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2012 DIGILAW 447 (CAL)

Hiralal Saha v. STATE OF WEST BENGAL

2012-05-14

ANIRUDDHA BOSE

body2012
Judgment :- Aniruddha Bose, J. 1. The dispute in these two writ petitions relate to appointment of a distributor for essential commodities in Gopinathpur in the district of Hooghly. At present, appointment of such distributors is guided by the provisions of the West Bengal Public Distribution System (Maintenance and Supply) Control Order, 2003 (the 2003 Order), Applications for this vacancy however was invited in the month of February 1981. At that point of time, selection of distributors were made through procedures laid down in terms of executive instructions. Such distributorship was originally termed as M.R. Distributorship, and the same term continues to be used now also to describe such distributors. The writ petitioner in C.R. NO. 9951(W) of 1982 is one Hiralal Saha who lost out in the selection process. After applications were invited for appointment of distributors, Dulal Chandra Maity, who is the respondent no. 6 in that writ petition and the petitioner in W.P. No. 32042(W) of 2008 was initially selected. I shall refer to the two writ petitioners as H and D respectively in the later part of this judgment. I propose to dispose of both these writ petitions by this common judgment as the competing candidates for licence in respect of the said business are these two petitioners only, and there are many overlapping points involved in the two cases. 2. Selection of D has been challenged by H by filing the Writ Petition registered as C.R. No. 9951(W) of 1982. I shall refer to this proceeding henceforth as the first writ petition. The ground of challenge of D’s selection is that the latter had attracted disqualification specified in the application form itself, which prohibited applications by a relative of members of the Anchal Panchayat or Food Relief Committee. A copy of a notification, which appears to be in a standard form, has been annexed to the first writ petition, marked “A”. In the said standard form, the second part is entitled as “Application Form”, against which there are eight clauses. Clause 8 in such form stipulates that the application would not be accepted if the applicant is a member of the Anchal Panchayat or Food Relief Committee, or a relative of such members. Complaint of H is that D was the nephew of the upapradhan of Gopinathpur Anchal, being one Bata Krishna Pakira. Clause 8 in such form stipulates that the application would not be accepted if the applicant is a member of the Anchal Panchayat or Food Relief Committee, or a relative of such members. Complaint of H is that D was the nephew of the upapradhan of Gopinathpur Anchal, being one Bata Krishna Pakira. At the initial stage, when this writ petition was moved, Rule was issued on 27th September 1982. An interim order was also passed restraining the respondents from giving effect to the order passed by the authorities concerned appointing D as an M.R. Distributor. D had filed an application for vacating the interim order and it was allowed on 23rd November 1983. The interim order was accordingly vacated on that date. But later on, when the matter appeared for hearing, on 23rd July 1985, the interim order was re-imposed in substance, as the respondent no. 2 therein, being the Sub-divisional Controller was directed not to make any final appointment in respect of that distributorship except on ad-hoc basis, unless any third party was appointed. The writ petition again came up for hearing on 10th July 2000, and on that date none of the parties appeared before the Court when the matter was called on. The petition was dismissed for default, interim order vacated and Rule was discharged. 3. It was turn of D now to raise grievance for not being given actual appointment in spite of dismissal of the writ petition. He applied before this Court by filing a writ petition being W.P. No. 16531(W) of 2008. D’s prayer in this writ petition was to give effect to his selection. 4. In this writ petition however H was not impleaded as a party respondent. This writ petition was disposed of by this Court on 8 August 2008 with the following directions:- “In view of such specific submissions made on behalf of the State on instruction, I choose to dispose of this writ petition at this stage only by directing the concerned authority to issue appropriate order for petitioner’s appointment as distributor under the 2003 Order provided the petitioner complies with all the procedural formalities. Such exercise should be completed within a period of six weeks from the date of communication of this order. For this purpose, the petitioner shall produce the necessary documents before the appropriate authority and cooperate with them. Such exercise should be completed within a period of six weeks from the date of communication of this order. For this purpose, the petitioner shall produce the necessary documents before the appropriate authority and cooperate with them. With this direction, the writ petition shall stand disposed of. Since this writ petition is being disposed of without filing of any affidavit to which arrangement the learned Advocate for the State ha agreed to, the allegations made in the writ petition shall be deemed to have not been admitted. There shall, however, no order as to costs.” 