HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU (THROUGH VIRTUAL MODE) Reserved on 15.05.2025 Pronounced on 29.05.2025 CJ Court LPA No. 65/2021 c/w OWP No. 1258/2017 LPA No. 318/12019 Union Territory of J&K and others …Petitioner(s)/Appellant(s) Through: Mr. Adarsh Bhagat, GA (in LPA No. 65/2021) Mr. Irfaan Khan, Adv. (in LPA No. 318/2019) Ms. Priksha Parmar, Adv. and Mr. K. D. S. Kotwal, Adv. (in OWP No. 1258/2017) v/s Javed Ahmed and another …. Respondent(s) Through: Mr. Irfan Khan, Adv. for No. 2 in LPA No. 65/2021 Mr. Adarsh Bhagat, GA for Nos. 1 to 4 in LPA No. 318/2019 CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE. JUDGMENT Per Oswal-J LPA Nos 65/2021 and LPA No. 318/2019 1. Both the appellants i.e. Union Territory of J&K in LPA No. 65/2021 and Mohd. Amran in LPA No. 318/2019, are aggrieved of the judgment dated 05.11.2019 passed by the learned Single Judge in OWP No. 429/2017 in case tilted ‘Javed Ahmed vs. State of J&K and others’, whereby the Fair Price Shop License issued in favour of the appellant-Mohd. Amran, has been cancelled. 2 LPA Nos. 65/2021 & 318/2019 and OWP No. 1258/2017 2. The common ground urged by the appellants for assailing the judgment dated 05.11.2019 is that as per the procedure applicable at the relevant time, there was no requirement of issuing any advertisement/notification for inviting the applications from the interested persons for issuance of fair price shop license, therefore, the learned Single Judge was not right in quashing the order dated 09.03.2017, whereby the fair price shop License was issued in favour of the appellant-Mohd Amran, i.e. respondent No. 5 before the writ court. It is also contended by the appellants that once the respondent himself was not eligible for allotment of fair price shop, he had no locus to challenge the license issued in favour of the appellant-Mohd. Amran, who had fulfilled all the necessary requirements for issuance of license for fair price shop. 3. Mr. Irfaan Khan, learned counsel appearing for the appellant-Mohd. Amran and Mr. Adarsh Bhagat, learned GA appearing for the Appellant in LPA No. 65/2021 have rallied together against the order impugned by submitting that the learned writ court has not rightly considered the controversy, as the respondent had no locus to challenge the license of the fair price shop issued in favour of the appellant, particularly when he himself was ineligible and the scheme so existing at the relevant time did not provide for issuance of any advertisement/notification inviting applications from the interested persons for allotment of fair price shop. 4. Heard learned counsel for the parties and perused the record. 5. Shorn of unnecessary details, the facts relevant for adjudication of the present controversy are that a writ petition bearing OWP No. 429/2017 3 LPA Nos. 65/2021 & 318/2019 and OWP No. 1258/2017 came to be preferred by the respondent-Javed Ahmad, whereby he assailed the order dated 48-FCS&CS dated 09.03.2017 in respect of sanction accorded in favour of appellant-Mohd. Amran for the issuance of Fair Price Shop license for Sale Centre Jawari, Tehsil and District, Ramban in terms of Government order No. 127-CAPD of 2016 dated 04.08.2016 and a further prayer was made for directing the official respondents therein- appellants in LPA No. 65/2021 to issue license in favour of the petitioner there in i.e. respondent herein, for the abovementioned location. The grievance projected by the writ petitioner was that one fair price shop dealer-Sh. Sind Raj Katoch had surrendered his dealership and the charge of Sale Centre Jawari was assigned to the adjoining dealer Sh. Munshi Ram on a temporary basis, but without inviting applications from the eligible candidates for allotment of fair price shop for location Jawari, the Assistant Director, CAPD, Ramban in connivance with respondent No.5- Mohd. Amran, was processing his application for issuance of fair price shop license for location Jawari and when the writ petitioner came to know about the same, he also applied for issuance of license for the same location but without considering his application, the order dated 09.03.2017 was issued by the official respondents. It was done on the basis of DO letter of MLA Banihal and report of Sarpanch. 