ORDER
Gopal Krishan Vyas, J.
1. By this writ petition, the petitioner has prayed for quashing the order dated 25/4/2006 (Annex.9) and order dated 20/9/2006 (Annex.12). Further, it is prayed that the order dated 7/10/2005 (Annex.13) issued by the State Government to the extent it provides for constitution of advisory committee and making its recommendation on the point to the District Collector may kindly be quashed and set aside because the same being contrary to the Order of 1976. Further, the petitioner has prayed for quashing the recommendation made for allotment by the Allotment Advisory Committee on 15/2/2006 and further direction to the respondents to appoint him as a retailer of the Fair Price Shop of Village Dangawas as he falls in priority than Shri Deva Ram as per Notification Annex.5.
2. The facts leading to this case are that the petitioner being & member of Schedule Caste and an orthopaedically disabled person having qualification of secondary from the Board of Secondary Education, Rajasthan applied for Fair Price Shop in village Dangawas District Nagaur in pursuance of notification issued by District Collector (Supply), Nagaur on 18/10/2005 (Annex.5). According to the petitioner, he fulfills the criteria laid down under the Notification for appointment as Retailer (Fair Price Shop). Along with petitioner persons namely; Surendra Danga (Graduate), Khinya Ram (10th Pass), Inder Raj Meghwal (Graduate), Ram Narayan (9th Pass), Mangla Ram (XI Pass) and respondent No. 4, Deva Ram also applied for appointment as Retailer- ship. According to petitioner, respondent No. 4 Deva Ram is only 8th Pass and has not filed any certificate of school along with the application.
3. The petitioner and other persons appeared for interview on 15/2/2006 at 10 am before the District Supply Officer, Nagaur vide call letter dated 16/1/2006. In the aforesaid process, respondent No. 4 Deva Ram was selected and appointed as retailer. According to the petitioner, the appointment of respondent No. 4 Deva Ram is illegal, arbitrary and in violation of the norms and criteria laid down by the Government in the notification Annex.5 dated 18/10/2005. In the said notification priorities for appointment of retailer are mentioned, which reads as under:
A. Educated Unemployed
B. Persons belonging to Scheduled Caste/Tribe
C. Women, widow and divorced women
D. Ex-soldier or his widow.
4. According to the petitioner, respondent No. 4 Deva Ram does not fall in any of the categories but he was selected as per the recommendation of the Advisory Committee by the District Collector. The order of appointment of respondent No. 4 was challenged by the petitioner by way of filing writ petition before this Court in S.B. Civil Writ Petition No. 2709/2006. In the said writ petition, this Court while admitting the petition interim order was gratned, whereby, the order of allotment issued in favour of respondent No. 4 was stayed.
5. Thereafter, aforesaid writ petition came up for orders on an application filed by respondent No. 4 under Article 226(3) of the Constitution of India. Ultimately, the said writ petition was dismissed vide judgment dated 10/7/2006 by this Court by observing that the writ petition is not maintainable on the ground of availability of alternative remedy of appeal. While dismissing that writ petition, liberty was granted to the petitioner to file appeal and to raise all the grounds raised in the writ petition. Pursuant to the order passed by this Court, petitioner filed appeal before the Food Commissioner/Additional Food Commissioner, Food and Civil Supplies Department, Govt. of Rajasthan, Jaipur. According to learned Counsel for the petitioner, the appeal filed by the petitioner was not decided on merit and the appellate authority dismissed the appeal only on the ground that since the Allotment Advisory Committee unanimously recommended to appoint respondent No. 4 as Fair Price Shopkeeper, therefore, the District Collector is under obligation to accept the recommendation made by the Committee.
6. Learned Counsel for the petitioner urges that the action of the respondents is highly arbitrary because the allotting authority is the District Collector and under the Notification Annex.5 priorities were fixed by the Government for allotment of Fair Price Shops then at the time of allotment, District Collector is under obligation to follow the said priorities but while passing the order of allotment, the the District Collector has followed the recommendation of the Advisory Committee, which is erroneous. According to the petitioner, respondent No. 4 is less meritorious than him and cannot be allotted Fair Price Shop as per priorities, if the same are taken care of while considering case for allotment.
