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2024 DIGILAW 919 (CAL)

Ambika Prasad Bhakat v. State of West Bengal

2024-04-29

JAY SENGUPTA

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JUDGMENT : Jay Sengupta, J. 1. These are applications praying for direction upon the respondent authorities, inter alia, to issue necessary appointment and allotment of foodgrains for distributors amongst beneficiaries under the mid-day-meal scheme in the district of Birbhum. 2. Learned senior counsel for the petitioner submitted as follows. In 1995, the Central Government introduced a benevolent scheme for the students in the age group between 6 to 14 years to provide mid-day-meals to reduce the rate of drop out students in schools. Like the other States, the Government of West Bengal also started to implement the said scheme. For its implementation, the State Government also formed a scheme, only allowing the distributor/carrying contractor of the Food & Supplies Department to transport the Mid-Day-Meal rice from the FCI Godown to the respective schools. In 2006 last such scheme was framed by the State Government in the year 2006. Clause 5.3 of the said scheme dealt with the provisions of lifting of food grains, which suggested that the food grains allocated to District would be lifted by the Distributors/carrying contractors of the Food & Supplies Department for transportation of the nearest FCI Godown to every school. The petitioner was an M.R. Distributor of F & S Department of Nalhati – II Development Block under Bolpur Sub-Division in the District of Birbhum. There were 34 M.R. distributors in Birbhum District. Out of them, 16 M.R. distributors were engaged as carrying contractors of Mid-Day-Meal rice. On 04.10.2005 in a meeting, it was proposed that the remaining 18 M.R. Distributors of Birbhum District should also be engaged as carrying contractors of Mid-Day-Meal rice. On 06.10.2005 the District Magistrate, Birbhum approved such proposal. On 09.01.2006 the District Controller (F & S) Birbhum) prepared the said list to the concerned B.D.O.s. On 06.02.2006 after obtaining approval from the District Magistrate and the Sabhadhipati, Birbhum Zilla Parishad, all the B.D.O.’s were directed to take necessary steps, allowing those listed M.R. Distributor to lift food grains under Mid-Day-Meal Scheme of their concerned blocks. On 30.03.2006 the Additional District Magistrate (Dev), Birbhum instructed the SDO, Bolpur to take necessary action for issuance of appointment letters. On 05.07.2006 since remaining M.R. Distributors of the District had not been appointed as carrying contractor despite such instructions, the Additional District Magistrate, Birbhum wrote letter to the SDO’s to submit report. On 30.03.2006 the Additional District Magistrate (Dev), Birbhum instructed the SDO, Bolpur to take necessary action for issuance of appointment letters. On 05.07.2006 since remaining M.R. Distributors of the District had not been appointed as carrying contractor despite such instructions, the Additional District Magistrate, Birbhum wrote letter to the SDO’s to submit report. On 15.11.2006, since the BDOs did not issue appointment letters to the remaining Distributors, out of total 18 Distributors, 17 Distributors including the petitioner jointly moved a writ petition being AST No.2549 of 2006 (Pralhad Agarwala – Vs – State of West Bengal & Ors.), impleading all the existing carrying contractors, including the private respondent herein and by an order dated 15.11.2006, this Court was pleased to pass an order directing the State respondents to issue respective appointment letters in favour of the petitioner and once such appointments were made, the writ petitioners would be entitled to receive the monthly allocation of the food grains. On 07.02.2007 the private respondents of the said writ petition including the private respondents herein, filed an mandamus appeal against the said order dated 15.11.2006 and the Division Bench by an order dated 07.02.2007 declined to interfere with the said order. In terms of the said order of the Single Judge dated 15.11.2006, affirmed by the Division Bench, out of total 17 writ petitioners, 14 were granted licence as carrying contractor of Mid-Day-Meal rice, excepting the writ petitioner herein and one Basirul Hassan and M/s. Madan Mohan Dutta & Sons. At present out of total 34 M.R. Distributors of Birbhum District, 31 had been functioning as carrying contractors under Mid-Day-Meal Scheme and in place of the writ petitioner and the two others, three outsiders including the private respondents herein, who were neither Distributor nor carrying