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2011 DIGILAW 1215 (CAL)

Barun Ghosh v. Goutam Kumar Saha

2011-09-01

PINAKI CHANDRA GHOSE, SOUMEN SEN

body2011
Judgment :- Soumen Sen, J. The interpretation of punctuation ‘/’ used between the expressions “public notification/advertisement” in Clause 23 of the West Bengal Public Distribution System (Maintenance & Control) Order, 2003 as amended by notification No.7044FS dated 18th November, 2004 published in the Kolkata Gazette on 25th March, 2005 given by the learned single Judge in the order dated 5th May, 2010, has been the subject-matter of challenge in this appeal. The present appellant was not a party to the original writ petition being W.P.No.144 of 2010 in which the said order was passed but was subsequently added as a party respondent in the said proceeding. Since we propose to dispose of the appeal on the interpretation of the punctuation ‘/’ we may only refer to some of the facts that are necessary for determination of the said issue. In the writ petition, the petitioner has challenged a notice dated 31st December, 2009, being annexure P-3 to the writ petition, inviting applications for filling up the vacancy of Modified Rationing Distributorship at Jamtalahat, Kultali Police Station in South 24 Parganas. The impugned notice was apparently published only in the office of the District Controller, Food & Supplies, South 24 Parganas and in two newspapers, a fortnightly newspaper “Superhit Khabar” and a weekly newspaper, “Alipore Barta”. It is not in dispute that the notification was never published in any Official Gazette. The appointment of Distributors is governed by Clause 23(i) of the West Bengal Public Distribution System (Maintenance & Control) Order, 2003, hereinafter referred to as the 2003 Order issued vide Notification No.55880FS dated 22nd December, 2003, in exercise of power conferred under Section 3 of the Essential Commodities Act, 1955. In the writ petition, the principal issue raised was whether publication of a notice for appointment of distributors, on the notice board of the office of the District Controller concerned and in newspapers of limited circulation, meets the requirements of the 2003 Order. Clause 23 of the 2003 Order, as amended by Notification No.7044FS dated 18th November, 2004, published in the Kolkata Gazette on 25th March, 2005 is set out herein below: “23. Appointment of Distributor: (i) In the event of a vacancy arising out of death or resignation of an existing distributor or for better functioning of PDS in a particular area, the vacancy is to be declared with the approval of the Government. Appointment of Distributor: (i) In the event of a vacancy arising out of death or resignation of an existing distributor or for better functioning of PDS in a particular area, the vacancy is to be declared with the approval of the Government. The concerned SCFS will report the vacancy to the respective DCFS within 10 days from the date of receipt of vacancy report and the DCFS will transmit the same to Director-DDP & S for necessary action in the matter. The Director-DDP & S after obtaining necessary approval from the Government shall declare such vacancy through public notification/advertisement in the concerned SCFS/DCFS office for new vacancy only. Where vacancy arises due to incapacitation on medical ground for existing Distributor, such vacancy shall not initially be notified. In such cases, prayer of the legal heirs will be considered…….” Prior to amendment paragraph 23 provided as follows: “23. Appointment of Distributor: (i) In the event of a vacancy arising out of death or resignation of an existing distributor 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 and Supplies shall seek an approval of the Regional Deputy Director through the concerned District Controller, Department of Food and Supplies and on obtaining approval, shall declare such vacancy through public notification/advertisement.” Prior to amendment, a vacancy had to be declared through public notification/advertisement. After the amendment vacancy is to be declared through public notification/advertisement in the concerned SCFS/DCFS office. ‘Public notification’ has been defined in Article 366 (9) of the Constitution of India to mean a notification in the ‘Gazette of India’ or the Official Gazette of a State. In common parlance, the word ‘advertise’ means to publicize or make something known. ‘Advertisement’ is the noun derived from the verb ‘advertise’. Advertisement is the act of publicizing or making something known. There are various modes of advertising varying from banners, posters and hoardings to telecast, broadcast, e-mail, etc., with the development of technology. The mode of advertisement also has undergone a sea change. The examples mentioned above are only illustrative and not exhaustive. The contents and subject-matter of advertisement would determine the mode and manner of publishing such contents. There are various modes of advertising varying from banners, posters and hoardings to telecast, broadcast, e-mail, etc., with the development of technology. The mode of advertisement also has undergone a sea change. The examples mentioned above are only illustrative and not exhaustive. The contents and subject-matter of advertisement would determine the mode and manner of publishing such contents. If it relates to any distribution of largesse, public appointment or matters concerning public purposes, the State would have to exercise its discretion, in the light of the constitutional requirements and principles enshrined in Articles 14 to 16 read with Article 19(1)(g) of the Constitution of India, irrespective of the fact whether any rules and regulations exist and/or the rules and regulations