The court emphasized the importance of fulfilling the essential conditions for appointment as per the relevant government orders and upheld the non-discriminatory nature of the definition of 'family' in the Control Order, 2016 and Government Order, 2019.

JUDGMENT :

1. Heard Sri Arvind Srivastava, learned counsel for the appellant-petitioner and Sri Girish Vishwakarma, learned standing counsel for the State-respondents.

2. This special appeal has been filed praying to set aside the judgment and order dated 29.11.2021 in Writ-C No.21935 of 2021 (Smt. Kusumlata vs. State of U.P. and 2 others) passed by the learned Single Judge.

3. The aforesaid writ petition was filed by the petitioner praying for the following relief :

“(i) Issue a writ, order or direction in the nature of Mandamus commanding the respondent no. 2 S.D.M. Bharthana District Etawah to consider the claim of the petitioner for compassionate appointment of under the U.P. Essential Commodities Act (Rules and Distribution Order, 2016).

(ii) Issue a writ, order or direction in nature of Mandamus directing the respondent no.2 to appoint the petitioner as dealer in place of her father at Newadi Khurd, Nyay Panchayat-Aheripur, Block-Maheva, Pargana- Bharthana, District Etawah under the dying in harness rule prescribed under U.P. Essential Commodities Act (Rules and Distribution Order, 2016).”

4. Learned counsel for the appellant-petitioner states that subsequently, by means of an amendment application, challenge to the constitutional validity of Clause IV(10) of the Government Order dated 05.08.2019 defining the word ‘family’, was also made. By the impugned judgment, the learned Single Judge has dismissed the writ petition observing as under:

“32. But the present dispute is in regard to allotment of a dealership of fair price shop on the death of father of petitioner, who is married and residing at a different village. The authorities had not refused to grant dealership to the eligible dependents of the deceased Nekram. The argument raised by learned counsel as to legal representative as provided in Section 2 (II) of the Code of Civil Procedure which includes the petitioner does not have any relevance in present scenario as the existence of dealership arises out of an agreement between the parties. Once the agreement has come to an end on the death of Nekram the license can only be granted on fulfilling the conditions laid down in the Government Order dated 05.08.2019. Sub-clause 5 of Clause IV categorically provides that applicant has to be local resident.

33. The concept of allotting dealership to a local resident is firstly that he is acquainted with the most of the card holders as they are living in same village and secondly his availability in attending and running the fair price shop. The Government as well as the Apex Court have recognized that right to food is part of Article 21 of the Constitution. In case, dealership is given to an outsider who is unable to run the fair price shop due to his/her unavailability the very purpose for enacting the Act of 2013 and Control Order of 2016 would be rendered otiose.

34. That Sub-clause 5 of Clause IV of the government order of 2019 specifically provides that applicant should be a local resident. Petitioner is admittedly a resident of a different village, and not of the village where the fair price shop is to be allotted. The validity of the said condition of the government order has not been challenged in the writ petition, and only challenge has been made to declare the word "unmarried" as unconstitutional from the definition of family prescribed under Sub-clause 10 of Clause IV.

35. Once the government order specifically provides the applicant to be the resident of the same village where the shop has to be allotted, no such allotment can be made to an outsider. The argument of petitioner's counsel that married daughter should also be included in the definition of the word "family", in the present scenario cannot be accepted as the license is granted only on the fulfillment of the conditions prescribed under the government order of 2019. Petitioner being not able to fulfill t