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2012 DIGILAW 1102 (GAU)

J. Shamarlin Khardewsaw v. State of Meghalaya

2012-09-14

TINLIANTHANG VAIPHEI

body2012
JUDGMENT T. Vaiphei, J. 1. For the sake of convenience, these three writ petitions were heard together, and are now being disposed of by this common judgment To simplify the controversy, I shall first deal with the facts of the case in WP (C) No. 106(SH) of 2012, decide the same and thereafter attempt to apply my decision thereon to the facts of the remaining writ petitions. Pursuant to the advertisement dated 1.12.2011 issued by the Sub-Divisional Officer (Supply), Food, Civil Supplies & Consumer Affairs, Mawkyrwat Civil Sub-Division, West Khasi Hills District (respondent No. 5), the petitioner along with five others applied for appointment as Government Nominees/Agents in the Public Distribution System for the year 2012. The petitioner claims to have an experience of 15 years of running Wholesale Centre under the Public Distribution System, whereas the respondent No. 6, 7 and 8 have 13 years, 5 years and 2 years respectively: the respondent No. 9 has none. There are 6 wholesale centers in the Mawkyrwat Civil Sub-Division. After processing their applications, the respondent No. 5, who is the appointing authority, instead of finalising the matter by himself, merely forwarded the applications of the petitioner and other applicants to Additional Deputy Commissioner (Supply), I/c Mawkyrwat Sub-Division, who, in turn, by his letter dated 22.12.2011 forwarded their applications to the Director, Food, Civil Supplies & Consumer Affairs, Government of Meghalaya (respondent 3). According to the petitioner, two applicants including the respondent No. 9 were new applicants and have: no experience at all in running affair price shop under the Public Distribution System. The Under Secretary to the Government of Meghalaya, Food Civil Supplies and Consumer Affairs Department, however, issued the appointment order dated 13.4.2012 informing the respondent 3 about the selection and appointment of the respondent No. 6, 7, 8 and 9 as the Government nominees/agents for the Mawkyrwat Civil Sub-Division. The respondent No. 3 also instructed therein the respondent No. 5 to issue the formal appointment orders in favour of those appointees after they completed the formalities as required under the Meghalaya Foodgrains (Public Distribution System) Control Order, 2005 as amended in 2012. The respondent No. 3 also instructed therein the respondent No. 5 to issue the formal appointment orders in favour of those appointees after they completed the formalities as required under the Meghalaya Foodgrains (Public Distribution System) Control Order, 2005 as amended in 2012. It is the contention of the petitioner that in terms of the unamended Meghalaya Foodgrains (Public Distribution System) Control Order, 2005, which is applicable to the facts of this case, it is the respondent No. 5, who is the appointing authority, but he abdicated his authority in entrusting the respondent No. 5, 3 and 2 to select and appoint the private respondents. Such abdication of authority by the respondent No. 5, according to the petitioner, vitiated the impugned selection process and the orders emanating therefrom. It is also the contention of the petitioner that the impugned selection process and the appointment order is illegal as the respondent No. 8 and 9 have no past experience in dealing with public distribution system: this amounts to violation of the Control Order. This is how the writ petition is filed by the petitioner seeking the intervention of this Court. 2. The writ petition is opposed by the State-respondents as well as the private respondents, who filed their respective affidavits-in-opposition. The State denies that there was abdication of authority by the respondent authorities: in fact, the officer who issued to submit the list of 19 applicants to the respondent No. 3 was holding the post of Sub-Divisional Officer (Supply) who was also holding the charge of Additional Deputy Commissioner (Supply), Mawkyrwat by virtue of the power conferred upon him by the Administration of Justice Rules applicable to this State. It is the contention of the State that in terms of the Control Order as amended in 2012, it is provided that application for appointment of Government nominees/agents shall have to be made every year and that both the Deputy Commissioner and the Sub-Divisional Officer (Supply), subject to the approval of the State Government, are the appointing authorities thereof. The impugned appointment order was in fact issued by the respondent No. 5 after the respondent No. 2 conveyed the approval of the Government to the proposal: no illegality was, therefore, committed by the State-respondents in issuing the impugned order of appointment. The petitioner has no enforceable right to reappointment as Government nominee/agent inasmuch as he has no monopoly over public largesse. The petitioner has no enforceable right to reappointment as Government nominee/agent inasmuch as he has no monopoly over public largesse. These are the principal contentions of the State. 