are silent with regard to the mode and manner of advertisement. Where the rules and regulations prescribe the modes of advertisement, the rules and regulations have to be tested on the anvil of constitutional mandates, namely, as to whether they conform to the constitutional requirements and are to be interpreted in a manner that would advance the objective and principles as enshrined in the various articles of the Constitution of India. In other words, such interpretations should be made so as to find out that such advertisements and/or public notifications are made in such a manner that the persons for whom such advertisements and/or notifications are made could become aware of such publication. In the writ application, the learned single Judge was construing Clause 23(i) having regard to use of the punctuation ‘/’ between the words ‘public notification’ and ‘advertisement’. The issue before the learned single Judge was whether the words, public notification and advertisement, are to be construed disjunctively or conjunctively. In other words, the trial Court was construing and/or interpreting the effect of use of the punctuation ‘/’ which is normally used for ‘or’ between the words public notification and advertisement. In the judgment, the learned single Judge has taken note of the respective submissions made on behalf of the counsels representing the parties. In other words, the trial Court was construing and/or interpreting the effect of use of the punctuation ‘/’ which is normally used for ‘or’ between the words public notification and advertisement. In the judgment, the learned single Judge has taken note of the respective submissions made on behalf of the counsels representing the parties. While for the writ petition, it was strenuously argued that the respondent authorities were obliged to notify vacancy of a distributorship by publication in the Official Gazette in addition to the public notification and such notification was required to be advertised, on the other hand, the State respondents argued that the Government had the option to declare vacancies in distributorships either by public notification or by advertisements in the office of the concerned DCFS/SCFS. After taking into consideration the respective submission, the learned single Judge held as follows: “The punctuation ‘/’ is used for ‘or’. However, punctuation is a minor element in construction, as held by B.K. Mukherjee, J. in Aswini Kumar Ghosh Vs. Arabindo Bose reported in AIR 1952 SC 369 . Punctuation may have its uses, but it cannot be regarded as a controlling element in interpreting a provision. In any case, even though the word ‘or’ is normally disjunctive and ‘and’ is normally conjunctive, but at times, ‘or’ is read as ‘and’ and ‘and’ is read as ‘or’ to give effect to the manifest intention of the Legislature as disclosed from the context. This view finds support from the judgments of the Supreme Court in Ishwar Singh Bindra Vs. State of U.P. reported in AIR 1968 SC 1450 , R.S. Nayak Vs. A.R. Antulay reported in (1984) 2 SCC 183 and M. Satyanarayana Vs. State of Karnataka reported in (1986) 2 SCC 512 . In this case, we are not concerned with statute enacted by Legislature, but with a statutory order issued by the Government in exercise of delegated power under Section 3 of the Essential Commodities Act, 1955. The principles of interpretation of statutes would, however, apply to interpretation of statutory rules and orders. If the literal reading of the words produces an unfair or unintelligible or absurd result, ‘and’ may be read for ‘or’. Prior to amendment of Clause 23 of 2003 Order, by the notification dated 8th November, 2004 distributors were to be appointed upon declaration of vacancy through public notification/advertisement. If the literal reading of the words produces an unfair or unintelligible or absurd result, ‘and’ may be read for ‘or’. Prior to amendment of Clause 23 of 2003 Order, by the notification dated 8th November, 2004 distributors were to be appointed upon declaration of vacancy through public notification/advertisement. After the amendment distributors are to be appointed by declaration of vacancy through public notification/advertisement in the concerned SCFS/DCFS office. The question is, whether in framing the 2003 Order, it was intended that the Sub-divisional Controller, Department of Food and Supplies should have absolute discretion to decide whether to notify a vacancy in distributorship through public notification in the Official Gazette or through advertisement in any newspaper or journal of his choice, irrespective of its extent of circulation. Could it have been intended, that the Sub-divisional Controller should have unfettered discretion to notify the vacancy of a distributor, by distribution of a few pamphlets amongst a handful of selected people. The answer would necessarily have to be in the negative. The fundamental right to equality under Articles 14 to 16 of the Constitution of India includes the right to fair consideration for selection for appointment to public posts and other appointments which involve distribution of largesse. The State cannot act arbitrarily or discriminate between citizens in the matter of appointment of inter alia dealers and distributors. Vacancies are advertised to give all eligible candidates the opportunity to apply and not just to fill up the vacancies somehow. The retention of the punctuation ‘/’ between the expressions ‘public notification’ and ‘advertisement in the concerned SCFS/DCFS office’, even after the amendment, leaves no manner of doubt that the punctuation ‘/’ is to be construed as conjunctive and not disjunctive, for no body of persons, properly instructed in law and acting reasonably could have