Judgment Pinaki Chandra Ghose, J. This appeal is directed against an order dated 7th March, 2007 whereby His Lordship was pleased to dismiss the W.P. No. 15983(W) of 2005 alongwith the applications being CAN No. 1097 of 2006, CAN No. 4285 of 2006, CAN No. 1096 of 2006 and CAN No. 4279 of 2006 respectively. The said writ petition and the applications were disposed of by a common judgment. 2. The said writ petition was filed by a registered Association of M.R. Distributors challenging an Order No. 5020 F.S. dated July 19, 2005 and the advertisement dated August 15, 2005 was published for appointment of M.R. Distributors in (a) Arsha (Sikarabad), (b) Neturia, (c) Jhalda, No.2 (Kotshila) and (d) Puncha in the district of Purulia. 3. Two applications being CAN No. 1097 of 2006 and CAN No. 4285 of 2006 have been filed for addition of parties claiming themselves to be the selected candidates in respect of the vacancies. Pursuant to an Order dated July 17, 2006, the applicants in the said applications have been added as parties, being respondent Nos. 6, 7, 8 and 9 respectively. The Order was passed subject to an objection of the writ petitioner and without prejudice to the rights and contentions of the parties to this proceeding. 4. The applications being CAN No. 1096 of 2006 and CAN No. 4279 of 2006 were filed by the added respondent Nos. 6, 7, 8 and 9 respectively for vacating the interim order of status quo passed in the writ application on September 19, 2005. By an order dated July 17, 2006 the said two applications have been directed to be heard at the time of hearing of the main writ application. 5. The facts of the case briefly are as follows. 6. On or about 27th February, 1967, the appellant was appointed by the Government of West Bengal as the M.R. Distributors in respect of Jhalda Block including an area called Kotshilla. On 8th September, 1994, the appellant wanted to open a second counter for smooth distribution of the foodgrains and he opened a counter near Kotshilla with the permission of the State of West Bengal. 7. Despite such second counter opened by the appellant, the Government of West Bengal did not instruct the dealers in the Jhalda Block to lift the foodgrains from the second counter. 8. 7. Despite such second counter opened by the appellant, the Government of West Bengal did not instruct the dealers in the Jhalda Block to lift the foodgrains from the second counter. 8. On 13th April, 1999, the Government issued a notification framing guidelines under what circumstances and under which tagging or retagging of dealers, existing distributors could be made and also for creation of new vacancies by retagging dealers or ration card holders of existing distributors. The said guidelines are set out hereunder: "Government of West Bengal Department of Food and Supplies 11A, Mirza Galib Street, Calcutta-87. 1478-F.S. Dated: 13th April, 1999 FS/SECTT/FOOD/6F-5/05 Pt.-1 MEMOHANDUM The Public Distribution System in the State functions under a large network of State agencies known as Distributor, wholesaler and Dealer, Procedures have been laid down for selection and appointment of such state agencies under valous orders issued from time to time. But the actual number of such agencies as would be necessary for smooth and effective running of the PDS keeping in view of their economic viability has never been worked out. This had resulted in disparities from place to place, as agencies were appointed in terms of different local considerations without any uniform basis of appointment. With the introduction of the T.P.D.S. from 1.6.97 and the consequent drastic reduction in central allocations of foodgrains to the State, the entire Public Distribution System has undergone a drastic change, necessitating the adoption of a uniform basis in respect of declaration of vacancies, appointment and tagging/retagging of state agencies under the Public Distribution System. Under the circumstances, I am directed by order of the Governor to State that, in supersession of all orders issued earlier in this regard, the following guidelines shall be followed in respect of appointment, tagging and retagging of Distributors, wholesalers and retailers in MR areas. A. Not more than 5000 ration cards shall be tagged with a MR dealer. B. (1) Not more than 50 MH dealers. (2) 2.50 Lakh ration cards shall be tagged with a MR Distributor/wholesaler. C. Appointment, tagging or retagging may be considered only when the total number of dealers and rationees exceed those specified at A. and both (1) and (2) of B. stated above. B. (1) Not more than 50 MH dealers. (2) 2.50 Lakh ration cards shall be tagged with a MR Distributor/wholesaler. C. Appointment, tagging