IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 24TH JANUARY 2007 / 4TH MAGHA 1928 WP(C).No. 20262 of 2006(K) PETITIONER: SMT. S. RASITHA, 37/1580, SRAMBIKKAL HOUSE, KARUVASSERY P.O., KOZHIKODE-673 010. BY ADV. SRI.M.RATNA SINGH (SR.) SRI.T.G.RAJENDRAN SRI.K.PRAVEEN KUMAR RESPONDENTS: 1. GOVERNMENT OF KERALA, REP. BY THE SECRETARY, FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, TRIVANDRUM. 2. A. DIVAKARAN, DEPUTY SECRETARY,DEPARTMENT OF FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF CIVIL SUPPLIES, TRIVANDRUM. 4. THE DIRECTOR OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, KOZHIKODE. 6. THE DISTRICT SUPPLY OFFICER, KOZHIKODE. 7. K.P. MOHAMMED ALI HAJI, APARTMENT NO.2 A, GLANDEL POINT, S.I.APARTMENTS, BANK ROAD, KOZHIKODE. BY ADV. SRI.C.K.ABDUL RAHIM SENIOR GOVERNMENT PLEADER SRI.P.K.BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 20262 of 2006(K) APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the order 5th respondent dated 22-6-94. Ext.P2: True copy of the order of the 5th respondent dated 27-8-05. Ext.P3: True copy of the order of the District Collector dated 9-12-05. Ext.P4: True copy of the order of the 3rd respondent dated 25-3-06. Ext.P5: True copy of the judgment in WP(C)20048/05 of this Hon'ble Court dated 5-7-05. Ext.P6: True copy of the communication of the 1st respondent dated 27-3-06. Ext.P7: True copy of the judgment in WP(C)NO.9474/06 dated 31-3-06. Ext.P8: True copy of the revision filed by the 7th respondent dated 31-3-06. Ext.P9: True copy of the argument note dated 19-7-06. Ext.P10: True copy of the order of the 2nd respondent dated 22-7-06. Ext.P11: True copy of the Circular dated 25-11-74. Ext.P12: True copy of the agreement executed by the petitioner with the Government to run the AWD dated 8-11-05. Ext.P12(A): True copy of the certificate issued by the Revenue Inspector dated 22-8-05. Ext.P13: True copy of the commission report in OS 546/05 submitted before the Munsiff Court I, Kozhikode. Ext.P14: True copy of the experience certificate of the petitioner issued by Government Approved Dealer in Food grains, AWD No.12, Nileshwar. Ext.P15: True copy of the certificate showing the petitioner's appointment as a part time sales man duly countersigned by City Rationing Officer. Ext.P16: True copy of the relevant portion of the licence. // True copy // P.A. to Judge jes ANTONY DOMINIC, J. =============== W.P.(C) NO. 20262 OF 2006 K ===================== Dated this the 2nd day of January, 2008 J U D G M E N T The issue raised in this writ petition relates to the appointment of an Authorised Wholesale Distributor (AWD) in Kozhikode Taluk. 2. Applications were invited and the petitioner as also the 7th respondent had applied for appointment. By Ext.P2 order of the District Collector, the 2nd respondent was appointed. In so far as the 7th respondent is concerned, his candidature was considered at Sl.No.4 of Ext.P2 and it was found that he was a resident of Malappuram. It was also found that he is already an Authorised Wholesale Distributor at Malappuram and that in view of Ext.P11, one person cannot be appointed as more than one AWD. 3. The 7th respondent filed appeal against Ext.P2 and by WPC 20262/06 :2 : Ext.P4 order of the 3rd respondent, the appeal was rejected and Ext.P2 was confirmed. Again the matter was pursued by the 7th respondent and in Ext.P9 revision filed by him, the 1st respondent passed Ext.P10. By this order, Ext.P2 order appointment of the petitioner as confirmed by Ext.P4 order, was set aside and the 7th respondent was appointed as AWD. It was stated that the 7th respondent has experience as he was running an AWD since 1977 and that this very AWD was being temporarily entrusted to him since 1994. Thus, taking into account the experience gained by the 7th respondent, his revision was allowed as stated above. It is challenging Ext.P10 and for other consequential reliefs, this writ petition was filed. 4. By judgment dated 24th of January, 2007, a learned Single Judge of this court had set aside Ext.P10 order of the 1st respondent and directed that the matter be reconsidered. Aggrieved by the said judgment of the learned Single Judge, Writ Appeal Nos. 442/07 and 596/07 were filed. These writ appeals were disposed of by judgment dated 13th of April 2007, setting aside the judgment of the learned Single Judge and directed that WPC 20262/06 :3 : the matter be reconsidered. It is accordingly that this case came up before this court for hearing. 