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2010 DIGILAW 626 (GAU)

Pynskhem Kharpuri v. State of Meghalaya

2010-08-20

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. By this judgment and order, I propose to dispose of both the writ petitions inasmuch as both the writ petitions involve substantially identical facts and raise same questions of law for adjudication. 2. The petitioners, except petitioner Nos. 7, 8 and 9, in WP(C) No. 76(SH)/2010, are permanent residents of different villages within East Khasi Hills and Ri Bhoi districts and they carry on their business as Government nominees/wholesale dealers, (i.e., as appointed nominees) under the Public Distribution System of food grains. By advertisement, dated 5.10.2009, respondent No. 4, namely, Deputy Commissioner, (Supply), Ri Bhoi district, Nongpoh, invited applications for appointment of Government nominees/wholesalers, (i.e., appointed nominees), in Public Distribution System, under the district of Ri Bhoi, for the year 2010, in respect of as many as nine wholesale centers. Pursuant to the advertisement, the petitioners, amongst others, applied seeking appointment as appointed nominees. In course of time, respondent No. 4, namely, Deputy Commissioner, (Supply), Ri Bhoi district, Nongpoh, selected, as many as 44 persons, for being appointed as appointed nominees/Government nominees in. respect of the said nine wholesale centers. The names of the persons, who stood so selected, were forwarded to the State Government by the respondent No. 4 for approval. By a cabinet decision, taken on 15.1.2010, the Government approved the proposal for optimising the number of Government nominees (i.e., appointed nominees). Following the decision, so taken, a letter was issued, on 5.2.2010, by respondent No. 2, namely, Under Secretary to the Government of Meghalaya, Food, Civil Supplies & Consumer Affairs Department, Shillong, communicating to respondent No. 3 the Government's decision to appoint 12 (twelve) Government nominees/agents for Public Distribution System, for the year 2010, in the district of Ri Bhoi, for the said nine wholesale centers with direction that the respondent No. 4 shall issue appointment order(s) accordingly. Acting upon the instruction, so given by the letter, dated 5.2.2010 aforementioned, respondent No. 4 has passed an order, on 18.2.2010, appointing the said twelve persons as Government nominees/wholesalers, (i.e., appointed nominees) in respect of the said nine wholesale centers, for the year 2010, with the stipulation that their appointments would expire on 31.12.2010. As the persons, who were so appointed, did not include the present petitioners, though they too had figured, except petitioner Nos. As the persons, who were so appointed, did not include the present petitioners, though they too had figured, except petitioner Nos. 7, 8 and 9, in the said select list of 44 persons prepared by the respondent No. 4, despite the fact that the petitioners had the advantage of experience of having worked as Government nominees, (i.e., appointed nominees) in the past, they have come to this court challenging the selection and appointment of the said twelve persons as appointed nominees in respect of the said nine centers as illegal, arbitrary and mala fide and also seeking, with the help of the present application made under Article 226 of the Constitution of India, issuance of appropriate writ(s) setting aside and quashing the impugned appointments and also further necessary directions to be issued to the State respondents. 3. So far as WP(C) No. 77(SH)/2010 is concerned, the petitioner is a cooperative Society, which is registered under the Co-operative Societies Act. This petitioner too was an applicant for appointment as Government nominees/wholesalers, (i.e., appointed nominees) in Public Distribution System in pursuance of the advertisement, dated 5.10.2009, aforementioned. As this petitioner's name does not figure in the list of persons, who have been appointed pursuant to the Government's direction given by letter, dated 5.2.2010, this petitioner too has impugned, inter alia, the decision of the respondents not to make appointment of the said 44 selected persons including this petitioner and to restrict the same to the extent of 12 selectees of the Government, who are private respondents in the writ petition. By its writ petition, this petitioner has also sought for setting aside and quashing the appointments of the private respondents as appointed nominees and also further necessary directions to be issued to the State respondents. 4. Resisting the writ petitions, respondent No. 2 has filed an affidavit. The private respondents to the writ petition, who have been appointed as appointed nominees, have also filed their objection, by way of affidavit, to the interim prayer, which the petitioners had made, and, on the request made by the learned counsel for the parties, the averments, made in the said written objection by the private respondents, are hereby treated as counter-affidavit filed by the private respondents in the writ petitions. No affidavit has, however, been filed by the respondent No. 1, though it is the respondent No. 1, which is the competent authority to satisfy the court, in the present cases, as to how its decisions, in the face of the challenges posed to its decision, and the consequential order, passed by the respondent No. 4, are sustainable in law. 5. Be that as it may, the case of the respondent No. 2 is, in brief, under : The Government nominees, (i.e., appointed nominees) are appointed for smooth functioning of the public distribution system inasmuch as it is the duty and responsibility of the State Government to make its Public Distribution System more effective for the benefit of all its consumers, especially, those families, who live below poverty line, by streamlining the delivery system. The Deputy Commissioners exercise powers as appointing authority in their respective territorial jurisdiction and appoint the approved Government nominees, (i.e., appointed nominees) for the purpose of lifting of foodgrains allotted by the Government of India and distributed through the Food Corporation of India's go downs so as to pass on the stock to the fair price shop dealers for ultimate distribution to the consumers. The State Government received applications recommended by respondent No. 4. However, after careful examination of all aspects of the matter and with a view to optimize the number of Government nominees and facilitating closer and more regular monitoring of the functioning of the wholesale dealers, (i.e., appointed nominees) across the State and for making the system more effective for delivery of foodgrains to the poor consumers, the State Government adopted the policy of reducing the number of Government nominees and has accordingly, in the present cases too, reduced the number of Government nominees from 44 to 12. All the Government nominees, i.e., appointed