or retagging may be considered only when the total number of dealers and rationees exceed those specified at A. and both (1) and (2) of B. stated above. However, under exceptional circumstances arising out of geographical barriers and unusually long distances required to be covered by the dealers causing drainage on account of high transport charges to the State revenue, such conditions may of course be reviewed accordingly. All proposals of declaration of vacancies in terms of the aforesaid guidelines may henceforth be submitted to the Government through the district level statutory authorities for approval, with sufficient justification. However, the procedure already laid down in respect of selection and appointment of dealer/distributor will remain unchanged. This order shall take immediate effect and shall remain in force until further orders." 9. On 10th April, 2001, the Government issued letters to certain other distributors of the Purulia District to open second counter for smooth distribution of foodgrains in their respective areas. The said letter was not addressed to the appellant herein. 10. On 22nd December, 2003, the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 [hereinafter referred to as the said "Control Order"] published. Clause 23 of the said order provides for declaration of the vacancies in the matter of appointment of Distributors. 11. The said Clause is reproduced hereunder: "Clause 23.-Appointment of Distribution.-(i) In the vacancy arising out of death or resignation of an .existing distribution or for better functioning of Public Distribution System in a particular area, the vacancy is to be declared with the approval, of the Regional Deputy Director. The Sub-divisional Controller, Department of Food & Supplies, shall seek an approval of the Regional Deputy Director through the concern. The District Controller, Department of Food and Supplies, and on obtaining approval, shall declare such vacancy through public notification/advertisement. The Sub-divisional Controller, Department of Food & Supplies, shall seek an approval of the Regional Deputy Director through the concern. The District Controller, Department of Food and Supplies, and on obtaining approval, shall declare such vacancy through public notification/advertisement. (ii) The applications as may be received from the bona fide citizen of the State for appointment of distributor against a particular vacancy, shall be enquired into by the Sub-divisional Controller, Department of Food and Supplies, within 15 days from the date of receipt of such applications and the enquiry report alongwith the recommendation of the Sub-divisional Controller, Department of Food and Supplies shall be sent to the District Controller, Department of Food and Supplies within 10 days from the date of completion of enquiry. After having such report, the District Controller, Department of Food and Supplies shall send it to the Zilla Parishad alongwith his recommendation and the Zilla Purishad shall forward the same to the Regional Deputy Director for approval. (iii) If the Regional Deputy Director docs not agree with the recommendation made by the District Controller or the Zilla Parishad, as the case may be, shall refer the matter to the District Magistrate for his views and the views of the District Magistrate shall be final. After having approval from the Regional Deputy Director or District Magistrate, as the case may be the District Controller, Department of Food and Supplies shall arrange for issue of appointment letter to the selected distributors within 15 days from the date of receipt of the said approval and shall arrange for issue of licence against an application made by the appointed distributor, in Form C. The distributor so appointed shall have to deposit a licence fee of Rs.500/- and the licence shall remain valid for two years. Thereafter, the licence shall be required to be renewed every year against a fee of Rs.200/- as may be deposited by the distributor alongwith the application for renewal of licence within a period of validity of licence. Besides, the licence fee, the distributor shall be required to furnish a security deposit of Rs.10,000/- in the form of National Savings Certificate, Krishna Vikash Patra etc. pledged in favour of the Governor of West Bengal. Besides, the licence fee, the distributor shall be required to furnish a security deposit of Rs.10,000/- in the form of National Savings Certificate, Krishna Vikash Patra etc. pledged in favour of the Governor of West Bengal. (iv) While appointing a distributor, the concerned authority shall take into consideration the volume of business, number of Dealers to be tagged with the distributor and other factors as may be required to be examined in the interest of Public Distribution System." 