# Yogendra Prasad v. State of U.P. & Ors

- **Citation:** (2022) 12 ILRA 400
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-30
- **Case number:** Writ-C No. 31056 of 2022
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-prasad-v-state-of-u-p-ors-47874
- **Pages:** 7

## Headnote

A. Civil Law - UP Essential Commodities
(Regulation at Sale & Distribution) Rules
2013 - R. 13 (1) - Fair price Shop licence
- Subsequently allotted after cancellation
- Subsequent allottee, how far entitled to
be impleaded and hearing - Ram Kumar's
case relied upon - Subsequent allottee
should also be arrayed as a one of the
party before the authorities while hearing
the matter in respect of cancellation of
fair
price
shop
-
Held,
even
if
a
subsequent allottee does not have a
independent rights, he/she still has a right
to be heard and to make submissions
defending the order of cancellation. (Para
13 and 16)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

400 INDIAN LAW REPORTS ALLAHABAD SERIES
extent it seeks to blacklist the entire fleet of
TTs of the petitioner's firm is set aside. In
so far as other penalties imposed by the
order dated 09.12.2021 are concerned, we
leave it open to the petitioner to take
recourse to other alternative remedies
including the alternate dispute resolution
mechanism which exists in the contract.
We, accordingly, do not express any
opinion in respect of those other penalties.
It is also clarified that quashing of the order
dated 09.12.2021 to the extent indicated
above will not come in the way of the
respondent-corporation to issue a fresh
show cause notice and pass a fresh order in
respect thereof, in accordance with law.
----------
(2022) 12 ILRA 400
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2022

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-C No. 31056 of 2022

Yogendra Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anand Tiwari

Counsel for the Respondents:
C.S.C., Sri Ashutosh Pandey, Sri Ashish
Agrawal

A. Civil Law - UP Essential Commodities
(Regulation at Sale & Distribution) Rules
2013 - R. 13 (1) - Fair price Shop licence
- Subsequently allotted after cancellation
- Subsequent allottee, how far entitled to
be impleaded and hearing - Ram Kumar's
case relied upon - Subsequent allottee
should also be arrayed as a one of the
party before the authorities while hearing
the matter in respect of cancellation of
fair
price
shop
-
Held,
even
if
a
subsequent allottee does not have a
independent rights, he/she still has a right
to be heard and to make submissions
defending the order of cancellation. (Para
13 and 16)
Writ petition allowed. (E-1)
List of Cases cited:
1. Ram kumar Vs St. of U.P. & ors.; 2022 (11)
ADJ 229 (S.C.)
2. Civil Appeal No. 3668 of 2022; Pawan
Choubey Vs St. of U.P. & ors. decided on 6-52022
3. Special leave to Appeal (C) Nos. 37283-37284
of 2012; Sumitra Devi Vs St. of U.P. & ors.
decided on 8-10-2014
4. Poonam Vs St. of U.P. & ors..; (2016) 2 SCC
779
(Delivered by Hon'ble Prakash Padia, J.)

1. Heard, learned counsels for the
parties and perused the material on records.

2. By means of present writ petition,
petitioner is seeking for quashing of the
order dated 26-09-2022 passed by the
respondent No-2, Deputy Commissioner
(Food) Basti Region, Basti in case No. 285
of 2022 under Rule 13 (1) of UP Essential
Commodities (Regulation at Sale and
Distribution) Rules 2013, allowing the
appeal filed by respondent No. 5. Further
prayer has been made by petitioner for
mandamus directing the respondents not to
interefere in peaceful functioning of the
petitioner as Fair Price Shop Dealer in
Gram Panchayat Bhotaha, Block Pauli,
Tehsil Dhankata District Sant Kabir Nagar.

3. Learned counsel for the petitioner
submits that after cancellation of fair price
shop licence of respondent No. 5, by the
respondent
No.3-Sub
Divisional
12 All. Yogendra Prasad Vs. State of U.P. & Ors.
401
Magistrate, Tehsil Dhankata District Sant
Kabir Nagar on 9-6-1022, the due process
as prescribed under the Guidelines and
Government Orders issued in this regard,
was followed and the proposal for selection
of petitioner as fair price shop dealer at
village in question has been recommended
by the Block Devlopment Officer before
the respondent no.3. By order dated 6-82022 passed by the respondent No -3, the
licence of fair price shop at village in
question was granted in favour of the
petitioner and at present the petitioner is
functioning as fair price shop dealer
without any complaint whatsoever.

