1. Heard learned counsel for the parties and perused the record on Board.
2. The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 12.03.2024 passed by the Sub Divisional Magistrate, Tehsil Swar, District Rampur (respondent no.3) whereby fair price shop has been allotted in favour of Radhey Asva Kalyan Swayam Sahayta Samooh (respondent no.4).
3. While entertaining the instant writ petition, this Court has passed the following order dated 01.04.2024 :-
"1. Learned counsel for the petitioner submits that Government Order dated 07.07.2020, on which basis allotment order for the fair price shop has been passed, is canceled by this court, therefore, allotment order is null and void.
2. Learned Standing Counsel contended that judgment by which Government Order was quashed is already stayed in the intra court appeal. It is further contended that allotment order of the fair price shop is appealable under Section 13(1) of U.P.E.C. (Regulation Sale and Distribution Control) Orders, 2016.
3. As prayed by learned counsel for the petitioner, put up this matter tomorrow i.e. 02.04.2024, as fresh.”
4. Today, despite the repeated query qua choice to avail an alternative remedy, learned counsel for the petitioner has pressed the merits of the instant writ petition as well as order dated 12.03.2024 passed by respondent no.3 and tried to point out several discrepancies in passing the order impugned, although he has admitted the contention as raised by learned Standing Counsel qua filing of Special Appeal pertains to G.O. dated 07.07.2020 and availability of an alternative remedy to file an appeal against the order dated 12.03.2024. He has submitted thet availability of alternative remedy does not creates a bar to approach before High Court in it’s writ jurisdiction u/a 226 of the Constitution of India in order to point out misuse of jurisdiction exercised by respondent No. 3.
5. In view of the peculiar facts and circumstances of the present case wherein learned counsel for the petitioner has tried to make out a case that respondent no.3 has committed apparent illegality and perversity in passing the order impugned dated 12.03.2024, and also in view of the factor that the petitioner has forwent his right to file an appeal, instant writ petition is being considered and decided on merits at admission stage with the consent of learned Standing Counsel for state respondent No. 1 to 3 and learned counsel for Village Panchayat (respondent No. 5) without calling for their counter affidavit and without putting notice to respondent No. 4, who is allottee of fair price shop.
6. Facts culled out from the record are that qua allotment of fair price shop in village Kheda Tanda, Tehsil Swar, District Rampur, village panchayat has convened a meeting dated 29.02.2024 wherein applications of five aspirants have been considered, however, application of respondent no.4 has been accepted, having been found it fit as per norms of the Government Order dated 07.07.2020. Resolution dated 29.02.2023 passed by the Gram Panchayat, whereby allotment of fair price shop has been proposed in favour of respondent no.4, has been accepted by Tehsil Level Committee in its’ meeting dated 12.03.2024 and the said resolution of the Committee has been accepted by the respondent no.3, vide it’s order dated 12.03.2024 (Annexure No.1), which is under challenge before this Court.
7. Learned counsel for the petitioner submits that the case of the present petitioner has not appropriately been considered by the Gaon Sabha while passing the resolution dated 29.02.2024. It is further submitted that Shobha Rani w/o Rakesh Kumar, who has been shown as Operator of the Self Help Group (respondent No.4) is not even a member of that group. In support of his submission he has filed the list of members downloaded from the website of National Rural Livelihoods Mission (Annexure-10). It is further submitted that priority has illegally been accorded to the opposite party whereas both the parties were standing on the equal footing. In support of his submission, he has cited the judgment dated 01.10.2021 passed by this Court in Special Appeal No.364 of 2021 (Maa Vaishno Self Help Group Gonda Through Member Laxmi Gautam vs. State of U.P. Through Principal Secretary, Food & Civil Supply, Lucknow & Others). It is next submitted that G.O. dated 07.07.2020, based on which fair price shop has been allotted, has already been annulled being Ultra Vires by order dated May 24, 2021 passed by co-ordinate bench of this court in bunch of writ petitions leading being Misc. Single No.- 16086 of 2020. The impugned allotment order dated 12.03.2024 is not sustainable in the eyes of law, therefore, same is liable to be quashed being cryptic and unwarranted under the law.
