Fida Hussain and Another vs State and Others

Muzaffar Hussain Attar, Judge

Whom to trust when fence starts eating the field?

The State of Jammu and Kashmir is inhibited by that section of people also which is not in a position to have both ends meet. By sheer illegal

and immoral exercise of authority even the food grains are being denied to needy and deserving people. From the bossom of insensitiveness,

shown to the abominable living conditions of a section of population by a handful of powerful people, will be begotten a revolution taking in its tide

everything that will come in its way. Remedial steps require to be taken lest it will be too late.

The petitioners who are Storekeepers in the respondent department have filed this petition praying therein for issuance of Writ of Certiorari for

quashing the recovery notices issued by the authorities against them seeking recovery of amount of shortfalls on account of dryage and wastage as

also for quashment of Government order No.163-CAPD of 2005 dated 27.7.2005. It is further prayed that by issuance of Writ of Mandamus

respondents be directed to grant allowance of 3% on account of wastage and dryage of food grains to the storekeepers of Leh and Kargil region

including the petitioners and not to effect any recovery on account of shortfalls in the stores caused due to the wastage and dryage in Ladakh

region. Respondents have filed the reply affidavit.

Heard learned counsel for the parties.

Considered the matter.

Mr. Lone, learned counsel for the petitioners submitted that Ladakh region is extremely dry region and in view of the climatic conditions

prevailing in that part of the State, the petitioners are entitled to get allowance @ 3% on account of wastage and dryage of food grains. Learned

counsel also submitted that in the State of Punjab and Himachal Pradesh the allowance is being given at the same rate for the same reason to the

storekeepers.

Learned counsel for the petitioners also referred to para 3 of the objections filed in SWP No.837/2005 to show that in fact respondents have

admitted grant of 3% allowance on account of wastage and dryage of food grains stored by the storekeepers. Learned counsel also referred to the

minutes of the meeting which have been placed on record along with CMP No.3095/2007 in which recommendations have been made by the

Committee on 27th Of September, 2007, for prescribing the norms of wastage/dryage as prescribed by the Book of Financial Powers/Financial

Code and to be taken up in Cabinet and to be followed prospectively. Learned counsel submitted that in view of harsh climatic conditions in

Ladakh region 3% allowance on account of wastage and dryage to the Storekeepers is most reasonable and genuine demand. Learned counsel

accordingly submitted that the order impugned in this writ petition deserves to be quashed along with recovery notices so that justice is meted out

to the petitioners. Learned counsel very fairly conceded that this Court will not on its own fix any percentage which would include even 3%

allowance on account of wastage and dryage to be given to the petitioners. While concluding his submission, learned counsel for the petitioners

made an effort to persuade this Court to direct the Government to take a decision either way on the recommendations made by the Committee

vide No. CAPD-80/Food/ 2006 dated 27.9.2007.

Learned counsel for the respondents M/S Allaud-din Ganai and M.A. Thakur, submitted that the policy of the Government is reflected in

Administrative Council's decision No. 130 elated 22nd December, 22.12.1993 in pursuance of which Govt. order No.19-FS of 2003 dated

21.2.2003 was issued, where-under norms regarding shortages on account of wastage and dryage of food grains were fixed and it was provided

that in any case same shall not exceed 100 grams per quintal. It was also provided that the shortages proposed to be allowed shall not be

considered as a matter of right but allowed in each actual case on merits.

Learned counsel for the respondents submitted that earlier writ petition were filed by some other Storekeepers and even Storekeepers

Association seeking same relief which have been disposed of by this Court and the relief sought for in this petition was declined in the said

petitions. Learned counsel further submitted that Writ of Mandamus cannot be issued in the attendant facts and circumstances of the case as the

petitioners are not clothed with any right in law to seek such a relief.