consciously intended that vacancies in distributorships should be notified by a single notice put up in a notice board, somewhere in the office of either the DCFS or the SCFS, which is not likely to be frequented by the general public.” The advertisements cannot be issued restrictively to eliminate competition. Distribution of largesse, by appointment of distributor, has to be given adequate publicity so as to enable all eligible candidates to apply and be considered for selection, in accordance with law. Distribution of largesse, by appointment of distributor, has to be given adequate publicity so as to enable all eligible candidates to apply and be considered for selection, in accordance with law. It is a duty of the State to ensure that the best candidate is selected by a transparent and fair procedure of selection as per declared norms and/or benchmarks. The 2003 Order has been amended by the notification dated 18th November, 2004 as referred to above. The only significant changes brought out by amendment are that the vacancy would now have to be declared by the Director – DDP & S after obtaining approval from the Government, and that the vacancy would have to be declared through public notification/advertisement in the concerned SCFS/DCFS office. The Court called upon the State Government to file an affidavit, stating the manner in which such advertisement was made and to clarify its stand on the 2003 Order. In the said affidavit affirmed on 15th July, 2011, the following averments have been made on behalf of the State Government, relevant portion whereof is reproduced herein below: “4. The punctuation ‘/’ appearing in the expressions “through public notification/advertisement” as appearing in paragraph 23 of the said Control Order is interpreted by the State Government as ‘disjunctive and not ‘conjunctive’. As per the State Government such vacancy notice may either be published in the official gazette or may be advertised through other means.” “5. The State Government is of the opinion that the vacancy notice must be widely circulated. The State Government is considering to introduce a system for publication for vacancy through leading daily newspaper having State-wise circulation after incorporating a provision in the Control Order of 2003. However till date the vacancy notice is advertised through different office notice boards and through local daily newspapers. Till now the response to such advertisement is good. Till such incorporation is made the existing practice/conversion regarding advertisement would continue.” “6. As per the prevalent rules no vacancy notification for M.R. Distributorship in the State has been published in the Official Gazette or in newspaper having State wide publication. However, the response has all along been good. Till now the response to such advertisement is good. Till such incorporation is made the existing practice/conversion regarding advertisement would continue.” “6. As per the prevalent rules no vacancy notification for M.R. Distributorship in the State has been published in the Official Gazette or in newspaper having State wide publication. However, the response has all along been good. A comparative chart providing few examples of the number of applications received pursuant to vacancy notices published in the year 2010 as per the prevalent rules is furnished herein below: Sl.No Name of District Place of vacancy Vacancy notice No. & date No. of applications received 1. South 24- Parganas Ramganga, Patharpratim a Block 845(23)/DCF&S /S-24 Pags dt. 22.07.2010 7 (seven) 2. Burdwan Rupnarayanpur, Salanpur Block 1147/DCF&S/B DN/MR/10 Dated 02.07.2010 14 (fourteen) 3. Uttar Dinajpur Islampur Town 1114(11) dt. 19.10.2010 9 (nine) In respect of the present vacancy notice six persons applied. Therefore, it cannot be said that there was lack of proper circulation or publication in respect of the present vacancy notice.” It would appear from the said averments that the State Government is also of the view that in respect of such appointment of distributorship it has to be widely circulated. In fact, in the notice dated 31st December, 2009 which was issued in terms of an order passed by the Hon’ble Division Bench on 27th July, 2007, the State authorities have clearly directed the D.I. & C.O, Information and Cultural Affairs, Govt. of West Bengal, South 24-Parganas and Sub-divisional Information Officer, Baruipur for wide publication of the same apart from putting the said notice in the office notice board. It appears that such notice was published in two insignificant local newspapers, one of which was fortnightly newspaper, namely, “Superhit Khabar” dated 1-15th January, 2009 and a weekly newspaper “Alipore Barta” dated 8-14th January, 2010. The said two newspapers are not widely circulated newspapers and it cannot be said that publication in the said newspapers could be considered to have wide publicity as contemplated either in the Control Order, 2003 or the direction issued by the Director of DDP & S on 29th December, 2009. The said two newspapers are not widely circulated newspapers and it cannot be said that publication in the said newspapers could be considered to have wide publicity as contemplated either in the Control Order, 2003 or the direction issued by the Director of DDP & S on 29th December, 2009. The appellant has relied upon the earlier order passed by a Division Bench in FMA No.271 of 2005 in which by an order dated 27th July, 2007, the Hon’ble Division Bench disposed of the appeal by giving directions which, inter alia, include the following: “(i) The Director, Rationing being the Supreme Authority in this regard, is directed to make necessary declaration of vacancy and direct advertisement to be made for filling