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Judgment
The petitioner has filed the instant application for the following reliefs:
“ A) To issue a writ in nature of certiorari setting aside the order dated 08.06.2023 passed by Respondent No.3, the Commissioner, Koshi Division, Saharsa, affirming final selection list dated 20.07.2018 at Serial No.69, Block-Raghopur, Gram Panchayat- Champanagar wherein Private Respondent No.9, Mukesh Kumar was selected for allotment of P.D.S. dealership license although he was having only D.C.A. (Diploma in Computer Application).
B) To issue a writ in the nature of certiorari setting aside the final selection list dated 20.07.2018 at Serial No. 69 issued by the District Level Committee for selection of P.D.S. dealer setting aside selection of Private Respondent No.9, Sri Mukesh Kumar as he has lower qualification of Diploma in Computer Application whereas petitioner has higher degree of Advance Diploma in Computer Application. Selection of Respondent No.9 is in contravention of Para- 9(v) proviso of Bihar Targeted P.D.S. Control Order, 2018.
C) To issue a writ in the nature of certiorari setting aside P.D.S. Dealership License No. 67/2018 against Roaster Point No.96, Gram Panchayat- P.S.- Raghopur, Champanagar, Block District- Supaul, issued in favour of Respondent No.9, Mukesh Kumar in pursuance to list dated 20.07.2018 issued by District Level Selection Committee (Annexure. Annexure-4.
D) Any other relief/reliefs for which the petitioner is entitled in the facts and circumstances of the instant writ application."
The brief facts culled out of the Writ petition are that the petitioner applied for selection as a P.D.S. dealer against the B.C. category vacancy at Champanagar Gram Panchayat, Raghopur Block, District Supaul, pursuant to Advertisement No. 1 of 2017. The petitioner possessed an Advance Diploma in Computer Application (A.D.C.A.), whereas Private Respondent No. 9, Mukesh Kumar, possessed a Diploma in Computer Application (D.C.A.). Under Clause 9(v) of the Bihar Targeted Public Distribution System (Control) Order, 2016, preference was to be given to an applicant possessing a computer knowledge and, in case of equality, to the applicant having higher qualification shall be considered.
The petitioner claimed a higher computer qualification and was also older than Private Respondent No. 9, the District Level Selection Committee selected Private Respondent No. 9 in the final selection list dated 20.07.2018. The petitioner challenged the selection before this Court in C.W.J.C. No. 19043 of 2018, which was disposed of on 02.12.2022 with liberty to the petitioner to approach the concerned Divisional Commissioner. Pursuant thereto, the petitioner filed Supply Revision Case No. 163 of 2022, which was dismissed by the Commissioner, Koshi Division, Saharsa, vide order dated 08.06.2023.
The Learned counsel for the petitioner submits that the Commissioner has failed to properly apply Clause 9(v) of the Bihar Targeted Public Distribution System (Control) Order, 2016. It is submitted that the petitioner possessed A.D.C.A., whereas Private Respondent No. 9 possessed only D.C.A., and the petitioner was also older. Therefore, the petitioner was entitled to preference under the prescribed criteria. The Learned counsel for the petitioner further submits that the selection of Private Respondent No. 9 and the consequential dealership are contrary to the applicable selection rules and, therefore, are liable to be quashed.
A counter affidavit has been filed on behalf of the State respondents i.e. respondent Nos. 4 to 8. The Learned counsel for respondent Nos. 4 to 8 submits that the petitioner applied for the P.D.S. dealership by disclosing his qualification as Intermediate in the application form, whereas Private Respondent No. 9 disclosed his qualification as B.A. and was, accordingly, found to have the higher qualification.
It is submitted that the final merit list was prepared in accordance with the Bihar Targeted Public Distribution System (Control) Order, 2016 and Private Respondent No. 9 was selected on the basis of his higher qualification. The Learned counsel further submits that the Divisional Commissioner, after considering the petitioner’s Supply Revision Case, has passed a reasoned and speaking order finding no illegality in the selection. The Learned counsel for the responents, therefore, prays to dismiss the Writ petition.
A counter affidavit has been filed on behalf of the private respondent / respondent 9. The Learned counsel for the respondent No. 9 submits that the writ petition is not maintainable and is liable to be dismissed. It is submitted that the petitioner had disclosed himself as an Intermediate pass in his application form, whereas Private Respondent No. 9 was a graduate and was a resident of the same Panchayat, Block and Sub-Division for which the vacancy was advertised. The petitioner, on the other hand, was a resident of a different Panchayat and Block.
The Learned counsel for the respondent No. 9 further submits that Private Respondent No. 9 was rightly selected by the District Level Selection Committee after due verification and has been running the P.D.S. shop for several years. The petitioner has also not specifically challenged the reasons recorded by the District Level Committee for not selecting him. It is, therefore, submitted that no interference is warranted with the impugned order or the selection of Private Respondent No. 9.
The Learned counsel for the respondent No. 9 relied upon the judgment passed in CWJC No. 6641 of 2023 (Rinku Kumari Vs. The State of Bihar & Ors.). The observation made in Rinku Kumari (supra) is quoted hereinbelow:
"5.Admittedly, in the present writ petition, the only controversy is as to whether the provisions of Rule 8 will take precedence over Rule 9 of the Control Order, 2016 or vice-versa. In order to appreciate the issue involved in the present writ petition, it is necessary to extract the provisions of the Rule 8 and Rule 9 which reads as under;
“8. Priorities in allotment of fair price shop.
