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2015 DIGILAW 604 (CAL)

Biswajit Chakraborty v. State of West Bengal

2015-07-23

SAMAPTI CHATTERJEE

body2015
JUDGMENT : Samapti Chatterjee, J. The petitioner filed the present writ petition for direction upon the respondent authorities to appoint the petitioner as a F.P.S. Dealer against the vacancy declared at Kalitala Colony in Ward No. 7 of Konnagar Municipality under Hooghly Sub-Control, in terms of approval accorded by the Government in Food and Supplies Department on 23rd December, 2011. 2. The petitioner's case in brief is as follows:- That the Director of Rationing vide order dated 4th January, 2011 had invited an application with approval of the Government in Food and Supplies Department for appointment of a Fair Price Shop Dealer under the West Bengal Urban Public Distribution (Maintenance and Control) Order, 2003 at Kalitala in Ward No. 7 of Konnagar Municipality under Hooghly Sub-Control, District-Hooghly. In response to the said notification petitioner submitted an application before the Director of Rationing. The petitioner subsequently came to know that out of many applications two applications were accepted by the office of Director of Rationing, out of that petitioner's application was found to be suitable for enquiry and other application was not considered, as such was rejected. After primary scrutiny of the application, the Shop Selection Committee had recommended for extension of last date for submission of application as sufficient number of applications were not submitted. Therefore date was extended till 31st March, 2011. Even after extension of time no further application was received by the office of the Director of Rationing. As a result thereof the petitioner's application was accepted by the Shop Selection Committee as the said application was sent to the office of the Joint Director of Rationing, Hooghly for submission of report after enquiry. After inquiry report the Rationing Officer as well as the Joint Director of Rationing, Hooghly had recommended the petitioner's name for appointment to a Fair Price Shop (hereinafter referred to as FPS) Dealer on 5th February, 2011. Thereafter on 22nd December, 2012 the Commissioner and Principal Secretary in terms of the provision contended in Paragraph 14 of the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 had accepted the said suggestion and accorded approval to appoint the petitioner as FPS Dealer. Ultimately it was found by the authorities that petitioner was entitled to appoint as FPS Dealer against the vacancy declared vide order dated 4th January, 2011. Ultimately it was found by the authorities that petitioner was entitled to appoint as FPS Dealer against the vacancy declared vide order dated 4th January, 2011. It is also submitted that the petitioner had already taken a shop room on rent sometime in February, 2011 in Manzum Apartment at 8, Vidyasagar Street, Konnagar with a view to set up the proposed FPS Dealership. Since respondent authorities were sitting tight to appoint the petitioner as Fair Price Shop Dealer despite the fact that the petitioner was selected against the vacancy for Fair Price Shop dated 4th January, 2011, the petitioner without finding any alternative moved a writ petition being W.P No. 15325 (W) of 2004 before this Hon'ble High Court and the same was disposed of on 11th June, 2014 without passing any order. The respondent authorities after sitting tight over the said issue after long two years have declared the vacancy as cancelled vide order dated 11th July, 2014 on the pretext that the West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2013 has come into force on and from 12th August, 2013. As a result thereof the petitioner's final selection for approval of appointment of FPS Dealer against vacancy dated 4th January, 2011 under Control Order 2003 was ultimately cancelled vide Order dated 11th July, 2014 with the aid of substituted control order, 2013. Therefore, the petitioner challenging the impugned order of cancellation filed the present writ petition. 3. Mr. Biswanath Chakrabarti, learned Advocate appearing for the petitioner contended that respondent authorities have taken the appointment as Res judicata in their affidavit. But he submitted that this argument cannot be accepted when admittedly there is a challenge of law and facts. 4. Mr. Chakrabarti further strongly submitted that cancellation of the vacancies arose on 11th July, 2014 by a substituted control order of 2013 which admittedly came into force on and from 12th August, 2013. In support of his contention he relied on section 11 of the Civil Procedure Code. Mr. Chakrabarti also relied on Supreme Court decisions reported in AIR 1928 (Cal) Page-777 Para-25 (Tarini Charan Bhattacharjee And v. Kedar Nath Haidar) and AIR 1971 (Cal) Page-2355 Paras-5, 6 and 7 [Mathura Pradad Sarjoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy). In support of his contention he relied on section 11 of the Civil Procedure Code. Mr. Chakrabarti also relied on Supreme Court decisions reported in AIR 1928 (Cal) Page-777 Para-25 (Tarini Charan Bhattacharjee And v. Kedar Nath Haidar) and AIR 1971 (Cal) Page-2355 Paras-5, 6 and 7 [Mathura Pradad Sarjoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy). Para-7 is quoted below :- "Paragraph-7-Where the law is altered since the earlier decision, the earlier decision will not operate as Res judicata between the same parties: Tarini Charan Bhattacharjee's case, ILR 56 Cal 723 : (AIR 1928 Cal 777). It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous because the law interpreted is different." 