5. Although the paper book is voluminous and several issues are raised in the pleadings, argument of the learned counsel for the writ petitioner was only two fold. According to him, the 7th respondent is an ineligible candidate by virtue of the AWD he is already running at Malappuram and on account of his residence in Malappuram District. It is his further contention that the experience gained by the 7th respondent on account of his having been entrusted with this AWD on a temporary basis, cannot be taken into account. In support of these contentions, the petitioner relies on Exts.P11 and Ext.P17 and also various provisions of the Rationing Order. 6. On the other hand, the counsel for the 7th respondent would argue that Exts. P11 and P17 could not fetter the discretion of the statutory authorities so long as there is no corresponding amendment in the Rationing Order. It is his contention that the petitioner's candidature was rejected on two occassions in the past and the reasons thereof are also indicated WPC 20262/06 :4 : in Exts. R7(a) and R7(b). It is stated that the godown now offered was also found to be unsuitable on the earlier occassions. It is submitted that the biased attitude of the District Collector is reflected in Ext.P2 itself and it is only on account of this that the petitioner was not appointed as the AWD. 7. In the nature of the contentions that are urged before me, what I should consider is whether Ext.P10 order is legal and sustainable. 8. As already noted, the petitioner's contention is that the 7th respondent was an ineligible candidate. It is not in controversy that he is an AWD in Malappuram District and therefore the question would be whether inspite of it, the 7th respondent could be appointed as AWD in Calicut District. Petitioner refers to Exts. P11 and P17. Ext.P11 is a circular issued by the Board of Revenue, which specifies that no ration shop keeper in any rationing area should be authorised as such in respect of more than one ration shop and Co-operative societies is the only exception. This has been reiterated by the Government in Ext.P17 dated 13.04.2007. According to the WPC 20262/06 :5 : Government, if more than one AWDs are run by a single person, it will tend to monopolize the field in favour of certain persons and therefore it should be discouraged. Although, it is true that Ext.P17 was issued subsequent to Ext.P2 order appointing the petitioner, Ext.P17 decision is only a reiteration of Ext.P11. 9. Therefore, it would appear that it was always the Government policy that not more than one ration shop can be entrusted to one person. If this is taken as a criteria of eligibility, necessarily the 7th respondent has to be held as an ineligible candidate. True the 7th respondent contended that there is no corresponding amendment to the Kerala Rationing Order, the discretion of the statutory authority under the Rationing Order cannot be fettered by executive orders in the nature of Exts. P11 and P17. Nobody has the right to be appointed as a dealer of ration articles. Such appointment is always guided by the guidelines laid down by the Government from time to time. Of course, those policies and principles have by now become part of the Rationing Order and the Rationing Order does not contain anything similar to Exts. P11 or P17. But then, the question is WPC 20262/06 :6 : whether for that reason itself Exts. P11 and P17, have to be ignored. 