7. According to the petitioner, he is handicapped person, so also belongs to Scheduled Caste category and possesses the qualification of Secondary School, therefore, his case was to be considered in first category of `educated unemployed’ but the respondents have not so considered his case and illegally allotted fair price shop to respondent No. 4 Deva Ram. It is argued by the learned Counsel for the petitioner that, admittedly, Deva Ram cannot be considered more meritorious than the petitioner in the category of `educated unemployed’ because respondent No. 4 is only 8th pass.
8. The respondent No. 4 while filing reply to the writ petition specifically mentioned that this writ petition deserves to be dismissed on the ground that allegation of malafides have been levelled against the M.P., Nagaur but he has not been impleaded as party respondent. Further it is pointed out that on the basis of principle of estoppal the petitioner cannot question the decision of selection committee, while challenging the selection process. According to the respondent No. 4, petitioner has not approached this Court with clean hands, therefore, his conduct dis- entitles him to get any relief under Article 226 of the Constitution of India. Further, it is argued by the learned Counsel for the respondent that judicial review is not permissible against a decision of expert committee under Article 226 and 227 of the Constitution of India. Since in the present case, Advisory Allotment Committee being expert committee recommended the case of respondent No. 4 and pursuant thereto he was appointed as retailer, therefore, there is no illegality in allotment made in his favour.
9. Learned Counsel for the respondent No. 4 while citing certain judgments submitted that High Court cannot interfere under its supervisory jurisdiction to correct any error of law, so also this Court cannot sit as a Court of appeal over the discretion exercised by the competent authority and the finding given of the appellate Court. According to the respondent No. 4, the decision of Advisory Allotment Committee for granting license after adjudging suitability cannot be questioned because it is for the administrative authority to take final decision. Therefore, executive orders passed by Executive Authorities exercising its discretion cannot be questioned, so also this Court cannot interfere in exercise of its powers under Article 226 of the Constitution. It is vehemently argued by the learned Counsel for the respondent that this petition has been filed by misunderstanding the law, as if there is no delegation of power under the Rajasthan Food Grains & Other Essential Articles (Regulation of Distribution) Order, 1976. It is further submitted that petitioner may be belonging to Scheduled Caste category and Handicapped person but at the time of adjudging the suitability the respondents found that petitioner is not fit to execute the work of distribution of fair price articles, therefore, his candidature was rightly rejected and allotment of fair price shop has rightly been made in favour of respondent No. 4. Learned Counsel for the respondent No. 4 also placed reliance on number of judgments on above point.
10. The learned Counsel for the State while inviting attention towards Sub-clause (gha) of instructions issued by the State Government for allotment of Fair Price Shop submitted that petitioner has misconstrued the same, so also no incorrect information was given by the selected person, therefore, the decision of the Allotment Committee cannot be termed as violative of provisions of Order, 1976. According to the learned Government Advocate, there is no illegality in allotment so also the allotment has rightly been made in favour of respondent No. 4 while following the procedure laid down for allotment of Fair Price Shop. The State Government has also issued instructions and the Allotment Advisory Committee while adjudging the priorities as per instruction, rightly recommended the case of respondent No. 4 for allotment of Fair Price Shop and the recommendation so made was in consonance with the instructions issued by the State Government for the purpose of allotment of Fair Price Shop. It is further argued that petitioner cannot claim priority over the categories mentioned in the instructions being Scheduled Caste or handicapped person. Ofcourse, a person belonging to scheduled caste can claim priority in the matter of allotment of Fair Price Shop but it is at serial No. 2 in the priority list. In the present case, allotment has been made in the first category, therefore, the petitioner’s contention that the allotment has wrongly been made in favour of respondent No. 4 is absolutely wrong. Therefore, the petitioner is agitating the baseless grounds before this Court which are absolutely not available to him and the writ petition may be dismissed.
