Laxmanbhai Ramswarup Agrawal vs The State of Gujarat and Others

C.K. Buch, J.—Heard Shri B.S. Brahmbhatt, learned Counsel appearing for the petitioner; Ms.D.S. Pandit, learned Assistant Government Pleader, appearing on behalf of the respondent-State and Shri N.C. Thakkar, learned Counsel appearing for the respondent No. 3.

Invoking jurisdiction of this Court under Articles 226 of the Constitution of India, the petitioner has prayed for issuance of appropriate writ, order or direction, quashing and setting aside the order dated 14th August 2006 passed by the respondent No. 1 in favour of the respondent No. 3 herein; and for upholding the order granting licence to run the fair price shop passed in favour of the petitioner; mainly in terms of Clause (B) of paragraph No. 9 of the petition. For the sake of brevity and convenience, the said relief Clause (B) reads as under:

(B) Your Lordship be pleased to issue appropriate writ, order or direction which the Hon''ble Court may deem fit and be pleased to quash and set aside the impugned order passed by the Res. No. 1 dtd.14.8.2006.

It is the say of the petitioner that the respondent No. 1-State has decided to issue licence to run fair price shop under the scheme of ''Pandit Dindayal Grahak Bhandar'' in the Chandkheda area of Ahmedabad. In pursuance of the same, an advertisement was also published in the daily newspaper ''Gandhinagar Samachar'' and about seven candidates have applied for obtaining licence to run the said fair price shop. Ultimately, after scrutiny, the respondent No. 2-Collector found that the petitioner is entitled to be given licence to run the fair price shop under the said scheme. The said order passed by the respondent No. 2 was challenged by the respondent No. 3 herein by way of an appeal before the respondent No. 1 i.e. the Appellate Authority; and the respondent No. 1 ultimately allowed the appeal and decided that the respondent No. 3 is more meritorious and entitled for licence to run the fair price shop. The respondent No. 1 ultimately reversed the order passed by the respondent No. 2 granting licence to the petitioner.

Indisputably, there is a policy of the Government and there are amendments in the said policy floated by the Government with a view to provide some subsidiary employment to the educated unemployed youth of the State. Besides various criteria, one of the criteria is of merits of a candidate who comes forward to have such licence. Each candidate was supposed to give details about his educational qualification along with other details. The main controversy brought before the Court by the petitioner is that the respondent No. 3 had failed in mentioning his educational qualification in the initial application form and he had shown that he has passed Std.XII i.e. Higher Secondary Certificate Examination and the petitioner has mentioned that he has studied upto Second Year B.A.; meaning thereby, he had proceeded with further studies after clearing his Std.XII examination and cleared First Year B.A. Examination of the three years'' decree course. The say of the respondent No. 3 before the respondent No. 1 was that he is more qualified and, therefore, the licence ought to have been issued to him and he had committed some error in giving details about his educational qualification. There is some logic in the submissions made on behalf of the respondent No. 3 that in a three years'' Degree Course if a candidate clears the First and Second years, it cannot be said to be a qualification because on clearance of examinations Certificate courses like Secondary Certificate Examination (Std.X), Higher Secondary Certificate Examination (Std.XII), any Degree or Diploma Certificate Examination or any such Certificate Course only, one can say it to be a particular qualification. Therefore, it was brought to the notice of the authority and by accepting the said submission, the authority realised that on a given date the respondent No. 3 was more qualified. According to respondent No. 3, there is a controversy on the point as to the local residency of the petitioner, but the authority has considered the criterion of educational qualification while allowing the appeal.

I have heard Ms.D.S. Pandit, learned Assistant Government Pleader. In response to the query raised by the Court, she has submitted that the finding recorded by the respondent No. 1 cannot be said to be illegal, perverse or based on incorrect appreciation of facts. The finding recorded by the respondent No. 1 is in accordance with the policy framed by the Government and there is no need to invoke extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India.

The grievance of the petitioner is that the respondent No. 3 could not have been given any advantage as he is the person who committed the mistake in mentioning his educational qualification. But for such a mistake, the petitioner is deprived of his rights to continue with licence to run the fair price shop granted to him for which he had spent handsome amount by paying fees, etc. One document suggests that the petitioner had paid the amount of Rs. 5,000/- in the Government treasury to obtain licence to run fair price shop and he ought not to have been deprived of the said licence by the respondent No. 1. It is also the grievance of the petitioner that the appeal preferred by the respondent No. 3 before the respondent No. 1 was kept pending by the respondent No. 1 for long time, but after service of the notice when the petitioner prayed for some time, intimating the petitioner about fixing the date of hearing, the respondent No. 1 had neither cared to grant that relief nor the petitioner was provided with memo of the appeal along with annexures. On 10th August 2007, the petitioner was called and on 14th August 2007, the impugned order came to be passed. No such hurry was required when the appeal had remained pending since long.