5. In pursuance of such direction of this Court, D was directed to appear before the District Controller with the requisite documents. The documents which D was required to produce, as it appears from a memorandum dated 25th September 2008 issued by the District Controller, a copy of which had been made Annexure “P12” to W.P. No. 32042(W) of 2008, were :- “1. Proof of Identity like Voter card, Ration card etc. 2. Order of S.C.F. & S. Hooghly Sadar regarding selection as M.R. Distributor. 3. Possession of the godown bearing Plot no.-2700, JL. No.-43, Khatian No.-404, Mauza-Gopinagar like land deed, Parcha etc. 4. Financial Capacity.” 6. D’s claim for appointment however was rejected by the District Controller by an order passed on 8 November 2008 on the ground that he could not produce any document regarding the godown and his balance in his account at that point of time was Rs.9,05,800/-, as it appears from copy of the order, (Annexure “P3” to W.P. No. 32042 (W) of 2008). Before such hearing, an enquiry was also conducted concerning D’s eligibility status, and I shall deal with this enquiry in the subsequent paragraphs. In course of hearing, D was required to produce documents relating to possession of godown bearing plot no. 2700, JL No.-43, Khatian No.-404, Mouza Gopinathpur like land deed Parcha etc. and also enquiry was made of his financial capacity. The District Controller examined the case of D on the basis of his selection in 1982 and the particulars of godown related to his disclosure made on possession of godown in that year only. The District Controller also wanted reappraisal of his financial capacity pertaining to the year 1982 only. and also enquiry was made of his financial capacity. The District Controller examined the case of D on the basis of his selection in 1982 and the particulars of godown related to his disclosure made on possession of godown in that year only. The District Controller also wanted reappraisal of his financial capacity pertaining to the year 1982 only. This appears from the ground of rejection contained in the order of the District Controller, which are:- “Regarding para-III – Sri Maity could not produce any documents regarding possession of the godown bearing plot no. 2700, JL No.-43, as mentioned in the selection letter issued by SC (F&S), Hooghly Sadar vide memo no. 802/SC(F&S)/82 of 05.03-82. Sri Maity further stated that the said godown was hired by him and that this rented godown was vacated by him in the year 1985 and handled over to the landlord. That is why the said godown as mentioned in the selection letter is to longer possessed by him. He could not produce any supporting documents for the said rented godown from the year 1982 to 1985 as stated by him. Regarding para IV- Sri Maity submitted a bank statement of SBI Chinsurah showing Savings Bank Account bearing no. 30491148079 in the name of Dulal Chandra Maity of Vill.-Narayanpur, P.O.- Tarakeshwar, Dist.-Hooghly. The present balance of the A/c is Rs.905800/- as per letter of Chief Manager of SBI, Chinsurah dated 16.09.08. Sri Maity stated that this savings bank A/c bearing no. 30491148079 was opened by him on 15-09-08 and that he can not produce any document regarding financial capacity of the year, 1982, that is the year of selection as MR distributor. It is seen from the above that item no. 1 and 2 was supported by the documents but item no.3- there is no supporting document lime land deed, parcha etc. and that the said godown is no longer in his possession which was confirmed by Sri Maity during hearing as well as during enquiry by CI of SC (P&S), Hooghly, Sadar. That Sri Maity has acquired another godown at a separate place which cannot be considered at this stage. Regarding item no. iv- there is no proof of financial solvency at the material period (1982). That Sri Maity has acquired another godown at a separate place which cannot be considered at this stage. Regarding item no. iv- there is no proof of financial solvency at the material period (1982). However, the letter of Chief Manger and Personal hearing of the petitioner show that an SBI A/c has been opened by him only 15 (fifteen) days ago which cannot be considered at this stage.” 