6. In the response filed by the appellants in LPA No.65/2021 (official respondents in the writ petition), it was stated that after the resignation of Sh. Sind Raj Katoch in the month of May 2015, the consumers of the fair price shop at Jawari were attached to the nearest dealer from the said sale 4 LPA Nos. 65/2021 & 318/2019 and OWP No. 1258/2017 centre. A resolution was received from the inhabitants of Village Jawari recommending the name of respondent No. 5 therein-Mohd. Amran, for dealership, which was duly supported by the resolution of the villagers. The matter was referred to the Administrative Department, and the order, as such, was issued in favour of appellant-Mohd. Amran. It was also averred that writ petitioner had never approached for issuance of license and he was not eligible for allotment of fair price shop license because he was not having a qualification of Matriculation as per the Government Order dated 04.08.2016. Appellant-Mohd. Amran i.e. respondent No.5 in the writ petition, responded to the writ petition on similar lines and stated that there was no blood relation between him and the appellant No. 3 and so far as DO letter of MLA Bannihal is concerned, it was issued on the basis of report/recommendation of the Sarpanch. 7. Learned writ court after hearing the learned counsel for the parties, quashed order dated 09.03.2017 to the extent of issuance of Fair Price Shop License in favour of appellant-Mohd. Amran. Learned writ court while passing the judgment impugned in these appeals, has observed that as per the guidelines existing at that time, any desirous candidate can apply to the competent authority on a prescribed form, annexing with all the relevant documents, but such an occasion for filing the application would arise only if the residents of the area are made aware of the fact that the license for any fair price shop is available for allotment so that all the prospective candidates can file application. Learned writ court has also taken into consideration that it has not been explained as to how a column 5 LPA Nos. 65/2021 & 318/2019 and OWP No. 1258/2017 was added in the application regarding the recommendation made by the concerned MLA/MLC, as from the norms laid down for allotment of the Fair Price Shops, nothing is borne out in that regard. Further, the learned writ court has observed that the contention of the respondents that the writ petitioner lacked eligibility, becomes irrelevant, once it is established that applications were not invited for the purpose of allotment of fair price shop. 8. This is true that the guidelines existing at the relevant time did not provide for issuance of any notification/advertisement inviting applications from the interested candidates for allotment of fair price shop, though certain qualifications are provided in those guidelines for the applicant for allotment of fair price shop license regarding age, qualification etc. Though there is no specific requirement of issuance of any such notification, but such requirement would always be inherent in any scheme or policy of the Government, whereby Government proposes to make allotment of plots of land/fair price shops/for temporary or contractual appointments, otherwise it would give an unfettered discretion to the officers concerned to resort to pick and choose policy, which is contrary to the concept of equality enshrined in Article 14 of the Constitution of India. 9. We are in perfect agreement with the observations made by the learned writ court that an application can be submitted in terms of the Government order dated 04.08.2016 for issuance of Fair Price Shop license only, if the interested candidates are informed of the availability of Fair Price Shop for allotment through the recognized mode of disseminating information. 6 LPA Nos. 65/2021 & 318/2019 and OWP No. 1258/2017 There must always be a notification inviting applications from interested candidates to participate in any such selection process and then only it can be termed as ‘fair and transparent selection’. This would be in consonance with the Article 14 of the Constitution of India, otherwise it would be left to the whims and caprices of officials only to allot the fair price shop in favour of persons of their choice, leading to arbitrariness which is antithetic to the concept of Article 14 of the Constitution. It appears that the Government realized it folly and as such, amended the scheme vide Government Order dated 12.03.20128 making it mandatory to invite applications for allotment of fair price shops, so that the interested candidates are able to participate in the selection process. Such requirement also finds mention in Clause 18 of the SO-41 dated 19.01.2023, nomenclated as “Jammu and Kashmir Targeted Public Distribution System (Control) Order, 2023, which at