nominees, in the Public Distribution System, are selected and appointed on the basis of the enquiry report furnished by the Deputy Commissioners. The applicants, in the present cases too, were thoroughly scrutinized taking into consideration their financial status, previous performance and other criteria. The appointment of the Government nominees/agents, (i.e., appointed nominees), in the present cases, have been made in terms of the provisions of Meghalaya Foodgrains (PDS) Control Order, 2004. The applicants, in the present cases too, were thoroughly scrutinized taking into consideration their financial status, previous performance and other criteria. The appointment of the Government nominees/agents, (i.e., appointed nominees), in the present cases, have been made in terms of the provisions of Meghalaya Foodgrains (PDS) Control Order, 2004. The Government is competent to take decision in the matter and the decision of the Government and appointment of the nominees by the respondent No. 4, on the basis of the decision of the Government, do not suffer from any infraction of law and needs to be sustained in the interest of the general public. 6. The private respondents too resist the writ petitions by contending, inter alia, that their appointment is in accordance with the law inasmuch as the Government has the power to take the decision as to how many Government nominees, (i.e., appointed nominees) it shall have and it has also the power to make selection and has made the selection and, on the basis of the selection so made, the impugned appointment order, dated 18.2.2010, has been issued. The impugned appointment order, therefore, does not call for any interference by invoking this court's extraordinary jurisdiction under article 226 of the Constitution of India. 7. I have heard Mr. H.L. Shangreiso, learned counsel, for the petitioners, and Mr. K.S. Kynjing, learned Advocate General, Meghalaya, assisted by Mr. N.D. Chullai, learned Government Advocate, Meghalaya. I have also heard Mr. K. Sonar, learned counsel, appearing for the private respondents. 8. Appearing on behalf of the petitioners, Mr. 7. I have heard Mr. H.L. Shangreiso, learned counsel, for the petitioners, and Mr. K.S. Kynjing, learned Advocate General, Meghalaya, assisted by Mr. N.D. Chullai, learned Government Advocate, Meghalaya. I have also heard Mr. K. Sonar, learned counsel, appearing for the private respondents. 8. Appearing on behalf of the petitioners, Mr. H.L. Shangreiso, learned counsel, for the petitioners, has contended that in terms of the Meghalaya Foodgrains (PDS) Control Order, 2004 ('the 2004 Order'), it is the Deputy Commissioner of the district, who is the competent authority to make appointment of Government nominees/agents and, in the cases at hand, it is the respondent No. 4, who, as the competent authority, had published the advertisement, dated 5.10.2009, and had also made selection of the present petitioners, but, having finally selected the present petitioners to be appointed as Government nominees, abdicated his authority, in the matter, by forwarding the names of the selected persons to the Government for the latter's approval, though, having selected the persons to be appointed as Government nominees, it was incumbent, on the part of the respondent No. 4, to appoint the selectees including the present petitioners as the Government nominees/wholesalers inasmuch as having been finally selected by respondent No. 4, the petitioners had been vested with the right to be appointed in terms of the advertisement aforementioned. Such abdication of authority by a person, as in the cases at hand, is not permissible in law and may not be sustained. A reference, in this regard, has been made by Mr. Shangreiso, to the case of Manu Ram Das v. Assam. Fisheries Development Corporation Ltd. and ors, 2000 (1) GLT 41. 9. Referring to the State Government's role of taking the decision to reduce the number to 12 Government nominees instead of having 44 persons in terms of the selection, which the respondent No. 4 had made, Mr. Shangreiso has submitted that in the light of the provisions of 2004 Order, the Government had no role to play and could not have reduced the number of nominees nor could it have selected the persons, finally, to be appointed for the said purpose as has been done in the present cases. Even the State, according to Mr. Shangreiso, is bound to act in terms of, and within the bounds of, the statutory provisions. A reference, in this regard, has been by Mr. Even the State, according to Mr. Shangreiso, is bound to act in terms of, and within the bounds of, the statutory provisions. A reference, in this regard, has been by Mr. Shangreiso to the case of State of Bihar and others v. Industrial Corporation (P.) Ltd. and others, (2003) 11 SCC 465 . 10. It is further submitted by Mr. Shangreiso, learned counsel for the petitioners, that the private respondents have been selected without having formulated any specific or specified criteria and as the Government has assigned no reasons as to how it came to select the private respondents for the purpose of appointing them as Government nominees, the selection of the private respondents is not only arbitrary, but also highly discriminatory in nature inasmuch as no reason has been assigned by the State respondents as to why the present petitioners had not been included within the list of the selectees made by the State Government. 11. Pointing out to the provisions of clause 5 of the 2004 Order, which embodies the procedure to be followed and the factors to be taken into consideration for appointment of Government nominees/agents, Mr. Shangreiso has submitted that in terms of the provisions of clause 5(e) of the 2004 Order, the fact that an applicant is a Co-operative Society is a relevant factor and ought to be taken into consideration. In the present case, however, the petitioner, in WP(C) No. 77(SH)/2010, though a Co-operative Society, was not selected for Omroi. In this regard, it is pointed out by the learned counsel for the petitioners that the present list of appointees contains only one Co-operative Society as applicant in respect of Omroi center, but this applicant has not been appointed as Government nominee in respect of Omroi. This apart, points out Mr. Shangreiso, clause 5(1)(a) of the 2004 Order clearly states that past activities of the applicant, as a businessman or firm, is a factor to be taken into consideration, but, in the present cases, though the petitioners had worked as Government nominees in the past and had requisite experience, yet they have not been selected and nothing has been submitted against them or pointed out by the State respondents for omission to include their names within the list of nominees. There has, therefore, been clear infraction of clause 5(1)(a). Thus, according to Mr. There has, therefore, been clear infraction of clause 5(1)(a). Thus, according to Mr. Shangreiso, learned counsel for the petitioners, Government has not observed the relevant statutory criteria, which the State Government was bound to take into consideration and follow, while making the selection and appointment, if the State Government is assumed, for a moment, to have had the power to make final selection of its nominees. 