12. On 4th February, 2004, the Notification dated 13th April, 1999 was modified and the said Memorandum/Guidelines was issued by the Authority which is reproduced hereunder: "Government of West Bengal Food and Supplies Department 11A, Mirza Galib Street, Calcutta-87. 1246-FS/Food/Sectt./6F-OP 03 Dated: 4th February, 2004 MEMORANDUM The public Distribution System in the State functions under a large network of State agencies known as Distributor, wholesaler and Dealer. Procedures have been laid down for selection and appointment of such state agencies under various orders issued from time to time. But the actual number of such agencies as would be necessary for smooth and effective running of the PDS keeping in view of their economic viability has never been under consideration, for sometime past. Hilly terrains and inaccessible roads in Darjeeling, riverine areas of Sundarbans in South 24 Paraganas, Forest areas and the Tribal belt in the State also stand as a bar resulting in disparities from place to place as agencies were appointed without giving consideration to local needs and geographical considerations. With the introduction of the T.P.D.S. from 1.6.97 and the consequent drastic reduction in central allocations of foodgrains to the State, the entire Public Distribution System has undergone a drastic change, necessitating the adoption of a uniform basis in respect of declaration of vacancies, appointment and tagging/retagging of state agencies under the Public Distribution System. Under the circumstances, and after due consideration the following guidelines is framed in partial modification of the G.O. No. 1478-FS dt.13.4.99 with regard to appointment, tagging and retagging of Distributors, Wholesalers and Retailers in M.R. areas of hilly sub-divisions of Darjeeling District and revenue areas of Sundarban in South 24-Parganas District and in some Forest areas in the State. A. Not morethan 3500 ration cards shall be tagged with a M.R. dealer. A. Not morethan 3500 ration cards shall be tagged with a M.R. dealer. B. (1) Not more than 40 MR Dealers (maximum) to be tagged with a M.R. Distributor, (2) 1.40 Lakh ration cards (maximum) shall be tagged with a MR Distributor/wholesaler. C. Appointment, tagging or retagging of the State agencies should be done with the approval of the Government only. However, under exceptional circumstances arising out of geographical barriers and unusually long distances required to be covered by the dealers causing drainage on account of high transport charges to the State revenue, such conditions may of course be reviewed accordingly. All proposals of declaration of vacancies in terms or the aforesaid guidelines may henceforth be submitted to the Government through the district level statutory authorities for approval with sufficient justification. This order shall take immediate effect and shall remain in force until further orders." 13. On 27th July, 2005, the Government of West Bengal further issued a declaration that there was a scope for appointment of M.R Distributors by mentioning four new vacancies in the Purulia District. The said vacancies were directed to be filled up by curtailing the number of ration card holders connecting to the existing distributors including the appellant. 14. It is the case of the appellant that the criteria laid down in the Government Notification dated 13th April, 1999 were not followed. The tagging of consumers with the appellant was within the parameters and limits which were laid down in the Notification issued on 13th April, 1999. The applications were invited after publication of advertisement for appointment of M.R. Distributors in those new vacancies on 15th August, 2005. Hence, the writ petition was filed by the Association challenging the declaration of new vacancies in the Purulia district. 15. It is the case of the appellant that the appellant herein was not a party before the Hon'ble Writ Court and it is further pointed out that the Hon'ble Judge expressly held that in the case of the appellant the criteria prescribed by the Notification dated 13th April, 1999 were not fulfilled. 16. It is submitted that in the result the declaration of four vacancies by the respondent authority was upheld by the Hon'ble First Court. Hence, this appeal has been filed. 17. 16. It is submitted that in the result the declaration of four vacancies by the respondent authority was upheld by the Hon'ble First Court. Hence, this appeal has been filed. 