of that vacancy.” It has been argued on behalf of the appellant by placing reliance on the 1993 Supp (4) SCC 595 (S.Nagaraj & Ors. Vs. State of Karnataka & Anr.) that the executive authority is duty bound to obey an order passed by a competent court even though such order is erroneous, mistaken or improperly obtained. Such submission was made in the context by the Order passed in 27th July, 2007. It was argued that the authority concerned has only implemented the direction passed by Their Lordships and accordingly displaying such notice in the notice board and publication in the two newspapers is adequate in compliance of the order passed by the Hon’ble Division Bench. There was no requirement to make any public notification since the Hon’ble Division Bench did not give any such direction. It appears that the notice dated 31st December, 2009 issued by the Director of DDP & S, under the Department of Food & Supplies, is in implementation of the said order of the Division Bench in which the said Director had categorically asked the D.I. & C.O, Information and Cultural Affairs, Govt. of West Bengal, South 24-Parganas and Sub-divisional Information Officer, Baruipur for publication of the same. of West Bengal, South 24-Parganas and Sub-divisional Information Officer, Baruipur for publication of the same. In our respectful opinion, the Hon’ble Division Bench by the said direction did not prescribe the mode in which the State respondents would advertise the said notice for filling up vacancy of a M.R. Distributorship at Jamtalahat under Kultali P.S. In the notice, it has been mentioned that fresh applications are invited in FORM ‘A’ under Clause 23 (i) of W.B.P.D.S (Maintenance & Control) Order, 2003 from the bona fide citizen of this State for filling up a vacancy of a M.R. Distributorship at Jamtalahat, P.S. Kultali in the district of South 24Parganas. It is, thus, clear that bona fide citizens of the State have a right to participate for being considered and the manner in which the said objective was sought to be achieved, in our considered opinion, was completely inadequate and unsatisfactory since the publication was made in two insignificant newspapers. The learned single Judge was correct in holding that the applications for distributorship are not restricted to local candidates, the relevant observation of the learned single Judge is reproduced herein below: “Under the 2003 Order, all bona fide citizens of the State might apply for appointment as distributor, provided of course, they have the requisite eligibility. The applications for distributorship are not restricted to local candidates. The vacancies would, therefore, have to be notified in such a manner that all bona fide citizens of the State can get information of the same and can apply. In view of the language and tenor of Clause 23 of 2003 Order, intending applicants, residing anywhere in the State, would keep a look out for notifications notifying appointment of distributors and dealers in the Official Gazette. Notifications must, therefore, be published in the Official Gazette. In addition the notice might also be published in the notice board of the concerned District Controller or Sub-divisional Controller. The notice was admittedly not published in newspapers of repute having wide circulation in the State of West Bengal, such as Ananda Bazar, Bartaman, Ganashakti, Pratidin, Times of India, Telegraph, The Statesman, Indian Express, Hindustan Times, Business Standard, Business India, Economic Times and the like. The object of notification is to publicize the appointment to enable all eligible candidates to apply. The object of notification is to publicize the appointment to enable all eligible candidates to apply. Publication of notification in local newspapers, which very few people read and in an office which only few local people are required to frequent contravenes Article 14 of the Constitution. Moreover public notification of a vacancy in the Official Gazette is mandatory and not optional. The impugned notice, which has not been published in the Official Gazette is not sustainable in law.” The appellant had argued that the writ petitioner had no go down at the relevant time and hence no locus stand to move the writ petition in which the said order was passed and, secondly, the writ petitioner applied after the cut off date prescribed in the said notice dated 31st December, 2009. The appellant had placed reliance on the letter dated 2nd February, 2010 issued by the writ petitioner in which the writ petitioner alleged that he was capable of investing requisite finance for doing the said business and to arrange for a suitable go down, but since he became aware of the vacancy only on 2nd February, 2010, the writ petitioner wanted to submit his application belated. The writ petitioner appears to have a bank statement dated 3rd February, 2010 certifying that the balance in the Savings Bank Account is more than Rs.25 lakhs. The finance as required under the notification was more than Rs.20 lakhs which is one of the requirements for being considered under the said notice dated 31st December, 2009. The writ petitioner argued that if the advertisement has not been widely published and there is no public notification an intending M.R. Distributor can always challenge the same. In this regard, the respondent has relied upon judgment reported in 2004 (2) SCC 463 Paragraph 16 (Mehsana District Central Cooperative Bank Ltd. & Ors. Vs. State of Gujarat & Ors.) wherein it has been held that: “The Acts and Rules are made to be followed and not to be violated. When the statute prescribes the norms to be followed, it has to be in that fashion. Converse would be contrary to law. Vs. State of Gujarat & Ors.) wherein