12. Resisting the writ petitions, Mr. K.S. Kynjing, learned Advocate General, has pointed out that the selection of 12 numbers of Government nominees, in the present cases, was based on a cabinet decision, which was taken by the cabinet on 15.1.2010 inasmuch as, points out the learned Advocate General, the Government, for the purpose of making monitoring of its public distribution system more effective, decided to reduce the number of its nominees so as to ensure that the consumers get a fair deal. In terms of the decision, so taken, submits the learned Advocate General, private respondents were selected for the said nine centers. The decision to reduce the number is, contends the learned Advocate General, in public interest inasmuch as it would make the public distribution system more closely available for monitoring by the State Government. As regard the final selection and appointment of the private respondents, learned Advocate General submits that selection, in the present cases, was neither arbitrary nor can the selection be called discriminatory inasmuch as the petitioners cannot, merely because of the fact that their names appear in the select list prepared by the respondent No. 4, claim to have any vested right to be appointed as Government, nominees. 13. Referring to the role of the State Government, learned Advocate General submits that making essential commodities, more particularly, foodgrains available, especially, to the families, who fall below the poverty line, is the bounden duty of the State and that the State is, therefore, free to modify its policy decision from time-to-time so as to make the public distribution system of essential commodities more effective and monitorable. In such circumstances, the selection of the nominees, by the State Government, cannot be faulted. In such circumstances, the selection of the nominees, by the State Government, cannot be faulted. Referring to the appointment of the private respondents, it is contended by the learned Advocate General that as far as the private respondents are concerned, they have been appointed by respondent No. 4 as Government nominees, who is, admittedly, the competent authority under 2004 Order and, hence, when appointments have been made by respondent No. 4, the petitioners cannot have any grievance and cannot find fault with the action, which respondent No. 4 has taken. 14. Referring to the case of State of Kerala and another v. B. Six Holiday Resorts Private Ltd. and Others, (2010) 5 SCC 186 , learned Advocate General submits that it is the exclusive privilege of the State to decide as to whether it shall have 44 or 12 persons as its nominees for the purpose of public distribution system and no citizen can have any fundamental right to carry on any trade or business including the business of functioning as a Government nominee under the public distribution system. 15. As far as Mr. K. Sonar, learned counsel for the private respondents is concerned, he has adopted the submissions made by the learned Advocate General. 16. Repelling the submissions, made on behalf of the State respondents, Mr. Shangreiso, learned counsel for the petitioners, submits that a cabinet decision cannot be treated as a decision of the Government. Reference is made by Mr. Shangreiso to the case of Shanti Sports Club and another v. Union of India, (2009) 15 SCC 705 , for the purpose of contending before this court that a Government decision has to be expressed in the name of the President or Governor, as the case may be, and authenticated in the manner provided under article 77(2) or article 166(2) of the Constitution and unless a decision is expressed in the name of the Governor of a State, such a decision cannot be treated to be State Government's decision. Resultantly, therefore, contends the learned counsel for the petitioners, a cabinet decision, such as the present one, cannot, and shall not, be treated as the decision of the Government, when it has not been expressed in the name of the Governor of the State. 17. Resultantly, therefore, contends the learned counsel for the petitioners, a cabinet decision, such as the present one, cannot, and shall not, be treated as the decision of the Government, when it has not been expressed in the name of the Governor of the State. 17. While considering the present writ petitions, it needs to be borne in mind that the State must have the liberty and freedom in framing policies. The policies and the schemes of the State are, therefore, variable and may be changed, if so required, in public interest. The power, however, to change policy is not absolute, unqualified or unfettered. Every power must be exercised by the State and its instrumentalities in accordance with the prescription appended to the exercise of such power, bona fide and in public interest and its decisions must be supportable by reasons. On the other hand, it is not only the power, but also the duty of the court to ensure that all authorities exercise their power properly, in good faith and within the four corners of law. [See State of Bihar and Others v. Industrial Corporation (P) Ltd. and Others, (2003) 11 SCC 465 ]. Notwithstanding the fact that the State has the power, as indicted hereinbefore, to frame its policies and, by implication, change or modify its policies, there are two restrictions on the power of the State with regard to change or modification of its policies, the restrictions being (i) that its policies or schemes cannot be inconsistent with statutory orders or provisions and (ii) that not only its decisions, but any direction, which the State may issue, must be aimed at giving effect to the statutory provisions. (See State of UP and Others v. Daulat Ram Gupta, AIR 2002 SC 1633 ). 18. Coupled with the above, it is also necessary to bear in mind, as observed in State of Tamil Nadu v. M/s. Hind Stone and Others, (1981) 2 SCC 205 , that a statutory rule, though subordinate to parent statute, shall, otherwise, have to be treated as not only the part of the statute but also as effective as the statute itself. Statutory rules made pursuant to the power entrusted by the Parliament are law made by the Parliament within the meaning of article 302 of the Constitution of India. Statutory rules made pursuant to the power entrusted by the Parliament are law made by the Parliament within the meaning of article 302 of the Constitution of India. Rules, therefore, made under the statute, must be treated, for all purposes of construction or obligation, exactly as if they were in the Act itself and are also to be judicially noticed for all purposes of construction or obligation. 