17. According to the appellant the appellant carne to learn from a news item that "Kundu Enterprises" had been appointed to fill up the new vacancy created for Koshila after taking out dealers connected with the appellant. 18. On 26th March, 2007, the appellant received the certified copy of the order of the Hon'ble Writ Court. The dealers who were tagged with the newly appointed distributor, "Kundu Enterprises" lodged a written protest with the respondent authorities complaining their difficulties in obtaining supplies if they are tagged with the said Distributor. 19. Mr. S.K. Kapoor, learned Senior Advocate appearing on behalf of the appellant contended before us that the Notification dated 29th July, 2005 dividing the Jhalda Block in two parts, viz., Jhalda I and Jhalda II, is bad in law because the same is de hors the Circular dated 13th April, 1999. The Circular dated 13th April, 1999 provides that the new M.R. Distributors can be appointed by dividing an existing Block only when an existing M.R. Distributor crosses the limit of 50 dealers and 2.50 lakh ration cards only. Therefore, it is submitted that there is no reason or justification to create a new vacancy in this respect. 20. Thereafter, on 10th April, 2001, the Government of West Bengal issued letters to certain other distributors of the Purulia District to open second counters for smooth distribution of foodgrains in their respective areas but the letter was not addressed to the appellant. The Government of West Bengal took a plea by dividing the Blocks transportation rebate will be minimized. 21. Further more, Mr. Kapoor pointed out that it would be evident from the fact that detagging of M.R. Distributors would cause difficulty to the said detagged dealers and they have to travel more distance rather than the present arrangement. In the affidavit, it is pointed out that the Government Authority failed to make any comment in respect thereof. 22. Mr. Further more, Mr. Kapoor pointed out that it would be evident from the fact that detagging of M.R. Distributors would cause difficulty to the said detagged dealers and they have to travel more distance rather than the present arrangement. In the affidavit, it is pointed out that the Government Authority failed to make any comment in respect thereof. 22. Mr. Kapoor further pointed out that the Circular dated 4th February, 2004 has no application since the same is not applicable at all to the Purulia District and it has been specifically stated that the said Circular is only applicable with the area of hilly sub-division of Darjeeling District, riverine area of Sunderbans in South 24-Paraganas and in some forest areas in the State. 23. Hence, it is not the contention even in the affidavit filed by the Government that the said Circular is applicable in the Purulia District and the same belongs to the tribal area. No specific Notification was produced before the Court declaring the other areas as tribal area from the Census Report and it would be evident that in 2001, the number of Scheduled Tribe is only 12097 out of 123714 population. The Project Officer-cum-District Welfare Officer, Backward Classes Welfare, Purulia opined that Bandwan in the Purulia District is having the highest population, that is, 51.06%. 24. Mr. Kapoor further submitted that the Circular dated 13th April, 1999 has a statutory force and Clause 23(iv) of the said Control Order would show the framing of such Circular dated 13th April, 1999 has a statutory force and binding on the parties. 25. It is further submitted that the Government Authorities have to follow its own guidelines and in support of such contention, he relied upon the following decisions reported in: 2004(1) SCC 317 , Khetrabasi Biswal vs. Ajaya Kumar Baral 2004(2) SCC 297 , DDA vs. Joginder S. Monga 2006(12) SCC 583 , Ispat Industries Ltd. vs. Commissioner of Customs, Mumbai 2007(2) SCC 491 , Punjab Water Supply & Sewerage Board vs. Ranjodh Singh and 2007(2) CLJ 269 , Anil Kumar Shaw vs. State of W.B. 26. On the contrary, Mr. Kalyan Bandopadhyay, learned Senior Advocate appearing on behalf of the Kundu Enterprises submitted that the appellant approached the Hon'ble Writ Court at a belated stage and the appeal is nothing but in the nature of a writ petition. On the contrary, Mr. Kalyan Bandopadhyay, learned Senior Advocate appearing on behalf of the Kundu Enterprises submitted that the appellant approached the Hon'ble Writ Court at a belated stage and the appeal is nothing but in the nature of a writ petition. Therefore, he submitted that the appeal should be dismissed on that ground alone. 