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2012 DIGILAW 1289 (GAU)

Sindro Nongsiej v. State of Meghalaya

2012-11-22

UJJAL BHUYAN

body2012
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. H.L. Shangreiso, learned counsel for the petitioner. Also heard Mr. K. Khan, learned Govt. Advocate, Meghalaya, appearing for respondent Nos. 1, 2 and 3 and Mr. G.S. Massar, learned senior counsel appearing for respondent No. 4. By way of this writ petition, petitioner seeks quashing of appointment of respondent No. 4 as the Government Nominee/Agent of Public Distribution System (PDS) for Nongstoin Sadar Sub-Division for Wholesale Centers for the year 2012. 2. The facts of the case may be briefly noted. 3. The Deputy Commissioner (Supply), West Khasi Hills District, Nongstoin, issued an Advertisement dated 29.11.2012 inviting applications for fresh appointment of Government Nominees/Wholesalers in PDS under Nongstoin Sadar Sub-Division, West Khasi Hills District, for the year 2012. Eleven Wholesale Centers were mentioned in the said Advertisement which included Nongstoin. A number of applicants submitted applications which included petitioner and respondent No. 4. The Deputy Commissioner forwarded 33 numbers of applications, however, with recommendations for 18 only, along with enquiry report to the Director, Food Civil Supplies & Consumer Affairs, Meghalaya, by his forwarding letter dated 20.12.2011. The Deputy Commissioner had recommended the case of the petitioner as well as that of respondent No. 4 for such appointment. 4. The Principal Secretary to the Government of Meghalaya, Food Civil Supplies & Consumer Affairs Department, conveyed the approval of the Government to the appointment of eleven Government Nominees/Agents in PDS for the Wholesale Centres in Nongstoin Sadar Sub-Division, for the year 2012 to the Director, Food Civil Supplies & Consumer Affairs, by his letter dated 18.04.2012. In respect of three centers of Nongstoin, the Government approved three candidates including respondent No. 4 but did not approve the petitioner. Thereafter, the Deputy Commissioner issued Appointment Order dated 10.05.2012 appointing eleven persons including respondent No. 4 as Government Nominees/Agents in PDS for the year 2012 in Nongstoin Sadar Sub-Division for the Wholesale Centers. The appointment order indicated that the appointment would be valid till 31.12.2012. Aggrieved by his non-appointment as Government Nominee/Agent in PDS for the Wholesale Centers in Nongstoin Sadar Sub-Division, petitioner has approached this Court by way of filing the present writ petition challenging the appointment of respondent No. 4 and seeking a direction for his appointment. 5. The appointment order indicated that the appointment would be valid till 31.12.2012. Aggrieved by his non-appointment as Government Nominee/Agent in PDS for the Wholesale Centers in Nongstoin Sadar Sub-Division, petitioner has approached this Court by way of filing the present writ petition challenging the appointment of respondent No. 4 and seeking a direction for his appointment. 5. Petitioner has basically contended that the application of respondent No. 4 was incomplete inasmuch respondent No. 4 did not submit Sales Tax Clearance Certificate and therefore its application should have been rejected. The petitioner has further contended that the decision to appoint has to be that of the appointing authority himself and he should not be guided by higher authorities which happened in the present case as the appointment order was issued only after receipt of approval from the Government, which is not in accordance with the prescribed procedure holding the field at the relevant point of time. 6. The Deputy Commissioner has filed his counter affidavit wherein he has contended mat the policy of the Government is to give preference to Cooperative Societies, NGOs and Self Help Groups if they are found capable to operate the dealership. The Deputy Commissioner has also contended that the respondent No. 4 which is a Cooperative Society comprising of only tribal members cannot be treated to be a non- tribal entity thereby requiring trade license from the District Council. 7. Respondent No. 4 in its affidavit has contended that it is a Cooperative Society where all the members are tribals. Respondent No. 4 cannot be treated as a non-tribal entity. Respondent No. 4 has stated that it is well equipped to handle the distribution system allotted for the year 2012. Respondent No. 4 in its affidavit has also stated that being a Cooperative Society, it is exempted from payment of Professional Tax as provided under Section 5A of the Meghalaya Professions, Trade, Callings and Employment Taxation Act. 8. Learned counsel for the petitioner referring to the provisions of the Meghalaya Food grains (Public Distribution System) Control Order, 2004, submits that the appointing authority i.e. the Deputy Commissioner in this case ought to have decided the appointment of Nominees/Agents himself and ought not to have referred the matter to the Government for its approval. The aforesaid procedure adopted is completely flawed and the same has vitiated the appointment process. The aforesaid procedure adopted is completely flawed and the same has vitiated the appointment process. He has also pointed out that the issue relating to non furnishing of Sales Tax Clearance Certificate by the respondent No. 4 has not been controverted by the respondents. Since it was one of the conditions in the Advertisement, the authorities are bound by the said conditions and could not have made any departure there from. 9. Mr Khan, learned Govt. Advocate, submits that the Meghalaya Foodgrains (Public Distribution System) Control Order, 2004, has since been amended by the Meghalaya Foodgrains (Public Distribution System Control (Amendment) Order, 2012, which provides that the Deputy Commissioner has to make appointment only with prior approval of the Government. Therefore, he contends that there is no infirmity in the procedure adopted and no case is made out for interference by the Court. Today, just when the Court was about to dictate the judgment, he has pointed out that three writ petitions were filed before this Court, being WP(C) Nos. 106, 107 and 158(SH)/2012, relating to the appointment of Government Nominees/Agents in PDS for the year 2012. All the three writ petitions were dismissed by a Single Bench of this Court by a common judgment and order dated 14.09.2012. Though the petitioners therein have preferred writ appeals, no order has been passed in the appellate proceedings. He, therefore, pray for dismissal of the writ petition. 