8. Per contra, learned Standing Counsel has vehemently opposed the submissions as advanced by learned counsel for the petitioner and contended that validity the Government Order dated 07.07.2020, which has been questioned by the present petitioner in light of the order dated 24.05.2021, is presently seized with in Special Appeal (D) No.249 of 2021. It is further contended that Gaon Sabha has passed resolution after considering the application of all the applicants, therefore, there is no illegality or perversity in the resolution dated 29.02.2024 passed by the Gaon Sabha. It is next contended that allotment has been made in favour of respondent no.4 as per directions issued under the Government Order dated 07.07.2020, therefore, there is no illegality in the same. It is also contended that list of members (Annexure-10) is of 2016, therefore, same cannot be considered in the present matter, while respondent no.4 has moved an application for allotment of fair price shop in the year 2024.
9. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that qua allotment of fair price shop in Gram Panchayat Kheda Tanda, total five applicants were participated which are mentioned as below :-
(a) Nisha w/o. Irfan Ali
(b) Fatma Swayam Sahayata Samuh
(c) 786 Ashv Kalyan Swayam Sahayata Samuh
(d) Raj Swayam Sahayata Samuh
(e) Radhey Ashv Kalyan Swayam Sahayata Samuh
10. In its’ meeting dated dated 29.2.2024, the Gram Panchayat has considered all the five applications. Application of Nisha (Petitioner herein) has been rejected being filed in her individual capacity. Application of Fatma Self Help Group has been rejected owing to it’s formation in July 2022. Application of 786 Ashv Self Help Group has been rejected as well, having been found it inactive as well as established in July, 2022. Application of Raj Self Help Group has been rejected on being inactive. However, application of Radhey Ashv Kalyan Self Help Group (respondent no.4) has been found valid for the purposes of allotment of fair price shop and, accordingly, resolution has been passed in its favour. The Tehsil Level Selection Committee, in its meeting dated 12.03.2024, has finalized name of respondent no.4 for allotment of fair price shop. Having considered the resolution dated 29.02.2024 and final decision of Tehsil Level Selection Committee dated 12.03.2024, Sub Divisional Magistrate has passed allotment order dated 12.03.2024. It appears that selection process for allotment of fair price shop has been finalized in light of the norms as enunciated under the Government Order dated 07.07.2020 and, accordingly, respondent no. 4 has been given priority. A Coordinate Bench of this Court, while deciding the batch of writ petitions leading being Writ Petition Misc. Single No.16086 of 2020 has held the Government Order dated 07.07.2020 ultra vires to Article 14 of the Constitution of India vide it’s order dated May 24, 2021. Having been aggrieved with the order dated 24.05.2021 passed by Co-ordinate Bench of this Court, State has preferred appeal being Special Appeal (D) No.249 of 2021. In the aforesaid Special Appeal, interim order dated 29.07.2021 has been passed by this Court staying the effort and operation of the order dated 24.05.2021. Thus, in the present scenario, “Self Help Group” are still being given priority while allotment of fair price shop by virtue of the Government Order dated 07.07.2020 which is still in existence and hold law of the land.
11. Next submission advanced by learned counsel for the petitioner, raising question qua existence of respondent no.4, is unfounded as well. Counsel for the petitioner has vehemently submitted that Shobha Rani is not a member of Self Help Group (respondent no.4 herein), therefore, she cannot be considered as Operator of the Group, thus, allotment made in favour of respondent No. 4 is illegal. In support of his submission, counsel for the petitioner has drawn attention of the Court towards the detail of respondent No. 4 (Annexure-10) which has allegedly been obtained from the website of National Rural Livelihoods Mission. Annexure-10 (Page nos. 69 and 70 of the paper-book) is blurred and difficult to ascertain names of members and details of respondent No. 4. However, perusal of page no.70 reveals that respondent no.4 has been shown to be established on 15.05.2016. Below the date of formation, there is a description of bank namely Prathma U.P. Gramin Bank. Next to the name of the bank, opening date of account has been shown to be 20.05.2016. Below the details of the bank, as mentioned above, name of members of respondent no.4 are mentioned, who are ten in number. Counsel for the petitioner has tried to demonstrate that name of Shobha Rani is not mentioned in the list of members. This Court note with utmost surprise that counsel for the petitioner has tried to question the eligibility of Self Help Group (respondent No.4) through it’s operator Shobha Rani on the basis of the document which relates to May, 2016, however, application for allotment of fair price shop has been moved by respondent no.4 through Shobha Rani in the year 2024. Order dated 12.03.2024 itself demonstrates that Shobha Rani is an educated lady (High School pass) and aged about more than 21 years. Her date of birth is 05.08.1997. Meaning thereby in the year 2016 she had not attained the age of 21 years and was not eligible to be a member of any Self Help Group. The petitioner does not come with the specific plea that there is no change in that list of members of respondent no.4 which was initially submitted at the time of its establishment i.e. dated 15.05.2016. Thus, the application moved by respondent no.4 cannot be held to be invalid on the basis of list of May, 2016.
