JUDGMENT
C.K. Buch, J.
1. Heard Shri A.M. Parekh, learned Counsel appearing for the petitioner; Ms. D.S. Pandit, learned Assistant Government Pleader, appearing on behalf of the respondent-State and Shri D.K. Chaudhari, learned Counsel appearing for the respondent No. 3. The rejoinder affidavit, supported by the affidavits of residents of village Gorisana, Taluka Kheralu, District Mehsana, tendered today by Shri A.M. Parekh on behalf of the petitioner, is taken on record.
2. Rule. The formal service of notice of Rule is waived by Ms. D.S. Pandit, learned Assistant Government Pleader, on behalf of the respondent-State and State officials and Shri D.K. Chaudhari on behalf of the respondent No. 3. The Rule is fixed forthwith on consent.
3. By way of present petition, the petitioner has prayed for issuance of appropriate writ, order or direction mainly in terms of relief Clause (B) of paragraph No. 20 of the petition and the other reliefs prayed for in Clauses namely (A), (C) and (D) are ancillary reliefs. It would be beneficial to reproduce the relevant relief prayed for in Clause (B), which is as under:
(B) Your Lordships may be pleased to issue a writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ/s, order/s, and/or direction/s quashing and setting aside the order passed by the respondent No. 1 dtd.26.9.2007 and be pleased to confirm the order passed by the respondent No. 2 in Appeal No. 167 of 2005 dtd.28.6.2005.
4. The grievance of the petitioner is that the respondent No. 1 by passing the impugned order dated 26th September 2007 has done injustice to the petitioner. The petitioner as well as the respondent No. 3 herein were in race to get a licence to run a fair price shop under the scheme known as ‘Pandit Din Dayal Grahak Bhandar’; and both of them were the aspiring candidates before the respondent No. 2-authority, on the recommendations made by the competent authority. The respondent No. 2 decided to issue licence to run the fair price shop to the petitioner herein vide his order dated 28th June 2005 in Appeal No. 167 of 2005 and was given licence on 03rd August 2005 by District Supply Officer.
5. The said decision of the respondent No. 2 was challenged by the respondent No. 3 herein before the respondent No. 1-State Government. The said Appellate Authority has decided to allow the appeal preferred by the respondent No. 3 herein and has ordered that the ‘Parvana’ to run the fair price shop ought to have been issued to the respondent No. 3 herein. Thus, the order under challenge dated 28th August 2005 came to be quashed.
6. It is the say of the petitioner that the respondent No. 2 had considered the policy of the State Government prevailing at the relevant point of time and the Appellate Authority had ignored the crucial aspect as to the educational qualification of the respondent No. 3 herein; and also the fact that the respondent No. 3 was gainfully employed being a cabin holder. It is alleged in the rejoinder affidavit submitted in this Court that the respondent No. 3 is doing the work of repairing the punctured tyres of cycles, motors, etc. using the said cabin. Thus, he ought to have been considered as a person gainfully employed and therefore, not entitled for the ‘Parvana’.
7. Ms. D.S. Pandit, learned Assistant Government Pleader, submits that the Appellate Authority has considered all the aspects, mainly the fact that the petitioner was in some gainful employment on the date on which he applied for licence to run a fair price shop and so he could not have been even considered by the respondent No. 2 as he does not fall in the category of a person entitled to apply for obtaining a licence to run a fair price shop. It is not a matter of dispute that the petitioner was serving in a medical store and was getting regular monthly salary of Rs. 1,500/-.
8. On perusal of the papers produced on record, it appears that on the date of application to get a licence to run a fair price shop, the petitioner was gainfully employed in a medical store and was receiving the salary of Rs. 1,500/- per month. This admission made by the p has been recorded by the Appellate Authority. Not only that but on careful reading of the documents on record, it emerges that the respondent No. 3 is more meritorious and it has been wrongly recorded by the Appellate Authority that the petitioner was having better qualification than the petitioner; however, the things are otherwise.
9. The learned Counsel appearing for the respondent No. 3 has fairly accepted that his father is having a small cabin where he is doing the work of repairing the punctured tyres of cycles, etc. and the respondent No. 3 was only helping his father occasionally, otherwise he is an unemployed person and deserves licence to run a fair price shop.
10. It is the say of Shri A.M. Parekh, learned Counsel appearing for the petitioner, that the appeal preferred by the respondent No. 3 before the respondent No. 1 was hopelessly barred by limitation. However, when the Appellate Authority has decided to entertain such an appeal even after expiry of period of limitation, it can be construed to be a case of delay impliedly condoned, if any. Normally, a genuine case should not be thrown out merely on technical ground like point of limitation, especially when the Government has decided, policy wise, that a licence should be given/issued to an educated unemployed so that he may not feel frustrated and engage him in some economical activity helpful to his family members. The words used in the said policy are found more relevant i.e. ‘subsidiary employment’. The work which was being done by the petitioner in the medical store at a monthly salary of Rs. 1,500/- can be said to be a gainful subsidiary employment. When the educational qualification is otherwise found equal, the authority can look into the marks obtained by the candidates in race and the respondent No. 3 is found to be more meritorious in view of the marks obtained by the respondent No. 3 in Std.XII i.e.Higher Secondary Certificate Examination. To assist the father in petty work of repairing the punctured tyres of cycles, motors, etc. cannot be said to be a gainful subsidiary employment and, therefore, this Court finds that there is no merit in this petition and the present petition is required to be dismissed. This Court finds that no decision which can be said to be a highhanded decision has been taken by the Authority; on the contrary, the Appellate Authority appears to have exercised appellate jurisdiction vested in it in appropriate way and judicious manner.
11. In view of aforesaid observations and discussion, as there is no merit in this petition, the present petition stands dismissed. The order under challenge dated 26th September 2007 passed by the respondent No. 1 is hereby upheld. Notice is discharged. The ad-interim relief granted earlier stands vacated.