Y. Srinivasa
Rao Vs. J. Veeraiah & Ors [1992] INSC 121 (27 April 1992)
Sharma,
L.M. (J) Sharma, L.M. (J) Anand, A.S. (J)
CITATION:
1993 AIR 929 1992 SCR (2) 780 1992 SCC (3) 63 JT 1992 (3) 84 1992 SCALE (1)935
ACT:
Constitution
of India, 1950:
Article
14-Settlement of fair price shops-Appointment of dealer-Basis for
selection-Eligibility criteria-Prefer- ence given to less educated persons over
persons with higher educational qualification-Whether violative of.
HEAD NOTE:
In
response to an advertisement calling for applications for appointment of dealer
of a fair price shop, the appellant and the respondent No.1 applied along with
many others. Appellant, a Commerce graduate had experience in running fair
price shop, whereas respondent No.1 has passed 10th class only. On the bsis of
a brief interview, responent No. 1 was selected. Appellant moved Respondent
No.3, but was not successful. Later, he preferred a Revision Petition before
the Collector, who allowed his claim. Re- spondent No.1 challenged the said
order before the High Court, which was allowed by a Single Judge and later con-
firmed by a Division Bench. Aggrieved against the High Court's order, the
appellant has preferred the present appeal.
On
behalf of the appellant, it was contended that there was no guideline
indicating the nature of the interview which was the sole basis for making a
choice for the settlement of the fair price shops.
The
respondents contended that less educated persons were given preference as they
were handicapped by reason of lack of education as compared to better qualified
applicants. It was further contended that since a highly educated person may
get a better job, he may not be able to run the shop on a permanent basis.
Allowing
the appeal, this Court,
HELD :
1. The decision to prefer an uneducated person over an educated person amounts
to allowing premium on ignorance, incom- 781 petence and consequently
inefficiency. The only fault of the appellant is to have pursued his studies
beyond 10th class.
If he
had discontinued his career as a student even earlier, say after passing 7th or
8th class, he would have been running the shop today. This clearly amounts to
gross arbi- trariness and, therefore, illegal discrimination. Pursuing this
line the State will have to be going in search of a more inefficient and
illiterate or semi literate person and nobody knows where this process would
end. On the assertion that a better qualified person has got a better chance to
succeed in life, an intelligent applicant who can run the shop efficiently
should be rejected and a dim witted fellow should be selected would be an
absurd situation. [784 C-E]
2.
That a better qualified person is not likely to stick to the job, is not spelt
out by the Government Orders.
In any
event, with a view to ensure that a person not interested in running the
business may not obtain the set- tlement of the shop merely on the basis of his
qualifica- tions, care may be taken to impose appropriate conditions, by
restricting the choice to local inhabitants, and, or requiring furnishing of
guarantee for running the business for a minimum number of years. [784 F, G]
3. So
far the interview fixed as the sole criterion in the present case, the same in
the absence of guidelines leaves the matter to the whims of the individual
officer holding the interview. The exercise of such unbridled power, will be
clearly violative of Article 14. Therefore, the policy adopted by the State
Government is unconstitutional.
[784 G,H;
785 A]
CIVIL
APPELLATE JURISDICTION : Civil Appeal No. 1806 of 1992.
From
the Judgment and Order dated 26.6.1991 of the Andhra Pradesh High Court in Writ
Appeal No. 488 of 1991.
Narasimha
P.S. and P. Kesave Pillai (NP) for the Appellant.
K. Ram
Kumar and T.V.S.N. Chari for the Respondents.
The Judgment
of the Court was delivered by SHARMA,J. Special leave is granted.
2. The
case relates to the appointment of a dealer of a fair price shop 782 in Andhra
Pradesh. An advertisement for the purpose was issued on 16.4.1990 as per
annexure A inviting applications from the eligible candidates subject to, inter
alia, the following conditions:- "5. Preference will be given to the
candidates who are experienced in the business.
6.
Preference will be given to unemployed educated persons, ladies and handicapped
persons in case of equal qualifications among the candidates." The
appellant and the respondent No.1, besides other applicants applied and the
respondent No.4, Revenue Divisional Officer, selected the Respondent No.1 on
the basis of a brief interview. The appellant, after unsuccessfully moving the
respondent NO.3, filed a revision petition before the Collector respondent No.
2. On hearing the parties concerned, the Collector allowed the petitioner's
claim by the judgment dated 8.2.1991 (Annexure F) holding thus:- In the present
case whatever is the angle from it is viewed Sri. Y. Srinivasa Rao appears to
be having better claim than Sri. J. Veeraiah Babu.
Sri Y.
Srinivasa Rao passed B.Com., and he was F.P. shop dealer for a fairly long
time. The experience as F.P. shop dealer is now assessed for the purpose of
marks, but on grounds of comparison this aspect also could not be ignored even
if not taken advantage of in favour of the respective person.
The Collecter,
thus, obviously did not interfere with the choice of the lower authorities in a
casual manner as is clear from his judgment wherein he has observed that
normally the orders of the lower authorities are not upset except for special
circumstances. The respondent No.1 challenged his order before the High Court
by a writ petition, which was heard and allowed by a learned single Judge, and
the Division Bench has, by the impugned judgment, confirmed the same.
