Mahendra Kumar vs State of U.P.and Others

The petitioner, a Scheduled Caste, challenges the order passed by the SubDivisional Magistrate, Unnao dated 6.11.2007 by means of which the opposite party No.5 has been appointed as a dealer of fair price shop.

Assailing the aforesaid order the learned counsel for the petitioner submitted that since the Pradhan Ram Kishan of the Gram Sabha, where the shop is situated, belongs to Scheduled Caste category, therefore, the said shop will be treated as reserved for Scheduled Caste candidate and the petitioner being a Scheduled Caste is entitled to be considered to appointment whereas the opposite party No.5 who has been selected and appointed as a dealer belongs to other backward class.

In support of the aforesaid submission, the learned counsel relies upon the order issued by the SubDivisional Magistrate on 25th October 2007 to the Block Development Officers of different tehsils of District Unnao intimating the reserved areas of Gram Sabha where the shops were to be allotted to the persons belonging to the reserved categories shown therein. The petitioner''s submission is that the shop in question was a vacant shop falling in Scheduled Caste category, therefore, no other person could be appointed who does not belong to Scheduled Caste category.

At the outset, it may be stated that the order dated 25th October 2007 isued by the Sub Divisional Magistrate to the Block Development Officer of different blocks on the basis of which the petitioner raises his claim and claims that the vacancy in question has to be filled in, only by a Scheduled Caste candidate, was subsequently withdrawn by the Sub Divisional Magistrate himself vide order dated 14.11.2007 (contained as Annexure No.3) to the counter affidavit and consequently the meeting directed to be held on 26th November 2007 for selecting a Scheduled Caste candidate, was cancelled.

The petitioner does not dispute the aforesaid facts.

The moot question in this petition is regarding the applicability of reservation order issued by the Government on 17th August 2002 with respect to the allotment of fair price shop to different categories falling in the reserved category. The Government Order dated 17th August 2002 applies reservation to the fair price shops in the matter of their allotment i.e. Scheduled Caste 21%, Scheduled Tribes 2% and other Backward Class 27%.

In what manner the shops would be identified for the purpose of extending the benefit of reservation, the aforesaid Government Order in clause (4) provides as under:

The identification of the vacancies for the purpose of extending the benefit of reservation, thus, requires that the shops be identified, if they are vacant for the purpose, in the same manner in which reservation is applied, in the matter of reservation with respect to the office of the Pradhan in the Gram Sabha. Sub clause (1) of aforesaid clause 4 says that in the descending order of population the reservation policy would be applied in the same manner as it is done for the election of the Gram Pradhan under the Panchayati Raj system.

The identification is to be done on the basis of descending order of population i.e. the number of persons belonging to one reserved category in the Gram Sabha is the basis for determination and identification of a particular shop/vacancies for reservation. It also says that the reservation shall not exceed 50%.

In clause 3(Ka) of clause9 it is said that in an unreserved Gram Sabha, any person belonging to any class after fulfilling the necessary conditions/formalities can apply for allotment of fair price shop.

Needless to mention that there is no reservation of general category nor there can be any reservation for general category. Reservation is only for reserved categories and in the reserved category, a general person cannot apply nor will be eligible for the allotment but for any shop/vacancy which is open for being filled in by a general category person i.e. which is unreserved, any person belonging to any caste/class may be Scheduled Caste, Scheduled Tribe or other Backward Class can still apply and they would be entitled for being considered as if they do not belong to their category but in accordance with the rules, applicable in unreserved vacancy.

In the instant case it appears that the constituency in question namely the Gram Sabha is an unreserved Gram Sabha but the Pradhan elected in the Gram Sabha is Scheduled Caste. The fact that the Gram Sabha is unreserved Gram Sabha is evident by the list said to have been issued from the office of the District Magistrate for reservation of the Gram Sabha in the election of Gram Pradhan, in which the Gram Sabha in question has been shown under unreserved category. That being so, any person who was interested in contesting the election of Pradhan in this unreserved category of Gram Sabha was entitled to file nomination, if he was otherwise eligible. As a consequence thereof the Gram Sabha being unreserved Gram Sabha, the present Pradhan contested the election, though he was Scheduled Caste and fortunately he succeeded in the election.

Mere caste of the elected Pradhan to which he belongs does not and cannot form the basis of identifying the vacancy of the fair price shop of its category, unless it falls within the reserved category as per the criteria laid down in the Government Order dated 17th August 2002, but if it falls within unreserved category as per the criteria given therein, then it cannot be treated to be under any reserved cateory irrespective of the fact as to which caste the Gram Pradhan belongs. Reservation has not been provided on the basis of caste of Pradhan but has to be done on the basis of population that too in descending order.

The determination of vacancy namely identifying the shops/vacancies where the persons belonging to reserved category could be appointed as dealer is, thus, to be done strictly in accordance with the Government Order dated 17th August 2002.

The petitioner''s contention that because the Pradhan of the Gram Sabha is a Scheduled Caste, therefore, the shop in question should go to the Scheduled Caste candidate, if there being a vacancy, is not in consonance of the Government Order which provides reservation.

We are of the considered opinion that the Gram Sabha in question being an unreserved constituency, election of Schedule Caste candidate as a Pradhan would not change the category of the shop, and even if, there is vacancy that cannot be filled in exclusively by Scheduled Caste candidate. The selection has to be made from open market where all persons including the one, belonging to any such category, may be Scheduled Caste, Scheduled Tribe, other Backward Caste were eligible to apply, if they were otherwise eligible for having the dealer ship in view of the findings aforesaid.

We do not find any illegality in the allotment of the shop in favour of opposite party No.5 nor in any action of the Sub Divisional Magistrate in cancelling the meeting scheduled to be held on 26th November 2007 for selecting the candidate belonging to Scheduled Caste category.

So far the grievance of the petitioner that the selection of the opposite party No.5 has not been done in the open meeting of the Gram Sabha, we leave it open to the SubDivisional Magistrate to consider this plea of the petitioner, if the petitioner approaches the Sub Divisional Magistrate, by moving any appropriate application.

We, therefore find no merit in the wirt petition. The petition is dismissed. The interim order dated 3.12.2007 stands discharged and the opposite party No.5 shall be allowed to continue as dealer of fair price shop subject to administrative control of the authority concerned and subject to any order being passed on the representation of the petitioner.

(Petition dismissed)