27. Mr. Bandopadhyay further submitted that the Circular dated 13th April, 1999 is a guideline, since the control order has come into force after the issuance of the said Circular, the control order is binding upon the parties. According to him, the ceiling limit as mentioned in the said Circular dated 13th April, 1999 does not create any right in favour of a distributor and the ration cards or the percentage mentioned in the said Circular is nothing but only an outer limit. 28. He further submitted that Jhalda II Block is a tribal area and mere a deviation from the said circular would not vitiate the entire action of the authority concerned. Mr. Bandopadhyay further submitted that the said guideline was not challenged before the Hon'ble Writ Court and he relied upon the decisions reported in 2007(8) SCC 540 , Modern School vs. Sashi Pal Sharma; 2007(8) SCC 212 , Chief Commercial Manager South Central Railway vs. G. Ratnam & Ors. and 2004(1) SCC 317 (supra) in support of his contention. 29. Mr. Supriyo Bose, learned Advocate appearing on behalf of the State Authority submitted that the Circular dated 13th April, 1999 was superceded by the Circular dated 4th February, 2004 and in reply, Mr. Kapoor pointed out that the Circular dated 13th April, 1999 has come under the power enumerated under Article 166 of the Constitution of India whereas the Circular dated 4th April, 2004 is not under the Order of the Governor and, therefore, it has no binding effect and he submitted that it is not specifically stated or declared in the Circular that the said Circular is applicable to Purulia District as it is a tribal area. 30. In reply, Mr. Kapoor pointed out that the appellant approached the Hon'ble Court and after obtaining a leave to prefer the present appeal, this appeal has been filed. Therefore, it is immaterial at this stage that the appellant has applied at a belated stage. 30. In reply, Mr. Kapoor pointed out that the appellant approached the Hon'ble Court and after obtaining a leave to prefer the present appeal, this appeal has been filed. Therefore, it is immaterial at this stage that the appellant has applied at a belated stage. He relied upon a decision reported in AIR 1974 SC 994 para 84, State of Punjab vs. Amar Singh, in support of such contention. 31. He further drew our attention to Clause 23 of the said Control Order and submitted that the said Clause gives a mandate upon the concerned authority that while appointing a distributor, the authority must consider the volume of the business, number of dealers to be tagged with the distributor and other factors, as may be required to be examined in the interest of the public distribution system. The other factors have not been defined anywhere in the said control order. 32. He also submitted that the number of dealers to be tagged with the distributors, is a relevant factor to consider for the purpose of deciding the ingredients of the said Clause 23. The appointing authority has to consider the Circular dated 13th April, 1999 since the said Memorandum has mentioned the parameter needs to be considered before appointing the distributor. Hence, according to him the said Memorandum dated 13th April, 1999 has to be read alongwith the statutory control order and not in isolation. 33. He further contended that the Government has to take the assistance of the Circular dated 13th April, 1999 to fix the parameters otherwise the parameters mentioned in Clause 23(iv) will remain unanswered by the control order itself. 34. Mr. Kapoor contended that the case cited by Mr. Bandopadhyay reported in 2006 AIH SCW 199, Poonam Verma vs. Delhi Development Authority, has no application in the, facts and circumstances of this case. The decision reported in 2007(8) SCC 540 (supra) also has no application in the facts and circumstances of this case since the learned Trial Court has no occasion to consider as to whether the Circulars dated 13th April, 1999 and 4th February, 2004 are directory or mandatory. 35. Therefore, the said point has not been decided by the Hon'ble Writ Court, need not be examined by the Appeal Court at this stage. 35. Therefore, the said point has not been decided by the Hon'ble Writ Court, need not be examined by the Appeal Court at this stage. He further submitted that the Circular dated 13th April, 1999 and Article 166 of the Constitution of India are invoked thereof and the judgment reported in 2007(8) SCC 212 (supra) in fact support the case of the appellant. 36. He submitted that the judgment reported in 1999(5) SCC 612 , District Collector & Anr. vs. B. Suresh & Ors. has no application in the facts and circumstances of this case. 37. We have heard the learned Counsel for the parties. We have also analysed the facts and circumstances of this case. It appears to us that the M.R. Distributors and M.R. dealers were appointed by the State Authority under the Control Order, 2003. 