THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.22629 of 2007 Dated: 28th January, 2008 Between :- Jatothu Praveen .. Petitioner And The Collector (Civil Supplies) Warangal District, Warangal And 3 others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.22629 of 2007 ORDER:- This Court issued rule nisi on 26-10-2007 and granted interim suspension for a limited period which is being extended from time to time. 2. The Writ Petition is filed for a Writ of Certiorari calling for the records relating to the impugned proceedings in Appeal No.26/2007 dated 13-9-2007 issued by the 1st respondent and proceedings in Rc.No.1/220/2007 dt.24- 9-2007 passed by the 2nd respondent and quash the same as illegal, without jurisdiction, violative of Articles 14 of the Constitution of India, principles of natural justice and consequently direct the respondents to continue the petitioner as Fair Price Shop Dealer for shop No.1 of chinnavangara village, Thorrur Mandal, Warangal District and pass such other suitable orders. 3. 4th respondent filed W.V.M.P.No.3077/2007. 4. Sri Laxma Reddy, the learned Counsel representing the Writ Petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and would maintain that in the facts and circumstances, the Writ Petition to be allowed. 5. Mr.Srinivasa Rao, the learned Counsel representing 4th respondent – Vacate petitioner would maintain that subsequent to the impugned order, yet another final order was made on 1-10-2007 and the same is placed before this Court. The learned Counsel had taken this Court through the contents of the counter affidavit and would submit that in the facts and circumstances, the Writ Petition to be dismissed, since in a way the same became infructuous. 6. It is stated in the affidavit filed in support of the Writ Petition that the respondents have called for the applications from the eligible candidates in terms of paragraph 3(1) of the A.P.Scheduled Commodities (regulation of Distribution by Card System) Order, 1973 (hereinafter referred to as ‘the Order’ for the purpose of convenience), to fill up the vacancy of Fair Price Shop Dealership of shop No.1 of their village Chinnavangara vide notification dated 7-7-2007 and that the petitioner had applied for the said post and the petitioner was called for to appear the interview on 28-7-2007vide Call Letter dated 26-7-2007 and that he had appeared for the interview and the 2nd respondent had selected him vide appointment Proc.No.C/220/2207 dt.3-9-2007 and directed him to submit Form No.I duly filed along with a chalan of Rs.500/- and an amount of Rs.3,000/- towards Trade Deposit. It is also stated that the petitioner had submitted the Form No.I under Rule 3(5) duly enclosing challan as well as demand draft for Rs.500/- and Rs.3,000/- respectively on 5-9-2007 and that the respondents have issued supply of commodities for the month of September, 2007 vide R.O.No.27954 dt.30-9-2007 pending issue of authorization in Form No.II and the petitioner had distributed the commodities for the month of September, 2007. It is also stated that while that being so, for the month of October, 2007, the respondents have refused to issue the supply of commodities to the petitioner and they allowed the 4th respondent to lift the commodities and that when he enquired from the Office, the petitioner came to know that the 1st respondent had stayed the orders of the 2nd respondent dt.3-9-2007 appointing the petitioner as Fair Price Shop Dealer in an appeal petition said to have been filed by the 4th respondent vide the impugned proceedings in Appeal No.26/2007 dt.13-9-2007. It is also stated that from the proceedings dt.13-9-2007 it was cleared that the petitioner was not made a party to the said proceedings and no notice or opportunity was directed to him before passing the impugned order. On the basis of the said order of 1st respondent dt.13-9-2007 the 2nd respondent has issued further proceedings in Rc.No.I/200/2007 dt.24-9-2007 directing the 3rd respondent to release the essential commodities in favour of 4th respondent and also stated that that the action of the 1st and 2nd respondents in stopping the supply of commodities to the petitioner and directing release to the 4th respondent is totally illegal, without jurisdiction. It is also stated that the respondent No.1 has no power to entertain an appeal under Clause 17 of the Order without making the petitioner as party to the said appeal or to pass any orders adverse to him without notice or opportunity and therefore the impugned order is contrary to law and without jurisdiction. It is also stated that the respondents ought to have seen that mere admission in to Engineering College as a student by itself is not a dis- qualification under clause 3(1) of the Order and further the petitioner being an S.T. and handicapped had to support himself by staying at village for the purpose of distribution of the commodities and the respondents ought to have seen that the 4th respondent is also similarly situated having been admitted to a Graduate course in a college at Thorrur and as such the impugned order only on the ground of admission of petitioner into Engineering College is totally illegal, without jurisdiction. Further it is stated that the respondents ought to have seen that before passing the impugned order they ought to have given the opportunity of hearing to the petitioner so as to exercise his option to discontinue the studies to continue as Fair Price Shop Dealership though such a disqualification was not prescribed under the Rules. Even otherwise, the impugned order directing release of commodities in favour of the 4th as long as the order of appointment in favour of the petitioner has not been cancelled and further the 4th respondent is not appointed in the said place by due process of selection and therefore, the impugned order are contrary to law, without jurisdiction and liable to be set aside. 