Gujarat High Court Case Information System
Print
LPA/1476/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1476 of 2009
In
SPECIAL
CIVIL APPLICATION No. 20487 of 2007
with
Civil
Application No. 8240 of 2009
With
LETTERS
PATENT APPEAL No. 2107 of 2009
In
SPECIAL
CIVIL APPLICATION No. 20487 of 2007
With
Civil
Application No. 11248 of 2009
=========================================
BIPINBHAI
BHANJIBHAI VAGHELA - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
LPA
No. 1476 of 2009
MR
HR PRAJAPATI for
the Appellant.
Mr. A.J.Desai, Assistant GOVERNMENT PLEADER for
the Respondent nos. 1 and 2.
MR.MRUDUL M BAROT for Respondent
no.3.
LPA
No. 2107 of 2009
Mr.Mrudul
Barot for the appellant.
Mr.
H.R.Prajapati for respondent no.1.
Mr.
A.J.Desai, Assistant Government Pleader for respondent nos.2 and 3.
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 02/02/2010
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
1. In
both the appeals, as common question of law involved, a common order
is under challenge, they were heard together and disposed of by this
common order.
2. A
scheme known as Pandit Dindayal Upadhyay Consumers Stores Scheme
(hereinafter referred to as “the scheme”) for allotment of
Fair Price shop was enacted by the State. Both the appellants
Bipinbhai Bhanjibhai Vaghela (hereinafter referred to as “the
petitioner”) and Parmar Nandaben Hansrajbhai (hereinafter
referred to as “the 3rd respondent”) applied pursuant to
notice dated 22nd February, 2005 for allotment of a Fair Price shop.
A Committee considered the cases of different persons including
petitioner and the 3rd respondent and on its recommendation,
Collector by order dated 29th August, 2005 allotted Fair Price shop
in favour of the petitioner. In an appeal preferred by the 3rd
respondent before the State, the same was decided in favour of the
3rd respondent by order dated 31st July/3rd August, 2008. The matter
moved upto this Court and on remand, the matter having decided
against the petitioner and in favour of the 3rd respondent, the
petitioner preferred the writ petition. Learned Single Judge having
decided the matter against both the petitioner and the 3rd
respondent, they have preferred two appeals challenging the common
order.
3. The
scheme stipulates allotment of Fair Price shop in favour of educated
unemployed persons of the village. Both the petitioner Bipinbhai
Vaghela and the 3rd respondent were denied the allotment on the
ground that they were in employment.
4. It
will be evident from the Scheme that licence for Fair Price shops
were to be allotted in favour of educated unemployed with a view to
give alternative employment to such persons. Under clause 2(9)(i) of
the Scheme, educated unemployed means a person having minimum
qualification of S.S.C. or equivalent and have no job or employment
or no income whatsoever in nature, subject to age limit of 35 years.
5. Admittedly,
the petitioner Bipinbhai Vaghela was employed as Bus conductor in
Transport Corporation as on 22nd February, 2005, that is, the date
applications were called for. He was transferred and relieved on
30th November, 2004. When the recommendation and order of allotment
was made in his favour on 29th August, 2005, he was in service of
Transport Corporation as Bus conductor. It is only after allotment of
the Fair Price shop, he resigned from the post which was accepted on
10th July, 2007.
6. Counsel
for the petitioner submitted that the petitioner being a daily wager
Bus conductor, cannot be said to be in employment. For all purpose,
he was educated unemployed. But such submission cannot be accepted
for the reasons discussed hereinunder.
7. The
3rd respondent Nandaben Parmar in whose favour Appellate Authority
ordered to allot Fair Price shop was educated unemployed woman as on
the date of advertisement, i.e. 22nd February, 2005. She was not
provided with allotment when Collector passed order in favour of the
petitioner Bipinbhai Vaghela on 29th August, 2005 though the 3rd
respondent Nandaben Parmar was unemployed. Even on the date the
Appellate Authority passed order in her favour, she was unemployed.
Subsequently, when the matters were pending, by an order dated 17th
October, 2006, Taluka Development Officer, Rajkot asked her to
function as “Computer Sahasik”. Though she was asked to
work, but she was not paid salary or commission for the work. This
fact has not been disputed by the respondents.
8. The
question of gainful employment came for consideration before the
Supreme Court in the case of North-East Karnataka Road Transport
Corporation vs. M.Nagangouda, in (2007) 10 SCC, 765 where the
Supreme Court held as follows:
“17. On
the said question, we are unable to accept the reasoning of the
Labour Court that the income received by the respondent from
agricultural pursuits could not be equated with income from gainful
employment in any establishment. In our view, “gainful
employment” would also include self-employment wherefrom income
is generated. Income either from employment in an establishment or
from self-employment merely differentiates the sources from which
income is generated, the end use being the same. Since the respondent
was earning some amount from his agricultural pursuits to maintain
himself, the Labour Court was not justified in holding that merely
because the respondent was receiving agricultural income, he could
not be treated to be engaged in “gainful employment”.
Same view was taken by the Supreme Court in Niranjan Cinema vs.
Prakash Chandra Dubey and another, reported in (2007) 14 SCC 349,
wherein the Court held that gainful employment also includes
self-employment as income is generated from that source.
9. In
the present case, it will be evident that the petitioner was in
employment of Transport Corporation though his status may be that of
a daily wager. He was transferred to another place and thereby
relieved on 30th November, 2004, but was not thrown out of service.
He filed resignation letter only after grant of Fair Price Shop
licence, which was accepted on 10th July, 2007. Therefore, as on the
date of advertisement 22nd February, 2005, he was in employment and
thereby not eligible for grant of licence in his favour. We uphold
the order passed by the Appellate Authority so far as the petitioner
is concerned.
10. So
far as 3rd respondent is concerned, admittedly, she was not in
employment on 22nd February, 2005 and was fulfilling all other
conditions. She preferred an appeal challenging the allotment in
favour of the petitioner and also prayed for allotment in her favour.
In the meantime, by order dated 17th October, 2006, she was asked to
perform work of Computer Sahasik, but was not paid either salary or
commission for the said work. Therefore, it would be evident that the
3rd respondent, as on the date of advertisement was unemployed and
was otherwise qualified for grant of such licence, and even on the
date the Appellate Authority decided the case in her favour, she was
not in employment as she was asked to perform work as Computer
Sahasik but was not getting salary or commission. The learned Single
Judge, though noticed the aforesaid fact, failed to give any reason
for coming to a conclusion that the 3rd respondent was also not
entitled for allotment of Fair Price shop.
11. For
the aforesaid reasons, while upholding the totality of the order
dated 31st July, 2007/3rd August, 2007 passed by the Appellate
Authority in Appeal No. 164 of 2005, we hold that the order of the
learned Single Judge dated 10th July, 2009 so far as it relates to
the 3rd respondent is illegal. The order to that extent is set aside.
12. In
the result, Letters Patent Appeal No. 1476 of 2009 and Civil
Application No. 8240 of 2009 are dismissed and Letters Patent Appeal
No. 2107 of 2009 is allowed. There should be no order as to costs.
(S.J.Mukhopadhaya,C.J.)
(Anant
S.Dave,J)
***vcdarji
Top