11. After hearing both the parties, it emerges that petitioner is challenging the validity of the order dated 25/4/2006 passed by the District Collector (Supply) on the ground of contravention of notification dated 18/4/2005, whereby, the priorities were fixed. The petitioner’s candidature was to be considered under the category of educated unemployed candidate. Admittedly, the petitioner is possessing qualification of secondary, which he acquired in the year 1993 from the Board of Secondary Education, Rajasthan, whereas, respondent No. 4, in whose favour allotment of fair price shop has been made, is only possessing qualification of middle. Therefore, as per the petitioner, his case is on better footing than respondent No. 4. The petitioner’s contention is that he is disabled person, so also he belongs to Scheduled Caste category, therefore, his application was to be considered for allotment of fair price shop but without considering his candidature in above category only on the basis of recommendation of Advisory Allotment Committee, the collector has passed an order in favour of respondent No. 4, which is illegal. The petitioner has raised so many grounds including ground of malafide and extraneous consideration, so also biasness. Similarly, against the claim of petitioner, so many grounds have been raised by the respondents.
12. Upon perusal of pleadings of writ petition, the allegation of malafides are totally baseless, so also the allegation is made against M.P.Nagaur, who has not been impleaded as party respondent. I am in full agreement with the contention of respondents that it is not a case of malafide, so also without impleading the person, no allegation of malafide can be levelled.
13. With regard to ground of estoppal raised by the respondents that petitioner appeared before the Selection Committee without any protest and having taken a chance, now in the event of non- allotment of fair price shop, he is raising voice before this Court by way of filing the writ petition, I am unable to accept such contention because in this case petitioner appeared before the Selection Committee for allotment with the hope that as per the policy of the State Government, his application will be considered properly. But at the time of deciding application, when instructions given by State Government are violated by the respondents, therefore, petitioner has approached this Court, therefore, his case does not fall under the principle of estoppal. It is always open for any candidate when any irregularity and illegality is committed by the alloting authority in allotment of fair price shop to approach the competent court. Therefore, in my view, ground of estoppal raised by the respondents is not sustainable.
14. The petitioner has cited certain judgments in support of his case, but upon perusal of those judgments, it is clear that the facts of those cases are not even applicable in the present set of facts.
15. While citing the judgments of Apex court in case of B.Narasimhachari v. State of Karnataka and Ors. reported in AIR 1981 (Karnataka) 177 and Dr.M.C.Mehta v. State of Rajasthan and Ors. Reported in 1972 ILR (22) Raj. 711 and some other judgments, it is submitted by the respondents that petitioner has not approached this Court with clean hands, therefore, he is not entitled to get any equitable relief under Article 226 of the Constitution of India.
16. When petitioner is only claiming his right of allotment of fair price shop raising grounds that his case was not properly considered as per the priorities fixed by the State Government and in whole of the writ petition there does not appear to be any misstatement of fact, such contention of respondents is not tenable.
17. Another ground has been raised by the respondents that judicial review is not permissible against the decision of expert body under Article 226 of the Constitution of India. In support of this contention, learned Counsel for the respondents has relied upon judgments of Apex Court [Mohd. Yunus v. Mohd. Mustaqim and Ors.] and [V.K. Sood v. Secretary, Civil Aviation and Ors.]. Upon perusal of these judgments, it is clear that the facts of these cases are altogether different. In this case, respondents have committed an illegality in not considering the case of petitioner in the category of education unemployed person and granted license in favour of respondent No. 4 knowingly well that he is less qualified than the petitioner. Therefore, such an action can be judicial reviewed by this Court because by way of this writ petition, petitioner is challenging the decision of respondents that they acted contrary to their own policy by which priorities were fixed for allotment of fair price shop and they themselves violated the same, therefore, such matters can be examined while exercising powers under Articles 226 and 227 of the Constitution of India.
18. As per reply of the State, the petitioner’s case was considered only under the reserved category of SC or under the category of disabled person, whereas, petitioner having better qualification than respondent No. 4, therefore, his candidature was to be considered in the general category because his case falls under the category No. 1, which is “educated unemployed person”, but respondent State authorities did not decide the case and have violated the fundamental right of the petitioner granted by the Constitution of India under Article 14 and 21 of the Constitution. Therefore, it is always open for this Court to interfere under Article 226 of the Constitution to assess the validity of recommendation of Advisory Allotment Committee as well as order of appellate authority, whereby, the allotment made in favour of respondent No. 4 was upheld.
