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PETITIONER: Y. SRINIVASA RAO

       Vs.

RESPONDENT: J. VEERAIAH AND ORS.

DATE OF JUDGMENT27/04/1992

BENCH: SHARMA, L.M. (J) BENCH: 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.

HEADNOTE:      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

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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]

JUDGMENT:      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

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         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

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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.                                                          786

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