4. Learned counsel for petitioner further
submits that by the impugned order dated 269-2022, respondent no.2 has wholly illegally
and in arbitrary manner, allowed the appeal
filed by the respondent no.5 against the
cancellation of his fair price shop licence. He
further submits that before passing the order
dated 26-9-2022, no opportunity of hearing
has been given to the petitioner inspite of fact
that petitioner was selected as fair price shop
dealer after the due process. Counsel for the
petitioner further submitted that the petitioner
being a duly selected fair price shop dealer is
the necessary party before the respondent No2 in appellate proceedings, but without
considering the same impugard order has
been passed without hearing the petitioner.
The counsel for the petitioner further submits
that without impleading the petitioner as
party before the appellate court, the decision
in favour of respondent no.5 is wholly illegal
and arbitrary.

5. Lastly it was contended by the
counsel for petitioner that the impugned
order dated 26-9-2022 was passed by
violating the principles of natural justice.
The respondent no.5 was very well aware
regarding the allotment of fair price shop in
favour of petitioner, during the pendency of
the appeal, but the same has not been
disclosed.

6. In support of his submissions,
learned counsel for the petitioner has
placed reliance on the judgements passed
by the Supreme Court in the cases of Ram
kumar Vs. State of U.P. & others reported
in 2022 (11) ADJ 229 (S.C.), decided on
28-9-2022; Pawan Choubey Vs. State of
U.P. & others in Civil Appeal No 3668 of
2022 decided on 6-5-2022 and Sumitra
Devi Vs State of UP & others in Special
leave to Appeal (C) Nos. 37283-37284 of
2012 decided on 8-10-2014, and submitted
that the subsequent allottee is the necessary
party in the proceedings, as the orders
passed in favour of original allottee
adversly affects the interest of subsequent
allottee.

7. Per contra, the learned counsel for
respondents No.5 and leearned Standing
Counsel Submits that after restoration of
fair price shop license in favour of
respondents No.5 by the respondent No. 2,
the petitioner being a subsequent allottee
have no right to avail any remedy against
the appellate order dated 26-9-2022 passed
by the respondent no.2. Counsel for the
respondent no. 5 further Submits that the
petitioner being a subsequent allottee is not
a necessary party and the respondent no.2
have not committed error while passing the
order dated 26-9-2022.

8. In support of his submission
learned counsel for respondent no.5 has
relied upon the judgement of Supreme
Court in the case of Poonam Vs State of
U.P. & others. reported in (2016) 2 SCC
779 and submitted that the present petition
at the behest of subsequent alottee is not at
all maintainable.
402 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Another argument has been made
on behalf of the private respondents that
since the allotment was made in favour of
the petitioner during the pendency of the
appeal filed by the respondent no.5, the
petitioner has no right to be heard.

10. Heard counsel for the parties and
perused the record and with the consent of
counsel for the parties, the writ petition is
disposed of finally.

11. Since pure question of law
involved in the present case is that whether
a subsequent allottee has a right to be heard
or not. In paragraph-49 of the judgment of
Poonam (Supra) the Hon'ble Apex Court
was pleased to hold that the subsequent
allottee has no locus to challenge the order
passed in favour of the original allottee.
The subsequent allottee is a third party to
the lis in this context. Paragraph-49 is reads
as follows:-

"49. In the instant case, Shop No.
2 had become vacant. The appellant was
allotted
the
shop,
may
be
in
the
handicapped quota but such allotment is
the resultant factor of the said shop falling
vacant. The original allottee, that is, the
respondent, assailed his cancellation and
ultimately succeeded in appeal. We are not
concerned with the fact that the appellant
herein was allowed to put her stand in the
appeal. She was neither a necessary nor a
proper party. The appellate authority
permitted her to participate but that neither
changes the situation nor does it confer any
legal status on her. She would have
continued to hold the shop had the original
allottee lost the appeal. She cannot assail
the said order in a writ petition because
she is not a necessary party. It is the State
or its functionaries who could have
challenged the same in appeal. They have
maintained sphinx like silence in that
regard. Be that as it may, that would not
confer any locus on the subsequent allottee
to challenge the order passed in d favour of
the former allottee. She is a third party to
the lis in this context."