19. Likewise, the ground taken by the respondents that this Court cannot sit in appeal over the judgment of appellate authority is also not sustainable because this Court is adjudicating the controversy of infringement of right of petitioner, who is a citizen of India, and under Article 14 of the Constitution every citizen is having right of equality, therefore, if any decision is taken by the respondents violating the fundamental right of a citizen then ofcourse this Court can interfere even with the order of allotment authority or appellate authority. Thus the grounds taken by the respondents are totally baseless and have no foundation to stand.
20. Another strange argument has been advanced by the respondents that this Court cannot issued writ of mandamus even if statutory rules are violated. In my opinion, this argument is totally misconceived because this Court can exercise powers under Article 226 of the Constitution of India, which are extra ordinary in nature, if any action of the State Authority violates the fundamental right of a person. It is within the domain of the High Court to quash the said decision whereby fundamental right of the citizen is violated. In this case the petitioner is claiming that priorities were fixed by the State Government for allotment of fair price shop and according to the respondents themselves, first priority was to be given to educated unemployed person and admittedly, petitioner is having secondary qualification to his credit, whereas, respondent No. 4, in whose favour allotment has been made, is possessing qualification of middle and he is 9th fail, therefore, in such circumstances, this Court is within its jurisdiction to interfere in such matter and to issue mandamus to check the illegality committed by the respondents. It is true that mandamus can be issued by this Court when legal rights of citizen are infringed but at the same time this Court is required to see that if any action of the State is violative of Article 14 of the Constitution or any fundamental right, then this Court can very well interfere under Article 226 of the Constitution of India.
21. Learned Counsel for the respondents has also raised the ground that in administrative order for grant of license upon wrong interpretation of statutory rules or error in decision cannot be interfered by this Court. For the above grounds raised by the respondents, the answer is that this Court can very well interfere with the decision of administrative authority so also for the purpose of arriving at with correct finding, sometimes this Court can also enter into the question of fact while exercising power under Article 226 of the Constitution of India. Mandamus can be issued by quashing those administrative orders by which administrative authority are violating their own policy. The circumstances of present case are also of same nature because petitioner though disabled person and belonging to Scheduled Caste category, his case was required to be considered in the first category fixed by the respondents for the purpose of allotting fair price shop because petitioner is admittedly possessing higher qualification than respondent No. 4 and as per the terms and conditions of advertisement dated 18/10/2005 in which it is categorically mentioned that educated unemployed person will be given first priority for the purpose of allotment of fair price shop and upon perusal of said advertisement it is clear that no contrary decision can be taken by the allotting authority. The facts of the present case clearly speak that respondent No. 4 was having less qualification than the petitioner and petitioner’s case was not considered in the category of “educated unemployed person” as such petitioner’s case was ignored only on the ground that he is belonging to reserved category of scheduled caste which is at item No. 2 in the priority list. Being a citizen of India, petitioner is entitled to be considered in the general category of educated unemployed but all these aspects were ignored by the Advisory Allotment Committee and on the basis of recommendation made by the said committee, allotment was made in favour of respondent No. 4 by the respondent No. 2 which is totally erroneous and in contravention of the policy laid down by the State Government. Similarly, learned appellate authority has also failed to consider this aspect of the matter and observed in the order that District Collector was under obligation to accept the recommendation made by the Advisory Allotment Committee. In my opinion the appellate authority has committed an error while ignoring the fact that petitioner was very much entitled to be considered as educated unemployed person along with respondent No. 4, therefore, the order of appellate authority which is Additional Food Commissioner is also erroneous, therefore, not sustainable before eye of law.
22. In these circumstances, it is very much clear upon facts of the case that judgments cited by the respondents are not applicable and obviously, the decision taken by the District Collector, Nagaur for allotment of fair price shop in favour of respondent No. 4 is totally in contravention of priorities fixed by the State Government for allotment of fair price shop.
23. In view of the above, the writ petition is allowed. The allotment order dated 25/4/2006 is hereby quashed qua the allotment made in favour of respondent No. 4 of fair price shop situated in village Dangawas. The order passed by the appellate authority dated 20/9/2006 is also quashed and matter is remitted to the District Collector for reconsidering the candidature of the petitioner vis-a-vis respondent No. 4 under the priority No. 1 which is “educated unemployed person”. The reconsideration shall be made within a period of one month from the date of receipt of copy of this order. Till then respondent No. 4 shall continue to operate fair price shop situated in village Dangawas. No order as to costs.