3. In the affidavit-in-opposition filed by the respondent No. 9, he questions the maintainability of the writ petition when there is an appellate forum provided for under Order 19 of the Control Order. It is also contended by the answering respondent that he cannot now challenge the legality of the selection process after he had participated therein: he is barred by the principles of estoppel. He also did not challenge the appointment order dated 1.5.2012; what he challenged is merely the approval order conveyed by the respondent No. 2. He denies that he did not fulfil the essential requirements of the NIT: he has an experience of running Phodkroh Wholesale Centre in the year 2006-07 and Jashiar Wholesale Centre in the year 2008-09 as certified by the respondent No. 4. It is asserted by the answering respondent that under the Control Order, 2005 as amended in 2012, the approval of the appointment of Government nominees/agents before any appointment is made, is made mandatory. These are the sum and substance of the case of the respondent No. 9. 4. After hearing Mr. H.L. Shangreiso, the learned counsel for the petitioner, Mr. N.D. Chullai, the learned Senior Government Advocate appearing for the State and Mr. ODV Ladia, the learned counsel for the respondent No. 9, the first point for consideration is, whether the Sub-Divisional Officer (Supply) can appoint a Government nominee/agent for distribution of foodgrains under the public distribution system ? It may be noticed that the Control Order, 2005 was amended in 2012, which came into force on 12.1.2012. By this amendment, the Deputy Commissioner or the appointing authority is required to obtain the prior approval of the State Government before appointing the Government nominees/agents for distribution of foodgrains to the public under the Public Distribution System. It is, however, contended by the learned counsel for the petitioner that under Order 3 of the amended Control Order, 2012 read with the definition of "Appointing Authority" in clause 2(f), the term "Deputy Commissioner" includes the Deputy Commissioner and Sub-Divisional Officer (C) in their respective jurisdictions, and that the power of the appointing authority to appoint Government nominees/agents is unfettered and not subject to the control of the State Government. 5. 5. On questioned by this Court as to whether this power still remains when Order 3 of the Control Order as amended in 2012 requires the prior approval of the State Government for these appointments, Mr. H.L. Shanreiso, the learned counsel submits that inasmuch as the amended Control Order came into force with effect only from 20.1.2012, the impugned selection process and appointment which had already commenced from December, 2011 cannot be affected by the amended Control Order inasmuch as the amended Control Order has no retrospective effect and operates only prospectively. He submits that the action of the respondent No. 4/5, in merely forwarding the applications of the candidates instead of appointing the private respondents by themselves, has clearly abdicated their functions, which alone is violative of the impugned decision-making process, and is, therefore, to be interfered with by this Court. According to him, it is the cardinal principle construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation, and when there is nothing in amended Control Order indicating that it is to have retrospective, the amended Control Order is prospective in operative and cannot have retrospective. So construed, argues the learned counsel, the selection process for the appointment of Government nominees/agents which got commenced with the NIT dated 1.12.2011 must be governed and regulated by the unamended Control Order, 2005 and not as amended in 2012, which came into force only on 20.1.2012. In his contentions, he draws support from the following decisions of the Apex Court:- (i) Coal India Ltd. Vs. Anatha Saha, (2011) 5 SCC 142 ; (ii) Manohar Lal Vs. Ugrasen, (2010) 11 SCC 557 ; (iii) Union of India Vs. Kartick Chandra Mondal, (2010) 2 SCC 422 ; (iv) Aril Chandra Vs. Radha Krishna Gaur, (2009) 9 SCC 454 ; (v) Nani Sha Vs. Arunachal Pradesh, (2007) 15 SCC 406 and (vi) Gunaru Koran & Ors. Vs. Revenue Divisional Commissioner & Ors. 1991 Supp (2) SCC 291. 