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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SUJIT NARAYAN PRASAD, J.
Pankaj Kumar Jha, S/o Vishwanath Jha - Appellant
Versus
The State of Jharkhand - Respondents
W.P (C) No. 1784 of 2019
Decided on : 30-04-2019
Constitution of India - Article 226 – Claim of compensation – Appeal against conviction - Cancelled which is contrary to rule He has also submitted Permanent Account Number in name of Narmada Construction petitioner’s firm - Petitioner has been declared successful through lottery being Group deducted from petitioner’s account through electronic process, prior to that he has also deposited a sum As per order of Superintendent of Excise but instead of fact that he is fulfilling all criteria and in process of selection has been declared to be successful but he has been communicated with the impugned order passed that since application has been submitted in name of firm and therefore said application is decided to be cancelled which is challenged in this writ petition mainly on ground that there is no bar in making application through firm - Even if there is bar co-applicant is one and therefore criteria as laid down under rule as notified in notification pertaining to the definition of applicant petitioner is qualified to be considered – Held, Concept of equal treatment on logic of Article 14 of Constitution of India cannot be pressed into service in such cases - What concept of equal treatment presupposes is existence of similar legal foothold - It does not countenance repetition of a wrong action to bring both wrongs on a par - Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case - They have to establish strength of their case on some other basis and not by claiming negative equality - Learned counsel for appellants contended that when other candidates were appointed in the post against category, the same benefit should also be extended to appellants - Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State it was held as under - Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake Development Authority of Haryana DG Health Services Improvement Trust State of Punjab v. Rajeev Govt.- Union of India v - International Trading - other argument that the petitioner-firm has already declared to be successful and as such it ought not to have been rejected after completion of entire process of selection but the aforesaid contention of the learned counsel for petitioner is also not worth to be considered for the reason that after being declared to be successful he has no accrued right of settlement in his favor if his candidature is itself under question and if such could have been allowed by respondent authorities or any positive interference would be made by this Court against the decision taken by the authority it will lead to allowing illegality to be perpetuated and it is settled position of law that illegality, if committed and if came to be known to the authority same has to be rectified moment it came to notice on position of law that illegality cannot be allowed to be perpetuated – Petition dismissed
This writ petition is for quashing the decision as contained in Memo no.693 dated 29.03.2019 (Annexure-5) issued by the Deputy Commissioner, Ranchi, whereby and whereunder his application for allotment of liquor shop has mechanically been cancelled which is contrary to the rule as contained in order dated 25.12.2018.
2. The brief facts of the case of the petitioner, as has been pleaded in the writ petition is that the State Government has notified a rule for settlement of liquor shop on 25.12.2018 by which on-line application was called for, the petitioner has applied for the same on 28.02.2019 with his co-applicant one Manvendra Nath Jha and submitted all such documents fulfilling the eligibility criteria. He has also submitted Permanent Account Number in the name of Narmada Construction, the petitioner’s firm. The petitioner has been declared successful through lottery being Group No.31 on 05.03.2019, a sum of Rs.8,51,600/- which was 5% deducted from the petitioner’s account through electronic process, prior to that he has also deposited a sum of Rs.8,42,000/- as per the order of the Superintendent of Excise, Chaibasa but instead of the fact that he is fulfilling all the criteria and in the process of selection, has been declared to be successful but he has been communicated with the impugned order passed on 29.03.2019 that since the application has been submitted in the name of firm and therefore, the said application is decided to be cancelled which is challenged in this writ petition mainly on the ground that there is no bar in making application through the firm. Even if there is bar, the co-applicant is one Pankaj Kumar Jha, and therefore, the criteria as laid down under the rule as notified in the notification dated 25.12.2018 pertaining to the definition of applicant, the petitioner is qualified to be considered.
The further ground has been urged that after being found to be successful in the lottery, cancellation of candidature of the petitioner is absolutely illegal and improper since there is no defect in the said application which ought to have been rejected at the threshold.
3. None appears for the State of Jharkhand.
4. Having heard learned counsel for the petitioner and going across the pleading made in the writ petition, it needs to refer herein that the State of Jharkhand has promulgated and notified Rules for settlement and grant of license in the State of Jharkhand, known, as Jharkhand Utpad (Madira Ki Khudra Bikri Hetu Dukanon Ki Bandobasti Awam Sanchalan) Nimayawali, 2018” (hereinafter referred to as “Rule, 2018” in short) vide Notification dated 24.12.2018, wherein, it has been primarily provided that settlement of Retail Excise Shops shall be undertaken through the process of Lottery and the shops would be notified for such lottery after determining the annual minimum revenue to be paid in respect of the said shop. As per the said Rule, it has been provided that an applicant who is a person can participate in the auction process.
Further, term ‘person’ has been defined in the said Rule, 2018 which means a “person”, who is citizen of India and who has attained the age of 21 years at the time of participating in the lottery process.
The competent authority has issued an advertisement on 22.02.2019 in pursuance to the provision of Rule, 2018 notifying the process for settlement of Retail Excise Shops through lottery and the date of lottery was fixed on 05.03.2019 and it was provided, inter alia, that an applicant would be entitled to participate in the lottery process conducted district wise in the entire State of Jharkhand in respect of shops and/or group of shops, as may be notified, on deposit of earnest money deposit, application fee and agency charges, including G.S.T.
5. The consideration of this Court pertains to the definition of a “person” “Vyakti” and the applicant, which has been referred in Rule 2
(XXXI) and (XXXII). For convenience, Rule (XXXI) is being first referred. Since the Rule is in H
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