contractor of F & S Department, had been continuing as carrying contractors of Mid-Day-Meal rice in three blocks of in Birbhum District. On 20.07.2018 petitioner made a detailed representation/demand justice to the District Authorities. On 01.08.2018 the Additional District Magistrate (Dev), Birbhum wrote a letter seeking views of the District Controller (F & S) Birbhum and from the BDO, Nalhati – II, Dev. Block. Since the issue had already been settled by the District Authorities and also by the Hon’ble Court, seeking further views was contrary to such decisions. Accordingly, the writ petitioner herein and the two left out distributors moved three separate writ petitions. Block. Since the issue had already been settled by the District Authorities and also by the Hon’ble Court, seeking further views was contrary to such decisions. Accordingly, the writ petitioner herein and the two left out distributors moved three separate writ petitions. On 04.09.2018 instant writ petition was disposed of by this Court in terms of the order dated 20.08.2018 passed in WP 14129 (W) of 2018 and WP 8836 (W) of 2018, filed by the other two left out Distributors namely, Md. Bsirul Hassan and M/s. Madan Mohan Dutta and Ors., directing the concerned respondents to issue appointment letter to the petitioners. On 27.02.2019 challenging the order dated 04.09.2018, the private respondent herein filed mandamus appeal and by an order dated 27.02.2019, the Division Bench set aside the order of the Single Judge and remitted back the matter to the Single Judge for deciding the issue on exchange of affidavits. The issue regarding eligibility criteria to be appointed as carrying contractor of Mid-Day-Meal rice was already settled by the Division Bench. The Hon’ble Division Bench taking note of clause 5.3 of 2006 Mid-Day-Meal Scheme, framed by the Government of West Bengal, School Education Department, held that only distributor and carrying contractors of the Food & Supply Department could engage as carrying contractor under Mid-Day-Meal Scheme. It was admitted position that the private respondent herein was neither a Distributor nor a carrying contractor of Food & Supply Department, accordingly, being not eligible, could not be engaged/appointed as carrying contractor under Mid-Day-Meal rice. No contract/engagement had ever been executed in favour of the private respondent. Not even any appointment letter had been issued in his favour at any point of time. It was trite law that all Government contract/agreement/appointment should be governed by the existing law, but in the instant case private respondent had been functioning beyond the scope of State law i.e., the Mid-Day-Meal Scheme. Reliance was placed on an unreported decision, delivered by a coordinate Bench in WPA 4786 of 2021 (Akbar Ali Khan –Vs-State of West Bengal & Ors.)., affirmed by the Division Bench vide judgement dated 31.04.2021 passed in MAT 297 of 2021 (Akbar Ali Khan –Vs-State of West Bengal & Ors.) and in other identical matters. SLP had been preferred against the above Division Bench judgement, but the Hon’ble Supreme Court did not interfere. SLP had been preferred against the above Division Bench judgement, but the Hon’ble Supreme Court did not interfere. So far the judgement of the Division Bench as relied on by the private respondent in M/s. Jan Md. Mondal case was concerned, in that case both the writ petitioner and the private respondent were fair price shop dealers of their respective blocks, and holding licenses, issued by the F & S Department and had been functioning by way of carrying and distributing food grains of F & S Department 3. Learned counsel for the State submitted as follows. The petitioners prayed for a Mandamus for allotment of foodgrains under GR and Mid-day Meal Scheme and other Government reliefs, being the duly appointed M.R. Distributors. In fact, the petitioners had never been appointed as Mid-day Meal Distributor and as such, the petitioners could not make prayer for allotment of foodgrains under the Mid-day Meal Scheme and on this score alone, the writ petitions were liable to be dismissed. The petitioners along with other 14 writ petitioners jointly moved a writ petition, being W.P. No. 26279 (W) of 2006, challenging inaction on the part of the authorities in not issuing necessary appointment letters in favour of the petitioners, which was disposed of by a common order dated 15.11.2006 by this Court, inter alia, directing to issue appointment letters in favour of the writ petitioners in terms of the note sheet dated 09.01.2006 of the DCFS, Birbhum, within 4 weeks from the date of communication