HON’BLE SRI JUSTICE P.S. NARAYANA +W.P.No.15942 of 2007 %21-01-2008 # Between: P.Pullaiah … Petitioner And 1. The District Collector (CS), Krishna, Machilipatnam and others … Respondents < GIST: > HEAD NOTE: ! Counsel for petitioner : Mr.V.Sreenivasa Rao ^ Counsel for Respondents: G.P. for Civil Supplies 1. ? Cases referred THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.15942 OF 2007 Date:21-01-2008 Between: P.Pullaiah … Petitioner And 1. The District Collector (CS), Krishna, Machilipatnam and others … Respondents THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.15942 OF 2007 O R D E R: Heard Sri V.Sreenivasa Rao, the counsel representing the writ petitioner and the learned A.G.P. for Civil Supplies. 2. This Court issued rule nisi on 26.7.2007 and granted interim stay in W.P.M.P.No.20221 of 2007. 3. The writ petition is filed for a writ of mandamus declaring the action of the respondents in issuing fresh notification in R.C.A.3578/2004 dated 6.7.2007 for appointment of Fair Price Shop Dealer in respect of shop situated in Pathakonduru village, without implementing the order of the 2nd respondent in Rc.B1/SRA/12/2006 dated 18.7.2006, as illegal, arbitrary and violative of principles of natural justice. 4. The Writ petitioner is a Graduate in B.A. and belongs to the SC community. Originally, there are two fair price shops in A.Konduru village ie., A.Konduru-1 (A.Konduru main village and Patha Konduru) and A.konduru-II (A.Konduru Lambadi Thanda, Chaithanya Nagar, Mathriya Thanda). On the representation of villagers of Patha Konduru village to the 1st respondent to establish separate fair price shop in vicinity, as the existing shop is at 2 KM away, the 1st respondent issued proceedings in RC.A6/403/2005 dated 14.10.2005 for creating new fair price shop in Patha Konduru village itself. In pursuance of those orders, the 3rd respondent issued notification calling for applications from SC general public for appointment of fair price shop dealership in Patha Konduru village. The petitioner, M.Ramesh Babu and 4 others applied for the dealership. In the walk-in-interview conducted by the 3rd respondent on 14.11.2005, one M.Ramesh Babu was selected. The petitioner and said M.Ramesh Babu got equal marks and solely on the ground that said M.Ramesh Babu is post graduate, he was selected, ignoring Rule 9(1) of the Rules issued in G.O.Ms.No.53 Consumer Affairs, Food and Civil Supplied Department, dated 6.10.2003. Further, it is averred that aggrieved by the same the petitioner submitted a representation to the 1st respondent and the 1st respondent forwarded the same to the 3rd respondent for enquiry. The 3rd respondent herein submitted a detailed report to the 2nd respondent herein and basing on the same the 2nd respondent vide proceedings in Rc.A637 of 2006, dated 13.2.2006 allowed his representation treating it as appeal. Challenging the same, said M.Ramesh Babu filed W.P.No.3770 of 2006 and the same was allowed by this court by order dated 28.2.2006 directing the 2nd respondent to dispose of the appeal after issuing notice to the said M.Ramesh Babu. Thereafter, after hearing both the parties, the 2nd respondent herein vide order in Rc.B1/SRA/12/2006 dated 18.7.2006 allowed his appeal setting aside the appointment of M.Ramesh Babu as fair price dealer for Patha Konduru fair price shop holding that preference shall not be given for possessing higher educational qualification and preference shall be given to resident of the Hamlet village. Further, it is stated that aggrieved by the order of the 2nd respondent dated 18.7.2007, said M.Ramesh Babu instead of preferring revision to the 1st respondent, approached this Court by filing W.P.No.16553 of 2006 and obtained interim suspension of the 2nd respondent’s order dated 18.7.2006. After receiving notice, the petitioner filed vacate stay petition in W.V.M.P.No.2120 of 2006 and the official respondents also filed counter admitting his contention. Meanwhile, on the allegation of irregularities, the said M.Ramesh Babu resigned to dealership vide his resignation letter dated 7.10.2006 and the 3rd respondent while accepting the resignation of said M.Ramesh Babu made alternative arrangement for distribution of commodities. Thereafter, the writ petition filed by the said M.Ramesh Babu was dismissed as in fructuous by order dated 29.3.2007. The relevant portion of the said order reads as hereunder: “The 2nd respondent has filed a counter affidavit dated 31.1.2007 