THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.23918 OF 2007 Date: 21-01-2008 Between: B.Hanmanthu … Petitioner And The Collector, Mahabubnagar District. and others … Respondents THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.23918 OF 2007 O R D E R: This Court issued Rule Nisi on 13.11.2007 and granted interim suspension in W.P.M.P.No.31149 of 2007 for a limited period and the same was further extended for a further limited period. Counter affidavits are filed by respondents 1 to 3 and also by respondent No.4 as well. Reply affidavit also had been filed. 2. Sri B.Devanand, learned counsel representing the writ petitioner, had taken this Court through the orders made by the authorities concerned and how there is total non-application of mind while considering the merits and demerits. The learned counsel made elaborate submissions, taking this court through the contents of the affidavit filed in support of the writ petition and also the respective counter-affidavits. 3. Per contra, the learned Assistant Government Pleader for Civil Supplies had taken this Court through the counter-affidavit filed by respondents 1, 2 and 3 and would maintain that in the facts and circumstances of the case, there is no illegality in the orders impugned and hence, the writ petition is liable to be dismissed and the interim order to be vacated. 4. Sri N. Ashok Kumar, learned counsel for respondent No.4, had taken this court through the counter affidavit of R4 and would maintain that in the facts and circumstances of the case, absolutely there is no illegality in the orders impugned in the writ petition and the writ petition is liable to be dismissed. 5. Heard the counsel. 6. The writ petition is filed for a writ of Certiorari calling for the records relating to the Order of the 1st respondent issued in CS1(A)/471/2007, dated 03-09-2007 confirming the Order of the 2nd respondent issued in CS1(a)/244/2007, dated 29-06-2007 as confirmed the proceedings of the 3rd respondent issued vide No.F/1181/2006, dated 21-03-2007 appointing the 4th respondent as F.P.Shop Dealer of Legacherla Village, Bomraspet Mandal, Mahabubnagar District and declare the same as illegal, arbitrary, unjust and against to the principles of natural justice and violative of Article 21 of the Constitution of India, consequently set aside the same by directing the respondents to appoint the petitioner as fair price shop dealer of Legacherla Village, Bomraspet Mandal, Mahabubnagar District and pass such other suitable order. 7. It is stated in the affidavit filed in support of the writ petition that the petitioner is a permanent resident of Legacherla village of Bomraspet Mandal, Mahabubnagar District and he studied B.Sc and he belongs to Schedule Caste. The third respondent issued notification on 09-01-2007 calling for applications to fill the vacancy of F.P.Shop of Legacherla Village. It was mentioned in the said notification that preference would be given to applicants belonging to Scheduled Castes. In pursuance of the notification, the petitioner submitted his application on 19-01-2007. The third respondent conducted interview on 05-02-2007. Out of 6 applications, only 2 applicants i.e. the petitioner and the fourth respondent attended the interview. The petitioner fared well in the interview and having all the requisite eligibilities. But surprisingly, the third respondent issued Proceedings No.F/1181/2006, dated 21-03-2007 appointing the fourth respondent as F.P.Shop dealer of Legacherla Village. IN the said proceedings no mention with regard to the merits and demerits of the candidates appeared for interview was made. The reason stated in the appoint Order is as under: “A notification has been issued for filing up vacancies of Fair Price Legacherla in the reference 3rd cited and conducted interview on 05-02-2007. Sir P.Ravinder Reddy, S/o Narayan Reddy, R/o Legacherla is hereby appointed as a Fair Price Shop Dealer of Legacherla as he/she belongs to Reddy community under General category and unemployee subject the following conditions” It is further submitted that on perusal of the order of the 3rd respondent, it appears that the 3rd respondent was under the impression that due to the only that 4th respondent belongs to Reddy Community, he is entitled for appointment. The said appointment is illegal, arbitrary and contrary to the provisions of A.P. Public Distribution System Control Order, 2001 and violative of principles of natural justice. It is further submitted that against the proceedings dated 21-03- 2007 of the 3rd respondent, the petitioner preferred Appeal before the 2nd respondent on 02-04-2007. The said appeal was dismissed on 29-06-2007. The finding of the appellate authority is as under: “3. I have seen the record. In the interview held by the Revenue Divisional Officer, he found that the appellant was no doubt a graduate and a S.C. Candidate, he has got chances of employment, while the respondent is having knowledge in civil supplies and his financial position is also satisfactory. I see no cogent reason to interfere with the order of the Revenue Divisional Officer and find merits in the appeal” It is further submitted that the appellate authority erred in holding that no merits in the appeal simply saying that being a S.C. Candidate, the petitioner got chances of employment. The said reasoning is unsustainable and can’t be acceptable under law. Aggrieved by the order of the appellate authority, the petitioner filed revision petition before the 1st respondent on 03-07-2007. The 1st respondent also without appreciating the grounds raised under revision in proper perspective dismissed the revision petition vide his order dated 03-09- 2007. The order of the 1st respondent is as under: “2. Heard the case and seen the record. From a perusal of the material on record, I find that the appointing authority