of the said order. The said order was never communicated to the authorities and the petitioners did not take any step for implementation/ execution thereof for long 12 years. The private respondents herein with other Mid-day Meal Distributors preferred an appeal, being FMA No. 2239 of 2007, against the said order dated 15.11.2006, which was disposed of by the Hon'ble Appeal Court by not admitting the same, but clarifying the order of the Single Judge that the same would not prejudice in any way the rights of the appellants. In terms of the order of the Hon'ble Appeal Court, the private respondents, who were appointed as distributor and functioning since inception of the Mid-day Meal Scheme, were allowed to continue to function so that their rights were not prejudiced in any manner. In terms of the order of the Hon'ble Appeal Court, the private respondents, who were appointed as distributor and functioning since inception of the Mid-day Meal Scheme, were allowed to continue to function so that their rights were not prejudiced in any manner. Sometime in the year 2015, upon resignation of one existing Mid-day Meal Distributor, a vacancy notice was declared on 07.09.2015 for appointment of distributor in his place wherein a private respondent participated and was granted appointment. The petitioners neither challenged the said vacancy notice nor participated therein nor challenged the appointment of the private respondent. Even appointment of private respondent in W.P. No. 16413 (W) of 2018, which was made on 10.10.2014 on compassionate ground in place of his incapacitated father, was not challenged by the petitioners. In fact, the petitioners accepted the appointment of the private respondents in all the three writ petitions. For the first time in the year 2018, upon query in this regard by the ADM (Dev) Mid-day Meal Scheme, Suri, Birbhum, the BDO, Nalhati-I Development Block, Nalhati, Birbhum, informed him by a memo no. 715 dated 05.04.2018 that the case of the petitioners could not be considered as the present Government nominated agents had been functioning smoothly since beginning of the Scheme in the year 1995 by the Central Government. After delay of 12 years from the date of order of this Court, the petitioners could not claim allotment of foodgrains without having any appointment under Mid-day Meal Scheme, particularly when third party right had been crystallized by appointment of Mid-day Meal Distributor according to due process of law. The 1995 Scheme of the Central Government did not demonstrate that the distributors/carrying contractors of the Food and Supplies Department would be appointed as Mid-day Meal Distributor. The Guidelines of the year 2006 issued by the State Government also did not demonstrate that the appointment already made before the said guideline would automatically stand terminated or only distributors/carrying contractors would be entitled to be appointed as Midday Meal Distributor. In other words, the said clause did not restrict the appointment to distributors/carrying contractors only. In the premises, the petitioners were not entitled to any relief, as prayed for in the writ petition and the writ petitions were hopelessly barred by delay and liable to be dismissed with costs. 4. Learned senior counsel for the private respondent submitted as follows. In other words, the said clause did not restrict the appointment to distributors/carrying contractors only. In the premises, the petitioners were not entitled to any relief, as prayed for in the writ petition and the writ petitions were hopelessly barred by delay and liable to be dismissed with costs. 4. Learned senior counsel for the private respondent submitted as follows. The Centre introduced Mid-day Meal Scheme in the year 1995 whereby the Central Government authorised the State Government to issue notification for implementation thereof and the State issued a notification on 24.08.1995 whereby a committee was constituted under the Chairmanship of Savadhipati of Zilla Parishad to implement the programme. The private respondent was appointed as Mid-day Meal Distributor and an agreement was executed on 16.08.1996 by and between the respondent no. 8 and the State. The private respondent was to carry foodstuff from FCI godown and to deliver the same to the respective schools. The private respondent in WPA No. 14129 of 2018 was appointed as Mid-day Meal Distributor on 29.10.2015 upon being a successful candidate against the vacancy notification dated 07.09.2015 issued by the State authority for appointment of Mid-day Meal Distributor. The father, namely, Asekul Alam, of the private