19. Bearing in mind the broad features of working of the State within the scheme of the Constitution, let me, now, in the light of the provisions contained in the 2004 Order, turn to the merit of the present writ petitions. It may be noted, in this regard, that though the petitioners as well as the respondents have referred to the selections and appointments made, in question, as selection/appointment of Government nominees/wholesalers, the statutory expression is 'appointed nominee/agent'. This is discernible from clause 2(a) of the 2004 Order, which defines an appointed nominee/agent to mean Government Nominees/Agents appointed or deemed to be appointed by the Director or the Deputy Commissioner/Additional Deputy Commissioner/Sub-Divisional Officer(C) in his respective jurisdiction. 20. The appointing authority, as the learned counsel for the petitioner has correctly pointed out, stands defined in clause 2(c) of the 2004 Order, which states, "appointing authority" means the Director of Food, Civil Supplies and Consumer Affairs, Government of Meghalaya, and includes the Deputy Commissioner/Additional Deputy Commissioner and Sub-Divisional Officer (C) in their respective jurisdiction. It is further noticeable that clause 2(1)(f) of the 2004 Order makes it clear that a Deputy Commissioner includes Additional Deputy Commissioner and Sub-Divisional Officer within their respective jurisdiction. 21. From the very definition of appointed nominee/agent, it becomes clear that appointed nominee/agent is appointed or deemed to have been appointed under clause 3, which reads as under : 3. Appointment as Government nominees/agents. - With a view to distributing foodgrains under the Government Scheme, the Director or the Deputy Commissioner in his respective jurisdiction may, by order, appoint in respect of any area, any person as Government Nominees/Agents in respect of any foodgrains for the purpose of this Order and thereupon such Nominees/Agents shall lift the foodgrains allotted by the Government of India from the local FCI go downs/depots and supply the required quantity to the retail dealers of the area covered by such Nominees/Agents in time. (Emphasis is added) 22. (Emphasis is added) 22. Though it has been contended, on behalf of the petitioners, that the Government has no role to play in the making of appointment of Government nominees, (i.e., statutorily, appointed nominees), a careful reading of what clause 3 of the 2004 Order contains, makes it clear that while appointing the nominees, the appointing authorities must bear in mind the Government schemes inasmuch as clause 3 states that the Director or the Deputy Commissioner, in his respective jurisdiction, may give order of appointment in respect of any person as appointed nominee with a view to distributing foodgrains in terms of the Government scheme framed in this regard. The expression, "With a view to distributing foodgrains under the Government Scheme.....", which appears in clause (3), has a material bearing, while interpreting or construing the parameters of exercise of power by an appointing authority under the 2004 Order. 23. The appointment of the nominees is, therefore, made with a view to distributing foodgrains under the scheme, which the Government may have framed. When it is the Government's scheme, which has to be implemented or executed by an appointing authority under clause 3, it is, in the considered view of this court, not correct to suggest that the Government has no role to play in the selection and appointment of nominees, though the appointment is made with a view to distributing foodgrains under the Government scheme. 24. What can, however, be questioned, is the extent or limits of exercise of the power in the matter of selection and appointment of appointed nominees. In this regard, one has to bear in mind that formulation of a scheme is not possible without an objective and without a policy. When one, therefore, speaks of a scheme, it implies that a scheme is framed with a given policy or objective in mind and it is the execution of the policy, which a scheme would, ordinarily, contain. That is, to say, a scheme is prepared keeping in view the question as to how to implement the object and how to ensure that the implementation of the object is achieved. 25. When, in the present case, the scheme is of the Government, the policy also would, obviously, be of the Government and it is this policy, which has to be carried out into action by the appointing authority under 2004 Order. 25. When, in the present case, the scheme is of the Government, the policy also would, obviously, be of the Government and it is this policy, which has to be carried out into action by the appointing authority under 2004 Order. Such a policy can, undoubtedly, contain not only the procedure for selection, but also the eligibility criteria, which are required to be satisfied by a person for his appointment as an appointed nominee. However, the eligibility criteria or qualifications cannot be contrary to, or inconsistent with, the statutorily fixed criteria or statutorily fixed qualifications and no selection and/or appointment can be made in a manner, which is contrary to, or inconsistent with, the statutory provisions. The Government, therefore, while framing the scheme, in question, cannot go contrary to the statutory rules or override the statutes. To this extent, Mr. H.L. Shangreiso, learned counsel for the petitioner, is correct in relying upon the case of Industrial Corporation (P.) Ltd. (supra), which clearly lays down that every statutory authority must act within the four corners of the statute. When the authorities, created under the statute, are to act within the 'four corners of the statute', the Government cannot, as already indicated at the very outset, act contrary to, or run against, statutory provisions, while preparing scheme under a statute or while executing the scheme, which it may have made pursuant to the statutory powers, or as a delegatee under the statute made. 26. Accepting, therefore, the case of the State respondents that the State Government has a role to play in ensuring effective monitoring of the public distribution system of foodgrains, let me, in the light of the provisions of the law relevant thereto, now, turn to the facts of the present case so as to determine as to how far the State's actions and decisions, in the present cases, are sustainable. It needs to be noted, in this regard, that there is no dispute before this court that the Deputy Commissioner, being the appointing authority of the appointed nominees, was the lawful authority to issue the advertisement, dated 5.10.2009. In fact, it is not in dispute before this court that the advertisement, which the Deputy Commissioner had published, inviting applications, was with the authority of law. While publishing the advertisement, applications were invited, as already mentioned above, for appointment of appointed nominees, under 2004 Order, in respect of nine centers. In fact, it is not in dispute before this court that the advertisement, which the Deputy Commissioner had published, inviting applications, was with the authority of law. While publishing the advertisement, applications were invited, as already mentioned above, for appointment of appointed nominees, under 2004 Order, in respect of nine centers. On the basis of appropriate enquiry, which was required to be made, a select list of 44 persons, as mentioned above, was prepared. 