7. This order of rejection is under challenge before me in W.P. No. 32042(W) of 2008, (the second writ petition). H has been impleaded as a respondent in this proceeding in pursuance of leave of this Court granted on 28th January 2010. The second petition, as originally framed, did not contain H in the array of respondents. The first writ petition was subsequently revived. An application for restoration was filed, registered as C.A.N. No. 4275 of 2009, and an Hon’ble Single Judge of this Court was pleased to dismiss this application by an order passed on 10th July 2009. H appealed against such order of dismissal before an Appellate Bench of this Court, which was registered as M.A.T. No. 304 of 2009. A Division Bench of this Court set aside the order of dismissal passed on 10th July 2009 and restored the writ petition to its original file. Thus when D filed the writ petition registered as W.P. No. 16532(W) of 2008. there was no surviving complaint against selection of D as a distributor before any legal forum. The order was passed by this Court on 8th August 2008 in that context. When the second writ petition was filed by D, then also there was no live complaint against his eligibility for being appointed as a distributor. Hence his initial selection remained unchallenged before any legal forum. But after restoration of the first writ petition, that of H, his complaint as regards disqualification of D resurfaced. It is in this perspective I shall examine the rival claims. This reference to the changed perspective in the factual context of these proceedings is necessary because the main argument advanced on behalf of D is that for adjudicating his right to be appointed as distributor, the scope of enquiry should be confined to the directions of this Court given in W.P. No. 16531(W) of 2008. 8. This reference to the changed perspective in the factual context of these proceedings is necessary because the main argument advanced on behalf of D is that for adjudicating his right to be appointed as distributor, the scope of enquiry should be confined to the directions of this Court given in W.P. No. 16531(W) of 2008. 8. Main case of D is that his selection process was completed in the month of March 1982 and in the memorandum bearing no. 802/SFS/82 of 5 March 1982, it was specified that delivery of foodstuff within a very short span of time only. Such decision could not be given effect to because of the interim order passed in the first writ petition. But after dismissal of the first writ petition, there was no reason on the part of the authorities to withhold allocation of essential commodities to him. He has drawn my attention to recordal of submission of the learned counsel for the State in the order of this Court passed on 8 August 2008 in W.P. No. 16531(W) of 2008. In that case, submission of learned counsel for the State was that the distributorship for which the petitioner therein was selected had been kept vacant because of pendency of the first writ petition. It was also submitted by the learned counsel for the State respondents in that proceeding that the department was not aware of dismissal of the writ petition in the year 2000. In my order, I had directed the respondents to issue appropriate order for petitioner’s appointment as distributor under the 2003 Control Order, provided the petitioner complied with all the procedural formalities. 9. In the affidavit-in-opposition of the State filed in the second writ petition, withholding of appointment of D has been justified on the basis of a fresh enquiry, before the order of rejection was passed by the District Controller. It appears from the enquiry report annexed as “R2” in the affidavit of the State respondents that D was asked to show the godown on the basis of which he was selected in the year 1982 but he failed to establish that the said godown was still available for his distributorship. At the stage of enquiry, as it appears from this report, D could not produce document in respect of financial capability either. At the stage of enquiry, as it appears from this report, D could not produce document in respect of financial capability either. The enquiring authority had revealed in his report that the said godown had been sold to someone else. Another aspect of the matter had also been examined by the enquiring authority. He found that the location for which D was selected as a distributor was crowded already with MR shops and MR distributors. Doubt was expressed as to whether issuing a license for distributorship would be viable or not to D under those circumstances. Learned counsel for D has questioned the authority of the respondents to conduct fresh enquiry in the first place when his selection process stood concluded in the year 1982. It has been submitted on behalf of D that once an order is passed, in this case on 5th March 1982, the respondents have to stick by that order unless such order is revoked or cancelled through a legally valid process. Relying on a decision of the Supreme Court in the case of State of Punjab Vs. Gurdev Singh (AIR 1997 SC 2219), learned counsel for D has argued that even a void order, unless invalidated would hold its field. The other authority cited on behalf of D is the decision of the Supreme Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner reported in AIR 1978 SC 851 . This judgment has been relied on in support of the argument that stand of the respondents for not issuing appointment order had been disclosed in W.P. No. 16531 of 2008 and selection process had been completed in the year 1982. The State could not deviate from this stand and come forward with fresh grounds for withholding D’s appointment in their affidavit. On this point, the judgment of the Supreme Court in the case of the Commissioner