5. Mr. Chakrabarti concluded that reliefs which have been sought for in the present writ petition cannot be treated as Res judicata on the ground that the petitioner was selected earlier for the Fair Price Shop dealer against the declared vacancy at Kalitala Colony under the old control order. Therefore, the petitioner's candidature cannot be rejected by the authority on the ground that the vacancies which were declared under the old control order have been cancelled on 11th July, 2014 under the New Control Order. Therefore, in conclusion Mr. Chakrabarti submitted that writ petitioner should be allowed by this Hon'ble Court thus directing the respondent authorities to appoint the petitioner as a Fair Price Shop Dealer against the vacancy declared at Kalitala Colony, Ward No.7 of Konnagar Municipality under Hooghly Sub Control where the petitioner was selected for the said post. 6. Per Contra, Mr. Sushobhan Sengupta, learned Advocate appearing for the respondent authorities submitted that the present writ petition is barred by Res judicata as the petitioner's claim has merged with the earlier order passed by this Hon'ble Court in W.P No. 15325 (W) of 2014 dated 11th June, 2014 where the Hon'ble Court at the time of disposing of the said writ petition observed as follows "Affidavit of service, filed today, be kept on record. In the writ petition, the petitioner has prayed for a direction upon the authorities of the State to grant licence for opening the Fair Price Shop since favourable recommendation has been made. In the writ petition, the petitioner has prayed for a direction upon the authorities of the State to grant licence for opening the Fair Price Shop since favourable recommendation has been made. Learned advocate appearing on behalf of the State submits that opening of a Fair Price Shop is a policy matter and the recommendation, if any, is an internal communication of the department. In reply, it is submitted that though opening of Fair Price Shop is a policy matter, however, since recommendation has been made, appropriate order may be passed. Having heard the learned advocates for the parties, since I find that opening of a Fair Price Shop pertains to policy matter of the Government, no order is passed on the writ petition. The writ petition is disposed of. There will be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be furnished on priority basis." 7. Mr. Sengupta further contended that the present writ petition cannot be described as a new cause of action. It is an outcome of earlier cause of action which admittedly at present does not exist as it has merged with the order dated 11th June, 2014 passed in earlier writ petition being WP No.15325 (W) of 2014. Mr. Sengupta also drawn my attention to Paragraphs 22, 23, 24 and 25 of the writ petition. 8. Mr. Sengupta further contended that the candidature of the petitioner was never approved by the authority which would be available from the order dated 22nd February, 2004 issued Dy Director General of Food and Ex Officio Secretary to the Government of West Bengal wherefrom it is revealed as follows "All proposals for declaration of Vacancies as well as filling up of the post of Dealer/wholesaler/F.P. Shop owner in terms of the aforesaid notifications should hence-forth be submitted to the Government and appointment to those posts shall be made subject to the approval of the Government and final approval of Hon'ble MIC This order shall take immediate effect and shall remain in force until further orders." In support of his contention that cause of action of the present writ petition has merged with the earlier writ petition Mr. Sengupta relied on a Supreme Court decision reported in AIR 2005 (SC) Page-626 Paragraphs 30 and 31 (Bhanu Kumar Jain v. Archana Kumar and Another) which are quoted below:- "Para-30-Res judicata debars a court from exercising its jurisdiction to determine the is if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of Res judicata creates a different kind of estoppel viz. Estopper By Accord. Para-31-In a case of this nature, however, the doctrine of issue estoppel as also 'cause of action estoppel' may arise. In Thoday (supra) Lord Diplock held : "..."Cause of action estoppel" is that which prevents a party to an action from asserling or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given on it, it is said to be merged in the judgment if it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam." Therefore Mr. Sengupta concluded his argument by submitting that the present writ petition should be dismissed by this Hon'ble Court as the cause of action of the earlier writ petition estopped the petitioner to file fresh on the self same cause of action. 9. Considering the submissions advanced by the learned Advocates of the respective parties and after perusing the records I find that by the order passed in earlier writ petition on 11th June, 2014 the Hon'ble Court did not come to any conclusion and as a result thereof the earlier writ petition being WP No. 15325 (W) of 2014 cannot be termed as case decided. It is crystal clear that the said writ petition was disposed of without passing any order. If go through section 11 of the CPC of Res judicata it is clear from the bare reading of the section 11 of the Civil Procedure Code that expression 'Former Suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. If go through section 11 of the CPC of Res judicata it is clear from the bare reading of the section 11 of the Civil Procedure Code that expression 'Former Suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. The matter above referred to must be in the 'Former Suit' have been lodged by one party and either denied or admitted, expressly or impliedly by the other party. Therefore, any matter which might and ought to have been made ground of defence or attack in such 'Former Suit' shall be deemed to have been a matter directly and substantially an issue in such suit or any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section to deemed to have been refused. 