respondent in WPA No. 16413 of 2018, was appointed as Mid-day Meal Distributor by a memo dated 26.09.1996, which was subsequently transferred in favour of the private respondent due to advanced age and indifferent health of his father by the State on 07.07.2014 and accordingly, an agreement was executed by and between the State and the private respondent on 10.10.2014. The State Government issued another Guideline in the year 2006 wherein it was, inter alia, stated that the foodgrains allocated to the District would be lifted by the distributors/carrying contractors of the Food and Supplies Department. In the said guideline it was never stated that the same would be restricted only to the distributors/carrying contractors. The petitioners in all the three cases obtained an order on 15.11.2006 from this Court whereby the State was directed to issue appointment letters in favour of the petitioners and in appeal therefrom by the private respondents herein, the Hon'ble Appeal Court passed an order dated 07.02.2007, inter alia, holding that the order passed by the Single Judge would not prejudice the rights of the appellants (the private respondents herein). In terms of the order of the Hon'ble Appeal Court, the private respondents had been functioning and their rights were not prejudiced by the authorities in any manner. However, the petitioners did not take any step for their appointment in terms of the order dated 15.11.2006 passed by this Court. After 12 years from the said order, the petitioners made representation before the District Authorities on 20.07.2018 for their appointment in terms of the note sheet dated 09.01.2006 of the District Controller, Food and Supplies, Birbhum, which was forwarded by the ADM, Birbhum, to the BDO by memo dated 01.08.2018 to offer his views and take necessary action as per Rules and guidelines though the BDO already issued a memo on 05.04.2018 addressed to the ADM, Birbhum that the case of the petitioners could not be considered and the said order had not been challenged by the petitioners, rather suppressed. The petitioners relied upon a Judgment passed by this Court in M.A.T. No. 297 of 2021. The said Judgment was not applicable herein as the Hon'ble Appeal Court had not held that the distributors/carrying contractors would only be entitled to be appointed as Mid-day Meal Distributor. On the other hand, it had been held that the distributors/carrying contractors should be eligible to participate in the tender and the authority would undertake an exercise whether they were fit for appointment. Guidelines of 2006 could not have any retrospective effect and the appointments made, before the said Guideline came into force, could not be held inoperative in view of the said guidelines. The settled position of the appointees could not be unsettled in view of the said guidelines. Reliance was placed on (2009) 11 SCC 453 , (2007) 15 SCC 406 , (2002) 3 SCC 463 . In any case, the said guidelines had no statutory force. The said guidelines did not confer any right in favour of the petitioners merely because he was MR Distributor. The said point had already been settled by this Court by a Judgment dated 23.06.2023 delivered in WPA No. 7178 of 2022 (M/s Jan Md. Mondal & Anr. Vs. State of West Bengal & Ors.) and the said Judgment was affirmed by the Hon'ble Division Bench by a Judgment dated 05.09.2023 passed in MAT No. 1229 of 2023. The said point had already been settled by this Court by a Judgment dated 23.06.2023 delivered in WPA No. 7178 of 2022 (M/s Jan Md. Mondal & Anr. Vs. State of West Bengal & Ors.) and the said Judgment was affirmed by the Hon'ble Division Bench by a Judgment dated 05.09.2023 passed in MAT No. 1229 of 2023. The petitioners, being the appointed MR Distributor, had prayed for allotment of foodgrains under GR and Mid-day Meal Scheme and other Government reliefs by executing necessary bond whereas the appointment as MR Distributor had no relevance with the Mid-day Meal Scheme because there was no statutory dictum that they would have to be given contract of carrying agent of Mid-day Meal rice. The said point was settled by this Court in case of M/s Jan Md. Mondal & Anr. Vs. State of West Bengal & Ors. The petitioners had not prayed for grant of appointment and allotment of foodgrains under Mid-day Meal Scheme on the basis of the order passed on 15.11.2006 or 07.02.2007 by this Hon'ble Court without persuading the authorities for implementation thereof. In any case, implementation thereof could not be sought for by the petitioners after delay of 12 years and particularly, when a third party right had been crystallized. The writ petitions were barred by elements of undue delay, latches and acquiescence. Reliance was placed on (1975) 4 SCC 285 , (2022) 2 SCC 25 . 