of Police Vs. Gordhandas ( AIR 1952 SC 16 ) has also been relied on by the learned counsel for D. 10. On the day this Court disposed of the writ petition of D being W.P. No. 16531(W) of 2008, i.e. 8 August 2008, the complaint of H in C.R. No. 9951(W) of 1982 questioning eligibility of D to be appointed as distributor was not before this Court. On the day this Court disposed of the writ petition of D being W.P. No. 16531(W) of 2008, i.e. 8 August 2008, the complaint of H in C.R. No. 9951(W) of 1982 questioning eligibility of D to be appointed as distributor was not before this Court. But that writ petition was restored to its original file and number on 19th May 2009 by the order of the Division Bench of this Court in M.A.T. NO. 304 of 2009. Thus while considering claim of D, I cannot ignore the complaint of H made in that writ petition at this stage. I accept submission made on behalf of D that the State has to stick by its stand taken before the Court once and cannot deviate from it or alter its stand at a later stage, but this principle would apply if the surrounding circumstances also remain static, unaltered. But stand of the State respondents cannot be judged in isolation, without considering intervening circumstances if such intervening circumstances have relevance to the subject of controversy. The complaint of H, which was made at the initial stage, but went out of the litigation arena because of the order of dismissal of the writ petition for about nine years, was eventually revived by the order of the Division Bench. This was a pre-existing complaint, and not raised suddenly after the State had disclosed its stand. Thus, while State is required to maintain consistency in their dealing with citizens, the State is also under obligation to examine complaint of H on being denied the opportunity to carry on business on the basis of restricted licensing process. 11. H was a contender for being selected as a distributor for the same location. Grievance of H is that D is ineligible as he was the nephew of the Anchal Pradhan of the concerned area at the material point of time. In the vacating application filed by D in the first writ petition, which was treated as affidavit-in-opposition, this allegation has been denied in paragraph 11. It has been stated in this paragraph:- “11. Your applicant states that your applicant have had no relation with any members of Anchal Panchayat and/or with any members of the Relief Committee for which the applicant cannot and could not be accepted. It has been stated in this paragraph:- “11. Your applicant states that your applicant have had no relation with any members of Anchal Panchayat and/or with any members of the Relief Committee for which the applicant cannot and could not be accepted. In any event the alleged member of the Anchal Panchayat does not come within the definition of the family of your petitioner.” 12. Defence of D to this argument is also that such disqualification is not applicable in respect of selection of M.R. Distributors. The standard form which has been annexed as “A” to the first writ petition and “R1” to the affidavit-in-opposition of the State respondents in the second writ petition (W.P. No. 32042(W) of 2008) stipulates that notification was for inviting application for three categories of intending traders, who have been classified as modified ration dealer/field dealer/urban dealer. The case of D is that since the vacancy was in respect of distributor and not dealer, there was no disqualification as this notification was not applicable in this case. On behalf of State, no specific notification for appointment of distributor has been cited. On the other hand, it was submitted that the conditions specified in the said form applied to M.R. Distributors also, and an aspiring M.R. Distributor had to file his application in the same form. 13. As regards relationship between D and the upapradhan of Gopinathpur Anchal, stand of D is not specific. There is denial in paragraph 11 of the vacating application, which I have quoted above. It has also been argued that such relationship in any event does not prohibit consideration of application of an aspiring distributor, who are not covered by the same conditions. In the vacating application filed by D, it was not contended that the aforesaid restrictive condition was not applicable in respect of selection of distributors. On behalf of State also, no material was produced to demonstrate that such restrictive provision was applicable in respect of the subject-controversy. 