27. The question, now, is as to whether respondent No. 4 could have appointed the 44 selectees without approval of the State Government inasmuch as it is contended, on behalf of the State respondents, that respondent No. 4, as Deputy Commissioner, had forwarded the list of the selectees to the State Government for approval and it was for the State Government to make the final selection as to who shall its appointed nominees be. 28. This court has microscopically examined the provisions contained in 2004 Order and neither this court has found nor has the learned Advocate General been able to point out any provision, in 2004 Order, which requires the Deputy Commissioner to obtain approval of the Government for appointment of an appointed nominee. When a power is exercised under a statute or under any rule, the power must be discernible from the statute or the rules, as the case may be. In the case at hand, there is nothing, as indicated hereinbefore, in the 2004 Order, obliging the Deputy Commissioner to take approval of the State Government before making appointment of an appointed nominee nor is there any power available, under the 2004 Order, with the State Government, requiring it to approve the selection of an appointed nominee. 29. At this juncture, however, it is necessary to keep in mind that the State respondents claim that the list of the selectees, for appointment as appointed nominees, had been forwarded to the State Government for the purpose of the Government's approval, and it, therefore, necessarily implies, if what the State respondents contend is correct, that the decision, which was, otherwise, required to be taken, had been taken by the Deputy Commissioner, for, the question of obtaining approval would arise only when a decision is already taken, but the decision cannot be given effect to so long as approval to such a decision is not received. The contention, therefore, that the select list, in the present case, was a mere proposal, is not correct. 30. Moreover, if the State respondents' contention, that the list was made by the Deputy Commissioner for the purpose of obtaining approval, is considered to be correct, it would not be reasonable to construe that the Deputy Commissioner had prepared the list and forwarded the same to the Government without application of mind and without proper enquiry, particularly, when the State respondents themselves contend, in their affidavit, that the nominees were selected and appointed after due enquiry, when there is nothing on record nor is it contended that there was any enquiry conducted by the State Government independent of what the Deputy Commissioner had already carried out before making the selection. There is, therefore, no substance in the submission, made on behalf of the State respondents, that the State Government had the power to approve or not to approve the list made by the Deputy Commissioner nor is it correct to say that the State Government had such a power or, conversely, that the Deputy, Commissioner had an obligation to forward the list of the selectees to the State Government for obtaining approval before making appointment. Furthermore, it could not also be asserted, on behalf of the State respondents, that the State government undertook any exercise, other than what the Deputy Commissioner had already done, for the purpose of making selection as to who shall be its appointed nominees in the district of Ri Bhoi. Out of these 44 selectees, the State Government has merely selected twelve persons to be appointed as nominees by the respondent, No. 4, namely, Deputy Commissioner (Supply), Ri Bhoi, without carrying out any independent selection procedure. How and on what criteria these twelve persons, who are private respondents, came to be selected by the State Government remains, thus, a mystery. 31. The decision, therefore, as far as appointment of the nominees is concerned, ought to have been taken by the appointing authority, i.e., the Deputy Commissioner himself. Of course, how many appointed nominees the State Government shall have in order to make its scheme, as regards distribution of foodgrains, more effective, purpose oriented and monitorable was, and would remain, for the Government to decide. Of course, how many appointed nominees the State Government shall have in order to make its scheme, as regards distribution of foodgrains, more effective, purpose oriented and monitorable was, and would remain, for the Government to decide. In this decision making process, or in the decision, there can be nothing, and there must not be included, any such thing, which would collide, or go in conflict with; the statutory provisions, for, statutory provisions would be as binding on the Government as on the applicants, who seek appointment as appointed nominees. Thus, other than making final selection of the person, who has to be made appointed nominee, the State Government may look into all such relevant issues as may be necessary for effective implementation of its policy. The decision, as to who shall be the appointed nominee, must be of the appointing authority and of none else. 32. Having held that it is the Deputy Commissioner, who, being the appointing authority under the 2004 Order, is the competent person to take a final decision, and not the State Government, as to who shall or shall not be appointed as a nominee, what, now, needs to be decided is, as already reflected above, as to whether the Deputy Commissioner, while making the appointment, can act independent of the Government scheme, or contrary to the policy of the State Government. In this regard, suffice it to point out that since the 2004 Order has been made to give effect to the State Government's schemes for distribution of foodgrains, it is within the ambit of powers of the State Government to reduce the number of its nominees for the purpose of distribution of foodgrains so as to be able to closely monitor the distribution system. A The petitioners' contention, therefore, that the State Government has no role to play and could not have reduced the number of selected nominees from 44 persons to 12 persons, who, presently, are the private respondents, is unfounded and not correct. 33. In fact, the State Government has the obligation to ensure that its scheme, framed for distribution of foodgrains, is properly implemented and, for this purpose, the Government can, in exercise of this power, determine the number of appointed nominees in order to ensure more effective implementation of its scheme. 