* HON’BLE SRI JUSTICE NOUSHAD ALI + W.P.No.15615 of 2007 % 15-12-2010 # Bondugula Kailasapathi ..PETITIONER VS. $ 1. The Collector (Civil Supplies) Karimnagar District and others. ..RESPONDENTS ! Counsel For the Petitioner: Sri T. Mahender Rao ^ Counsel For Respondents: G.P. for Civil Supplies < Gist : Ø Head Note : ? CITATIONS : 1. (2010) 2 SCC 422 THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.15615 OF 2007 BETWEEN: Bondugula Kailasapathi, S/o. Nagabhushanam, Retail Kerosene Delear of Shop.No.4548, R/o. Godavarikhani, Ramagundam Mandal, Karimnagar Distriact. …. PETITIONER And 1. The Collector (Civil Supplies), Karimnagar District and others. …. RESPONDENTS Counsel for petitioners: Sri T. Mahender Rao Counsel for respondents: G.P. for Civil Supplies. The Court made the following order: ORDER: 1. The petitioner, who is a retail kerosene dealer of Shop No.4548, situated in Godavarikhani, Ramagundam Mandal, Karimnagar District, has filed this writ petition to declare the proceedings No.D/1604/2007, dated 19.06.2007 of the 2nd respondent, viz., the Revenue Divisional Officer, Peddapalli, Karimnagar District, whereby the petitioner was retained as a dealer to the extent of dealing in kerosene only, instead of appointing/converting him as a Fair Price Shop dealer with authorization to deal in all the commodities including kerosene, as illegal. 2. The petitioner is an authorized retail kerosene dealer of shop No.4548 of Godavarikhani. It is his case that he is entitled for conversion of his authorization as a Fair Price Shop dealer. He therefore made an application for conversion to the 2nd respondent. The 2nd respondent on consideration of the said application, relying on the circular dated 19.03.1995 issued by the Commissioner of Civil Supplies, granted authorization by order dated 9.01.2006 with a direction to the Mandal Revenue Officer, Ramagundam to allot all the essential commodities. The petitioner was directed to submit certain documents to enable them to issue authorization. It is stated that in pursuance of the said order, the 3rd respondent allotted all the essential commodities till September, 2006. Thereafter, when the supply was stopped, he filed W.P.No.21717 of 2006 and pursuant to the interim order granted therein, he received the supplies till May 2007. Even though the grant was made, no authorization was issued to him. In the meanwhile, the 2nd respondent passed the impugned order declining to recognize the petitioner as Fair Price Shop dealer on the ground that he was not qualified for conversion since he was aged more than 40 years. 3. Heard Sri T. Mahender Rao, learned counsel for the petitioner and learned Government Pleader for Civil Supplies for the respondents. 4. The learned counsel for the petitioner would contend that the maximum age limit of 40 years applies only in respect of fresh appointments and there is no age restriction in the case of conversion of the existing retail kerosene dealers as Fair Price Shop dealers. He would further contend that similar kerosene dealers like him viz., A.Sankara Lingam, Dealer of Shop No.4536 and G.Pochaiah, dealer of Shop No.4549, were granted conversion even though they were aged more than 50 years. He would therefore contend that the denial of conversion to the petitioner who is aged only 45 years is discriminatory. The learned counsel would place reliance on the circular of the Commissioner of Civil Supplies No.PDS.II(3)/2874/05, dated 19-03-2005. 5. The learned Government Pleader would contend that the Government issued instructions for conversion of nominal retail kerosene dealers as regular PDS dealers in a phased manner vide Circular No.N5/2847/05, dated 31-05-2005 and it has been clarified therein that the guidelines issued by the Government dated 26-07- 1991, 22-01-1999 and orders issued in G.O.Ms.No.53, dated 06-10- 2003 should also apply while granting conversion and according to the said guidelines, the upper age limit was only 40 years. He would further contend that the two other dealers Sankaralingam and Pochaiah were below 40 years. He would further contend that the case of the petitioner and four other dealers who were sanctioned conversion were referred to the Collector (CS), Karimnagar for ratification but the Collector did not ratify the orders of the Revenue Divisional Officer on the ground that the petitioner was aged above 40 years. He would therefore contend that the petitioner is not entitled for seeking conversion of his retail kerosene dealership as a fair price shop dealer. 