14. In the affidavit filed on behalf of the State respondents in the second writ petition, applicability of such a clause has been reiterated. On behalf of the State respondents, prayer has been made for permitting them to declare fresh vacancy in the concerned area so that the same can be filled up in the manner prescribed in the 2003 Control Order. On behalf of the State respondents, prayer has been made for permitting them to declare fresh vacancy in the concerned area so that the same can be filled up in the manner prescribed in the 2003 Control Order. In my opinion, however, since there was selection of D for the said distributorship, unless such selection is invalidated on legitimate ground, mere delay or passage of time cannot extinguish the right of D acquired on being selected for that vacancy. Now I shall address the question of eligibility of D in the light of complaint made in the first writ petition by H. As I have already discussed, D’s stand on the question of being nephew to the upapradhan is that of denial, but it is a clouded denial. D has not specifically stated as regards the nature of his relationship with the upapradhan. D has not taken a categorical stand on this issue. On the other hand, on behalf of State, in their affidavit-in-opposition in the second writ petition, the stand of H on relationship has been supported in substance. Alternative defence has been taken by D to the effect that the notification is not applicable so far as the distributorship is concerned and such relationship does not come within the restriction contemplated. In Annexure “R3” of D’s affidavit-in-reply in the second writ petition, an application form for distributorship has been annexed. This form originated in the year 1985, which is later in time to his selection, but does not stipulate restriction of this nature. 15. Several authorities were cited on behalf of H to reject this complaint. It was argued that having participated in the selection process without raising any objection on eligibility of D, it is no more open to H to challenge his selection after failing in the selection process. Decision of the Supreme Court in the cases of Utkal University Vs. Dr. Nrusungha Charan Sarangi & Ors. [ (1999) 2 SCC 193 ] and Manish Kumar Shah Vs. State of Bihar (2010) 12 SCC 576 have been relied upon in support of this submission. In the case of Utkal University, selection to the post of reader in the University was subject of dispute. A member of the selection committee was also a member of an organisation which published a magazine, and the selected candidate was editor of that magazine. In the case of Utkal University, selection to the post of reader in the University was subject of dispute. A member of the selection committee was also a member of an organisation which published a magazine, and the selected candidate was editor of that magazine. The same member of the selection committee was on the editorial board of that magazine. Plea of bias made by an unsuccessful candidate in that case was rejected by the Supreme Court on the ground that he should have had raised the objection if at all at the initial stage and not after failing in the selection process. In the case of Manish Kumar Shah (supra), the complaint of an unsuccessful candidate over allocation of excessive marks for viva voce test was also rejected as he had participated in the selection process having full knowledge of such allocation. It has also been urged on behalf of D that even if the upapradhan was his relation, he had not influenced the decision making process. The case of Utkal University was relied upon on this point also. In these decisions, it has been held by the Supreme Court that allegations of bias must be carefully examined before any selection can be set aside. Certain other authorities were cited to contend that a party could not be permitted to travel beyond pleadings to obtain relief and that there ought to be limited judicial intervention on selection process being undertaken by experts. Both these authorities reiterate well established principles of administrative law. But in the factual context of these two proceedings, I do not think the ratio of these authorities are applicable. In these cases, I am testing the legality of the decision making process only, and not examining finding of any expert body on any complicated issue. 16. Addressing the subject-dispute, I do not think that H ought to be non suited solely on the ground that he did not raise objection on eligibility of D to participate in the selection process because he was alleged to be nephew of the upapradhan. There is no material before this Court that H had knowledge of the said fact at the time of, or before participating in the selection process. Moreover, if an essential eligibility criteria is breached, it is always permissible for the unsuccessful candidate to challenge selection of his competitor on that ground. There is no material before this Court that H had knowledge of the said fact at the time of, or before participating in the selection process. Moreover, if an essential eligibility criteria is breached, it is always permissible for the unsuccessful candidate to challenge selection of his competitor on that ground. This is not a case where a selection norm is being challenged, in which H participated having full knowledge of such norm. 17. The judgment of the Supreme Court in the case of Commissioner of Police Vs. Gordhan Das (supra) was relied on by the learned counsel for D in support of his submission that the State authorities ought to be stick to the disclosed stand and not prevaricate on their decision on a particular dispute. But as I have already