33. In fact, the State Government has the obligation to ensure that its scheme, framed for distribution of foodgrains, is properly implemented and, for this purpose, the Government can, in exercise of this power, determine the number of appointed nominees in order to ensure more effective implementation of its scheme. Undoubtedly, therefore, the State Government could have reduced the number of the appointed, nominees, as has been done in the present case; and this act of the State Government cannot, in the firm view of this court, be interfered with by this court. 34. The question, however, remains, and the question is: Whether the State Government had the power to make the final selection of the nominees? In this regard, it has been pointed out, on behalf of the State respondents, that the State Government had made the final selection out of the list already prepared by the Deputy Commissioner. There can be no doubt that it is from the select list, prepared by the Deputy Commissioner, that the 12 persons, who are private respondents herein, have been selected. 35. The question, however, is as to how the selection has been made or what had been the criteria for selection? It may be noted, in this regard, that in the list, which had been prepared by the Deputy Commissioner, there were 44 persons, who had been selected for appointment as appointed nominees under 2004 Order in respect of 9 centers, but only 12 selectees, in respect of the said 9 centers, were selected and, eventually, appointed. However, it is neither disclosed nor discernible from the materials on record as to what was the basis for selection of these persons. Such a selection cannot but be regarded as arbitrary. This arbitrariness has, undoubtedly, resulted into discrimination, for, the State respondents have not been able to assign any reason as to why the present petitioners were refused to be appointed or on what basis or criteria, the private respondents have come to be finally selected. When questioned, the State ought to have been in a position to say and disclose clearly as to what were the basis or criteria for selection of its nominees, such as, the private respondents. Every action of the State, as indicated at the very threshold, has to be informed of reasons and supported by reasons. When questioned, the State ought to have been in a position to say and disclose clearly as to what were the basis or criteria for selection of its nominees, such as, the private respondents. Every action of the State, as indicated at the very threshold, has to be informed of reasons and supported by reasons. In the present case, the State respondents, sadly enough, completely failed in both the tests. 36. The appointment of the private respondents, therefore, being based on arbitrariness and being discriminatory in nature, cannot be sustained. Even if one were to take the view and hold that the State Government had the authority to make the final selection of the appointed nominees, it would still remain the bounden duty of the State Government, and it was, in the present cases, the bounden duty of the State Government, to disclose, when questioned, as to what basis it had for selecting finally the private respondents as its nominees. 37. In the present cases, when questioned, the State has not been able to come out with any specific criteria, which it had pre-determined before taking its decision as to who its nominee shall be. It is, therefore, contended, on behalf of the petitioners, that this court can and/or should issue a writ in the nature of mandamus commanding the State respondents to appoint all the selectees, who figured in the list of the Deputy Commissioner, including those, who are, presently, the petitioners herein, except petitioner Nos. 7, 8, 9 in WP(C) No. 76(SH)/2010. 38. It has already been pointed out above that in terms of the provisions of clause 3 of 2004 Order, the appointment of the nominees has to be in accordance with the provisions relevant thereto and consistent with the Scheme, which the State Government makes as regards distribution of foodgrains under the Public Distribution System. It has also been pointed out above that the State Government has the power to reduce or enhance the number of nominees, who are to be appointed in a given district, and, in the case at hand, the reduction in the number of appointed nominees has been well justified by the State Government. Viewed in this light, it becomes clear that the petitioners cannot, because of the mere fact that their names stood finally selected by the Deputy Commissioner, claim vested and indefeasible right to be appointed as appointed nominees. Viewed in this light, it becomes clear that the petitioners cannot, because of the mere fact that their names stood finally selected by the Deputy Commissioner, claim vested and indefeasible right to be appointed as appointed nominees. However, at the same time, it is equally true that while making the final selection (even if the State Government is assumed to have had such a power), the State Government ought to have prescribed the criteria for selection of its reduced number of 12 nominees out of the 44 selected candidates. In this regard, if I may repeat, the question, which remains unanswered till this moment, is as to what factors had really governed the selection of the private respondents. 39. Considering the fact that the State Government has the power to reduce the number and it has reduced the number of nominees under the 2004 Order, the State Government ought to have left the matter of final selection and appointment of its nominees to the Judicious discretion of the Deputy Commissioner concerned. But, it is this power, which the State Government has usurped and it is this power, which respondent No. 4 had, but has abdicated in favour of the State Government. As the power to select and appoint the nominees belonged to the Deputy Commissioner, but he abdicated his power in favour of the State Government, it resulted into not only illegal exercise of jurisdiction by the State Government but also an arbitrary exercise of power by the State Government and discriminatory treatment to they present petitioners. Such arbitrary and discriminatory exercise of power cannot be sustained in law. 40. The allegation, therefore, expressed, on behalf of the petitioners, that the Deputy Commissioner has abdicated his power, in the present case, has merit. The reference made, in this regard, by the learned counsel for the petitioner, to the case of Manu Ram Das v. Assam Fisheries Development Corporation Ltd., (2000) 1 GLT 41. has relevance inasmuch as the court has clearly laid down, in Manu Ram Das (supra), that when the authority, which has the power and the discretion in a matter, does not apply its mind and does not act as per its own judgment but abdicates its discretion in favour of someone to decide, the decision, so taken by the latter, is nothing but ultra vires and void. Though expressed in a different context in Manu Ram Das (supra), the principle, which has been laid down, in Manu Ram Das (supra), is applicable to the present cases. 