True it is that the impugned order is passed immediately after hearing the respondent No. 2-authority. When the matter had remained pending for long with the quasi-judicial authority or the administrative authority i.e. respondent No. 1, who is supposed to take decision objectively, then such decisions should be scrutinized closely. It is difficult for this Court to say that no opportunity of hearing was given to the petitioner. Ultimately, the petitioner could have satisfied this Court that non-according of opportunity of being heard has resulted into serious prejudice to the petitioner. Ultimately, the decision is taken in accordance with the policy framed by the Government and the respondent No. 1 was satisfied that the respondent No. 3 is more meritorious. It was unfortunate that the appeal remained pending for long and on the contrary, when the officer has realised that some injustice is done to a genuine party, he can give his verdict as expeditiously as possible. Therefore only, when this matter was listed for final hearing on 04th February 2008, with a view to do substantive justice and with a view to prevent injustice as alleged by the petitioner, the Court has passed the following order:

After some deliberations on behalf of the petitioner, the respondent-authority shall see that the proceedings drawn by the Taluka Civil Supply Advisory Committee who recommended the names chronologically to the District Civil Supply Advisory Committee, are brought before this Court on the next date of hearing.

In the same way, the respondent No. 3 is directed to tender his marksheet of Second Year B.Com. because it is mentioned that he had cleared Second Year B.Com. examination in the year 1994.

The crucial question before this Court is as to who is more meritorious amongst the said three candidates because the Appellate Authority has decided that the respondent No. 3 herein is having better qualification than the present petitioner. Therefore, the aforesaid two documents would be very relevant in deciding the present petition.

So in the interest of justice, the matter is adjourned to 19th February 2008. To be listed in the First Board.

So in view of the aforesaid, the Court could not undertake the hearing of the matter finally on 19th February 2008 as the advocates appearing for the parties had not remained present. Today both the learned Counsel appearing for the parties are present in the Court and one xerox copy of the marksheet dated 15th December 1994 issued by the Saurashtra University is submitted for perusal of the Court on behalf of the learned Counsel appearing for the respondent No. 3, stating that the respondent No. 3 has cleared Second Year B.Com. Examination with Special Advanced Accountancy/Audit. So indisputably, the respondent No. 1 was right in saying that the respondent No. 3 is more meritorious and therefore, the licence ought to have been given to him. The fact that the petitioner has the status of a licensee, was an advantageous situation for him but the same would not put him on a higher or better padestal. Shri Brahmbhatt, learned Counsel appearing for the petitioner, has indirectly accepted that the case of the petitioner is mainly based on the fact that the respondent No. 3 i.e. the appellant before the respondent No. 1 is the person who has committed mistake in furnishing the details. It may not be a case of suppression on the part of the respondent No. 3, but the fact remains that the respondent No. 2 at the relevant point of time was right in granting licence to the petitioner as the petitioner was found more meritorious than the respondent No. 3. This argument is not found sufficient to invoke constitutional jurisdiction vested in the Court. It is not a case of justice hurried means justice buried. On the contrary, the expeditious justice given by the respondent No. 1 in the appeal preferred by the respondent No. 3 is found to be a decision which ought to have been delivered much earlier. It is very likely that because of the workload and other administrative contingencies, the competent officer might not have dealt with such appeals filed before the respondent No. 1-Appellate Authority.

So far as the question of reasonable opportunity of being heard is concerned, this Court can give reasonable opportunity of hearing to the petitioner and the petitioner can satisfy the Court. As some detailed scrutiny was required to ascertain the correct factual position, the matter was adjourned to 04th February 2008. In all cases, it is not necessary to remand the matter to the respondent No. 1-Appellant Authority when the Court is satisfied that no injustice can be said to have been done to the petitioner and the finding recorded by the respondent No. 1 is found in accordance with the policy framed by the Government. There is no need to reverse such a finding, on the contrary, it would be nothing but an undue inference in the administrative decision taken objectively. While admitting this petition, no interim relief was granted to the petitioner and, therefore, at present the respondent No. 3 is running the fair price shop in pursuance of the licence granted to him. Any adverse finding on the contrary would prejudice the respondent No. 3, who has rightly been selected by the respondent No. 1.

In view of aforesaid observations and discussion, I do not find any merit in this petition and hence, the same is hereby dismissed. The order dated 14th August 2006 passed by the respondent No. 1 in favour of the respondent No. 3 is hereby upheld. Rule is discharged with no order as to costs.