followed the procedure and there is no rule that highest qualified person has to be considered for appointment of Fair Price Shop Dealer. Only locally person has to be preferred. I find no error in the order of the Revenue Divisional Officer, or the Joint Collector and therefore, am not inclined to interfere in their orders” It is further submitted that the orders passed by the 3rd respondent appointing the 4th respondent was confirmed by the 2nd respondent and the 1st respondent mechanically without applying their mind independently. The 2nd and 1st respondent also failed to verify and follow the procedure for appoint of the F.P.Shop Dealers properly. As such the orders of the 3rd respondent as confirmed by the 1st and 2nd respondents is illegal, arbitrary, unjust and against to the principles of natural justice and violative of Article 21 of the Constitution of India. Hence, the writ petitioner approached this court praying for appropriate reliefs. 8. In the counter affidavit filed by respondents 1, 2 and 3 which was swore by 3rd respondent, Revenue Divisional Officer, Narayanpet Division, it is stated that a notification has been issued for filling up of post of fair price shop dealer under General category for Legacherla village of Bomraspet Mandal through this notification No.F/1181/2006- 1 dated 9.1.2007 while fixing dates for receiving applications and interview on 19.1.2007 and 22.1.2007 respectively. In response to this office notification 6 applications were received for the post of fair price shop dealer at Legacherla village. The interview has not been conducted on 22-01-2007 as the R.D.O., Narayanpet was otherwise busy and, interview was postponed to 05-02-2007 and intimation letters to this effect were given to all the candidates well in advance. Out of 6 candidates, only 2 candidates have appeared for the interview. During the interview, one Sri Ravinder Reddy, S/o Narayana Reddy was found eligible giving appropriate answers. As he is financially sound and more importantly residing in the village he has been selected as F.P.Shop dealer of Lagecherla village. Regarding the writ petitioner, it is to submit that, he has also appeared interview. He is a graduate and there are more chances to him for the selection to other post as he hails from scheduled caste. There are clear instructions from the Government vide G.O.Ms.No.53 that Consumer Affairs, Food and Civil Supplies (CS1) department dated 06-10-2003. That “A person possessing the minimum general educational qualifications and the persons having higher qualifications if applied, shall be treated equally for the purpose of appointment”. Keeping the above facts, in view and as the vacancy caused has been notified under General Category i.e. for all and as the respondent is found more suitable amongst the candidates who attended interview, he has been selected as F.P.Shop dealer. It is further stated that the vacancy has been notified under General category (for all). Hence, it is not correct to say that the appointment is contrary to the provisions of A.P.P.D.S.Control Orders, 2001. It is further stated that the respondent has been selected as F.P.Shop dealer vide this office progs.F/1181/06, dated 21-03-2007. Aggrieved by this, the writ petitioner has filed an appeal before the Joint Collector, Mahabubnagar. The Joint Collector, Mahabubnagar after perusing the records, found the appointment made is in accordance with the procedure and there is no scope for irregularity in appointing the respondent. As such, he upheld the orders under appeal. It is further stated that the writ petitioner again filed revision petition before the District Collector, Mahabubnagar against the orders of the appellate authority i.e. Joint Collector, Mahabubnagar. The District Collector, Mahabubnagar while disposing of the revision petition has found that the appointing authority followed the procedure, as there is no rule that the highest qualified person has to be considered for appointment of F.P.Shop dealer and found no error in the order of R.D.O or the Joint Collector, Mahabubnagar. It is further stated that it is not correct that the orders issued by respondent Nos.1 to 3 are not in accordance with the Government Orders. As such, there is no illegality, they are not arbitrary and no injustice is done and the principles of natural justice are not violated. It is further stated that the orders issued by the respondents 1, 2 and 3 are as per rules and in the public interest only and there is no favour or interest shown to any individual. The appointment is made to stream line the public distribution system by appointing the locally residing and sound person. The respondent No.4 has been appointed through competitive interview in the month of March and obtained authorization and distributing the essential commodities to the cardholders regularly without any complaint. 9. In the counter affidavit filed by the 4th respondent it is stated that the writ petition filed by the petitioner is not maintainable on facts and on law and the same is dismissed as devoid of merits. It is stated that the third respondent issued a notification dated 09-01-2007 No.F/1181/2006-1 for filling the post of F.P.Shop dealer under general category at Legacherla village of Bomraspet (M), Mahabubnagar District. In response to the notification, the fourth respondent along with five other applied for the post. An interview was conducted by the 3rd respondent for the candidates on 05-02-2007. Only two candidates were attended i.e. the fourth respondent and petitioner. The eligibility for appointment was one should pass S.S.C with good financial background. The fourth respondent being passed in S.S.C in first class with sound financial position and permanent residence of the village and fared well in the interview fully eligible to be appointed as fair price shop