10. I find that though the prayer portion of the earlier writ petition and the present writ petition is almost identical and same but the cause of action is not same as in the earlier writ petition the petitioner prayed for appointment as Fair Price Shop Dealer against the vacancy declared at Kalitala Colony in Ward No.7 of Konnagar Municipality under Hooghly Sub Control of the Government of West Bengal admittedly which was not decided by the order dated 11th June, 2014 on the ground that opening of a Fair Price Shop pertains to policy matter of the Government. Therefore, it was the duty of the Government to consider the petitioner's candidature against the said vacancies for which he has been selected but without considering the petitioner's candidature under Old Control Order, 2003 all on a sudden the authority vide the impugned order dated 11th July, 2014 cancelled that vacancy under the New Control Order, 2013. Therefore, it cannot be accepted that the petitioner's candidature was considered and rejected against the said vacancy which accrued under the Old Control Order i.e. 2003 Control Order. Therefore, in my opinion the vacancy which was declared on 4th January, 2014 under the Old Control Order cannot be cancelled by the impugned order dated 11th July, 2014 under the new Control Order of 2013. 11. That being the position the argument advanced by Mr. Therefore, in my opinion the vacancy which was declared on 4th January, 2014 under the Old Control Order cannot be cancelled by the impugned order dated 11th July, 2014 under the new Control Order of 2013. 11. That being the position the argument advanced by Mr. Sengupta that the subject matter of the present writ petition suffers from Res judicata cannot be sustained because the cause of action is not the same as the cause of action accrued from the cancellation of the vacancies vide order dated 11th July, 2014 under the New Control Order though admittedly that vacancy was advertised under the Old Control Order i.e. 2003 Control Order. That being the position petitioner's candidature should be considered under the Old Control Order which prevailed at that material point of time when the vacancy was declared. Therefore, this act on the part of the respondent authorities to cancel the vacancy under the Order of 2013 though admittedly that vacancy was declared under the Order of 2003 can not be sustained. 12. Therefore, it should be governed by the Control Order of 2003 under which the vacancy was declared and the procedure was initiated. Admittedly no case was decided between the authorities by the order dated 11th June, 2014 passed in the earlier Writ petition being WP No. 15325 (W) of 2014. Therefore, it cannot be accepted that the present writ petition is barred by Res judicata. The vacancy declared under the Old Control Order of 2003 was arbitrarily, illegally, unfairly, declared as cancelled on 11th July, 2014 under the New Control Order of 2013 which is bad in law and that creates a right to the petitioner to file the present writ petition. 13. Now, I have to deal with the decision cited by Mr. Sengupta. The decision passed by the Hon'ble Supreme Court in Bhanu Kumar Jain (supra) is totally on a different issue altogether. In Bhanu Kumar Jain's case ex parte decree was passed by the Court and a suit for setting aside the ex parte decree on the ground of fraud has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Civil Procedure Code. In Bhanu Kumar Jain's case ex parte decree was passed by the Court and a suit for setting aside the ex parte decree on the ground of fraud has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Civil Procedure Code. He took resources to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the Trial Court merged with the order passed by the Appellate Court then the application under Order 9, Rule 13 would not be maintainable. However, in a case where the application under Order 9, Rule 13 get dismissed first then the 'Doctrine of Issue' estoppel as also cause of action estoppel may arise as such when an application under Order 9, Rule 13 of the Code is dismissed the defendant can avail a remedy available there to file an appeal against the dismissal. The appellant cannot raise the same contention in first appeal. If it is to hold that such contention can be raised both in first appeal as also the proceedings arisen from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not permissible in law but here the case is completely different. Here only by the Order dated 11th June, 2014 no case was decided and no order was passed by the Hon'ble Court on the ground that it is in the domain of the Government to make any policy. That being the situation the contention of Res judicata cannot be accepted but is rejected. The earlier writ petition was filed challenging non-approval of the petitioner's selection under the Old Control Order, 2003, petitioner's candidature was not cancelled under the same Control Order of 2003. The vacancy was cancelled arbitrarily under the New Control Order of 2013 by the impugned order dated 11th July, 2014 which is not permissible in law therefore, cannot sustained. The vacancy created under the Control Order of 2003, should be decided by the said Control Order of 2003. 14. In the present case nothing has been decided by the order dated 11th June, 2014. The vacancy created under the Control Order of 2003, should be decided by the said Control Order of 2003. 14. In the present case nothing has been decided by the order dated 11th June, 2014. On the contrary, the Government abruptly, illegally by adopting unfair practise cancelled the vacancy in question under the new Control Order of 2013, though admittedly the vacancy was declared under the Old Control Order of 2003. 15. Therefore, it cannot equate that the cause of action of the earlier writ petition and the cause of action of the present writ petition is same and identical. 16. In these circumstances, I have no hesitation to hold that cancellation of the vacancy by the impugned order dated 11th July, 2014 by the Director of Rationing in West Bengal under the New Control Order, 2013 is bad in law and therefore, cannot be sustained. 17. Accordingly, the impugned order of cancelling of vacancy is hereby set aside and quashed and I direct the respondent authorities to consider the petitioner's case under the old Control Order of 2003 afresh within 8 (eight) weeks from the date of communication of this order treating the vacancy as still alive, as declared under the Old Control Order, 2003 in respect of Kalitala Colony in Ward No.7 of Konnagar Municipality under Hooghly Sub Control. 18. With this directions, the writ petition is disposed of. Writ petition allowed.