present is in vogue for issuance of licence for fair price shop. 10. Having gone through the judgment passed by the writ court, we do not find any illegality or impropriety in the judgment warranting interference by us in these appeals. As such, these appeals are found to be devoid of any merits and are accordingly dismissed. OWP No. 1258/2017 1. In this petition, the petitioner has impugned order bearing No. 48- FCSW&CA of 2017 dated 09.03.2017 issued by respondent No.1, whereby Fair Price Shop License for Sale Centre Jawari issued in favour of brother of the petitioner, has been cancelled and further sanction has 7 LPA Nos. 65/2021 & 318/2019 and OWP No. 1258/2017 been accorded for issuance of Fair Price Shop License in favour of respondent No. 5, who happens to be the appellant-Mohd. Amran in LPA No. 318/2019. 2. The petitioner has sought quashing of the order on the ground that proforma-respondent No. 6- Sind Raj Katoch, the brother of the petitioner was interested in transferring the license in favour of the petitioner, as he can transfer the same to his ‘kith and kin’, which is evident from the reply received under RTI. Earlier,the petitioner had filed a writ petition bearing OWP No. 1613/2015 for directing respondent Nos. 2 to 4 therein to accept the application either from the petitioner or her brother for transfer of the Fair Price Shop License in favour of petitioner and consider her claim for transfer of license. The said writ petition was disposed of vide order dated 30.10.2015 by granting liberty to the petitioner as well as proforma respondent No. 6 to move an application before the Director, CAPD Jammu-respondent No. 2 therein for transfer of the said license in favour of the petitioner in accordance with rules. The petitioner, further claims that she, through the medium of an application, applied with the respondents for transfer of the license but the said application was not considered and decided by them and instead the respondents cancelled the license issued in favour of the proforma respondent No. 6 and issued the license in favour of respondent No. 5, in utter disregard to the Government order dated 04.08.2016. 3. The official respondents have filed the response stating therein that the proforma respondent never approached them for transfer of the Fair Price 8 LPA Nos. 65/2021 & 318/2019 and OWP No. 1258/2017 Shop License in favour of the petitioner and no joint application was ever filed by the petitioner and respondent No. 6 in compliance to the direction passed by writ Court in OWP No. 1613/2015. It is also stated that proforma respondent No. 6 had surrendered his dealership in May 2015 and the Fair Price Shop License has been issued in favour of respondent No. 5 on a commission basis in accordance with Government order dated 04.08.2016. The respondent Nos. 1 to 4 have placed on record the application, whereby the respondent No. 6 had surrendered the dealership. 4. Heard learned counsel for the parties and perused the record. 5. The stand of respondent Nos.1 to 4 is that proforma respondent No. 6 had surrendered the dealership in the month of May 2015 and in terms of directions issued in OWP No. 1613/2015, the petitioner and the proforma respondent No. 6 never filed any application for transfer of the license. 6. We have examined the application submitted by the petitioner and find that the said application was filed only by the petitioner and not by proforma respondent No. 6, whereas in terms of directions issued in OWP No. 1613/2015, application was to be filed jointly by the petitioner and proforma respondent No. 6. Besides, we find that the respondent No. 6 had already surrendered his license in the month of May, 2015 and in the application in respect of surrender of license, there is no whisper that he ever intended to transfer his license in favour of the petitioner. The petitioner has not been able to establish any vested right before this court, necessitating interference by this court, particularly in view of fact that in the application of surrender, the brother of the petitioner never expressed 9 LPA Nos. 65/2021 & 318/2019 and OWP No. 1258/2017 any willingness or interest in transferring the license in favour of petitioner. 7. For all what has been said and discussed above, the writ petition fails and the same is, accordingly, dismissed. (RAJNESH OSWAL) (ARUN PALLI) JUDGE CHIEF JUSTICE Srinagar 29.05.2025 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No KARAM CHAND 2025.05.29 14:13 I attest to the accuracy and integrity of this document