dealer. Thus, he was appointed as F.P.shop dealer vide proceeding NO.F/1181/06, dated 21-03-2000 and since then he has been distributing all the commodities to the best satisfaction of the villagers as well as authorities. It is further stated that he was appointed on merit basis as he faired well in the interview for the post open to all category candidates, but he was not appointed just because he belongs to Reddy caste as alleged in the writ petition. He never claimed post basing on his community; it was only on merit that appointment was made. A reference made about his community by the authorities in the appointment order does not infer that appointment was made basing on community. Further it is stated that the petitioner though belong to Scheduled Caste is highly qualified to a small post like F.P. shop dealer is not befitting to the qualification of petitioner. Apart from that high qualification is not a criteria to be appointed to a small post. Even high qualified candidates also to be treated equally for the purpose of appointment for small post along with less qualified candidates. All these aspects were taken into consideration by the authorities before my appointment. It is further stated that apart from that the petitioner was engaged himself in number of welfare schemes under the State Government and Central Government. He is the member of self-help ground and member of “Velugu” scheme and also rural employment scheme and member of water shed committee etc. He is not unemployed as described himself. It is further submitted that having engaged himself fully wants to run the F.P. shop through a proxy which cannot be allowed. The petitioner without any legal right questioned my appointment by filing an appeal before the Joint Collector, Mahabubnagar. The Joint Collector after going through the entire records and hearing the arguments of parties, confirmed my appointment order. Again the petitioner filed revision before 1st respondent. The learned 1st respondent also gone through the entire records dismissed the revision, thus it cannot be said that the authorities have not applied their mind and passed the orders mechanically. The authorities clearly held that there is no merit to interfere in appeal and revision. The petitioner has not make out any case on merits, except stating that he is highly qualified and belong to scheduled caste. Certain further averments also had been made in paras 7 and 8 of the counter affidavit by the 4th respondent. 10. A reply affidavit had been filed by the petitioner wherein it is averred that the contentions of the 4th respondent in paras 2, 3 and 4 of the counter-affidavit are incorrect. The 1st respondent as an appointing authority under A.P.Public Distribution System Control Order, 2001 has to follow the procedure for selection and appointment of the F.P.Shop dealer. No reasons or findings were recorded for appointing the 4th respondent as dealer except stating that the 4th respondent belong to Reddy Community. In the appointment order no mention with regard to the merits and demerits of the candidates attended for interview. It is not correct to the 4th respondent to contend that he was appointed on merit basis as he faired well in the interview. As such, the appointment of the 4th respondent is liable to be set aside on this ground alone. Further the allegations made by the 4th respondent in para 5 also had been denied. The averments made in para 6 of the counter affidavit also had been denied. Specific stand had been taken that the petitioner though a Graduate, he is from a poor family and that too belonging to a Schedule Caste. Further specific stand had been taken that the original authority, the appellate authority, the revisional authority made the orders in a mechanical way without considering the merits and demerits of the candidates in proper perspective. 11. The relevant portions of the orders made by the appointing authority, the appellate authority and the revisional authority already had been specified above. On a careful scrutiny of the orders, this Court is thoroughly satisfied that the order of the primary authority and the appointing authority in a way had been mechanically confirmed by the appellate authority and also by the revisional authority and no convincing reasons as such had been recorded. In a case of appointment to be made even as fair price shop dealers, the procedure as specified by the Rules and Regulations, the guidelines and the relevant Control Orders may have to be followed. While considering the merits and demerits of the matter, reasons may have to be recorded and the way in which the primary authority and the appellate authority made the orders, in the considered opinion of this Court, cannot be said to be just and proper. It is needless to say that when the original order made by the appointing authority itself is bad, the order of the appellate authority and also the revisional authority need not be seriously considered, but it is pertinent to note that appellate authority or revisional authority also had not recorded any acceptable reasons. Though the order of the primary authority had been confirmed by the appellate authority and also by the revisional authority, since these orders were without application of mind and without any acceptable or convincing reasons, this Court is left with no other option except to quash all these orders and remit the matter to the Revenue Divisional Officer, Narayanpet, 3rd respondent herein, to reconsider the whole issue if necessary by putting the writ petitioner and also the 4th respondent on notice and pass appropriate orders in this regard. 12. Accordingly, the writ petition is hereby allowed. No order as to costs. _________________ P.S.NARAYANA,J 21st January, 2008. PNV THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.23918 OF 2007 Date:21 -1-2008