K.P. Kumar vs State of Karnataka

A.N. Venugopal Gowda, J.—Authorisation under Clause 3 of Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 (for short, the ''Control Order'') granted on 13-11-2008, in favour of the petitioner, when questioned in appeal, having not been interfered with as per order dated 13-5-2009, W.P. No. 17463 of 2009 was filed by the 5th respondent, who was a rival applicant. The writ petition was allowed on 10-8-2009 and the matter was remanded to the Authorised Authority, to consider all the six applications afresh, having regard to the relevant provision of the Control Order. The Authorised Authority having issued an authorisation in favour of the 5th respondent, vide order dated 8-3-2010, when questioned by the petitioner in Appeal No. 4 of 2010-2011, was upheld on 28-1-2012. A revision petition filed against the said orders in No. FCS 12/ECA/2012 having been dismissed on 29-4-2014, this writ petition was filed assailing the aforesaid orders and to direct the 3rd respondent to grant the authorisation in favour of the petitioner. Sri T.A. Karumbaiah, learned Advocate, contended that the impugned orders are arbitrary and illegal. He submitted that the petitioner having run the fair price depot without any complaint from 13-11-2008, the 3rd respondent was unjustified in granting the authorisation on 8-3-2010, in favour of the 5th respondent. He submitted that the petitioner''s livelihood has been affected on account of the upholding of the order dated 8-3-2010 of the respondent. He submitted that, since the case of the petitioner has not received lawful consideration in the hands of respondents 1 to 3 and the impugned orders being perverse and arbitrary, interference is called for.

Sri H.C. Shivaramu, learned Advocate for the 5th respondent, on the other hand contended that the order passed on 10-8-2009 in W.P. No. 17463 of 2009 having become final and there being a mandamus issued to consider the six applications afresh and the 5th respondent being an unemployed graduate, falling within the order of priority for grant of authorisation under Clause 6(1)(b)(v), the 3rd respondent is justified in ordering issuance (sic) authorisation on 8-3-2010 and there being no infirmity in the said order, the 2nd and 1st respondents are justified in passing orders dated 28-1-2012 and 29-4-2014. Learned Counsel placed reliance on the decisions in the cases of Smt. Sakamma Vs. State of Karnataka and Others, and Y. Srinivasa Rao Vs. J. Veeraiah and Others, and submitted that the matter having been considered in accordance with law by respondents 1 to 3, no interference with the impugned orders is called for.

Sri H.B. Mahesh, learned HCGP, submitted that the case of the petitioner and the 5th respondent was considered in terms of the observations and directions in the order passed in W.P. No. 17463 of 2009 and there being no violation of any provision of the Control Order, the 5th respondent being unemployed graduate having applied for grant of authorisation, which being not the case insofar as the petitioner is concerned, the 3rd respondent is justified in issuing the authorisation on 8-3-2010.

Perused the writ record and considered the rival contentions.

There is no dispute that the 5th respondent is a graduate and unemployed. The petitioner does not fall in any of the categories enumerated in Clause 6(1)(b)(i) to 6(1)(b)(v), 6(1)(b)(v)(a) to 6(1)(b)(v)(e). He falls within the last category "Others". As per the order of priority, the 5th respondent being above the petitioner, falling within Clause 6(1)(b)(v)(c), the 3rd respondent is justified in issuing the authorisation on 8-3-2010. There is concurrent finding on facts by the 1st and 2nd respondents. The decisions which respondents 1 to 3 have taken have not been shown to be either perverse or illegal, though such a contention was advanced by Sri T.A. Karumbaiah.

In the case of Y. Srinivasa Rao, Apex Court has held that the decision to prefer an uneducated person over an educated person amounts to allowing a premium on ignorance, incompetence and consequently inefficiency. It has been further held that preference given to less educated person with experience of running a fair price shop in the past on the premise that he would stick to the business while the latter may get better job and leave was arbitrary and discriminatory.

In the case of Sakamma, the petitioner, whose educational qualification was only upto 4th Standard and the 4th respondent, who was an unemployed graduate, applied for authorisation for running a fair price shop. Deputy Commissioner, after considering the eligibility of the applicants, granted authorisation in favour of the petitioner, which the 4th respondent challenged before the Appellate Authority. Appellate Authority set aside the order of the Deputy Commissioner and directed him to reconsider the respective cases of the petitioner and the 4th respondent. The said order when questioned in a writ petition, it was held as follows:

"4. In the present case, admittedly, neither the petitioner nor the 4th respondent belongs to Scheduled Caste. Further the petitioner has an educational qualification only upto 4th Standard. So far as the 4th respondent is concerned, he claims to be an unemployed graduate. If that be the situation, then under Clause 6(1)(b)(v)(c) of the priority rule as quoted, the 4th respondent has to be given precedence over the petitioner".

(emphasis supplied)

The instant case squarely falls within the parameters of decision in Sakamma''s case, noticed supra.

In view of the settled principles of law, the 5th respondent being entitled under the order of priority, the 3rd respondent is justified in passing the order dated 8-3-2010 and 2nd respondent is justified in dismissing the appeal filed against the said order on 28-1-2012 and the 1st respondent upholding the said orders as per order dated 29-4-2014. I am satisfied that the respondents 1 to 3 have considered the case of the petitioner and 5th respondent, in terms of the order dated 10-8-2009 passed in W.P. No. 17463 of 2009 which being inter parties, has attained finality and 3rd respondent was bound by the observation made therein. The case of the parties having been considered in terms thereof, there being neither arbitrariness nor illegality, no interference with the impugned order is warranted.

Petition being devoid of merit is dismissed with no order as to costs.