10. Mr. Massar, learned senior counsel, appearing for respondent No. 4, while justifying appointment of respondent No. 4 as the Government Nominee/Agent for PDS in Nongstoin Sadar Sub-Division for the year 2012, has further contended that since the appointment is only upto 31.12.2012, a very short period now remains. Therefore, at this fag end of the term, the Court may not interfere with the appointment of respondent No. 4 as it may cause difficulty for the PDS beneficiaries. 11. The submissions made have been considered. 12. On due consideration, it appears that three broad issues arise in the present proceeding for determination, which may be summarized as under:- i) Whether the present appointment would be governed by the un-amended Meghalaya Food grains (Public Distribution System) Control Order, 2004 (2004 Control (Order), or whether it will be governed by the amendment Order of 2012 which came into effect from 26.01.2012? ii) Whether the decision to appoint the Government Nominees/Agents for PDS should be that of the appointing authority himself or should it be based on approval of higher authority? iii) Whether the respondent No. 4 submitted incomplete application by not filing Sale Tax Clearance Certificate, and if so, what would be the consequence thereof? 13. To answer the aforesaid questions, it may be necessary to first briefly refer to some of the provisions of the 2004 Control Order. The 2004 Control Order has been framed under Section 3 of Essential Commodities Act, 1955. As per Order 2(c), "appointing authority" has been defined to mean Director of Food Civil Supplies and Consumer Affairs, Government of Meghalaya and includes Deputy Commissioner. Deputy Commissioner would include Addl. Deputy Commissioner and Sub-Divisional Officer, within their respective jurisdiction. Order 2(d) provides for "appellate authority", which is the Commissioner and Secretary to the Government of Meghalaya, Weights and Measures Department or any other officer to be appointed by the Govt. for the purpose. Orders 3, 4 and 5 deal with the procedure to be followed while making appointment of Government Nominees/Agents. Vacancies are required to be advertised and on applications being received, the appointing authority is required to follow the procedure as prescribed in Order 5. If the State Government feels that foodgrains should be distributed through specialized agencies or groups such as cooperative societies, it can make special direction to the appointing authority to appoint only such agencies or groups. Order 19 provides for appeal to the appellate authority within thirty days from the date of the order appealed against. 14. The Meghalaya Foodgrains (Public Distribution System) Control (Amendment) Order, 2012 (2012 Amendment Order), came into force w.e.f. 26.01.2012. As per the 2012 Amendment Order, appointing authority would now mean Deputy Commissioner and Sub-Divisional Officer (Civil) and the appellate authority would mean Commissioner and Secretary to the Government of Meghalaya in the Food Civil Supplies and Consumer Affairs Department Anew Clause had been added in Order 2, namely (dd), which provides for "Approving Authority" which means the State Government of Meghalaya. As per the Amended Order 3, Deputy Commissioner shall make appointments with prior approval of the Government. Among other things, while making appointments, State Government shall also have regard to the financial capability of an applicant. As per the Amended Order 3, Deputy Commissioner shall make appointments with prior approval of the Government. Among other things, while making appointments, State Government shall also have regard to the financial capability of an applicant. Regarding the validity period of appointment, the 2012 Amendment Order provides that though appointment would be valid till 31st day of December, it may be extended upto a maximum period of three months i.e. upto 31st March of the following year, if the circumstances so warrant. 15. A comparison of the 2004 Control Order and the 2012 Amendment Order would show that under the latter, the appointing authority is statutorily required to obtain the prior approval of the approval authority which is the State Government of Meghalaya which was not the position earlier. 