MANDYA TALUK, MANDYA DISTRICT-571 405.

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…PETITIONER

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(BY SRI. HARSHA KUMAR GOWDA H.R., ADVOCATE)

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AND:

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STATE OF KARNATAKA

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,

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DEPARTMENT OF FOOD AND CIVIL SUPPLIES, VIKASA SOUDHA, DR B.R.AMBEDKAR VEEDHI BENGALURU – 560 001.

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THE JOINT DIRECTOR (FOOD) FOOD AND CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, MANDYA DISTRICT, MANDYA – 571 401.

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WP No. 6347 of 2022

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THE DEPUTY DIRECTOR (FOOD) FOOD AND CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, MANDYA DISTRICT

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MANDYA – 571 401.

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THE TAHSILDAR MANDYA TALUK,

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MANDYA – 571 401.

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…RESPONDENTS

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(BY SRI. M.VINOD KUMAR, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTION TO QUASH THE ENDORSEMENT DTD. 21.01.2022 ISSUED BY THE R-2 PRODUCED AT ANNX-D; DELCARE THAT ORDER 13 OF THE AMENDMENT OF KEC (PDS) CONTROL ORDER 2016 AND 2017 CANNOT BE MADE APPLICABLE TO THE CASE ON HAND AND ETC.,

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question an endorsement dated 21.01.2022, issued by respondent No.2 – the Joint Director of Food and Civil Supplies, whereby, a representation submitted by the petitioner seeking transfer of authorisation on compassionate ground, to run the Fair Price Depot, which was run by his late father, was turned down, on the ground that the father of the petitioner at the time of his

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death, was above 65 years. It is not in dispute that the authorization in favour of the father was subsisting at the time of his death.

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Heard Sri. Shivaramu H.C., learned counsel appearing for the petitioner, Smt. Rashmi Patel, HCGP appearing for the respondents and perused the materials on record.

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The learned counsel for the petitioner submits that the issue in lis stands covered by the judgment rendered by a Co-ordinate Bench of this Court in W.P.No.8586/2006 disposed on 21.11.2008, W.P.No.22448/2015 disposed on 21.09.2016 and W.P.No.17048/2021 disposed on 20.09.2021.

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(i) This Court in the case of R. GAYATHRI Vs. THE DEPUTY COMMISSIONER (FOOD AND CIVIL SUPPLIES) AND OTHERS¹

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has held as follows:

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"The petitioner's husband held a Kerosene Oil Hawker licence under the provisions of the Essential Commodities Licensing Order. 1986 valid upto 31.12.2003 and on his death on 8.9.2003, having made an application for transfer of the said licence, on compassionate ground in terms of the notification dated

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1 W.P.No.8586/2006 disposed on 21.11.2008

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3.12.1984, which when refused by order dated 4.5.2006 Annexure B, on the premise that the notification dated 12.8.2003 Annexure C prescribed minimum educational qualification of 10th standard, has presented this petition to quash Annexure B and to declare Annexure C as not applicable to the petitioner and the like, as also for a mandamus to respondents 1 and 2 to grant licence in petitioner's favour.

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2. The petition is opposed by filing statement objections dated 18.12.2006 of the respondent inter alia contending that on and after coming into force of the notification dated 12.8.2003 Annexure C issued under Karnataka Essential Commodities (Public Distribution System) Control Order, 1992, prescribing a pass in the 10th standard as eligibility to run a Fair Price Shop and as the petitioner's qualification was a pass in 9th standard falling short of eligibility criteria, the claim of the petitioner for grant of fresh authorization on compassionate ground was not acceptable and that the order impugned is well merited, fully justified and not calling for interference.

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Having heard the learned counsel for the parties, perused the pleadings and examined the order impugned, there is considerable force in the submission of the learned counsel for the petitioner that the notification Annexure C under Karnataka Essential Commodities (Public Distribution System) Control (Amendment) Order 2003 dated 12.8.2003 prescribing pass in 10th standard as eligibility to run Fair Price Shop in a particular area for the purpose of grant of authorization to open a fair price depot, is not applicable to the case of the petitioner since what was sought by the petitioner was a grant of fresh authorization to carry on business of retail vending of kerosene which her husband was carrying on in terms of Essential Commodities Order which did not prescribe any educational qualification. The State Govt. failed to notice that the Amendment Order 2003 Annexure C would have application to fresh candidates applying pursuant to a notification issued under CL(4) of PDS Control Order, 1992, fixing the eligibility as pass in 10th standard amongst other conditions. These conditions had no

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bearing on the claim of the petitioner for grant of fresh authorization on compassionate ground in terms of circular dated 21.7.1995. In that view of the matter, the order impugned is unsustainable and deserves to be quashed

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In the result, the petition is allowed in part. The order dated 4.5.2006 Annexure B is quashed and it is hereby declared that the notification dated 12.8.2003 Annexure C is not applicable to the case of the petitioner. A mandamus is issued directing the respondents 1 and 2 to consider the application of the petitioner afresh and to pass orders thereon in accordance with law, in any event, within a period of 30 days from the date of receipt of a certified copy of this order.

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(ii) This Court in the case of SMT. B.V. GANGARATHNAMMA Vs.

