Hon'ble Vivek Kumar Birla,J.
Heard Sri Mohan Lal Pandey learned counsel for the petitioner.
The petitioner is physically challenged and is under the schedule caste category. He contends that earlier the shop was allotted under the said category to a person who unfortunately died. Now the Sub Divisional Magistrate has passed an order on 21.6.2014 which is impugned herein extending the benefit of compassionate license to the respondent no. 6 who is the son of the late license holder.
The contention of Sri Mohan Lal Pandey is that the respondent no. 6 does not belong to the physically challenged category and according to the Government Order dated 17.8.2002 the shop which is meant for such category cannot be allotted to any other category. He submits that after the death of the earlier licensee the status of the shop continues to be that of the physically challenged category and accordingly the respondent no. 6 is not entitled on compassionate basis to get the said license.
The second ground of challenge is that this compassionate allotment in favour of the respondent no. 6 has been made without following the procedure prescribed for allotment and without placing it before the open meeting of the Gaon Sabha as well as the other formalities which are required to be completed including the assessment of the goodwill and reputation of the erstwhile license holder.
Having considered the aforesaid submissions raised, it is by now settled that whenever a compassionate claim is considered on the basis of the death of the earlier incumbent, then such consideration is not hit by Article 14 of the Constitution of India.
In the instant case, the respondent no. 6 may himself not be the candidate of the physically challenged category yet he is the son of a person who had been allotted in the same category and died during the running of the license shop.
In our considered opinion, the argument of the learned counsel for the petitioner cannot be accepted on this score for the reason that the claim of the respondent no. 6 arises out of the class of compassionate claims which is a separate class under the Government Order. This in no way takes away the rights of any other reserved category inasmuch as such a category is not capable of being compared with other categories of reservation.
The second contention of the learned counsel for the the petitioner however requires a consideration, the reason being that such allotment has to be made only in the open meeting of the Gaon Sabha and on the basis of the criteria that has been laid down in the Government Orders and that has been discussed in detail by us in a recent Division Bench judgment in the case of Shiv Kumar Vs. Up-Ziladhiari Chakia District Chandauli and others in Writ Petition No. 40973 of 2014 decided on 20.8.2014.
Consequently, we dispose of this writ petition with liberty to the petitioner to approach the Sub Divisional Magistrate who shall examine the said grievance of the petitioner himself after putting the respondent no. 6 to notice and pass an appropriate order in the light of the judgment referred to hereinabove within a period of three months' from the date of production of a certified copy of this order before him.
Order Date :- 1.9.2014 Lalit Shukla