7. In the counter affidavit filed by the 4th respondent, it is averred that his late father Sri Komaramallu was the Fair Price Shop Dealer of Chinnavangara village of Thorrur Mandal, Mahaboobabad division and that his father expired on 6-5-2007 and after the death of his father, he has been running the shop No.1 at Chinnavangara village and that his father, who is native of the village, running the said shop for the last 35 years to the satisfaction of the official s and also the villagers without any complaint whatsoever. It is also stated that due to the death of his father since the vacancy arise, the 2nd notified the said vacancy vide notification dt.7-7-2007 and also stated that till 7-7-2007, he lifted the stock. Further it is stated that in pursuance of the notification, the 4th respondent had applied for the post of Fair Price Shop Dealer and also the writ petitioner and that the interview was held on 28-7- 2007. The 4th respondent submitted all the required copies of his qualification certificates and also enclosed his caste certificate and nativity certificate. It is also further stated that since the 4th respondent is a graduate, passed with good marks and having experience as dealer, he is entitled to be appointed as Fair Price Shop Dealer, however, instead of considering his name, the 2nd respondent provisionally appointed the writ petitioner as Fair Price Shop Dealer and that it is also stated that the 4th respondent is having more qualifications than the writ petitioner. It is also averred that the writ petitioner studying B.Tech., in CBR College at Hyderabad and that the petitioner is residing at Hyderabad and the writ petitioner is a native of Kistu Tanda, Hamlet of Chinnavangara village, whereas the 4th respondent is a resident of Chinnavangara village, where the Fair Price Shop is located and that therefore the proceedings of the 2nd respondent appointing the writ petitioner as Fair Price Shop Dealer of shop No.1 of Chinnavangara village is illegal and contrary to the guidelines issued by the Government from time to time. In the said circumstances, the 4th respondent filed appeal before the Joint Collector, Warangal and that the writ petitioner was shown as respondent in the said appeal and also further stated that the Joint Collector, Warangal after considering the issue and examining the connected record of R.D.O.’s Office, passed interim orders on 31-7-2007 staying the appointment of the writ petitioner till further orders. Further it is stated that the Joint Collector, Warangal directed the Tahasildar of Thorrur to enquire into the nativity of the writ petitioner and submit the report and that the Tahasildar, Thorrur submitted a report on 24-3-2007 and that basing on the said report, the appeal petition No.26/2007 filed by the 4th respondent was disposed of on 1-10-2007 by setting aside the proceedings issued by the R.D.O., dt.3-9-2007 and the 2nd respondent was directed to take further steps. It is further stated that the writ petitioner is studying B.Tech., in C.B.R.College at Hyderabad and for the purpose of prosecuting his studies, he is residing at Hyderabad and also stated that the distance between Chinnavangara and Hyderabad is around 130 KMs. and that he cannot travel every day for attending College and the 4th respondent is presently residing in the village. It is further stated that the Joint Collector, Warangal passed orders after verifying the records and after obtaining the report from the Tahasildar that the writ petitioner is a non- local. 8. These are the respective stands taken by the parties. 9. As can be seen from the respective stands taken by the parties, there cannot be any doubt or controversy that both the impugned order and also the order made on 1- 10-2007, had been made without putting the writ petitioner on notice. No doubt, there appears to be some factual controversy in between both the writ petitioner and also the 4th respondent asserting disqualification of one another. Whether both are the students, pursuing the studies or not, it is predominantly a question of fact. This Court is not inclined to express any opinion relating to the said aspect. However, inasmuch as, the writ petitioner was not given any opportunity at all before making these orders, the impugned order and also the order dt.1-10- 2007 in appeal No.26/2007 are hereby set aside and the matter is remitted to the Joint Collector, Warangal to put the writ petitioner and also the 4th respondent on notice and pass appropriate orders in this regard within a period of four weeks from the date of receipt of this order. 10. The Writ Petition is accordingly allowed to the extent indicated above. No order as to costs. _________________ Justice P.S.Narayana 28th January, 2008 Note: C.C. in three days (B/o.smr)