41. When it was for the Deputy Commissioner to take a decision as to who shall be finally appointed as appointed nominees, it ought to have been the Deputy Commissioner, who should have had applied his mind and made the final selection and this is where the Deputy Commissioner has abdicated his authority. The contention, therefore, raised on behalf of the State respondents, that the private respondents have been appointed as appointed nominees by the Deputy Commissioner, has no legs to stand, when the final selection has not been made by the Deputy Commissioner, who is the appropriate authority to make such selection and, then, in consequence of such selection, make appointment of the nominees under the 2004 Order. 42. In fact, in the present case, the appointment order, made by the Deputy Commissioner, was in the form of ministerial act, for, the selection was done by the State Government and the Deputy Commissioner has merely made the appointments accordingly. In other words, after the decision had been taken by the State Government as to who shall its 12 nominees be that the Deputy Commissioner merely issued the order of appointment. Such an order of appointment, in the light of the relevant provisions of law, cannot, but be regarded as a ministerial act; whereas, under the scheme of 2004 Order, the appointing authority being the Deputy Commissioner, it is he, who ought to have applied his mind and, finally, made a choice in the matter. 43. Relying upon the decision, in the case of Shanti Sports Club (supra), the petitioner contends that a decision cannot be called a decision of the Government unless it is expressed in the name of the President or the Governor. With regard to this contention of the petitioners, it needs to be noted that in the case of Shanti Sports Club (supra), the authority concerned had taken a decision in the file and it is in such circumstances that the Supreme Court held, in paragraph 43 of its decision, thus: "A noting recorded in the file is merely a noting simplicitor and nothing more. It merely represents expression of opinion by the particular individual. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with articles 77(1) and (2) or articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affected right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in article 77(2) or article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review". 44. The position of law, which emerges from the decision, in Shanti Sports Club (supra), is that the State Government cannot take any such decision, which are required to be expressed in the name of the Governor, but this does not disables the State Government from taking all such day-to-day decisions, which are not required to be expressed in the name of the President or the Governor, as the case may be. The reference, therefore, made by the learned counsel for the petitioners, to the case of Shanti Sports Club (supra), is misplaced. 45. Coming to the case of State of Kerala v. B. Six Holiday Resorts (P.) Ltd., (2010) 5 SCC 186 , which the learned Advocate General has relied upon for buttressing his submission that the State Government has the final authority in the matter, suffice it to point out that the case of B. Six Holiday Resorts (supra) is a case, which stands on an entirely different footing inasmuch as the case of B. Six Holiday Resorts (supra), was a case, where the State was required to grant licence under the Foreign Liquor Rules. Under the relevant Act, in B. Six Holiday Resorts (supra), it is the State Government, which has the exclusive privilege of manufacture and sale of liquor. Under the relevant Act, in B. Six Holiday Resorts (supra), it is the State Government, which has the exclusive privilege of manufacture and sale of liquor. When the State Government has the exclusive privilege of manufacturing as well as selling liquor, it was, obviously, the State Government, which had the exclusive authority to decide whether it shall or shall not grant licence to a person. It is in this context that the Supreme Court has held, in B. Six Holiday Resorts (supra), at paragraph 28, thus: "Having regard to the fact that the State Government has exclusive privilege of manufacture and sale of liquor, and no citizen has a fundamental right to carry on trade or business in liquor, the applicant did not have a vested right to get a licence. Where there is no vested right, the application for licence requires verification, inspection and processing. In such circumstances, it has to be held that the consideration of application of FL-3 licence should be only with reference to the rules/law prevailing or in force on the date of consideration of the application by the Excise Authorities, with reference to the law and not as on the date of application. Consequently, the direction by the High Court that the application for licence should be considered with reference to the Rules as they existed on the date of application cannot be sustained". 46. The case at hand is quite different from the one, which the learned Advocate General has relied upon, inasmuch as it is under the statutory order that the appointing authority has been created and the appointing authority has been empowered to make appointment of the appointed nominees. 47. It is also worth pointing out that the decision, in State of Kerala v. B. Six Holiday Resorts (P.) Ltd., (2006) 5 SCC 186, refers to the case of Kuldeep Singh v. Government of NCT of Delhi, (2006) 5 SCC 702 . The case of Kuldeep Singh (supra) was a case, wherein statutory rules were considered with reference to a policy; whereas, the case at hand is one, where we have statutory rules framed under a statute inasmuch as the statutory rules, in the present cases, have been framed by the State Government in exercise of its powers under section3 of the Essential Commodities Act, 1955. Order 2004 is, therefore, a delegated piece of legislation and, as such, it is as binding on the State Government as on the petitioners and private respondents. With a view to buttress his argument and strengthen his submission that State Government is the final authority in the matter of making selection, the learned Advocate General has also referred to sub-clause (2) of clause 5 of the 2004 Order, which reads as under: (2) Notwithstanding anything contained in sub-clause (1), the State Government may, if it is of opinion that it is necessary to finalise distribution of foodgrains through any special or specialized agencies or channels (including co-operative societies) direct the Appointing Authority to appoint under this Order only to such agencies or channels. 