JUDGMENT :

1. Heard Sri Rishi Kant Rai, learned counsel for the petitioner and the learned standing counsel for the State respondents.

2. This writ petition has been filed praying for the following relief:-

"(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 13.11.2019, passed by the respondent no.2 (Annexure No.6).

(ii) Issue writ, order or direction declaring the Clause-II (1) & (2) of the Govt. Order dated 05.08.2021 as Ultra Vires against the constitutional provisions and Articles 14 and 15 of the Constitution of India as well as against the law laid down by the Constitutional Bench in Indra Sawhney (Supra) Case.

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to allocate the Fair Price Shop of Village Gulriya in favour of general category candidate.

(iv) Issue any other appropriate writ, order or direction to which the petitioner be found entitled under the facts and circumstances of the case.

(v) Award costs in favour of the petitioner."

3. Briefly states facts to the present case are that the petitioner claims to be resident of Village Gulriya Kohar Gaddi, Block Nebua Naurangiya, Tehsil Khadda, District Kushinagar. Earlier the aforesaid fair price shop license was held by a person belonging to unreserved category. On cancellation of his license of the fair price shop by order dated 26.07.2019, the aforesaid fair price shop fell vacant. Applying the reservation criteria as provided under the Government Order No.6/2019/1358/29-6-2019-162-Sa/2001 dated 05.08.2019, the Sub Divisional Officer, Tehsil Khadda, District Kushinagar, vide impugned order dated 13.11.2019, directed the Block Development Officer, Block Nebua Naurangiya, Kushinagar to apply the reservation in fair price shop licenses, as per the aforesaid Government Order dated 05.08.2019 and accordingly to proceed for selection of a fair price shop licensee of Village Panchayat Gulriya under the category of Scheduled Caste. Aggrieved with the reservation of the fair price shop in question i.e. Village Panchayat Gulriya, the petitioner has filed the present writ petition, praying for the reliefs aforequoted.

Submissions:

4. Learned counsel for the petitioner submits that presently as per the letter of the Sub Divisional Magistrate, Tehsil Khadda, District Kushinagar dated 29.07.2019, there are 92 fair price shops, out of which 25 licenses are held by the persons belonging to schedule caste/schedule tribe and 50 licenses are held by the persons belonging to OBC category. Thus out of total 92 fair price shop 75 shops are being run by persons of reserved category and, therefore, the reservation as has been provided under the Government Order dated 05.08.2019 already stands achieved. Consequently reservation applied under the impugned Clauses of the Government Order dated 05.08.2019 for reservation of the fair price shop "Gulriya", violates the Rules of Reservation, in as much as it exceed to permissible limit. He therefore, submits that the impugned Government Order to the extent of Clause-II (1) & (2) deserves to be declared Ultra Vires, to Articles 14 and 15 of the Constitution of India and the principles of law laid down by the Constitution Bench of Hon'ble Supreme Court in Indra Sawhney Case, 1992 Suppl. (3) SCC 217.

5. Learned standing counsel submits that the cut of date for the purposes of the reservation has been provided in the Government Order dated 05.08.2019 as the year 2015 and on that basis identification of the reserved fair price shop has been made. He further submits that before applicability of reservation under the impugned Government Order dated 05.08.2019, those who were continuing with their licenses, have not been disturbed, and reservation for license of fair price shop either under the reserved category or under the unreserved category shall be applied with r