Sangeeta Chandra, J. - (1.) This writ petition has been filed by the petitioner challenging the order/noting dated 02.08.2017 made by the Block Development Officer and approved by the Sub Divisional Magistrate, Chandpur, District Bijnor with regard to the proposal sent by Gram Panchayat Sultanpur Khadar, Block Jalilpur, Tehsil Chandpur, District Bijnor in favour of the petitioner Smt. Kamlesh Devi wife of Het Ram.
(2.) In the said noting the proposal has been rejected on the ground that it is against the direction of this Court in the writ petition No. 13521 of 2015:Anusuiya Devi Vs. State of U.P. and others decided on 27.07.2015.
(3.) The learned counsel for petitioner Mr. V.M. Zaidi, learned Senior Counsel assisted by Mr. M.J. Akhtar, has submitted that writ petition No. 13521 of 2014 was decided along with two other writ petitions on 27.07.2015. The leading case of the bunch was writ petition No. 13319 of 2014: Surendra Kumar and others Vs. State of U.P. and others. A copy of the judgment rendered by this Court in Surendra Kumar and others Vs. State of U.P. and others, 2015 7 ADJ 43 has been filed as Annexure - 4 to the writ petition. The Coordinate Bench of this Court after considering the law laid down by the Division Bench in Anil Kumar Singh Vs. State of U.P, 2010 4 ADJ 764 and in Kusma Devi Vs. State of U.P.,2007 1 ADJ 697 has observed as follows:- "25. Similarly in Anil Kumar Singh vs. State of U.P. and others, 2010 4 ADJ 764 another Division Bench held: "The vacancies of fair price shop have to be identified keeping in mind the nature of constituency in the general elections of Pradhan, lastly held. It is the nature of the constituency for the election of Pradhan, which constitutes the basis for identifying the fair price shop/vacancy for being allotted to either a person belonging to reserved category or to the general category. The caste of Pradhan for that matter would not be relevant for the simple reason that in a general constituency, any person can contest the election, may be belonging to scheduled caste or other backward classes but that would not change the nature of the constituency for election." and further held: " The caste of the Gram Pradhan solely cannot be a ground for holding that the shop lying within his constituency necessarily belongs to the same category to which the elected Gram Pradhan belongs. In fact the nature of the constituency from where the Gram Pradhan has been elected is the deciding factor normally but for the unreserved constituency of Gram Sabha all other shops would fall within the same category to which Gram Pradhan belongs but in a case of unreserved category constituency any person can be elected as Gram Pradhan." 26. In Smt. Kusma Devi vs. State of U.P.and others, 2015 1 ADJ 697, another Division Bench held that back log quota of Scheduled Caste should be filled from these shops identified for Scheduled Caste and that it was not permissible to fill the back log quota of Scheduled Caste from the General Category shops or shops reserved for O.B.C. Category. The Division Bench held that prior to filling the back log quota of Scheduled Caste, the authorities were required to identify the number of shops for Scheduled Caste quota. 27. In the light of the aforesaid, we are of the opinion that the identification of the shops has to be done at the initial stage, namely, that the shops have to be identified for a particular category whether it is vacant or is not vacant. All the shops in the district are to be identified either as a General Category, Schedule Caste or Scheduled Tribe or O.B.C. Category. Once the identification is done, the authorities are required to fill up the vacancy accordingly. If the shop which has been identified for a Scheduled Caste then the shop is required to be filled up by a Scheduled Caste candidate as and when the vacancy arises. If the shop is identified as an unreserved category, any person belonging to General Category, or reserved category could apply. xx xx xx xx 30. Since the Government Order's are not being followed, we direct the authorities in the instant case to follow the following direction and fill the existing vacancies within three months:- (1) As per the Government Order dated 17.8.2002 and modified by Government Order dated 10.8.2007, all the shops in the district are required to be calculated. (2) After calculation, 50% of the shops are required to be reserved. (3) For reservation, all the shops in the district, whether vacant or not vacant have to be identified in the manner as specified under Section 11-A(2) and (4), 12(5) of the U.P. Panchayat Raj Act read with Rules 3 and 4 of the U.P. Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules, 1994. The authorities are required to apply horizontal and vertical reservation. (4) Once all the shops are identified, action to fill up the shops would be taken only on the vacant shops. Shops which are not vacant will not be touched and steps to fill up such shops would be taken as and when a vacancy arises. (5) Vacant shops will be filled up from that category identified for such purpose. For example, if the shop has been identified for Scheduled Caste Category, the allotment will be done to a person belonging to a Scheduled Caste Category. If the shop is identified for an unreserved category, any person of any category, whether unreserved or reserved could apply. If a shop is identified for an OBC Category, but is not vacant and the allottee running the shop is Scheduled Caste or of an unreserved category, no action will be taken and, as and when the shop becomes vacant, steps to fill up the shop from an OBC person will take place. 31.We also find that the position is the same in other districts of this State. In order to bring uniformity, the exercise to identify the shops has to be taken as a one time measure. We accordingly direct the Chief Secretary and Principal Secretary Food and Civil Supply Department, Government of U.P. to issue a Government Order directing all the District Magistrate and/or the District Supply Officer to follow the directions as given above while implementing the Government Order dated 17.8.2002 and 10.8.2007. Necessary directions be given to all the District Magistrate and/or the District Supply Officer in the State of U.P. within two weeks from the date of the receipt of a certified copy of this order. The District Magistrate or District Supply Officer will thereafter implement the Government Order dated 17.8.2002 and 10.8.2007 in the manner stated aforesaid within three months thereafter.";