Allowing shortages on account of dryage and wastage of food grains in the respondent department continue to be governed by Government

Order No.19-FS of 2003 dated 21st of February, 2003. In terms of said Government order, which as stated above was issued pursuant to

Administrative Councils Decision No. 130 dated 22.12.1993, it is provided that the normal shortage on account of dryage and wastage of food

grains in any case shall not exceed 100 grams per quintal and that the shortages proposed to be allowed shall not be considered as a matter of

right but allowed in each actual case on merits. The respondents are duty bound to comply and implement the aforementioned Government order

until such time same is rescinded, modified or revoked. The said Government order is not challenged. The respondents are thus duty bound to

follow the mandate contained in the said Government order and petitioners are estopped from challenging the order impugned in this petition.

The Government order No.163-CADP of 2005 dated 27.7.2005; which is called in question in the instant writ petition, has the effect of

rejecting the recommendation s made by the Committee constituted by the Government vide Govt, order No.19-FS of 2003. The Government

rejected the report of the Committee on the ground that the report was not in conformity with the mandate given to the Committee in terms of the

aforementioned order. It was also found that the committee failed to recommend the procedure and delegation of authority to write off shortages

on account of dryage and wastage. The Government accordingly rejected the report of the Committee.

With what right the petitioners can be said to be clothed with in law to compel the Government to accept the recommendations of the

Committee. The petitioners are government employees and it is their duty to follow/obey/implement the mandate of rules and Governments orders

in letter and spirit. Any committee constituted by the Government has to work within the framework of terms of reference and within the four walls

of the mandate given to it. When the Committee constituted transcends its barriers, Government has every right to reject its report. The petitioners

cannot pray for issuance of Writ of Mandamus to direct the Government to accept the recommendations made by a committee. Seeking

quashment of the Govt, order impugned in this petition in essence would mean compelling the Government to accept the recommendations.

Government has recorded reasons at para 12 of the impugned order for not accepting such recommendations. The reasons are legally sound. A

committee constituted cannot make recommendations for doing an act for which it has not been given the mandate. The said recommendations

cannot be said to be binding on the Government.

The stand taken by the respondents in the objections filed in SWP No.837/2005 which writ petition has been disposed of by the Court vide its

order dated 1st of December, 2006, does not provide cause to the petitioners to file this writ petition, hi para 3 of the objections aforementioned it

was pleaded by the respondents that 3% of allowance on account of wastage and dryage of food grains stored by the Storekeepers in their stores

is quite reasonable and should in all probabilities compensate the wastage and dryage of food grains and the petitioners should have no grudge

against the same. The stand so taken is not supported by any government order. How and in which circumstances such a stand has been taken by

a subordinate authority is not explained to the Court. As already stated above, the affairs are covered by Govt, order No.19-FS of 2003 dated

21st of February, 2003. The stand taken in the objections thus will not bind the government and will not cloth the petitioners with any right to file

the petition on the basis of stand so taken by an authority before the Court. The said stand further cannot become basis for filing the instant petition

as the writ petition in which said stand was taken has been disposed of and no credence appears to have been given to such a stand. No credence

can be given to the said stand for the aforementioned reasons.

Further submission of the learned counsel for the petitioners that the allowance @ 3% on account of dryage and wastage is given in the States

of Punjab and Himachal Pradesh cannot be a ground for this Court to issue Writ of Mandamus directing the government to give like treatment to

the petitioners. It is for the government to take a decision after considering all the relevant factors. The Court cannot substitute itself for an authority

and take a decision in a matter when no material, much less scientific material, is placed before it. It is for the appropriate authority in the

Government to take a decision after considering all the relevant material in the matter. The Court in the facts and circumstances of the case will not

be in a position to take such a decision. The submission of learned counsel for the petitioners fall to ground lock, stock and barrel.

The learned counsel for the petitioners submitted that a High Powered Committee was constituted during the pendency of this writ petition and

recommendations were made way back on 27th of September, 2007 but the issue has not been considered by the Competent Authority and no

decision has been taken thereon and prayed to direct the competent authority to take a decision on it. No such relief is sought in the writ petition. It

is a development which has taken, place during the pendency of writ petition. 11 is for the Government either to consider or not to consider the

report. The petitioners are at liberty to approach the Government in this behalf.

For the sated reasons, this petition is held to be not maintainable and is accordingly dismissed. Interim order shall stand vacated.