6. The petitioner sought to rely on Circular No.PDS.II(3)/2874/05, dated 19-03-2005 of the Commissioner of Civil Supplies. The relevant portion of the said circular is as follows : “Keeping in view the un-viability of the retail dealers and to make kerosene available through out the month on the recommendations of Group of Ministers during the meeting held by the Hon’ble Chief Minister on 15-01-2003, a decision has been taken regarding conversion of the existing nominated retailers as Fair Price Shop dealers in a phased manner to make available all essential commodities to the cardholders under one roof.” 7. A perusal of the aforesaid Circular merely shows that a decision has been taken in the meeting held between some Ministers with the Chief Minister. The said decision does not appear to be a cabinet decision. It also does not appear to have been taken in due discharge of the business of the Government nor is it an executive order of the State Government. An informal meeting of Ministers with the Chief Minister and informal decisions taken by them, if any, cannot be construed as the orders of the State Government nor such decisions have any legal effect. In this view of the matter, the decision taken by a group of Ministers by itself cannot be taken into consideration to decide whether there is age restriction on the appointment of dealers by conversion. 8. The Commissioner of Civil Supplies thereupon vide Circular CCS.Ref.No.N5/2847/2005, dated 31-05-2005 issued instructions that in the matter of conversion of retail kerosene shops into fair price shops, the guidelines issued inter alia in G.O.Ms.No.53, CA F & CS (CS.I) Department, dated 05-10-2003 would apply. As per the said instructions whenever a vacancy of fair price shop arises, the vacancy shall be filled in by converting the retail kerosene shop functioning in that area, if the retail kerosene shop dealer is otherwise qualified. 9. G.O.Ms.No.53, dated 06-10-2003, prescribed the minimum age as 18 years and maximum age as 40 years. The State Government issued further orders in G.O.Ms.No.32, Consumer Affairs, Food & Civil Supplies (CS.I), Department, dated 30-08-2007 inserting the following clause : “(iv) Preference shall be given to the hawkers/N.Rs. having licence under the APPP (L&Rs) Rules, 1980, for selection and appointment as F.P. shop dealer, while filling up the existing or new F.P. shop vacancy. All requisite qualifications and guidelines issued by Government from time to time shall be applicable to those hawkers/NRs while converting into F.P. shop dealer subject to fulfilling the conditions if appointment of F.P. shop dealers by the N.R./Hawkers who are otherwise eligible for appointment.” 10. From the aforesaid circulars and orders of the State Government, it is evident that a retail kerosene dealer in order to qualify for conversion as fair price shop dealer should satisfy all the qualifications prescribed. Insofar as the age is concerned, 18-40 years has been prescribed as the minimum and maximum. Therefore, the contention that, as no age restriction was prescribed in the Circular of the Commissioner of Civil Supplies, dated 19-03-2005, a retail kerosene dealer can be appointed as fair price shop dealer by conversion irrespective of the age, cannot be countenanced. 11. The learned counsel for the petitioner however would contend that two other dealers, namely, A. Sankara Lingam and G. Gopaiah, were granted conversion despite they were aged more than 50 years and the petitioner who is only 45 years old cannot be subjected to discrimination. The respondents would deny and contend that the said persons were below 40 years. I need not go into this controversy. Assuming that the aforesaid dealers were aged above 40 years, at the most their appointment may not be legal, but the petitioner cannot claim to have been discriminated on the basis of an illegal order. 12. A Writ cannot be issued either to endorse or to perpetuate an illegality. The Apex court in Union of India Vs. Kartick Chandra Mondal [1] while dealing with a case relating to absorption or regularization of casual labour appointed on casual basis without having been recruited through proper procedure held as follows : “Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in State of Bihar Vs. Upendra Narayan Singh ((2009) 5 SCC 65), the relevant portion of which is extracted hereinbelow: “67.By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order…” 13. For the aforesaid reasons, the Writ Petition is liable to be dismissed. There shall be no order as to costs. ________________ NOUSHAD ALI, J. -12-2010. Skmr/Js L.R. Copy to be marked. [1] (2010) 2 SCC 422