12. Insofar as the law relied upon on
behalf of petitioner is concerned, in the
case of Sumitra Devi (Supra), the Hon'ble
Apex Court was pleased to hold that after
the cancellation of license to the original
allottee, the license was granted in favour
of some other person which is called as
subsequent allottee. Once an application for
impleadment has been filed by him, is
liable to be heard. Order passed in the
aforesaid SLP reads as follows:-

"Leave granted.

The appellant has challenged
orders dated 16.02.2012 and 06.09.2012
passed by the High Court of Allahabad. By
order dated 16.02.2012 the High Court has
set aside the order passed by the Licencing
Authority and the appellate authority and
restored the Fair Price Shop licence of
respondent
no.6.
By
order
dated
06.09.2012, the High Court has rejected
the
review
application
filed
by
the
appellant. The appellant is the subsequent
allottee in the sense that after the licence of
respondent
no.6
was
cancelled
on
18.01.2008, he was granted licence on
20.02.2008.

We have heard learned counsel
for the appellant and learned counsel for
the respondents.

Gist of the facts needs to be
stated. On 18.01.2008, the Sub-Divisional
Officer, Gorakhpur cancelled the Fair
Price Shop licence of respondent no.6 on
the ground that he did not deposit the
requisite amount for release of quota for
the month of November 2007. The appeal
12 All. Yogendra Prasad Vs. State of U.P. & Ors.
403
preferred
by
respondent
no.6
was
dismissed by the Deputy Commissioner,
Food and Civil Supplies, Gorakhpur on
07.07.2008. These orders were challenged
by respondent no.6 before the High Court
of Allahabad. The High Court, by order
dated 16.02.2012, set aside the orders
cancelling the licence of respondent no.6
and restored his licence.

It appears that after the 6th
raspondent's Licence was cancelled, the
appellant
was
granted
licence
on
20.02.2008 by the 5th respondent. The
appellant being the subsequent allottee
filed an application for impleadment in the
writ
petition
on
17.10.2008.
That
application was neither entertained nor
allowed. The impugned order came to be
passed without hearing the appellant, i.e.,
the subsequent allottee. We notice that in
the order passed on the review application,
the High Court has taken note of the fact
that the impleadment application of the
appellant was neither entertained nor
allowed. Surprisingly, the High Court has
gone on to say that since it was neither
entertained nor allowed, it stood rejected.

Learned counsel for the appellant
urged and, in our opinion, rightly that the
High Court should have heard
the
appellant before restoring the licence of
respondent no.6 as the appellant was the
subsequent allottee and his rights were
affected by the Restoration of License of
Respondent no.6. We are entirely in
agreement with learned counsel for the
appellant. In our opinion, the High Court
could not have restored the licence of
respondent no.6 without hearing the
appellant as his rights were certainly
affected by such order. Besides, he had
filed an impleadment application. That
application was not considered. No order
was passed thereon. In our opinion, the
High Court is not right in observing that
since the said application was neither
entertained nor allowed, it stood rejected.
We are not happy with the hearing given at
the stage of review application and the
cryptic order passed on the review
application. In our opinion, the appellant
should have been heard on 16.02.2012.

In the circumstances, we set aside
the impugned order. We remit the matter to
the High Court. We request the High Court
to give a hearing to the appellant and all
concerned and decide the matter afresh.
We make it clear that on the merits of the
case, we have expressed no opinion and the
High
Court
will
decide
the
matter
independently. It is also made clear that till
such time as the High Court passes a final
order, licence of respondent no.6 shall
continue to be in force. He can operate the
Fair Price Shop. Needless to say that the
parties shall abide by the High Court's
final order. The High Court is requested to
dispose of the matter as early as possible.

The appeals are disposed of
accordingly."

13. After the aforesaid judgment was
delivered another order was passed by the
Hon'ble Apex Court in the case of Pawan
Chaubey (Supra) the same thing has been
held in this judgement also by the Hon'ble
Apex Court. The Hon'ble Apex Court in the
aforesaid
case
after
taking
into
consideration of law laid down in the case
of Poonam (Supra) and the judgment of
Sumitra Devi (Supra) was pleased to hold
that the subsequent allotee should also be
added as a party in the proceedings before
the authorities. Taking into consideration
the aforesaid judgments namely Poonam
(Supra), Sumitra Devi (Supra) and Pawan
Chaubey (Supra) very recently in the case
of Ram Kumar (Supra) the Hon'ble Apex
Court was pleased to hold that the
subsequent allottee should also be arrayed
404 INDIAN LAW REPORTS ALLAHABAD SERIES
as a one of the party before the authorities
while hearing the matter in respect of
cancellation of fair price shop.

