CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE HARISH KUMAR)

Date : 23-02-2024 Heard the parties.

2. The petitioner by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeks a declaration to hold Bihar Targeted Public Distribution System (Control) Order, 2016 (hereinafter referred to as ‘the Control Order, 2016’) in so far as it provides 50% reservation to BC, EBC, SC, ST and 35% Women ultra vires to Articles 14, 19(1)(g) and 21 of the Constitution of India and Sections 3 and 5 of the Essential Commodities Act, 1955. The petitioner also sought a declaration from this Court to hold Clause 6, 7, 8, 9, 12 of Control Orders, 2016 ultra vires, void ab initio, being in the teeth of the Constitutional provisions and also to declare the decision of the Government dated 08.03.2017, as contained in Annexure-2, in providing 35% reservation for Women in their respective category in Fair Price Shop license and subsequent notice for filling of vacancies of Fair Price Shop licnese in whole of Bihar as unconstitutional, illegal and bad in law.

3. It is submitted that in exercise of the power conferred under Section 3 of the Essential Commodities Act, 1955, the Government of Bihar has been pleased to frame the order for regulating the ration cards, licensing and regulation of fair price shop, operation of fair price shops monitoring, transparency and accountability, penalties, power of search and seizure, appeal and other related provisions known as Bihar Targeted Public Distribution System (Control) Order, 2016, which came to be notified in the extraordinary gazette of Bihar on 10.03.2016.

4. Mr. Dinu Kumar, learned counsel representing the petitioner, adverting to Clauses 6 to 12 of the Control Order, 2016 submitted that so far as it provides 50% reservation in vacancies in Fair Price Shops for BC, EBC, SC & ST is concerned, the Government is not competent to allow reservation in selection of agents/contract/license. Article 16 of the Constitution of India only provides reservation in admission and appointment. Right to be conferred with a contract to run a fair price shop comes under the fundamental right of a citizen of India. Further the Executive order as contained in Annexure-2 dated 08.03.2017 providing 35% reservation to women in their respective categories is wholly without jurisdiction and violative of Article 14, 19(1)(g) and 21 of the Constitution of India as well as Sections 3 and 5 of the Essential Commodities Act, 1955.

5. The learned counsel further contended that before the promulgation of Control Order, 2016 and the Executive order providing 35% reservation to women, at no point of time, the Government of Bihar has taken concurrence of Hon’ble President of India and Central Government for providing reservation, as provided under the aforenoted clauses under challenge. All the more, neither the Essential Commodities Act, 1955 nor the Constitution of India provide 50% reservation in vacancy of Dealers of Fair Price Shop to BC, EBC, SC & ST and 35% women.

6. It was further argued that for providing reservation as contained in Annexures-1 and 2 to the writ petition, the Government of Bihar has not conducted any survey regarding economic status of women, representation of backward classes including SC and ST for providing reservation, as provided under Section 4 of the Bihar Reservation Act, 1991. He lastly submits that in any view of the matter, the Government is empowered to extend reservation only in government service and not in the selection of fair price shop licensee and thus any criteria fixed for reservation under Control Order, 2016 and the notification issued by the State Government in consequence thereto are unconstitutional, illegal and bad in law.

7. In opposition to the averments made in the writ petition, counter affidavits have been filed on behalf of respondent no.2 as well as respondent nos. 3 and 4. 8. It is contended that under Clause 9 of the Control Order, 2016, publ