48. There can be no doubt that under sub-clause (2) of clause 5, the State Government has overriding power, but this overriding power is applicable only in the matter of finalizing as to who shall the State Government's appointed nominees, as a class, be. That is to say, whether the distribution of foodgrains shall be done through any specialized agency, or specialized channels, or Co-operative Societies, or through a businessman/firm, for, a patient reading of clause 5 shows that one of the appointed nominees can be a businessman/firm or even a Cooperative Society. Here again, it becomes clear that the overriding power to decide as to which category of persons shall be made appointed nominees is a matter of policy for the State Government to take and the Deputy Commissioner would, in terms of such a policy decision, make the selection so long as the policy decision does not run contrary to the statutory provisions or the scheme framed by the Government. No wonder, therefore, that sub-clause (2) of clause 5 of 2004 Order speaks in plural the categories of persons, who can be appointed as appointed nominees, namely, "special or specialized agencies or specialized channels including Co-operative Societies". 49. I have already pointed out above that it is the State Government's Scheme, as regards the distribution of foodgrains, which has to be enforced and implemented by the 2004 Order and the appointing authority, while exercising power under clause 3, cannot be oblivious of the Scheme of the Government. 49. I have already pointed out above that it is the State Government's Scheme, as regards the distribution of foodgrains, which has to be enforced and implemented by the 2004 Order and the appointing authority, while exercising power under clause 3, cannot be oblivious of the Scheme of the Government. The Scheme and the statutory rules, namely, 2004 Order, are as binding on the Government as it is on the present petitioners, i.e., the applicants as well as the present respondents. It was, therefore, open to the State Government, in exercise of power under clause 5(2), not to allow any nominees to be appointed, other than any special agencies or specialized channels, such as, Food Corporation of India or Co-operative Societies. The submission, made by the learned Advocate General, no doubt, strengthens the case of the State respondents to the extent that the Government does have the power to fix the number of appointees, in a district, so as to make its scheme for public distribution system more effective. However, the power to determine as to whether the distribution of foodgrains shall be by appointing businessman/firm or special or specialized agencies, or channels including Co-operative Societies, will not clothe the State Government with the power to make final selection of appointed nominees under clause 3(1). 50. What the State Government can, at best, do, in the light of the provisions of clause 3, read in the light of clause 5(2), is to frame policies so long as the policies are not inconsistent with, or contrary to, the statutory provisions. Here again, the State Government appears to have failed, as correctly contended on behalf of the petitioners, to meet the relevant statutory provisions inasmuch as the relevant criteria for selection of an appointee, such as, past activities of the applicant, as a businessman or firm and whether the applicant is or is not a Co-operative Society, are, amongst others, eligibility criteria, which, in terms of clause 5(1)(d) and clause 5(2) respectively, were required to be taken into account. None knows, nor could it be disclosed to the court, as to whether these criteria were or were not taken into account by the State Government, while making the appointments. 51. None knows, nor could it be disclosed to the court, as to whether these criteria were or were not taken into account by the State Government, while making the appointments. 51. Out of the present cases, the petitioner, in WP(C) No. 77(SH)/2010, is a Co-operative Society and yet it has not been selected and it has not also been disclosed to this court as to why the petitioner has been excluded from the final list of selectees. It is also neither disclosed nor is it discernible from the record as to why the past activities of the present petitioners, including the petitioner in WP(C) No. 77(SH)/2010, did not qualify them for selection. When the reasons for an action remains undisclosed and unknown, the decision, which rests on such undisclosed or undisclosable reasons, cannot be sustained. 52. What crystallizes from the above discussion is that the State Government did have the power to reduce the number of nominees to be appointed under 2004 Order, but the State Government was not the final authority to make the selection of the nominees. The selection and appointment ought to have been made by the Deputy Commissioner in accordance with the Government's schemes framed, and policy decision taken, in terms of the provisions embodied in 2004 Order and there was no necessity or requirement, under the 2004 Order, for the respondent No. 4, namely, Deputy Commissioner (Supply), Ri Bhoi District, to obtain approval of the State Government with regard to the final selection and appointment of the nominees, though it was open to the State Government, in the light of the provisions of the 2004 Order, to direct the Deputy Commissioner, or to override the decision of the Deputy Commissioner, with regard to the question as to how many nominees the State shall have within a given district. 53. Even if, for a moment, it is assumed that the State Government has the power, under 2004 Order, to make the final selection, the fact remains that, in the case at hand, the selection of the private respondents cannot be sustained, because it has not been revealed to this court as to what was the basis of the selection of the private respondents out of the 44 names, which had been received by the State Government from the Deputy Commissioner. 54. 54. Because of what have been discussed and pointed out above, both these writ petitions are partly allowed. While the appointment of the private respondents, made by the impugned order, dated 18.2.2010, is hereby set aside and quashed, this court declines to pass any order in favour of the petitioners directing the respondents to appoint the petitioners. It would, now, remain open for the Deputy Commissioner to take a final decision in the matter in the light of the decision, which the State Government has taken with regard to the number of appointed nominees, i.e., (12 nominees) in the district of Ri Bhoi and it will rest on the Deputy Commissioner to decide as to who shall be those 12 persons. 55. Considering the fact that the impugned order, dated 18.2.2010, has been set aside and the advertisement, in question, was published in the year 2010, which would expire on 31.12.2010, respondent No. 4 is hereby directed to make the final selection and appointment within a period of two weeks from today. 56. With the above observations and directions, both these writ petitions shall stand disposed of. 57. No order as to costs.