ROHIT PASWAN Vs. STATE OF U P

JUDGEMENT

(1.) PETITIONER before this Court seeks quashing of the order passed by the Deputy Commissioner (Food), Varanasi Region, Varanasi dated 26.12.2008 passed in Appeal No. 156 of 2008. Facts relevant for deciding the present writ petition are as follows : Respondent no. 5, Ganga Ram was appointed as fair price shop agent in respect of the shop of village Latanv, P.O. Tiyara, Tehsil Chakia, District Chandauli. His agency was terminated under the order of the Sub Divisional Magistrate dated 12.05.2008. Not being satisfied with the order so passed by the Sub Divisional Magistrate, Ganga Ram preferred an appeal under Clause 28 (3) of the Government Order applicable before the Commissioner, Varanasi Region, Varanasi. The appeal has since been allowed by the Commissioner under the order impugned. During the pendency of the aforesaid proceedings the petitioner is stated to have been allotted the shop which fell vacant due to cancellation of the agency of Ganga Ram. He seeks quashing of the order of the Commissioner on the ground that an impleadment application was filed in the Appeal before the Commissioner which has not been allowed and further since the petitioner has not afforded opportunity of hearing by the Commissioner before passing of the order impugned. Lastly it is contended that the petitioner had made an application for clarification of the final order to the extent that who would run the shop, till the decision is taken afresh against Ganga Ram, as provided under the impugned order. I have heard learned counsel for the parties and have gone through the records of the present writ petition. From the facts as they are admitted on record, it is apparently clear that the petitioner is neither the complainant nor the Pradhan of the Gram Sabha. He in fact was a beneficiary of the order cancelling the fair price shop of Ganga Ram. The rights of the petitioner were dependent upon the outcome of the appeal. The Hon'ble Supreme Court of India in the case of Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madars, (1992) 3 SCC, 01 has explained, that once an order is set aside then what follows in the eyes of law is that as if the order, which has been set aside, had never been passed. What logically follows in the facts of this case from the order of the Commissioner dated 26.12.2008 is that the order of the Sub Divisional Magistrate dated 12.05.2008, which has been set aside under the appellate powers is presumed to have not be passed in eyes of law at all. Consequently, there ceases to a vacancy against which the petitioner can continue. This Court may record that the petitioner was neither a necessary nor a proper party in the appeal, which was filed by respondent no. 5 against the order of cancellation. He therefore, cannot seek hearing in the Appeal. Consequently challenge made to the order of the Commissioner on the ground of opportunity of hearing cannot be accepted by this Court. The consequences which follow with the setting aside of the order of cancellation by the Appellate Authority require no clarification and, therefore, the second application of the writ petitioner was also misconceived. There is no illegality or infirmity in the order passed by the Commissioner dated 26.12.2008, so as to warrant any interference under Article 226 of the Constitution of India. The writ petition lacks merit and is accordingly dismissed.