observed, even if the State was bound to stick to their stand disclosed for withholding appointment of D, which stand was reflected in the order passed in W.P. No. 16531(W) of 2008, restoration of the first writ petition altered the circumstances to expand the scope of the controversy. After that stand was disclosed, allegation of H has revived and such allegation would have to be examined by me. Learned Counsel for the State however was unable to produce any material to show as to whether the standard form notification applied in respect of selection of an M.R. distributor. I am not satisfied with the multiple defence raised by D on the question of his relationship with upapradhan of the concerned Anchal. He is in the best position to disclose whether the said upapradhan was his uncle or not and his reply is evasive on this issue. Similarly, the State respondents were in the best position to assist the Court by disclosing the correct norm or criteria for selection of M.R. Distributors in 1982. But they have failed to produce any material from which I could ascertain as to whether nephew of a member of Anchal Panchayat or Food Relief Committee of a particular area was eligible candidate for M.R. Distributorship or not. 18. Under these circumstances, in my opinion a fresh enquiry is necessary to ascertain as to whether at the time selection process was undertaken in the year 1982, Bata krishna Pakhira was upapradhan of Gopinathpur Anchal or not. 18. Under these circumstances, in my opinion a fresh enquiry is necessary to ascertain as to whether at the time selection process was undertaken in the year 1982, Bata krishna Pakhira was upapradhan of Gopinathpur Anchal or not. On that count, the District Controller will reexamine the matter, after determining as to whether relations of Anchal Panchayats were disentitled from applying for M.R. Distributors licence, and if they were disentitled, what was the criteria for determining who was a relative. The District Controller, in his enquiry to ascertain relationship between D and said Bata Krishna Pakhira shall also ascertain as to whether such relationship disentitled D from applying for such distributorship. Fresh hearing should be given to D and H for determining these questions by the District Controller of Hooghly. In the event the notification is found to be applicable so far as the disqualification clause is concerned and the relationship of D with the erstwhile upapradhan is found to be within the prohibited zone, then D shall be held ineligible for appointment as a distributor for the said territory and the vacancy shall be declared and advertised afresh & filled up in accordance with the provisions of the 2003 Control Order. The claim of H as the second candidate cannot revive after such a long period of time. 19. In the event however D is found to be eligible on that count, then his financial solvency as disclosed in the year 2008 would be sufficient for his appointment as distributor on the basis of his selection in the year 1982 because he cannot be blamed for delay in his actual appointment, after being successful in the selection process. But he must demonstrate that he had sufficient financial strength in 2008, which was compatible with the requirement of 1982. If however he is unable to make available the same godown, that is the godown he had disclosed in the year 1982, he shall be entitled to offer alternative godown space but such godown should meet the criteria, if any, set down at present for appointment of distributorship. It would be irrational to expect that a selected candidate shall keep a godown vacant for over 30 years with hope that he will eventually get appointment, particularly when there were legal proceedings questioning his engagement. 20. It would be irrational to expect that a selected candidate shall keep a godown vacant for over 30 years with hope that he will eventually get appointment, particularly when there were legal proceedings questioning his engagement. 20. No other factor shall be permitted to be examined to enable D to be considered for appointment as distributors for the said vacancy, unless there is specific statutory bar on any other aspect of his eligibility which would make him unfit for the distributorship business if appointed. Final decision shall be taken on the basis of these specific issues only. The District Controller shall decide on the questions on applicability of the standard form notification as well as the relationship issues upon giving opportunity of hearing to both H and D within a period of 8 weeks from the date of communication of this order. Depending on decision of the District Controller on these two issues, further steps shall be taken as warranted within a further period of four weeks. Such decision, needless to say, shall be communicated to H and D. Both the writ petitions stand disposed of in the above terms. 21. There shall however be no order as to costs. 22. Urgent Photostat certified copy of this judgment be supplied to the learned Advocates for the parties if applied for with necessary formalities as expeditiously as possible.