38. It further appears that a Notification No. 5880-FS/FS/SECTT./FOOD/41-2/01(P) dated December 22, 2003 was published in the Official Gazette which was placed before the Hon'ble First Court. It appears that such Gazette publication was made in compliance with the provisions of section 3(5)(a) of the Essential Commodities Act, 1955 in connection with the said Control Order, 2003. 39. It further appears that the Hon'ble First Court also dealt with the facts and the decisions cited before His Lordship and His Lordship after considering the said section 3 of the Essential Commodities Act, 1995, came to the conclusion that the said Order has been promulgated and duly published in the Calcutta Gazette on December 31, 2003. 40. Therefore, His Lordship held that the provisions of section 3(5)(a) of the Essential Commodities Act, 1955 has been complied with so far as the said Control Order is concerned. 41. It appears to us that there is no dispute in respect of the said question. The question arose with regard to the rearrangement of tagging of existing Dealers with the M.R. Distributors in the area in question. His Lordship has also duly dealt with the provisions of clause 23 of the said Control Order. 42. After perusing the said Clause 23, it appears to us that the said Clause 23 deals with the appointment of the Distributors and under sub-clause (i) of Clause 23 of tile said Control Order the Authorities has the power to declare new vacancy for appointment of new M.R. Distributor in an area for better functioning of public distribution system. 43. After perusing the said Clause 23, it appears to us that the said Clause 23 deals with the appointment of the Distributors and under sub-clause (i) of Clause 23 of tile said Control Order the Authorities has the power to declare new vacancy for appointment of new M.R. Distributor in an area for better functioning of public distribution system. 43. Therefore, on the question of tagging and retagging, we do not have any hesitation to hold that the respondent authorities have the power to declare the vacancies in question in accordance with the provision and, therefore, we do not have any hesitation to uphold the decision of the Hon'ble First Court on the said question. 49. Now the question arises with regard to the reasonableness of the respondent authorities to appoint new distributors in the areas in question. 45. It appears from the order which was issued by the Authorities directing the other M.R. Distributors to open the second counter by the Memo dated April 10, 2001 that the authority issued the said Order/Memorandum of Appeal in an emergent situation the respondent authorities took the decision considering the question of transport rebate to the M.R. Dealers from a distant place and other considerations which cannot be said unreasonable or arbitrary since we have also considered the said Memorandum issued by the authorities, M.R. Distributors dated April 10, 2001. 46. Therefore, in the facts and circumstances of this case, it cannot be said that the decision taken by the respondent authorities is an unreasonable one or arbitrary. 47. The next question arises as to whether the said decision making process of the Authority can be sustained in law. We have carefully considered all the aspects of the matter. We also find that the appellant enjoys 247910 number of ration cards tagged with him which may be little bit short of 2.50 lakh ration cards as mentioned in the said Circular dated 13th April, 1999. Therefore, no injustice has been caused to the appellant. 48. We have also considered the Guidelines dated 13th April, 1999 which provide that under exceptional circumstances, the State can review the conditions for appointment of dealers. Furthermore, in our considered opinion, the Memorandum is in the nature of Guidelines which do not have any statutory force. Therefore, no injustice has been caused to the appellant. 48. We have also considered the Guidelines dated 13th April, 1999 which provide that under exceptional circumstances, the State can review the conditions for appointment of dealers. Furthermore, in our considered opinion, the Memorandum is in the nature of Guidelines which do not have any statutory force. Therefore, the Guidelines do not give rise to any legal right in favour of the appellant [See AIR 1988 SC 1681 (supra)]. 49. Hence, we hold that the said order does not suffer from any irregularity or illegality and accordingly, we dismiss this appeal affirming the said order so passed by the Hon'ble First Court. 50. For the reasons stated hereinabove, both the appeals are dismissed. Surinder Singh Nijjar, CJ., I agree. Appeals dismissed.