Except the compassionate ground cases, the priorities in allotment of fair price shops shall be as follows:
(i)Self Help Groups;
(ii)Cooperative Societies of Women;
(iii)Cooperative Societies of Ex-Servicemen;
(iv)Educated Unemployed persons:
(v)The resident of a panchayat or ward shall be given priority.
9.The following facts shall be considered in allotting a fair price shop by the Selection Committee.
(i)There shall be one fair price shop for the population of 1350 in urban areas and for the population of 1900 in rural areas on the basis of the census data prevailing at the time. a maximum distance
(ii)It shall be ensured that a consumer should not cover of more than two kilometer in reaching his fair price shop both in rural and urban areas.
(ii)In distant and difficult communication areas, especially in the areas of the scheduled castes/tribes, a fair price shop may be allotted for a population of 1000.
(iv)The self help groups or cooperative societies of women/ex-servicemen shall be deemed to belong to in that class (such as scheduled caste, scheduled tribe, extremely backward class, backward class, backward class women and general) in which more than 50 percent of the members of the managing committee of such self help groups or cooperative societies of women/ex-servicemen, belong to, for the purpose of determination of their reservation status.
(v)The applicant of a fair price shop's license must be matric pass and an adult: Provided that the applicant having computer knowledge shall be given priority. In case of equality in computer knowledge, the applicant having highest qualification and in case of equality in highest qualification also the applicant of older age shall be given priority.
(vi)In case, a cancelled license is in appeal or in revision, and the lower court's order is stayed, such cancelled license shall not be enumerated in the list of vacant fair price shops.
(vii)The process of filling up vacant fair price shops shall be a continuous process, and a vacant fair price shop shall be filled up within a month from its vacancy.
(viii)After approval of the District Officer on the reservation roaster point prepared in accordance with the reservation roster point determined by the General Administration Department applications shall be invited for filing up the vacant fair price shops by advertisement at least in two daily news papers.
(ix)Against unreserved vacancies, persons of all classes may submit application, and the selection shall be made purely on merit, and their status shall be unreserved.
(x)The license for a fair price shop shall be issued in the name of self help groups and cooperative societies of women/ex-servicemen and its operation shall be made by their managing committee.
(xi)A fair price shop owner shall have the fair price shop in its catering locality, and as an exception in special circumstances in view of convenience of the beneficiaries a fair price shop may be allowed outside of the catering area by the prior approval of the District Officer.”
6.Rule 8(v) states that the priority in allotment of fair price shop should be given to the resident of the panchayat or ward. Rule 9 prescribes the eligibility criteria for allotment of the fair price shop. Under the said rule, a person applying for the license of the fair price shop should be a matriculation pass and an adult, he should have sufficient computer knowledge and in case there is equality among the applicants with regard to the computer knowledge, then the applicant having the highest qualifications should be given preference and in case there is equality in the qualification, then the person who is older should be selected. The contention of the petitioner that the authorities concerned first ought to take into consideration the criteria provided under Rule 9 and only if no eligible candidate is available, then only they can rely on Rule 8 is flawed and cannot be countenanced. In case the argument put forward by the learned counsel for the petitioner is accepted, then the very purpose of enacting Rule 8 will be defeated. The very purpose of having Rule 8 is to give preference to the class of persons enumerated in Rule 8. As per Rule 8(v), the residents of the panchayat or the ward shall be given priority. In case there are eligible candidates belonging to the very same panchayat or ward for which the PDS license is sought to be allotted, then they should be given priority. The very purpose of enacting the said rule is to provide employment to the residents of panchayat/ward and only in case there are no eligible candidates belonging to the very same panchayat or ward meeting the eligibility requirements enumerated under Rule 9, then only the persons from other villages, panchayats or wards can be selected. The reasons given by the Divisional Commissioner vide order dated 01.04.2023 cannot be faulted with and the order is in accordance with the provisions of the Control Order, 2016. The conclusion reached by the authority concerned is a well reasoned one and factually correct. Moreover, as seen from the record, the petitioner is still having a ration card from the Manichapara Kalyanpur Purvichamparan village and her name is also reflected in the voter list at Serial No. 702 of Page 18 (AnnexureR-8/B) filed along with the counter affidavit filed by the Respondent No. 08. Therefore, it cannot be said that the petitioner is a resident of Bokane Kala village.
7.Having regard to the above facts and circumstances, this Court does not find any merit in the present writ petition which warrants any interference and the same is accordingly dismissed."
Heard the Learned counsel for the petitioner as well as the Learned counsel for the respondents.
Having considered the rival submissions and the materials available on record, this Court finds that the controversy primarily involves disputed questions of fact, particularly with regard to the educational and computer qualifications disclosed by the petitioner and respondent no. 9 at the time of application, as well as the applicability of the relevant preference criteria under the Bihar Targeted Public Distribution System (Control) Order, 2016.
The contentions raised by respondent no. 9, including his plea regarding residence and the other grounds taken in the counter affidavit, also require consideration by the competent authority in the light of the relevant records and documents.
In view of the above, without expressing any opinion on the merits of the rival claims, the order dated 08.06.2023 passed by the Divisional Commissioner, Koshi Division, Saharsa, is set aside and the matter is remitted to the Divisional Commissioner, Koshi Division, Saharsa, to consider the documents and contentions of both sides and pass a fresh, reasoned and speaking order in accordance with law after affording due opportunity of hearing to the concerned parties.
The Writ petition is, accordingly, disposed of with the aforesaid observations.
Interlocutory Application(s), if any, shall stand disposed of.