Court No. - 10
Case :- WRIT - C No. - 14217 of 2019 Petitioner :- Meera Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Juned Alam Counsel for Respondent :- C.S.C.,Mahendra Singh,Tariq Maqbool Khan
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the State respondents and Sri Mahendra Singh, learned counsel appearing for the private contesting respondent. Sri T.M. Khan has accepted notice for the Gram Panchayat.
Present writ petition has been filed seeking quashing of the impugned orders dated 31.12.2016 and 10.12.2018 passed by the respondent no. 3. A further prayer in the nature of mandamus commanding the respondent no. 3, the Sub-Divisional Magistrate, Tamkuhiraj to pass fresh order in accordance with law and make selection of fair price dealer of Village Panchayat Patherwan, Tehsil Tamkuhiraj, district Kushinagar after adopt due process of law.
The facts of the case have been fully taken care of in the judgment dated 4.7.2017 passed in Writ C No. 21012 of 2017, Meera Vs. State of U.P. and 4 others, which is quoted as under:-
"The instructions supplied today are taken on record. Heard learned counsel for the parties.
By means of the present writ petition, the petitioner is challenging the order dated 29.10.2016 passed by the Sub-Divisional Officer, Tehsil Tamkuhiraj, Kushi Nagar. The dispute being raised by the petitioner is with regard to the allotment of fair price shop agency for the Gram Panchayat Pateherwan, Tehsil Tamkuhiraj, District Kushi Nagar.
The contention of the petitioner is that the said shop has been reserved for scheduled caste category candidate as per the reservation list issued by the District Magistrate. A list of reservation position of the year 2015 has been filed as Annexure '2' to the writ petition.
A proposal was passed in favour of the petitioner on 27.5.2016 which was placed before the competent authority for approval. When no decision was taken, the petitioner has moved this Court in Writ Petition No. 32160 of 2016 (Meera vs. State of U.P. and others) which was decided on 18.7.2016 with the direction to decide the application of the petitioner dated 20.6.2016 for approval of proposal of Gram Panchayat dated 27.5.2016. Pursuant thereto, the order dated 29th October, 2016 has been passed whereby the claim of the petitioner has been rejected on the ground that the shop in question was reserved for female candidates i.e. the category to which the Gram Pradhan belongs.
This order is challenged by the petitioner on the ground that there was reservation of the shop in question for scheduled caste category. Previous dealer was of the said category and after vacation of the shop by him, it ought to have been reserved for a candidate belonging to the scheduled caste.
This submission of learned counsel is repelled by learned Standing Counsel on the basis of instructions supplied today.
A perusal thereof indicates that vide letter dated 14.1.2016, a direction was given to fill up all the vacancies of fair price shop including that of Village Pateherwan. By another letter dated 18.5.2016, the District Magistrate, Kushi Nagar has directed the Sub-Divisional Officers to fill up five backlog vacancies of scheduled caste category and one of blind person.
Out of total vacant shops in 90 Gram Panchayats, 7 have been reserved for scheduled caste category. The shop vacant in village Pateherwan has not been reserved for scheduled caste category as is clear from the letter dated 18.5.2015 written by the District Magistrate to the Sub-Divisional Officer.
So far as the selection of the petitioner is concerned, it was done in the meeting held on 27.5.2016. After the instructions issued by the District Magistrate on 18.5.2016, there was no occasion for notifying the vacancy for scheduled caste category. The selection of the petitioner under the scheduled caste category was under a wrong notification and, therefore, was rightly not approved by the competent authority. It appears that thereafter, the shop has been notified for filling up the vacancy in accordance with the directions of the District Magistrate and one Smt. Maya Devi wife of Krishna Kumar has been selected. The proposal of the Gram Panchayat passed in her favour has been approved and the allotment letter has been issued.
The appointment of Smt. Maya Devi wife of Krishna Kumar has been made after fresh notification. The said appointment is not under challenge in the present writ petition. Though there is a prayer for cancellation of allotment made in her favour, Smt. Maya Devi is also not party to this petition.
In view of the above fact, no interference is required. The writ petition is dismissed."
It is only after remand by the Commissioner the impugned order dated 10.12.2018 has been passed.
I have heard learned counsel for the parties for some time.
It is not in dispute that against the order dated 10.12.2018 the petitioner has a statutory remedy by way of filing appeal before the Commissioner. As such, I am not inclined to entertain the present writ petition. The petitioner has approached this Court on the earlier occasion also.
Be that as it may, the present writ petition stands dismissed on the ground of availability of alternative remedy.
At this stage, learned counsel for the petitioner pointed out that by now the appeal may be time barred.
Under such circumstances, it is provided that in case an appeal is filed within a period of 15 days from today, the same shall be entertained by the appellate authority, strictly in accordance with law, on its own merit, without taking any objection with regard to delay.
It is expected that the appeal shall be decided by the appellate authority within the time as already provided under the law.
No costs.
Order Date :- 27.11.2019 p.s.