6. Mr. Ugrasen, (2010) 11 SCC 557 ; (iii) Union of India Vs. Kartick Chandra Mondal, (2010) 2 SCC 422 ; (iv) Aril Chandra Vs. Radha Krishna Gaur, (2009) 9 SCC 454 ; (v) Nani Sha Vs. Arunachal Pradesh, (2007) 15 SCC 406 and (vi) Gunaru Koran & Ors. Vs. Revenue Divisional Commissioner & Ors. 1991 Supp (2) SCC 291. 6. Mr. N.D. Chullai, the learned counsel for the State-respondents, however, refutes the contention of the learned counsel for the petitioner and contends that the rule that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect is of no universal application and will not apply if the rule in question is meant to be procedural in nature and not a substantive law. According to the learned counsel, the provision of Order 3 as amended by the Control Order, 2012 refers to manner of, the procedure for appointment of Government nominees/agents, and the petitioner does not have any vested right to a particular procedure to be observed by the appointing authority. He, therefore, submits that as the amended Control Order on this aspect of the matter is procedural in nature, the same has retrospective effect and not prospective operation. Mr. ODV Ladia, the learned counsel for the private respondents, while supporting the submissions of the learned State counsel, maintains that the amendment to Order 3 of the Control Order, 2005 by the Control Order, 2012 is merely way of substitution and, as such, the change brought about by the newly amended Clause 3 will apply retrospectively with effect from 31.1.2005 and not from 20.1.2012 as contended by the learned counsel for the petitioner. To buttress his contention, he relies on the decisions of the Apex Court in (i) PTC India Ltd. Vs. Central Electricity Regulatory Commission, (2010) 4 SCC 603 and [ii] CIT Vs. Alom Extrusions Ltd., (2010) 1 SCC 489 . He, therefore, submits that the impugned order does not suffer from any infirmity calling for the interference of this Court. For better appreciation of the controversy, it will be appropriate to straightaway refer to the original Order 3 of the Control Order, 2005 and as amended in 2012, which are reproduced below: 3. Appointment as Govt. He, therefore, submits that the impugned order does not suffer from any infirmity calling for the interference of this Court. For better appreciation of the controversy, it will be appropriate to straightaway refer to the original Order 3 of the Control Order, 2005 and as amended in 2012, which are reproduced below: 3. Appointment as Govt. Nominees/Agents:- With a view to distributing foodgrains under the Government scheme, the Director or Deputy Commissioner in his respective jurisdiction may by order, appoint in respect of any area any person as a Government Nominee/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 F.C.I. godowns/depots and supply the required quantity to the retain dealers of the area covered by such Nominees/Agents in time. (Italic supplied) Clause 3 as amended in 2012 reads thus: 3. Amendment of Order 3:- For Order 3 of the Principal Order, the following shall be substituted, namely,- 3. Appointment as Govt. Nominees/Agents:- With a view to distributing food grains under the Government Scheme, the Deputy Commissioner in his respective jurisdiction shall with prior approval of Government by order, appoint in any 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 RCL godowns/depots and supply the required quantity to the retain dealers of the area covered by such Nominees/Agents in time. 7. A comparative reading of the unamended and the amended Order 3 unmistakably shows that under the newly amended Order 3, the Director of Food, Civil Supplies and Consumer Affairs, Additional Deputy Commissioner have now been deleted as one of the appointing authorities for appointment of Government Nominees/Agents, with which we are not really concerned presently, and that the following words, namely, "shall with prior approval of the Government" have now been inserted in the amended Order 3. The net effect of the amendment is that the Deputy Commissioner is now statutorily required to obtain the prior approval of the Government before appointing the Government Nominees/Agents. The net effect of the amendment is that the Deputy Commissioner is now statutorily required to obtain the prior approval of the Government before appointing the Government Nominees/Agents. If the new amendment comes into effect prospectively, as contended by the petitioner, there was abdication of authority by the respondent 4/5 in not finalising the appointment by him when the unamended Control Order did not require him to do so. However, if the amended Control Order has retrospective effect, there could be no abdication of authority by him in seeking the approval of the Government. The question as to whether the change effected in the mode of appointment of Government Nominees/Agents, namely, requiring the prior approval of the Government before making the appointment by the Deputy Commissioner or the Sub-Divisional Officer (C), can be said to be substantive or procedural, is the moot point to resolve the first contention of the learned counsel for the petitioner. