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2015 DIGILAW 919 (CAL)

Tapan Kundu v. State of West Bengal

2015-11-19

SUBRATA TALUKDAR

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JUDGMENT : Subrata Talukdar, J. In this writ petition the short point which this Court is required to answer pertains to the selection of the private respondent no.6 as the MR dealer at Loharpur under Sitai-I Gram Panchayat of Dinhata Sub-division, District-Cooch Behar. 2. Sri Ram Anand Agarwala, Ld. Counsel for the writ petitioner takes this Court to the several objections raised by the writ petitioner against the selection of the private respondent no.6 to the said MR dealership and submits that both in terms of the eligibility of the land offered by the private respondent no.6 and his financial solvency it can be perceived that the private respondent no.6 is inferior to the writ petitioner for selection to the said MR dealership. Sri Agarwala specifically submits that while the godown offered by the private respondent no.6 is located within PWD land along with the godowns of the other applicants, on the other hand the godown of the writ petitioner is alone located outside PWD land. 3. Similarly, from the bank account particulars of the other applicants, including the private respondent no.6, Sri Agarwala submits that it shall transpire that the petitioner is the most solvent of all the candidates and therefore ought to have been selected to the said MR dealership. However, since the competent Authority was going to approve the said MR dealership in favour of the private respondent no.6, the present writ petition became necessary. 4. Sri Agarwala takes this court to the order dated 19th January, 2009 passed by a Hon’ble Single Bench in the present writ petition directing, inter alia, that in the event the writ petitioner succeeds in the lis, the private respondent no.6 shall not be entitled to claim any equity in support of his appointment. 5. Per contra, Sri Sushovan Sengupta, Ld. Senior State Government Advocate appearing for the State-respondents argues by placing reliance on the affidavit-in-opposition filed on behalf of the State-respondents that upon enquiry it has been found that the godown floor level of the petitioner is approximately 1 ft. lower than the metalled road level. 5. Per contra, Sri Sushovan Sengupta, Ld. Senior State Government Advocate appearing for the State-respondents argues by placing reliance on the affidavit-in-opposition filed on behalf of the State-respondents that upon enquiry it has been found that the godown floor level of the petitioner is approximately 1 ft. lower than the metalled road level. Relying upon the enquiry report dated 24th October, 2008 submitted by the District Controller (Food & Supplies), Cooch Behar to the Director, Directorate of District Procurement and Supplies, West Bengal (for short DDP & S), Sri Sengupta submits that in addition to the godown floor level of the writ petitioner being lower to the metalled road surface, it is found upon spot inspection that the record of land in favour of one Subhash Barman, claiming to be owner of such land which has been offered by the petitioner, has been erroneously prepared by the Land Requisition Department as there appears to be discrepancy in the age and date of birth recorded of the said Subhash Barman. 6. Sri Sengupta further points out that the godown of the private respondent no.6 appears to be not in PWD land and the godown wall was found to be approximately 8-10 ft. away from the neighbouring bamboo boundary. Sri Sengupta takes this Court to a communication dated 25th February, 2008 from the Block Land and Land Reforms Officer, Sitai to the Assistant Engineer (PWD), Mathabhanga wherein it has been noted that although the pillars shown at the site are presumed to be that of the PWD Department, no authentic markings are found on the pillars. 7. Ld. State Counsel therefore argues that upon consideration of all factors it has been found that among all the applicants the private respondent no.6 is the best candidate and was approved for appointment to the said MR dealership as there was a requirement of a new MR dealer at the location. 8. Having heard the parties and considering the materials on record this Court notices that the spot inspection report of the District Controller, Cooch Behar dated 24th October, 2008 does not grant an unambiguous endorsement to any of the applicants clearing their appointment to the MR dealership. 8. Having heard the parties and considering the materials on record this Court notices that the spot inspection report of the District Controller, Cooch Behar dated 24th October, 2008 does not grant an unambiguous endorsement to any of the applicants clearing their appointment to the MR dealership. After noticing the various factors surrounding each of the applicants, including the private respondent no.6 and the writ petitioner, the District Controller vide his report dated 24th October, 2008 recommended the appointment of the private respondent no.6 on a provisional basis subject to the result of the pending case or, alternatively, opined that a fresh vacancy may be advertised for the same location. 9. This Court also notices that contrary to the pleadings in the writ petition the spot inspection report dated 24th October, 2008 (supra) also does not give a clean chit to the writ petitioner in respect of the eligibility of the land offered by him. 10. It is also a settled position that during the pendency of the writ petition for the past seven years the selection of the private respondent no.6 has not been disturbed although by order dated 19th January, 2009 a Hon’ble Single Bench was pleased to, inter alia, direct that no equity shall be claimed by the private respondent no.6 in respect of his selection. This Court is also conscious of the legal position settled by the Hon’ble Apex court that at such distance of time a settled position should not be readily unsettled. In this connection this Court is required to notice the judicial pronouncement in Buddhi Nath Chaudhary & Ors. vs. Abahi Kumar & Ors. reported in 2001 (3) SCC 328 . Paragraph 6 of the said judgment reads as follows:- “The effect of our conclusion is that appointments made long back pursuant to a selection need not be disturbed. Such a view can be derived from several decisions of this Court including the decisions in Ram Sarup vs. State of Haryana; District Collector & Chairman, Vizianagaram Social Welfare Residential School Society vs. M. Tripura Sundari Devi and H.C. Puttaswamy vs. Hon’ble Chief Justice of Karnataka High Court, Bangalore. Therefore, we must let the matters lie where they are.” 11. Such a view can be derived from several decisions of this Court including the decisions in Ram Sarup vs. State of Haryana; District Collector & Chairman, Vizianagaram Social Welfare Residential School Society vs. M. Tripura Sundari Devi and H.C. Puttaswamy vs. Hon’ble Chief Justice of Karnataka High Court, Bangalore. Therefore, we must let the matters lie where they are.” 11. Harmoniously reading the report of the District Controller dated 24th October, 2008 (supra) and the order of the Hon’ble Single Bench dated 19th January, 2009 (supra) in the light of the dictum laid down In Re: Buddhi Nath Chaudhary (supra), this Court is of the considered view that when the competent Authority was itself satisfied that the private respondent no.6 should be given an appointment to the said MR dealership at best on provisional basis or alternatively, a fresh vacancy may be advertised, this Court finds its appropriate to direct the competent State Authority to re-advertise the vacancy for the area in question and come to a clear decision on merits. The exercise of re-advertising the vacancy and selecting a candidate afresh should be completed in accordance with law within a period of six months from the date of communication of this order. 12. It is made clear that the private respondent no.6 shall continue on a provisional basis as the MR dealer till the selection in terms of the re-advertisement is carried to its logical conclusion within the period directed above in this order. 13. It is also clarified that both the petitioner and private respondent no.6 shall be eligible to apply afresh to the dealership upon its re-advertisement and their cases will be considered along with other applicants in accordance with law on merits. 14. WP 556(W) of 2009 stands accordingly disposed of. 15. There will be, however, no order as to costs.