16. Having noticed the relevant provisions of the two Orders, let us now turn to the facts of the case. In this case, the advertisement was issued on 29.11.2011 and the applications were received on 09.12.2011. For reasons which may be wholly attributable to the authorities, the appointment process was delayed and the final appointment order came to be issued only on 10.05.2012 i.e., after almost 5 months (for an appointment of 12 months). In the meanwhile, 2012 Amendment Order came into force w.e.f 26.01.2012. When the advertisement was issued and when the applications were filed in terms thereof, the un-amended 2004 Control Order was holding the field. Both the applicants and the authorities were required to adhere to the provisions of said 2004 Control Order. Since the previous appointment period was upto 31st day of December, ordinarily the appointment for the subsequent year should have been made before that date, in which case the question of applicability of the 2012 Amendment Order would not have arisen. It is because of the delay on the part of the authorities themselves in finalizing the matter that the above question has arisen. In my view, the applicants having acted upon the 2004 Control Order while submitting the applications and in the ordinary course, the appointment process ought to have been completed before 31st day of December, it is the unamended 2004 Control Order which would govern the appointment in question. Moreover, from the language of the 2012 Amendment Order itself, it is clear that the amendment is prospective. Therefore, the first issue is answered accordingly. 17. Moreover, from the language of the 2012 Amendment Order itself, it is clear that the amendment is prospective. Therefore, the first issue is answered accordingly. 17. Since it has been held that it is the 2004 Control Order which would govern the appointment in question, to answer the second question, the Court may now examine the various provisions of the 2004 Control Order as already noticed earlier. The appointing authority is the Director or the Deputy Commissioner and procedure is prescribed for making appointment. The procedure does not prescribe that before making appointment, the appointing authority is to obtain the approval of the higher authority or of the Government (as in the present case). If the appointment is made on the basis of the approval received from the Government, it would no longer be an order of the appointing authority. It would infect be an order of the Government It would thus render the provision of appeal redundant. There cannot be any appeal to the Commissioner and Secretary against an approval order made by the Government. Moreover, it is a settled law that when a decision is required to be taken by an appointing authority, the decision has to be his and not that of any other authority, howsoever higher he may be placed in the hierarchy. Decision of the higher authority would amount to guiding the appointing authority to act in a particular way which is not contemplated under the 2004 Control Order. When a law requires a thing to be done in a particular way, it has to be done in that way and in no other way. The net result of the above discussion would be that the appointment order should be that of the appointing authority himself and not based on approval of higher authority, in this case the Government. Second issue is answered accordingly. 18. Though learned counsel for the petitioner has strenuously argued that non furnishing of Sales Tax Clearance Certificate by respondent No. 4 should have been a good ground for rejection of his application, this Court is of the view that deliberation on the said issue may not be necessary in view of the findings arrived at on the aforesaid two issues. 19. The appointment of respondent No. 4 has been made by following a procedure which is not authorised under the 2004 Control Order. 19. The appointment of respondent No. 4 has been made by following a procedure which is not authorised under the 2004 Control Order. Such appointment therefore stands vitiated and would require interference by this Court. On the contention of Mr Massar, learned senior counsel that interference at this stage may dislocate operation of PDS in the area, this Court would like to say that the Court is only concerned with the legal issue before it. Once the Court has held that the procedure followed in making the appointment is not authorized in law and the appointment order is illegal, necessary consequences will follow. In any case, when the appointment order itself was very belatedly issued in May, 2012 and as more than five weeks of the present term still remain, the said period cannot be said to be an insignificant one. 20. As regards the common judgment and order dated 14.09.2012 passed in WP(C) Nos. 106, 107 and 158(SH) 2012 is concerned, learned counsel for the petitioner submits that the appointment of Government Nominees/Agents in those cases were challenged primarily on the ground that the appointees did not have adequate experience of running whole sale centers under PDS, whereas, the petitioners claimed to be more experienced. He contends that though the learned Single Judge had also dealt with the aspect of applicability of the 2012 Amendment Order, the issues raised in those cases and the issue in the present case are different. 21. Be that as it may, in view of the discussions made above, the Court is of the clear view that the appointment of respondent No. 4 as Government Nominee/Agent for PDS in respect of Nongstoin Sadar Sub-Division for the year 2012 cannot be sustained and is hereby set aside and quashed. Since the Deputy Commissioner had recommended 18 applicants for appointment, out of which 11 were appointed, the appointing authority shall now take a fresh decision from amongst the other remaining 7 recommended applicants, including the petitioner, to be appointed in place of respondent No. 4. Considering the time factor, such decision shall be taken within a period of one week from the date of receipt of a certified copy of this order. The new appointee shall continue till fresh appointment for the year 2013 is made. 22. Writ petition accordingly stands allowed. A copy of this order be furnished to Mr. Considering the time factor, such decision shall be taken within a period of one week from the date of receipt of a certified copy of this order. The new appointee shall continue till fresh appointment for the year 2013 is made. 22. Writ petition accordingly stands allowed. A copy of this order be furnished to Mr. K. Khan, learned GA for doing the needful. Petition allowed