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective effect. Bu this rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. However, in contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such construction is textually inadmissible. What are substantive rights is lucidly explained by LOPES, L.J., in Re, Pulborough Parish School Board Election, Bourke Vs. Nutt, (1894) 1 QB 725 (quoted in GP Singh's Principles of Statutory Interpretation, 9th Edn., p. 438) in the following words:- Every statutes, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have retrospective effect. 8. 8. What are statutes dealing with procedure is best explained by the learned author in the same "Principles of Statutory Interpretation," (iii) Statutes dealing with procedure.- In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such construction is textually inadmissible." As stated by LORD DENNING: "The rule that an Act of Parliament is not to be given retrospective effect applies only statutes which affects vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the Courts give to evidence." If the new Act affects matters of procedure only, then, prima facie, "it applies to all actions pending as well as future." In stating the principle that "a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective," the Supreme Court has quoted with approval the reason of the rule as expressed in MAXWELL: "No person has vested right in course of procedure. He has only right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode." It has been said that law relating to forum and limitation is procedural in nature whereas law relating to right of action and light of appeal even though remedial is substantive in nature; that a procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished; that a statute which not only changes the procedure but also creates new rights and obligations, unless otherwise provided either expressly or by necessary implication. (Underlined for emphasis) 9. As can seen from Order 3 as amended in 2012, what change brought about by it is the obligation of the Deputy Commissioner or the Sub-Divisional Officer (C) to obtain the prior approval of the State Government before appointing Government Nominees/Agents. (Underlined for emphasis) 9. As can seen from Order 3 as amended in 2012, what change brought about by it is the obligation of the Deputy Commissioner or the Sub-Divisional Officer (C) to obtain the prior approval of the State Government before appointing Government Nominees/Agents. In my opinion, the result of the amendment does not have the effect of creating new disabilities or obligations upon the petitioner or of imposing new duties upon him in respect of transactions already accomplished; it merely changes the internal mechanism for finalising the appointment process, namely, the obligation imposed upon the appointing authority to obtain the approval of the State Government before issuing the appointment order. It may be noted that there is not going to be creation of disabilities or obligations upon the applicants nor does it impose new duties upon him in respect of the transactions already accomplished. New obligations or disabilities are merely imposed upon the Deputy Commissioner or the Sub-Divisional Officer (C), who hitherto used to have an unfettered power to appoint Government Nominees/Agents subject to fulfillment of the procedure laid down by the Control Order, 2005. Nor was the selection process already completed when the amended Control Order came into force on 20.1.2012: the impugned order was issued by the respondent No. 2 only on 13.4.2012. Therefore, no vested right had accrued to the petitioner under the Control Order, 2005, which is only a matter of procedure and which only affects the hitherto unfettered power of the Deputy Commissioner or the Sub-Divisional Officer (C). The petitioner cannot insist that the Deputy Commissioner or the Sub-Divisional Officer (C) must retain the power to appoint the Government Nominees/Agents without obtaining the approval of the State Government as before nor can he insist that the State Government should not have the power of granting prior approval to the appointment being made by the Deputy Commissioner or the Sub-Divisional Officer (C). In my judgment, the scheme is merely an internal mechanism to facilitate an in-built system of check and balance in the selection process for appointment of Government Nominees/Agents. Such alteration of procedure