3.
Admittedly the appellant is an unemployed graduate in Commerce and has the
experience of running a fair price shop in the past, while the only
qualification claimed by the respondent No.1, is that he has passed the school
examination upto 10th class only. The impugned appointment 783 was made by the
authority after holding an interview and it is the case of the appellant that
the Revenue Divisional Officer merely enquired from him about his bio-data
without putting any further question by which the merits could have been
judged. On that sole basis the shop was allotted to the respondent. Considering
the criteria, as mentioned in the advertisement, the Collector accepted the
claim of the appellant, pointing out that the appellant was a better candidate
from every angle. The High Court has quashed his judgment by condemning it as
perverse but without indicating any reason for such a view.
4. One
of the questions, which have been raised before this Court, is that there is no
guideline indicating the nature of the interview which is said to be the sole
basis for making a choice for the settlement of the fair price shops. In
pursuance of the notice which was issued in the present special leave petition,
indicating that the matter would be finally disposed of on the next date, the
respondents appeared and a prayer was made by the State counsel for three weeks'
time to get ready on the question as to how the interview without indicating
any guideline could be validly adopted as the sole basis for selection.
Time
was granted for filing an additional affidavit explaining the situation, but no
such affidavit has been filed. The learned State counsel has, however, relied
upon a number of Government orders issued in this regard from time to time and
contended that in the opinion of the State authorities in the matter of
settlement of fair price shops in the villages, which are not as large as in
towns, preference should be given to less educated persons as they are
handicapped by reason of lack of education as compared to better qualified
applicants. He developed his argument by saying that since a highly educated
person is likely to obtain a better job, he may not be depended upon for
running the shop on a permanent basis. He has relied upon the policy decision
that "only unemployed persons shall be eligible for appointment as fair
price shop dealers instead of giving preference to Co-operatives" as
mentioned in the Government Order No. 951 dated 16.5.1988. This Order, howev- er,
does not advance the case of the respondents. He has also referred to another
Government Order issued subsequent- ly which give support to his argument that
preference has to be given to less educated persons. The learned counsel
pointed out that in none of the government Orders weightage was allowed to the
educational qualifications of the candi- dates and the advertisement (Annexure
A) was incorrectly issued mentioning preference in favour of a better educated
person. The Collector should have ignored the 784 conditions mentioned in the
advertisement and should have respected the choice of the interviewing officer.
5. It
appears that the question of settlement of fair price shops in the State of Andhra Pradesh has been the subject of controversy
for some time and from the records of the Revenue Department it is manifest
that the approach which has been adopted by the authorities has not been
consistent. The non-speaking orders of this Court dismissing many special leave
petitions indicate that a good number of cases have been brought to this Court
in the past were not entertained. We have, therefore, considered it desirable
to indicate our views on the policy adopted by the State in the light of the
constitutional provisions.
6. The
decision to prefer an uneducated person over an educated persons amounts to
allowing premium on ignorance, incompetence and consequently inefficiency. The
only fault of the appellant is to have pursued his studies beyond 10th class.
If he had discontinued his career as a student even earlier, say after passing
7th or 8th class, he would have been running the shop today. This clearly
amounts to gross arbitrariness, and, therefore, illegal discrimination.
Pursuing
this line the State will have to be going in search of a more inefficient
person and we do not know where this process would end. If we assume that since
a better quali- fied person has got a better chance to succeed in life, an
intelligent applicant who can run the shop efficiently should be rejected and a
dim witted fellow should be select- ed. This is an absurd situation.
7. The
argument of the learned State counsel that a better qualified person is not
likely to stick to the job, is not spelt out by Government Orders. In any
event, with a view to ensure that a person not interested in running the
business may not obtain the settlement of the shop merely on the basis of his
qualifications can be taken care of by imposing appropriate conditions, say, by
restricting the choice to local inhabitants, and, or requiring furnishing of
guarantee for running the business for a number of years.
We,
therefore, do not find any rationale in adopting the policy as indicated on
behalf of the respondent. So far the interview fixed as the sole criterion in
the present case according to the impugned judgment is concerned, the same in
absence of a guideline leaves the matter to the whims of the individual officer
holding the interview. The exercise of such unbridled power, will be clearly violative
of Article
14.
The policy referred to by 785 by the State counsel as contained in one of the
Government Orders and relied upon before us in support of the impugned
judgment, therefore, must held to be unconstitutional.
8. In
the circumstances, the settlement in favour of the respondent No.1 is quashed,
the judgment of the High Court is set aside and the judgment of the Collector
having the support of the advertisement in question is restored. We expect that
the State, after taking into consideration all the legal and relevant aspects,
shall expeditiously take a decision and issue an appropriate Order dealing with
settle- ment of fair price shops, and not follow the unconstitution- al
instruction relied upon before us. The appeal is accord- ingly allowed, but in
the circumstances the parties are directed to bear their own costs.
G.N.
Appeal allowed.
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