14. Insofar as the arguments raised by
the counsel for the respondent no.5 that
since the allotment was made in favour of
the petitioner during the pendency of the
appeal, he has no right to be heard by the
appellate authority. It is argued by Shri
Anand Tiwari, learned counsel for the
petitioner on the basis of paragraph-11 of
the judgement of Ram Kumar (Supra) that
the findings were duly recorded in
paragraph-11 of the aforesaid judgement.
Even during the pendency of the appeal
before the appellate authority on the
recommendation of the Tehsil Level
Selection
Committee
a
subsequent
allotment has been ade, the subsequent
allottee is also liable to be heard.
Paragraph-11 of the aforesaid judgement is
reproduced below:-

"11. It is to be noticed that in the
present case, during the pendency of the
appeal before the Appellate Authority, on a
recommendation
of
the
Tehsil
Level
Selection Committee dated 19th April 2018,
the present appellant, through regular
allotment, was appointed as Fair Price
Dealer on 15th May 2018."

15. Counsel for the petitioner further
placed reliance upon paragraph-12, 18 and
19 which are relevant in order to decide the
the controversy in question of the judgment
of Ram Kumar (Supra) is reproduced
below:-

"12. Insofar as the judgment of
this Court in the case of Poonam (supra),
on which strong reliance is placed by Mr.
Irshad
Ahmad,
learned
counsel,
is
concerned, this Court in the case of Pawan
Chaubey (supra) had an occasion to
consider the aforesaid judgment in the case
of Poonam (supra). This Court in the case
of Pawan Chaubey (supra) also noticed its
earlier decision in the case of Sumitra Devi
vs. State of U.P. & Ors. Noticing both these
judgments, this Court observed thus:

"Our attention has been drawn to
the judgment of this Court in Poonam vs.
State of Uttar Pradesh & Ors. reported in
(2016) 2 SCC 779. Relying on the aforesaid
judgment, learned counsel appearing 3 on
behalf of the Respondent No.4 contended
that the appellant need not be heard. She
had no right or locus to be impleaded.

In
Poonam
(supra),
the
subsequent allottee had actually been
heard at all stages. What the Court held
was that the subsequent allottee had been
trying to establish her right independently.
She contended that she had an independent
legal right. This Court found that it was
extremely difficult to hold that she had an
independent legal right. In Sumitra Devi vs.
State of U.P. & Ors. (Civil Appeal Nos.
9363-9364 of 2014), a Bench of coordinate
strength of this Court comprising Hon'ble
Ms. Justice Ranjana Prakash Desai and
Hon'ble Mr. Justice N.V. Ramana (As His
Lordship then was) passed an order dated
08.10.2014, the relevant parts whereof are
extracted hereinbelow:

"The
appellant
being
the
subsequent allottee filed an application for
impleadment in the writ petition on
17.10.2008. That application was neither
entertained nor allowed.

xxx xxx xxx

Learned counsel for the appellant
urged and, in our opinion, rightly that the
High Court should have heard the
appellant before restoring the licence of
respondent no.6 as the appellant was the
subsequent allottee and his rights were
affected by the restoration of licence of
12 All. Yogendra Prasad Vs. State of U.P. & Ors.
405
respondent no.6. We are entirely in
agreement with learned counsel for the
appellant. In our opinion, the High Court
could not have restored the licence of
respondent no.6 without hearing the
appellant as his rights were certainly
affected by such order."

Even if a subsequent allottee does
not have an independent right, he/she still
has a right to be heard and to make
submissions
defending
the
order
of
cancellation.

It is true that the order of
appointment of the appellant reads that the
order is subject to the outcome of the
proceedings pending in court. This does not
disqualify the appellant from appearing
and contesting the proceedings by trying to
show that the order of cancellation had
correctly
been
passed
against
the
Respondent No.4."

18. It could thus be seen that
respondent No. 9 was very well aware that
during the pendency of the proceedings, the
appellant was appointed as a Fair Price
Dealer on 15th May 2018. The order of the
Appellate Authority has been passed on
20th July 2018. Even this being the
position, respondent No.9 has been bold
enough to aver thus in the memo of the writ
petition:

"33. That it is also noteworthy to
mention here that during the pendency of
the Fair Price Shop, no third party
allotment was made and as per the
direction of this Hon'ble Court, the shop of
the petitioner was attached to another Fair
Price Shop Holder."