wherein it is pleaded that on an allegation that the petitioner is not supplying/distributing essential commodities in accordance with the terms of authorization, the 3rd respondent had issued a notice to the petitioner to attend an enquiry; the petitioner attended the enquiry on 7.10.2006 and submitted his resignation to run fair price shop in question. On the basis of the resignation submitted by the petitioner, the 2nd respondent had cancelled the authorization of the petitioner by proceedings dated 7.10.2006 and has directed the concerned to submit alternate proposal for distribution of essential commodities and has kept a neighbouring fair price shop dealer in charge of the functions of supplying the essential commodities on account of resignation of the petitioner. In the light of the averments pleaded in the counter-affidavit of the 2nd respondent, as the petitioner has himself tendered resignation to the authorization, no further proceedings are warranted in this writ petition. The writ petition is, accordingly, dismissed as infructuous. No order as to costs.” Thereafter, the petitioner made several representations to the respondents 2 and 3 to implement the order of the 2nd respondent by appointing him as fair price shop dealer for Pathakonduru shop. On his representation to the 3rd respondent, the 3rd respondent directed the 2nd respondent to take further steps in view of dismissal of the writ petition. While things stood thus, to his utter shock, the 3rd respondent issued notification in R.C.A.3578/2004 dated 6.7.2007 calling for applications for the dealership of Pathakonduru and further walk-in- interview would be conducted on 31.7.2007. Immediately, the petitioner approached the 3rd respondent and requested to implement the orders passed by the 2nd respondent in Rc.B1/SRA/12/2006 dated 18.7.2006 in the earlier notification. As there is no response from the 3rd respondent, the petitioner immediately got issued a noticed on 13.7.2007 seeking to appoint the petitioner in the dealership of Pathakonduru as per the earlier notification. The respondent vide his reply dated 17.7.2007 stated that the present notification is issued as per the directions of the High Court of A.P., in W.P.No.16553 of 2006, whereas there is no such direction in the said writ petition. A copy of the said notice dated 13.7.2007 and also a copy of the reply dated 17.7.2007 were placed before this Court. It is further stated that in view of the dismissal of the writ petition filed by M.Ramesh Babu, which is filed challenging the order of the 2nd respondent in Rc.B1/SRA/12/2006 dated 18.7.2006, interim stay granted earlier automatically vacated and as such the orders dated 18.7.2006 in Rc.B1/SRA/12/2006 by the 2nd respondent came into force. The 3rd respondent has to implement the orders of the 2nd respondent in letter and spirit and he cannot be permitted to state his own interpretations to the orders passed by the 2nd respondent and this court. As stated above, this court has not stated anything in the writ petition with regard to the orders passed by the 2nd respondent. It is also averred that in the earlier notification the plaintiff succeeded the appeal and that order in the appeal became final. The 2nd respondent without implementing the same again cannot call for the fresh notification. Further, it is stated that the petitioner is a physically handicapped person with 70% disability and even though the petitioner studied B.A. he could not get any employment. Moreover, due to physical disability he may not be in a position to do hard work in eking out the livelihood. Several other facts also had been averred in the affidavit filed in support of the writ petition. 5. In the counter affidavit filed by the 3rd respondent, it is stated that the Joint Collector, Krishna issued orders in proceeding No.Rc.A6/403/2005 dated 14-10-2005 for the bifurcation of additional F.P. shop at Patha Konduru H.W. H/o.A.Konduru village. Notification has been issued by the Revenue Divisional Officer, Nuzvid, calling for applications from the eligible S.C. (General) candidates to fill up the vacancy. Six candidates have applied for appointment as F.P.shop dealer of Patha Konduru H/o.A.Konduru. The walk-in-interview was conducted on 14-11-2005 and all the applicants are attended to the interview. The individual Sri M.Ramesh Babu is qualified candidate and answered well during the interview held on 14-11-2005. The applicant is having a higher