5. I heard submissions of the learned counsels for the parties, perused the affidavits and the written notes of submissions. 6. It appears that the private respondent in WPA 8836 of 2018 was appointed as mid-day-meal distributor. An agreement was executed on 16.08.1996 between the respondent No. 8 and the State in this regard. According to such agreement, the private respondent was to carry food stuff from the FCI godown and deliver the same to the respective schools. The private respondent in WPA 14129 of 2018 was appointed as a mid-day-meal distributor on 29.10.2015 upon being a successful candidate against vacancy notification dated 07.09.2015 issued by the State authority for appointment of mid-day-meal distributor. The father of the private respondent in WPA 16413 of 2018 was appointed as mid-day-meal distributor by a memo dated 26.09.1996, which was transferred in favour of the private respondent due to advanced age and indifferent health of the father on 07.07.2014. The father of the private respondent in WPA 16413 of 2018 was appointed as mid-day-meal distributor by a memo dated 26.09.1996, which was transferred in favour of the private respondent due to advanced age and indifferent health of the father on 07.07.2014. Accordingly, an agreement was executed between the State and the said private respondent on 10.10.2014. 7. It is true that the State Government issued another guideline in the year 2006 where it was, inter alia, provided that the food grains allocated to the district would be lifted by the distributors/carrying contractors of the Food & Supplies Department. But, the guidelines could not have retrospective operation and did not cancel earlier engagements. In fact, by an order dated 07.02.2007 passed by the Division Bench, it was held that the order passed by the Single Bench on 15.11.2006 would not prejudice the rights of the appellants (the private respondents herein). In terms of such order, the private respondents had been functioning. 8. Such Guidelines issued by the State do not partake the nature and character of primary or even subordinate legislation so as to undo previous appointments or agreements entered into by the State, like in the case of the private respondents in the writ petitions. For putting an end to their engagement either a specific statutory provision or an instrument of termination is required to be executed. 9. However, the petitioner as one of the M.R. distributors of Birbhum District would have indeed been entitled to act as distributors of mid-day-meal rice. A number of such distributors had been engaged for such purpose. But, after the order in question was passed by this Court in 2006, the petitioners hardly showed any interest in the matter. The petitioners did not even challenge the appointments made in the interregnum or apply when a vacancy was declared. It was only after about 12 years from the said order that the petitioners made representation before the District authorities on 20.07.2018 for their appointment in terms of the note sheet dated 09.01.2006 of the District Controller, Food & Supplies, Birbhum. By this time, third party interests have been crystallised. This delay is fatal to the present claims of the petitioners. 12 years is too much of a time gap to ask for issuance of appointment and allotment of foodgrains for distribution. 10. By this time, third party interests have been crystallised. This delay is fatal to the present claims of the petitioners. 12 years is too much of a time gap to ask for issuance of appointment and allotment of foodgrains for distribution. 10. Moreover, the said Guidelines, bereft of statutory force, hardly confer any right in favour of the petitioners to seek declaration of fresh vacancy for engagement of carrying contractors under the Scheme. 11. Therefore, this Court is not inclined to interfere with the existing scheme of things, far less to direct declaration of fresh vacancy. 12. In view of the above discussions, the writ petitions are dismissed, albeit, without any order as to costs. The connected application, if any, stands disposed of. 13. However, if a declaration is made by the respondent authorities of fresh vacancy for engagement of carrying contractor under the mid-day-meal scheme for the said Blocks in Birbhum in terms of the Clause 5.3 of the mid-day-meal scheme, the petitioners shall be at liberty to participate in the same if they remain eligible. 14. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.