19. It could thus be seen that,
though respondent No.9 was very well
aware that during the pendency of the
proceedings
before
the
Appellate
Authority, an allotment was done in
favour of the present appellant, she has
averred in her writ petition that no third
party allotment was made. She has
further gone on to state that, as per the
directions of the High Court, the fair
price shop of respondent No.9 was
attached to another fair price shop
holder.
The
statement
is
factually
incorrect to the knowledge of respondent
No.9. The same has been reiterated in the
Ground thus:

"N. Because during the pendency
of the Fair Price Shop, no third party
allotment was made as per the direction of
this Hon'ble Court, the shop of the
petitioner was attached to another Fair
Price Shop Holder." "

16. Apart from the same, the Court is
of the opinion that even if a subsequent
allottee does not have a independent rights,
he/she still has a right to be heard and to
make submissions defending the order of
cancellation.

17. In view of the aforesaid, the Court
is of the opinion that the order passed by
the appellate authority namely Deputy
Commissioner (Food) Basti Region, Basti
dated 26.09.2022 was passed without
hearing to the petitioner is liable to be set
aside and hereby set aside.

18. In the facts and circumstances of
the case, the present petition is disposed of
finally permitting the petitioner to file an
impleadment application along-with his
objections before the appellate authority
within a period of three weeks from today.
If it is so, the appellate authority is directed
to pass a fresh order strictly in accordance
with law within a period of three months
thereafter.

19. In view of above, the writ petition
is allowed.
----------
406 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 12 ILRA 406
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.12.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal (D) No. 274 of 2022

State of U.P. ...Appellant
Versus
Rinki Yadav ...Respondent

Counsel for the Appellant:
C.S.C.

Counsel for the Respondent:
Deepak Singh

A.
Service
Law
-
Appointment/
Recruitment - Benefit of Reservation -
Uttar
Pradesh
Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994 - Schedule-I; Uttar
Pradesh
Janhit
Guarantee
Adhiniyam,
2011 (U.P. Act No. 3 of 2021) - Benefit of
reservation
in
public
employment
to
different
disadvantaged
sections
of
Society
is
permissible
under
the
Constitution of India as an affirmative
action. It is not in dispute that the respondentpetitioner was given appointment while she
claimed the benefit of reservation available to
O.B.C. candidates in her selection to the post of
Constable (Civil Police). Merely because the
certificate produced by her was not in
Praroop-1,
though
the
certificate
produced by her clearly evidences that she
belongs to an O.B.C., group as identified
by the State of Uttar Pradesh and also that
she does not get excluded as a person
belonging to creamy layer in terms of the
criteria laid down by the State of Uttar
Pradesh for the said purpose, it should not
be taken aid of by the State authorities for
denying her otherwise constitutionally
guaranteed right of affirmative action.
(Para 29)

The sole submission of the learned counsel
appearing for the appellant-State authorities is
that since the respondent-petitioner did not
furnish the caste certificate as per the
requirement of Note-3 appended to Clause 5.4
of the advertisement and also that since the
caste certificate furnished by her was not in the
format
(Praroop-1)
appended
to
the
advertisement as such she disentitled herself to
be given the benefit of being considered for the
benefit of reservation available to O.B.C
category candidates. (Para 11)

B. Certificate produced by a candidate
claiming
the
benefit
of
reservation
available to O.B.C. category candidate
should evidence twin facts (1) that the
candidate belongs to a group identified as
such by the State Government and (2)
that the candidate is not excluded as per
the criteria for creamy layer prescribed by
the State of Uttar Pradesh. (Para 27)

The certificate relied upon and submitted by the
respondent-petitioner, dated 15.04.2021 which
was issued by Tehsildar, Unnao sufficiently
certifies and evidences that the respondentpetitioner belongs to an O.B.C., group identified
and recognized by the State of Uttar Pradesh
and further that she as per the criteria
prescribed by the State of U.P. for exclusion
under creamy layer does not fall in the creamy
layer and hence she is eligible and entitle to
claim reservation available to O.B.C. category
candidate. (Para 28)

Special appeal dismissed. (E-4)

Precedent followed:

1. Gaurav Sharma Vs St. of U. P. & ors., 2017
(5) ADJ 494; 2017 (35) L.C.D. 1720 (Para
11)

Precedent cited:

1. Surendra Mohan Yadav Vs St. of U. P. & ors.,
Special Appeal No. 823 of 2018, decided on
05.09.2018 (Para 11)