qualification and hence the application of Sri M.Ramesh Babu has been taken into consideration and appointed as F.P. shop dealer, Patha Konduru H/o.A.Konduru village vide this office proceedings No.Rc.A.3578/04 dt.14-11-2005. Aggrieved by this, Sri P.Pullaiah S/o.Late Mallaiah, a physically handicapped candidate of A.Konduru village, filed petitions before the Collector, Krishna and Joint Collector, Krishna, Machilipatnam dated 26-12-2005. The Collector, Krishna and Joint Collector, Krishna, Machilipatnam forwarded the same for enquiry into the matter and to submit a detailed report in this case. The enquiry has been conducted and submitted a report in this office Rc.A.3578/2004 dated 5-1-2006 on the representation of Sri P.Pullaiah S/o.Late Mallaiah regarding the allegations leveled against the F.P. shop dealer Sri M.Ramesh Babu, stating that the allegations are correct and hence the representation may be treated as an appeal petition. The Joint Collector, Krishna has issued orders setting aside the appointment orders issued to Sri M.Ramesh Babu as his father is a Govt.Employee in TRANSCO (APSEB) and he is not a resident of the Patha Konduru village. It is submitted that aggrieved by this Sri M.Ramesh Babu, F.P. shop dealer filed W.P.No.3770/2006 before this Court and this Court at the admission stage passed orders on 28-2-2006 quashing the order of the Joint Collector, Krishna and restored the authorization to the petitioner. In the order this Court observed that the petitioner (M.Ramesh Babu) is adversely impacted by the invalidation of his authorization. The Joint Collector, Krishna could not have allowed the appeal of Sri P.Pullaiah without notice and opportunity to the petitioner and the impugned order therefore cannot be sustained. It is accordingly quashed. It is now open to the Joint Collector, Krishna to dispose of the appeal in accordance with law after issuing a notice and affording an opportunity to the petitioner (M.Ramesh Babu) to submit his objections to the relief claimed in the appeal by Sri P.Pullaiah. Accordingly, the orders of this Court dated 28-2-2006 in W.P.No.3770/2006 have been implemented by restoring the dealership of Patha Konduru village of A.Konduru Mandal. Again Sri P.Pullaiah filed an appeal petition before the Joint Collector, Krishna, Machilipatnam on 14-03-2006, against the orders of the Revenue Divisional Officer, Nuzvid, in proceedings No.Rc.A.3578/2004 dated 14-11-2005. The Joint Collector, Krishna after conducting detailed enquiry into the appeal petition passed orders in Rc.B1/SRA/12/2006 dated 18-7-2006 observing that the entire selection process made by the Revenue Divisional Officer, Nuzvid, is in violation of the principles and not in accordance with the guidelines issued by the Govt., in G.O.Ms.No.53 Consumer Affairs, Food and Civil Supplies (CS-I) Dept., dated 6-10-2003. Hence, the appeal filed by Sri P.Pullaiah is allowed and the orders issued by the Revenue Divisional Officer, Nuzvid, in appointing Sri M.Ramesh Babu as F.P.shop dealer, is accordingly set aside. Aggrieved by this Sri M.Ramesh Babu, F.P. shop dealer filed W.P.No.16553/2006 before this Court which was dismissed as infructuous on 29-03-2003. A fresh notification was issued in this office Rc.A.3578/04, dt.06-07-2007 to fill up the vacancy arose due to resignation of Sri M.Ramesh Babu as F.P.shop dealer, Pathakonduru village, since the earlier appointments were found fault by the Joint Collector, Krishna, while allowing the appeal of Sri P.Pullaiah. It is submitted that the Joint Collector, Krishna, after conducting detailed enquiry into the appeal petition passed orders in Rc.B1/SRA/12/2006 dated 18-7-2006 observing that the entire selection process made by the Revenue Divisional Officer, Nuzvid, is in violation of the principles and not in accordance with the guidelines issued by the Govt., in G.O.Ms.No.53, Consumer Affairs, Food and Civil Supplies (CS-I) Dept., dated 6-10-2003. Hence, the appeal filed by Sri P.Pullaiah is allowed and the orders issued by the Revenue Divisional Officer, Nuzvid in appointing Sri M.Ramesh Babu as F.P.shop dealer is accordingly set aside. It is submitted that Sri M.Ramesh Babu F.P.shop dealer Patha Konduru village has filed W.P.No.16553/2006 challenging the orders of the Joint Collector Krishna in Rc.B1/SRA/12/2006, dt.18-7-2006. During the pendency of the writ petition before this Court Sri M.Ramesh Babu S/o.Peddabai has tendered his resignation to the F.P. shop