Shabnam Kouser vs State J and K and Others

Mr. Justice J.P. Singh

The facts leading to the filing of this Writ Petition may be stated thus:-

Ms. Shabnam Kouser was engaged as Ration/Sugar Dealer for Centre Drah by Assistant Director, Food and Supplies Department, Rajouri vide

his Order No. FSR/1312- 13/FSR dated 23.3.2002. She sub-let her Dealership in April, 2004 to a relative, Khadim Hussain-respondent No. 5.

Documents including one indicated as Irrevocable Power of Attorney were executed by her in this behalf transferring all rights in the Dealership in

favour of the respondent.

Respondent No. 5 was, thereafter appointed as Ration/Sugar Dealer, on temporary basis, vide Assistant Director, CA&PD, Rajouri's No.

979-81/CAPD dated 19.5.2006, in place of the petitioner, who had left the job due to domestic problems.

The petitioner's case in the Writ Petition is that respondent No. 5 s order was not put into execution and it was she alone, who was functioning

as Ration Dealer at Draha. On refusal of the State-respondents to supply her Ration, which the Department is stated to have started supplying to

respondent No.5, she approached this Court urging that she received Ration up to December, 2008, but the respondents discontinued supplying

her ration for its distribution to people of the area, without any justification. Respondent No. 5 contests the petitioner's Writ Petition saying that

right from the beginning, it was he who was discharging the functions of Ration/Sugar Dealer at Draha because the petitioner, being a female, was

unable to act as Dealer additionally because of her domestic problems and that having been formally appointed as Ration/Sugar Dealer in the year

2006, he is entitled to continue his Dealership for supplying Ration/Sugar to public at Draha.

Respondent No. 5 too had approached this Court by his Writ Petition OWP No. 14/2010 seeking quashing of Directorate of Consumer Affairs

and Public Distribution Department's Communication No. DCAJ/FPS-33/Rajouri/1603 dated 23.12.2009, whereby the Assistant Director was

informed to cancel his temporary engagement as the order issued in the year 2006 did not appear to have been implemented.

Khadim Hussain's Writ Petition was, however, dismissed in default of appearance on 11.07.2011. By her Writ Petition, the petitioner seeks

quashing of Assistant Director, CA&PD Department, Rajouri's No. 979- 81/CAPD dated 19.5.2006, and issuance of directions to the State-

respondents to allow her to continue as Ration/Sugar Dealer.

I have considered the submissions of learned counsel for the parties advanced at the time of hearing of the Petition. The petitioner's plea

projected to nullify the effect of her admission that she had sublet the Dealership to respondent No.5, saying that the respondent had got the

documents executed from her playing foul, is purely factual in nature, which can be considered, only if, evidence was led by the parties for and

against it, which course may not be permissible in exercise of the Court's Extra Ordinary Civil Writ Jurisdiction. However, even otherwise, there

does not appear prima facie merit in the petitioner's plea that taking advantage of her position as female, respondent No. 5 had got the documents

executed from her, in view of her candid admission in Paragraph No. 7 of the Writ Petition that she had sublet the Dealership to respondent No. 5

for some period. One of the documents executed by the petitioner, authorizing respondent No. 5 to work as Ration/Sugar Dealer at Draha, is a

registered document, which carries presumption of authenticity. Petitioner's plea that the document was later revoked and she had not consented to

respondent No. 5's running the Dealership, may not, therefore, be germane for disposal of the Writ Petition because the plea projected, otherwise

strengthens and supports her admission to have sublet the Dealership executing documents in this behalf which include a registered document too.

Petitioner's admission that she had sublet Dealership to her relation Khadim Hussain-respondent No. 5, is sufficient enough to disentitle her to

continue as Dealer even if one were to proceed on the premise that her engagement having not been cancelled by the Competent Authority,

appointment of respondent No.5 as Temporary Dealer in her place was unjustified. This is so because having admitted to have sublet the

Dealership, which, in view of the norms, she could not otherwise so do because permission to operate the Ration Dealership, being purely personal

to her, she has no right to invoke the equitable Writ Jurisdiction of the Court to seek her continuance as Ration Dealer at Draha which she had,

violating the prescribed norms, sublet to Khadim Hussain, who appears to have been getting Ration from the Department, for its supply to public

under the Public Distribution System, in view of the tacit permission of the petitioner to work in her place.

Petitioner's subletting Ration/Sugar Dealership to respondent No. 5 would not, however, confer any benefit on respondent No. 5 to perpetuate

his continuance as Dealer because he had obtained it initially pursuant to an illegal agreement between him and the petitioner without express

consent and approval of the Department.

The State-respondents are, therefore, required to follow the laid down procedure for appointment of a new Ration/Sugar Dealer at Draha.

The petitioner's Writ Petition does not call for issuance of any directions to the respondents for her continuance as Ration/Sugar Dealer at

Draha.

Therefore, while dismissing the petitioner's Writ Petition, the State-respondents are directed to initiate process for engagement of Ration/Sugar

Dealer at Draha. However, in the circumstances and to see that public of the area does not suffer because of the non-supply of Ration, it is

provided that until finalization of process for engagement of a new Ration/ Sugar Dealer for Draha, respondent No. 5 be permitted to work as

Ration/Sugar Dealer purely as a temporary measure.