Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 282 (CAL)

Samser Ali Gharami v. Md. Aslam Gharami

2010-03-16

M.S.SHAH, PINAKI CHANDRA GHOSE

body2010
JUDGMENT 1. LEAVE is granted in terms of prayer (a) of the application for leave to appeal. The application for leave to appeal being CAN 1838/10, is allowed. 2. INSTEAD of hearing the stay application, we have taken up the appeal itself for final disposal with the consent of the learned Counsel for the parties by treating the same as on day's list. This appeal is directed against the judgment dated 17th February, 2010 of the learned Single Judge allowing the writ petition being W.P. No. 28535 (W) of 2008 of respondent No. 1 herein by which the learned Single Judge set aside the order dated 24th March, 1008 of the District Magistrate, South 24-Parganas. By the said order the District Magistrate had cancelled the kerosene oil dealership license and appointment letter dated 28th August, 2007 issued in favour of the writ petitioner. 3. BY a notice dated 22nd June, 2006 respondent No. 7 herein Sub- Divisional Controller, Food and Supply, Baruipur had invited applications from the intending candidates for appointment of retail kerosene oil dealer at Prangunj under Prangunj Gram Panchayat, District South 24-Parganas. Clause 5 of the said notice imposed the following restriction: "The candidate shall neither be member nor related to any member of the Gram Panchayat Samity and Zilla Parishad." 4. THE writ petitioner submitted his application and was selected by the respondent authorities and was granted kerosene oil dealership licence and appointment letter 28th August, 2007. The same was challenged by the present appellant by filing a writ petition which was disposed of by this Court on 17th March, 2008 with a direction to respondent No. 5 herein, the District Magistrate, to take a decision in the matter in accordance with law. The District Magistrate passed the impugned order dated 24th March, 2008 canceling the licence and appointment letter dated 28th August, 2007 in favour of the writ petitioner. Hence, the writ petition giving rise to the present appeal was filed before the learned Single Judge. The learned Single Judge in the first place accepted the contention of the writ petitioner that since there was no Gram Panchayat Samity in the concerned village, there was no question of the writ petitioner being a member or a relation of a member of such Samity. The learned Single Judge in the first place accepted the contention of the writ petitioner that since there was no Gram Panchayat Samity in the concerned village, there was no question of the writ petitioner being a member or a relation of a member of such Samity. The writ petitioner's father was., a member of the Prangunj Gram Panchayat, but there was no restriction in the notice upon a member or a relation of a member of the Gram Panchayat to participate in the selection process. The defence of the authority that there was a printer's devil in clause 5 of the advertisement in the reference to "the Gram Panchayat, Panchayat Samity and Zilla Parishad" was wrongly printed as "the Gram Panchayat Samity and Zilla Parishad" was treated as of no consequence for the following reasons. 5. THE learned Single Judge observed that in any view of the matter neither the State Government nor the District Magistrate had imposed any restriction upon a member or a relation of a Gram Panchayat, Panchayat Samity or Zilla Parishad from participating in the selection process for appointment as kerosene oil dealer. The learned Single Judge, thereafter, observed that in any view of the matter, the matter as governed by the West Bengal Kerosene Control Order, 1968 and unless there was a specific disqualification in the West Bengal Kerosene Control Order, 1968 a member of Gram Panchayat, Panchayat Samity or Zilla Parishad or a relation of any such member, cannot be disqualified from participating in the selection process for appointment of kerosene oil dealer. 6. THE learned Single Judge accordingly allowed the writ petition and set aside the cancellation order passed by the District Magistrate. The present appeal has been filed by the person who came to be appointed as a kerosene oil dealer by order dated 8th October, 2009 in the concerned village in place of the writ petitioner during the pendency of the writ petition. The learned Counsel for the appellant submits that the appellant was not joined as a party respondent in the writ petition nor was his appointment by the order dated 8th October, 2009 made subject to the result of the writ petition being W.P. No. 28535 (W) of 2008. 7. The learned Counsel for the appellant submits that the appellant was not joined as a party respondent in the writ petition nor was his appointment by the order dated 8th October, 2009 made subject to the result of the writ petition being W.P. No. 28535 (W) of 2008. 