Kusum Devi vs State of U.P.and Others

Arun Tandon, J.

This writ petition is directed against an order of the Commissioner dated 23.04.2008 passed in Appeal No. 02 of 200708. Facts in short are as follows :

Petitioner before this Court was a fair price shop agent of village Badhev Kannoo Khera, Block Kairana, Tehsil Shamli, District Muzaffar Nagar.

Under an order dated 28.06.2007 passed by the Sub Divisional Magistrate, his agency has been placed under suspension. Petitioner filed Appeal No. 66 of 200607 against the said order. While the Appeal was pending the agency of the petitioner was terminated under an order dated 31.07.2007.

Against the cancellation of his agency he filed another Appeal before the Commissioner being Appeal No. 01 of 200708. Appeal No. 66 of 200607 has been dismissed under an order dated 02.01.2008 and on the same date Appeal No. 01 of 200708 filed by the petitioner was partly allowed and the matter was remanded to the Sub Divisional Magistrate after setting aside the order dated 31.07.2007 for fresh orders, in accordance with law. It appears that while the aforesaid appeals were pending before the Commissioner, respondent no. 4 was appointed as fair price shop agent of the shop in question. The petitioner, therefore, filed another Appeal No. 02 of 200708 seeking quashing of the orders dated 06.09.2007 whereby the respondent no. 4 was appointed as fair price shop agent. The Commissioner has dismissed this Appeal after observing that since the order of cancellation of the agency of the writ petitioner dated 31.07.2007 has already been set aside in Appeal No. 01 of 200708, there remains nothing to examine in Appeal No. 02 of 200708 inasmuch as with the setting aside of the order of cancellation qua the shop of the writ petitioner, there ceases to be a vacancy against which respondent no. 4 could continue.

In my opinion the order passed by the Commissioner is legally justified. The appointment of respondent no. 4 was contingent upon the outcome of the Appeal No. 01 of 200708 filed by the writ petitioner. Since the Appeal was allowed and the order of cancellation was quashed, there ceases to be any vacancy against which respondent no. 4 could continue and, therefore, the Commissioner has rightly dismissed the Appeal.

At this stage counsel for the petitioner points out that after remand the Sub Divisional Magistrate has again cancelled his fair price shop agency and against the said order, he has filed a fresh appeal before the Commissioner. In such circumstances if any cause survives, the petitioner is at liberty to seek his remedy in the pending appeal.

Writ petition is dismissed with the aforesaid observations.