SANDHYA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) THIS writ petition is directed against the order passed by the Commissioner rejecting the recall application filed Appeal No. 06/39 of 2008-09. Facts relevant for deciding the present writ petition are as follows : Respondent no. 5, Dhirendra Kumar was appointed as fair price shop agent in respect of the shop of village Pura Banni, Tehsil Mahoba, District Mahoba. His agency was terminated under the order of the Sub Divisional Magistrate dated 13.11. 2007. Not being satisfied with the order so passed by the Sub Divisional Magistrate, respondent no. 5 preferred an appeal under Clause 28 (3) of the Government Order applicable before the Commissioner of the Division. The appeal has been allowed under an order dated 01.05.2009 after recording a finding that explanation furnished in respect of charges levelled has not been considered and further that the enquiry conducted by the Tehsildar, Karvai was not in accordance with law and the order has been passed on the strength of an another report of the Supply Inspector. It has been stated that the said report of the Supply Inspector was never forwarded to the agent.. 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 respondent no.5 inasmuch as in the Appeal he was not granted any interim order. The petitioner, therefore, made a recall application on the ground that she has not been afforded an opportunity of hearing before passing of the order dated 01.05.2009 whereby the Appeal was allowed. The recall application has been rejected under the impugned order dated 15.05.2009. It is against this order that the present writ petition has been filed. 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. She in fact was a beneficiary of the order cancelling the fair price shop of respondent no. 5. 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 01.05.2009 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 as the agent. 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. She 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. For the reasons recorded above, the Commissioner is justified in rejected the recall Application. 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.