for appointment can by no means affect the right of the petitioner to participate in the selection process or diminish his right to be considered for appointment vis-a-vis, his co-applicants therein. Therefore, the first contention of the learned counsel for the petitioner fails. Such alteration of procedure for appointment can by no means affect the right of the petitioner to participate in the selection process or diminish his right to be considered for appointment vis-a-vis, his co-applicants therein. Therefore, the first contention of the learned counsel for the petitioner fails. Consequently, the respondent No. 2 in conveying the approval of the State Government for the appointment of the private respondents did not contravene the Control Order nor did the respondent No. 4/5 abdicate his power to appoint the private respondents by obtaining the approval of the State Government. The next contention of the learned counsel for the petitioner that the respondent No. has no experience in dealing with Public Distribution System, flies in the face of the Certificate dated 23.5.2012 issued by the respondent No. 4/5 at Annexure-I which certifies that he was a Government Nominee of Phodkroh Wholesale Centre for the years 2006 and 2007 and for Jashiar Wholesale Centre for the years 2008 and 2009, and is, therefore, rejected. No other substantial issue survives for consideration. 10. Coming now to WP (C) No. 107(SH) of 2012, the petitioner in this case is also the challenging the legality of the same selection process and appointment order in respect of the respondent Shri Max Thongi and Shri S. Bilasping Lyngdoh, who are the No. 6 and 7 herein, as the Government nominees/agents for Jashiar Wholesale Centre, Mawkyrwat Civil Sub-Division. The petitioner claims to have an experience of 5 years in the Public Distribution Centre, but these respondents do not have any experience at all, but they were, nevertheless, appointed by the impugned order. In so far as the respondent No. 7 is concerned, the Certificate dated 23.5.2012 issued by the respondent Nos. 4 and 5 at Annexure-I certifying that the respondent No. 7 was the Government Nominee of Jashiar Wholsale Centre from 2003-2007 and for the year 2009 negatives the contention of the petitioner that this respondent has no experience. However, on perusing the affidavit-in-opposition of the State-respondents (the respondent No. 6 does not contest the writ petition) together with the related appointment file produced by the State-respondents, it becomes crystal clear that there is no evidence to show that the respondent No. 6 has any past experience in dealing with Public Distribution System, but then neither the NIT nor did the Control Order insist the production of such experience certificate. It is nobody's case that the respondent No. 6 has no past activities as businessman/firm. Under the circumstances, there is no infirmity in appointing him as the Government Nominee. As for the other contentions, they are already dealt with by me in the foregoing WP (C) No. 106(SH) of 2012, and will be governed my decision thereon. 11. In WP (C) No. 158 (SH) of 2012, the petitioner claims to have an experience of 3 years and submitted all the essential documents such as Tax Clearance Certificate stipulated in the advertisement. His case was recommended by the Sub-Inspector (Supply) of Mawkyrwat Sub-Division to the appointing authority. On the other hand, the respondent No. 5 and 6 did not furnish the Tax Clearance Certificate issued by the competent authority under the Meghalaya Value Added Tax Act, 2005 and the rules made thereunder nor did they have any experience in dealing with Public Distribution System. Yet, they were appointed by the same impugned selection process and appointment order as Government Nominees/Agents for Jashier Wholesale Centre, Markyrwat Civil Sub-Division by following the same selection procedure. I have perused the affidavit-in-opposition filed by the State-respondents including the files produced by the learned State counsel. The record produced by the State-respondents, however, reveals that both the private respondents did furnish the tax exemption certificates while submitting their applications. Consequently, as in WP (C) No. 107 of 2012, there is no infirmity in selecting and appointing these respondents as Government Nominees/Agents. In so far as the other contentions are concerned, this case is covered by my decision in WP (C) No. 106(SH) of 2012. The result of the foregoing discussion is that there is no merit in these writ petitions, which are, accordingly, dismissed. Interim orders, if any, stands vacated. However, on the facts and in the circumstances of these cases, I direct the parties to bear their respective costs. Petition dismissed