dealership of Patha Konduru village voluntarily and the same was accepted in Nuzvid RDO’s proceedings Rc.A.3578/2004, dt.07-10-2006 and also cancelled the authorization held by him with immediate effect. This Court has dismissed the writ petition filed by M.Ramesh Babu as infructuous. Hence, a fresh notification was issued to fill up the vacancy caused due to resignation of Sri M.Ramesh Babu. It is submitted that a fresh notification was issued on 06-07-2007 calling for applications from the candidates belonging to Scheduled Castes (General), to fill up the vacancy fell due to the resignation of Sri M.Ramesh Babu and the notification was issued in accordance with the instructions issued by the Government in G.O.Ms.No.53 CA & FCS (CS-I) Dept, dt.06-10-2003 and hence the contention of the petitioner cannot be taken into consideration. The Joint Collector, Krishna, issued orders in Rc.B1/SRA/12/2006, dt.18-07-2006 with an observation that if the candidate Sri P.Pullaiah fulfills all the conditions required for appointment as F.P. shop dealer, his plea for appointment as F.P. shop dealer can be considered by the appointing authority i.e., Revenue Divisional Officer, Nuzvid as per merit and further action can be taken as per law. But the appellate authority did not direct the appointment of the petitioner. Hence, the notification issued to fill up the vacancy fell due to resignation of Sri M.Ramesh Babu is in accordance with the instructions of the Government vide G.O.Ms.No.53 CA & FCS (CS-I) Dept., dated 6-10-2003. 6. These are the respective stands taken by the parties. In para 6 of the counter-affidavit it is specifically stated that the Joint Collector, Krishna, issued orders dated 18.7.2006 with an observation that if the candidate Sri P.Pullaiah fulfills all the conditions required for appointment as fair price shop dealer can be considered by the appointing authority i.e., Revenue Divisional Officer, Nuzvid, as per the merit and further action can be taken as per law. Further, it had been specifically observed that the appellate authority did not direct the appointment of the petitioner. Hence, the notification issued to fill up the vacancy had been quashed. 7. It may be appropriate to have a glance at the relevant portion of the order of the 2nd respondent dated 18.7.2006 wherein it was specifically observed that: “Further, in this case, both the candidates are having minimum educational qualification and both are unemployed. The respondent is the resident of the main village, 2 KMs away from the hamlet where the shop is to be located, whereas the petitioner is a resident of the hamlet in which the shop is to be located. Thus, all other things being equal, preference shall be given to the resident of the hamlet in which the shop is to be located instead of a candidate residing in the same revenue village, but in another hamlet, about 2 KM away from the hamlet in which the shop is to be located. Hence, if the appellant fulfils all the conditions required for appointment as the fair price shop dealer, his plea for appointment as the fair price shop dealer can be considered by the appointing authority and Revenue Divisional Officer, Nuzvid, as per merit and further action can be taken as per law.” 8. In the light of the same, the 3rd respondent is bound to follow the said order, and without considering the case of the petitioner it appears notification had been issued for fresh appointment. When an order had been made by the appellate authority, the Joint Collector, Krishna, Machilipatnam, the said order to be implemented by the third respondent, the Revenue Divisional Officer. In the light of the same, this Court is of the considered opinion that the action of the respondents in issuing the fresh notification in R.C.A./3578/2004 dated 6.7.2007 for appointment of fair price shop dealer in respect of the shop in Pathakonduru village totally ignoring the order of the second respondent in Rc.B1/SRA/12/2006 dated 18.7.2006 is illegal and arbitrary and in the light of the same, the said notification is hereby quashed and the 3rd respondent is hereby directed to follow the orders made by the 2nd respondent in Rc.B1/SRA/12//2006 dated 18.7.2006 and pass appropriate orders. 9. The writ petition is, accordingly, allowed to the extent indicated above. No order as to costs. _________________ P.S.NARAYANA,J 21st January, 2008. PNV THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.15942 OF 2007 Date: 21-1-2008