it has been held that: “The Acts and Rules are made to be followed and not to be violated. When the statute prescribes the norms to be followed, it has to be in that fashion. Converse would be contrary to law. If there is any allegation of violation of statutory rules which have been brought to the notice of the authorities and if the authorities concerned do not perform their statutory obligation, as in the present case, any aggrieved citizen can always bring to the notice of the High Court the inaction of the statutory authorities and in such event it would always be open to the High Court to pass an appropriate order as deemed fit and proper in the facts and circumstances of the Case.” The requirement of publication in official gazette in matters of Government largesse have been recently emphasized in the Judgment reported in 2011(5) SCC Page 29 (Para 65 at Page 60) (Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh & Ors.) wherein it has been, inter alia, held that: “Every action and/or decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the official gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy.” The same principle is also applicable and required to be followed in matters relating to public distribution. The learned Counsel has also placed reliance on the judgment reported in 1994(6) SCC 651 (Tata Cellular Vs. Union of India) Paragraphs 74, 75 and 77. In the said judgement is has been held that a decision maker must understand correctly the law that regulates a decision making power and must give effect to it. On the basis of the said decision it was argued that the authority must understand correctly the definition of “notification” as mentioned in Clause 23 (i) of the 2003 Order itself. Mr. On the basis of the said decision it was argued that the authority must understand correctly the definition of “notification” as mentioned in Clause 23 (i) of the 2003 Order itself. Mr. Jayanta Kumar Mitra, the learned senior Counsel appearing on behalf of the appellants submits that when two views are possible with regard to interpretation of a word or a punctuation or an expression and if one view is taken as an absolute view, the Court should not interfere. It was further argued placing reliance on Paragraph 40 of the decision reported in 2010 (6) SCC 303 (Shimnit Utsch India Private Ltd. & Anr. Vs. West Bengal Transport Infrastructure Development Corporation Ltd. & Ors.) that the modern trend in such matters is to exercise judicial restraint in administrative action and the Government must have freedom of contract. The learned senior Counsel has emphasized by placing reliance on Tata Cellular as quoted in the said judgment that a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. He further argued that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. While we are not oblivious of our limitations in matters relating to judicial review but once it appears that the guidelines have not been properly followed and the manner in which the publication has been made, which infringes Article 14 & 19(1)(g) of the Constitution of India, the writ court is not powerless to strike down such action of the State. The purpose for such notification cannot be overruled. In fact, as it would appear from the notice dated 31st December, 2009 issued by the Director of DDP & S, F&S Department, the concerned authorities, namely, D.I. & C.O, Information and Cultural Affairs, Govt. of West Bengal, South 24-Parganas and Sub-divisional Information Officer, Baruipur were requested for wide publication of the said notice so that bona fide citizen of the State could apply for the said appointment. It further appears that pursuant to the order passed by the learned single Judge, the State authorities have accepted the said order and implemented the said order by publishing a Gazette Notification on 21st June, 2011 inviting fresh applications. The appeal was preferred after the said publication. It further appears that pursuant to the order passed by the learned single Judge, the State authorities have accepted the said order and implemented the said order by publishing a Gazette Notification on 21st June, 2011 inviting fresh applications. The appeal was preferred after the said publication. We have been informed by the State authorities that the steps have already been taken in terms of the said public notification and the State respondent authorities would be processing the applications filed pursuant to such notification. In fact, pursuant to such notification dated 21st June, 2011 the appellant also has submitted its application. Since it appears to us that the said notice suffers from inadequate publicity and there has been no public notification we are inclined to uphold the interpretation given by the learned single Judge of Clause 23 of Control Order, 2003, since any other interpretation would defeat the object and purpose for which such publication was prescribed to be made and accordingly we affirm the order under appeal. In addition to the direction that has been given we feel that henceforth such matters, apart from public notification in the Official Gazette, and a display in the notice board in the office of the concerned District Controller, Food & Supplies or the Sub-divisional Controller, Food & Supplies, adequate publicity should be made in newspapers of wide circulation so that all the bona fide citizens of the State could apply. The State is required to adopt fair and transparent procedure for such appointment and, in fact, the State in their affidavit has also accepted that in such matters wide publicity is required. In view of the aforesaid, the appeal fails and the appeal is dismissed, however, under circumstances there shall be no order as to costs.