12. This Court is unpersuaded by the next submission advanced by learned counsel for the petitioner as well qua giving undue favour and priority to respondent no.4, despite the fact that candidature of both the aspirants are on equal footing and respondent no.4 has no additional qualification to get preference. I am of the view that respondent No. 3 has not committed any illegality in allotment of fair price shop in favour of respondent no.4 who was at better footing amongst other candidates. Perusal of record reveals that four Self Help Groups have participated including one individual (present petitioner) and as per norms of the Government Order dated 07.07.2020, respondent no.4 has been given priority. By any stretch of imagination, the present petitioner cannot claim allotment of fair price shop under the Government Order dated 07.07.2020. The case of Maa Vaishno Self Help Group (Supra), as cited by learned counsel for the petitioner, does not support his submissions. In the cited case, the appellant and the contesting respondent no.7 were the Self Help Groups and, admittedly, respondent no.7 has obtained more votes than the appellant. In the cited case, Counsel for the appellant has submitted that both the aspirants were equally eligible. In this backdrop of submission, the Hon’ble Division Bench in the special appeal has observed that preference would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification had to be preferred. Relevant paragraph nos. 5 and 6 of the cited case are being quoted herein below :-
“5. Having considered the submissions of the learned counsel for the parties and perused the record, what is apparent is that in the open general meeting held for allotment of fair price shop the respondent no. 7 has obtained 295 votes viz-a-viz 184 votes obtained by the appellant. So far as the argument of learned counsel for appellant that in view of the Government Order dated 7.7.2020 and 11.8.2021 the appellant should have been given 'preference' in allotment of fair price shop is concerned, suffice it to state that the Apex Court in the case of UP State Road Transport Corporation and Another vs. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and others; 1995 (2) SCC 1 wherein while considering the case of apprentices and the order issued by the Government of India wherein the Government of India has desired that preference should be given to trained apprentices, Hon'ble the Supreme Court has held that it is only where other things are equal that the trained apprentice should be given preference over direct recruits. Likewise Hon'ble the Apex Court in the case of Secretary, Andhra Pradesh Public Service Commission vs Y. V. V. R. Srinivasulu & others reported in (2005) 5 SCC 341 and in the case of Secretary (Health), Department of Health and Family Welfare & others vs Anita Puri and others (1996) 6 SCC 282 has held that when a selection is to be made on the basis of merit, performance ete and possession of any additional qualification or factor is also envisaged to accord preference, the said preference cannot be for the purpose of putting a person as a whole lot ahead of others, de hors their intrinsic worth or proven inter se merit in as much as preference would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred.
6. Considering the aforesaid, it is apparent that the 'preference' is to be applied only when other things are equal. Admittedly the respondent no. 7 has obtained more votes than the appellant thus there is no question of grant of any preference to the appellant in such circumstances as the appellant and the respondent no. 7 cannot be said to be equally placed. Even otherwise, the Government Orders dated 7.7.2020 and 11.8.2021 do not supersede the earlier Government Orders in this regard.”
13. Having considered the facts of the cited case and the observations made by the Hon'ble Division Bench, I am of the view that facts of the both the cases are totally different. Present petitioner has moved the application in her individual capacity, however, respondent no.4 has moved application being a Self Help Group, therefore, priority has rightly been accorded to respondent no.4 in light of the guidelines embodied in the Government Order dated 07.07.2020.
14. In this conspectus, as above, I do not find any justifiable ground to entertain the instant writ petition and interfere in the allotment of fair price shop order dated 12.03.2024 passed by the respondent no.3. There is no illegality, perversity or irregularity in the order dated 12.03.2024 so as to warrant the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Nothing has been demonstrated as to how the present petitioner is prejudiced, or if there is any likelihood of causing miscarriage of justice to her, owing to allotment order dated 12.03.2024 passed in favour of respondent No. 4.
15. Resultantly, instant writ petition, being misconceived and devoid of merits, is dismissed with no order as to cost.