7. IN the alternative, it is contended on merits that the restriction in the notice had some typographical mistake, but the intention was not to allow a member or relation of a member of a Gram Panchayat, Panchayat Samity or Zilla Parishad, because the Gram Panchayat or such other local authorities are required to make supervision over the functioning of such kerosene oil dealer and fair price shop owners and if a member of Gram Panchayat or such other local body or any relation of such member is permitted to be appointed as a kerosene oil dealer or allotted a fair price shop, the concerned Panchayat will not make effective supervision over functioning of such kerosene oil dealer and fair price shop. 8. THE learned Counsel for the appellant submitted that even in absence of any law or rules, it is open to an executive authority to disqualify a person from being appointed as kerosene oil dealer on the ground that he is a member of, or a relation of a member, of Gram Panchayat. The learned Counsel submitted that when the rules are silent, it is open to an executive authority to provide for such disqualification through executive instructions. Strong reliance is placed by the learned Counsel for the appellant on the decision of the Supreme Court in the case of Sant Ram Sharma vs. State of Rajasthan and Ors., AIR 1967 SC 1910 , where at para 7 it has been held as follows: "We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." 9. IN response to a specific query from the Court, the learned Counsel appearing on behalf of the State has placed before us a copy of the instruction dated 16th February, 2010 from the Additional District Magistrate (G), South 24-Parganas stating as under:- "W.P. No. 28535(W) of 2008 Aslam Gharami vs. State of West Bengal and Ors. Provision for restraining the members or relative of any member of the Gram Panchayat, Panchayat Samity and Zilla Parishad to participate in the selection process for appointment of retail kerosene oil dealer. There is no such provision in the West Bengal Kerosene Control Order, 1968 (as amended). Moreover there is no executive order relating to such restriction in this district of South 24-Parganas. Sd/- 16.02.10 Addl. District Magistrate (G) South 24-Parganas," 10. IN view of the above stand of the authorities, when there is no restriction imposed, by any statutory provision or even by executive instructions disqualifying a person from being considered for appointment as a kerosene oil dealer on such ground, we do not find any fault with the judgment of the learned Single Judge taking the view that the writ petitioner could not have been treated as disqualified from kerosene oil dealership. As regards the contention of the appellant that he was not joined as a party respondent in the writ petition nor the appointment order in his favour was issued subject to the result of the writ petition, we find that in the writ petition initially there was an injunction granted by the learned Single Judge restraining the authorities from appointing a kerosene oil dealer in place of the writ petitioner without leave of the Court. After selection was made, the present appellant himself made an application before the learned Single Judge seeking a direction of the Court to grant leave to the Government to make appointment and it was pursuant to such leave granted by the learned Single Judge that the appellant came to be appointed as a kerosene oil dealer very recently on 8th October, 2009. The appellant was, therefore, fully ware of the pending writ petition filed by the present respondent No. 1. It cannot, therefore, be said that the appellant was not aware of pendency of such proceedings. The appellant, therefore, took the risk of etting the appointment as kerosene oil dealer during pendency of the writ petition challenging the cancellation of the licence and appointment letter which was issued in favour of the writ petitioner in the year 2007. 11. AS regards the contention that restriction imposed by the concerned officer not allowing a member or relation of a member of a Gram Panchayat, Panchayat Samity or Zilla Parishad was in order to ensure that there is proper supervision by local bodies for functioning of the kerosene oil dealers and fair price shop owners, we do not express any opinion either way on this contention since there is no statutory provision or even executive order issued by the State Government or the District Magistrate imposing any such restriction. 12. THE appeal is, therefore, dismissed. Although the writ petitioner succeeded before the learned Single Judge and we are also dismissing the appeal against the judgment of the learned Judge in favour of the writ petitioner, in the facts and circumstances of this case, we are of the view that the writ petitioner should be saddled with the costs of the litigation both in so far as the present appellant and in the State Government are concerned. We, accordingly, direct that the writ petitioner shall pay the appellant costs quantified at Rs.5,000/- for the appellant and Rs. 2,500/- for the State Government. The costs shall be paid within one month from today. 13. SINCE the appeal is dismissed, the connected application for stay has become infructupus and the same is also disposed of. 14. PHOTOSTAT certified copy of this order, if applied for, be given to the respective parties on the usual undertaking.