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THE DEPUTY COMMISSIONER (FOOD) AND OTHERS² , has held

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as follows:

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The petitioner is before this Court assailing the endorsement dated 17.01.2015 impugned at Annexure-G to the petition. The petitioner in that light is seeking issue of mandamus to direct respondents No.1 and 2 to transfer the authorization and licence in favour of the petitioner in terms of the order dated 25.07.2014 passed in W.P.No.33639/2014.

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2. The petitioner is claiming transfer of authorization for distribution of the Kerosene in Licence No.3/91 which had been issued to the husband of the petitioner. The husband of the petitioner died on 21.01.2014 and as such the petitioner had sought transfer of authorization on compassionate grounds. At the first instance, when the endorsement dated 28.05.2014 was issued to the petitioner rejecting her claim on the ground that she does not satisfy the educational criteria and inasmuch as she had not

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2 W.P.No.22448/2015 disposed on 21.09.2016

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completed her matriculation, the petitioner was before this Court in W.P.No.33639/2014. This Court by the order dated 25.07.2014 on taking note of the order dated 21.11.2008 passed in W.P.No.8586/2006 as also the order dated 24.04.2014 passed in W.P.No.18787/2014, had set aside the endorsement and directed that the application of the petitioner be reconsidered. On reconsideration the impugned endorsement dated 17.01.2015 is issued wherein the application is once again rejected by stating that the petitioner does not satisfy the educational criteria of having completed the VII standard. It is in that view the petitioner is before this Court seeking benefit of the earlier order passed by this Court.

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3. Learned Government Advocate would however point out that the issue that had arisen for consideration in W.P.No.33639/2014 was with regard to the insistence of matriculation qualification and not relating to the VII Standard. Hence, it is contended that the very benefit granted under the said order cannot be extended unless the petitioner satisfies the condition of completing the VII standard.

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4. Though such contention is put forth by the learned Government Advocate, what is necessary to be noticed is that this Court in the earlier order had relied on the order dated 21.11.2008 passed in W.P.No.8586/2006. What had arisen for consideration in the said petition is as to whether the minimum educational qualification prescribed for making application for grant of authorisation could be insisted upon in respect of the application filed seeking transfer of authorization on compassionate grounds. In that regard this Court had held that the educational qualification prescribed can only be insisted upon prospectively in respect of the fresh applications filed seeking authorization and cannot be made applicable to transfer of authorisation on compassionate grounds in respect of the authorisation which had been issued earlier.

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5. If that be the position, when an application is considered for transfer of authorization on

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compassionate grounds either insisting on the matriculation or the lesser educational qualification of VII standard would not be justified as otherwise the very purpose of considering an application for compassionate transfer would be defeated. Therefore the endorsement dated 17.01.2015 is quashed.

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6. A direction is issued to the first respondent to consider the application filed by the petitioner and transfer the authorization which stood in the name of the husband of the petitioner to the name of the petitioner as expeditiously as possible, but not later than eight weeks from the date on which a copy of this order is furnished.

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The petition stands disposed of accordingly.

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(iii) This Court in the case of HEMANTH KUMAR B O Vs. STATE

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OF KARNATAKA AND OTHER³ , has held as follows:

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The subject matter of this Writ Petition is substantially similar to the one in W.P.No.17131/2018 disposed off by a Co-ordinate Bench of this Court on 8.2.2019, copy whereof is at Annexure-F; at para Nos.9 & 10 of the order, said judgment reads as under:

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“From close scrutiny of the aforesaid paragraph, it is evident that in W.P.No.22448/2015 which was decided by an order dated 21.09.2016, it has been held that the requirement with regard to having passed SSLC and restriction of age is not applicable when the transfer of authorization is sought on compassionate ground. The aforesaid finding has admittedly attained finality and is binding on the respondents as they have not challenged the same either by filing a review petition or by filing a writ

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3 W.P.No.17048/2021 disposed on 20.09.2021.

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appeal. Therefore this Court finds no reason to take a different view.

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10. In the result, the impugned endorsement dated 23.03.2018 is hereby quashed and set aside and a direction is issued to respondent No.1 to take note of the application filed by the petitioner and to consider the same for transfer of the authorization on compassionate ground as expeditiously as possible, but not later than eight weeks from the date on which a copy of this order is furnished.”

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2. The Division Bench of this Court in W.A.Nos.932933/1974 between A.V.VINODA & ANOTHER Vs. STATE OF KARNATAKA BY ITS COMMISSIONER & SECRETARY disposed of on 11.12.1974, has held that the Court should treat likecases alike and if relief is granted to litigant, similar relief cannot be denied to other similarly circumstanced litigant as well, there being no derogatory circumstances.

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In the above circumstances, this Writ Petition is allowed; impugned endorsement dated 03.09.2021 at Annexure-B is quashed; second respondent is directed to consider the petitioner’s application without reference to age and qualification.

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Time for compliance is two months.

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No costs".

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In the light of the issue standing covered by the judgments rendered by a co-ordinate Benches ( supra ), I deem it appropriate to pass the following:

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WP No. 6347 of 2022

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ORDER

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i. The Writ petition is allowed.

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ii. The impugned endorsement dated 21.01.2022 issued by respondent No.2, bearing No.Food/FDP(1)/CR/26/2021-22, is quashed.

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iii. Respondent No.2 is directed to re-consider the application of the petitioner for transfer of authorization bearing in mind the observations made in the course of this order, within 12 weeks from the date receipt of a copy of this order.

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Sd/JUDGE

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NVJ

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List No.: 1 Sl No.: 53

Sandeep H R v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sandeep H R v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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