10. Any Government order which runs counter to statutory provision or even a subordinate legislation, is liable to be ignored by a court of law, even if there is no direct challenge against such order. However, such a situation can arise only if the Government Order in question is against a statutory provision or subordinate legislation. In this case, 7th respondent does not have a contention that Exts. P11 and P17 are against any statutory provision. It has to be said that these two Government orders contain a laudable purpose and that purpose is is to avoid monopolisation of distribution of ration articles by a handful of persons. When such a laudable purpose is sought to be achieved by a circular similar to Ext.P11 or P17, in the absence of anything to suggest that it is contrary to the Rationing order, there is no reason to ignore such Government orders. Therefore, I do not find any merit in the contention of the 7th respondent that Exts. P11 and P17 are to be eschewed for want of corresponding amendment to the Rationing Order. WPC 20262/06 :7 : 11. Ext.P2 order of appointment itself shows that the District Collector was guided by Ext.P11. If the Board of Revenue had issued Ext.P11 for the guidance of its subordinate officers and once that subordinate officer has relied on such a circular, it cannot be contended that the action of the subordinate officer is illegal for any reason. That apart, if the Commissioner of Civil Supplies or the Government itself, while exercising appellate or revisional jurisdictions cannot find fault with the Subordinate officer for having exercised his power consistent with Ext.P11, Government circular. In this case, the District Collector having rejected the candidature of the 7th respondent guided by Ext.P11 circular and the Commissioner for Land Revenue having confirmed the same, the Government ought not have interfered with Ext.P2 or P4. Therefore, I hold that Ext.P10 setting aside Exts. P2 and P4 deserve to be set aside on that ground. 12. Yet another ground on which the candidature of the 7th respondent has been favoured by the Government is that he had gained considerable experience on account of his appointment as a temporary AWD. The question raised is that such temporary WPC 20262/06 :8 : experience gained by a person cannot be taken into account. 3rd proviso to Clause 51(2) is the enabling provision for appointment on temporary basis. This provision provides that such appointment can be for a period not exceeding six months and that the authorities are expected to make regular appointment in the meanwhile. This proviso also provides that the person so appointed shall have no right to continue as a Wholesale Distributor beyond the period for which he is appointed and that he shall not have any preferential claim as an AWD. 13. In this case, in 1994 though he was appointed for six months, for some reason or the other, this arrangement continued for more than a decade and such continuance is now sought to be used by the 7th respondent in his favour. In my view, it is clearly impermissible in view of the 3rd proviso to Clause 51(2) and the Kerala Rationing Order, 1966. That apart, this claim of the 3rd respondent also has been negatived by this court in Ext.P5 judgment. If that be so, the experience factor that is used in his favour in Ext.P10 order is also unsustainable. 14. Yet another aspect that was found against the 7th WPC 20262/06 :9 : respondent in Ext.P2 and ignored in Ext.P10 is the residence of the 7th respondent. In Ext.P2, there is a positive finding that the 7th respondent is a resident of Malappuram District. This aspect is not seen adverted to in Ext.P10. The 2nd proviso to Clause 51 (1) states that a person who is not normally a resident in the locality shall be eligible to hold an authorisation to run a ration wholesale depot under the Rationing Order. In view of this proviso also, as the 7th respondent being a resident of Malappuram, has to be held to be an ineligible candidate. 15. Thus on the aforesaid three grounds, Ext.P10 order deserves to be set aside. It is true that the counsel for the 7th respondent had contended that the authorities had earlier rejected the candidature of the petitioner in Ext.R7(a) and R7(b). However, this so called disqualification of the petitioner has been dealt with in Ext.P2 order of the District Collector and also in Ext.P4 order of Land Revenue Commissioner, which upheld Ext.P2. In view of this and since the 1st respondent has not dealt with that aspect in Ext.P10, I am not persuaded to consider that submission of the 7th respondent. WPC 20262/06 :10 : In the result, Ext.P10 will stand quashed and the respondents shall implement Exts. P2 and P4 orders as expeditiously as possible, at any rate within one month of the production of a copy of this judgment. ANTONY DOMINIC, JUDGE. Rp