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Judgment
Amrita Sinha, J.
MAT 201 of 2016 has been filed at the instance of the private respondent in the writ petition hereinafter Kultali challenging the judgment dated 3rd
February, 2016 passed by the learned single Judge in WP No. 21333 (W) of 2015 with WP No. 17744 (W) of 2015 (Barun Ghosh Vs. The State of
West Bengal & Ors.). FMA 2272 of 2016 has been filed by the State of West Bengal challenging the same judgment dated 3rd February, 2016. Since
both the appeals arise out of a common judgment they are taken up for consideration analogously and disposed of by this judgment.
The issue relates to appointment of Modified Rationing Distributor in short M.R.Distributor. The Director of District Distribution, Procurement and
Supply, Food and Supplies Department (in short “DDP&Sâ€) declared a vacancy for appointment of M.R. Distributor in the year 2003 at
Jamtalahat, Kultali P.S. 24 Parganas (South). A writ petition was filed by an unsuccessful candidate challenging the appointment of M.R. Distributor.
The said order of the writ Court was appealed against and vide order dated 9th July, 2004 the Hon’ble Division Bench directed the Director to
make necessary declaration of vacancy and direct advertisement for filling up the same.
In compliance of the aforesaid order the Director issued notice inviting applications for filling up the vacancy of M.R. Distributor at Jamtalahat P.S.
Kultali. The said notice was issued on 31st December, 2009 under West Bengal Public Distribution System (Maintenance and Control) Order 2003.
Challenging the said notification a writ petition was filed wherein this Hon’ble Court directed the vacancies for appointment of distributor to be
notified and published in the official gazette. The State respondents were restrained from filling up the vacancy of M.R. Distributorship without issuing
public notification in the official gazette in addition to publication of notice in the notice board of the Office of the concerned District Controller Food
and Supplies (in short “DCFSâ€) or the Sub-Divisional Controller Food and Supplies (in short “SCFSâ€).
A gazette notification was published in respect of the vacancy on 21st June, 2011. The appellant i.e Kultali as well as the writ petitioner/respondent
no. 1 i.e Barun Ghosh applied against the said vacancy. All total nine applications were received in connection with the said vacancy. The SCFS
enquired all the nine applications and found the appellant Kultali as a suitable candidate and filed a report to DCFS. The writ petitioner/respondent no.1
Barun Ghosh being aggrieved by the report of the SCFS made representation before the DCFS on 8th October, 2011. The Director reverted the
matter to the DCFS for re-enquiry.
On 8th February, 2012 DCFS re-enquired and submitted the enquiry report before the Joint Director, DDP & S. DCFS recommended the name of the
writ petitioner/respondent no. 1 Barun Ghosh as a suitable candidate. The appellant Kultali challenged the order of the Director by filing a writ petition
being WP no. 132 of 2012. The said writ petition was disposed of on 14th August, 2013. This Hon’ble Court quashed the report dated 8th
February, 2012 as well as the enquiry conducted pursuant to the notice dated 29th November, 2011. The DCFS was directed to consider the report of
the SCFS and send his recommendations. The Director was directed to decide the matter afresh. It was further directed that if the Director was
dissatisfied with either the report of the SCFS or the recommendation of DCFS then it shall be open to him to make a fresh enquiry and at that stage
he may hear the two contesting parties. Thereafter the matter was directed to be sent to the appropriate authority of the State Government.
The Director accepted the recommendation of DCFS and recommended the name of the writ petitioner/respondent no.1 Barun Ghosh for appointment
as Distributor at Jamtalahat and referred the matter to the Principal Secretary for final approval. On perusal of the report dated 11th November, 2013
the Special Secretary, Food and Supplies Department opined on 25th November, 2013 that on the date of the judgment dated 14th August, 2013 the
new Control Order 2013 came into force whereby power of fresh enquiry had been vested in the State but since this Hon’ble Court had directed
that if the Director was dissatisfied with the report of SCFS or the recommendation of DCFS it will be upon to him to make a fresh enquiry.
Accordingly leave should be obtained from the Hon’ble Court before passing the order of re-enquiry.
The file was put up before the Commissioner, Food and Supplies who by his file note dated 26th November, 2013 indicated that assessment of the
case is needed for proceeding further in the matter. Pursuant to the note of the Commissioner the Special Secretary made full assessment of the case
records and on 30th December, 2013 opined that a fresh enquiry is required to be made by a team of officers after obtaining leave from the
Hon’ble Court.
The file was again put up before the Commissioner, Food and Supplies who on 13th January, 2014 opined that it had taken eight long years to settle
this vacancy. He was of the view the situation regarding eligibility of appointment against such vacancy had materially changed by the PDS Control
Order 2013. He suggested that the entire process of vacancy to be declared cancelled and a fresh gazette notification be made under PDS Control
Order 2013.
The Special Secretary, Food and Supplies vide letter dated 31st January, 2014 informed the SCFS, Baruipur, South 24 Parganas that the Government
had decided to cancel the vacancy at Jamtalahat, Kultali P.S. and a fresh proposal in terms of the West Bengal Public Distribution System (M & C)
Order 2013 to be initiated from his end. Being aggrieved by the cancellation of vacancy of Jamtalahat the appellant Kultali filed a writ petition being
WP No. 10608 (W) of 2014. The respondent no. 1 Barun Ghosh was a party to the said writ. The Hon’ble Court vide order dated 9th June, 2014
directed the parties to file affidavits but the Court had been pleased not to pass any interim order in the matter. The respondent no. 1 Barun Ghosh
herein challenged the aforesaid order dated 9th June, 2014 by preferring appeal being MAT No. 1150 of 2014. Vide order dated 16th July, 2014 the
said appeal was dismissed by giving liberty to the appellant therein (Barun Ghosh) to challenge the subsequent step and/or decisions of the respondent
authorities for filling up the vacancy of distributor at Jamtalahat by filing appropriate application in connection with the pending writ petition.
DCFS vide memo dated 13th July, 2015 published an advertisement and a vacancy notice inviting applications for filling up the vacancy of
distributorship at “near the office of the BDO†under Kultali block. The respondent no. 1 Barun Ghosh challenged the aforesaid advertisement by
filing WP No. 17744 (W) of 2015. He also challenged the communication of the Special Secretary, Food and Supplies dated 31st January, 2014 by
filing WP No. 21333 (W) of 2015.
Vide order dated 1st September, 2015 the learned Trial Judge entertained the writ petition and passed interim order to the effect that though the State
respondents would be at liberty to continue with the selection process as commenced on the basis of the memo dated 13th July, 2015 but the vacancy
in question should not be filled up without the leave of the Court. The point of maintainability and delay were kept open to be decided by the Court at
the time of final hearing.
The learned Trial Judge vide judgment dated 3rd February, 2016 disposed of both the writ petitions being WP No. 17744 (W) of 2015 and WP No.
21333 (W) of 2015 by setting aside the memo dated 31st January, 2014 holding it to be unsustainable in law. The learned Trial Judge directed the
appropriate authority of the State Government to take a fresh decision as regards approval of the order of the Director dated 11th November, 2013
and to communicate the decision within a stipulated period. The learned Trial Judge further directed that the vacancy notice dated 13th July, 2015 shall
remain stayed and the respondents shall not take any further steps to fill up the vacancy of distributorship “near the office of BDO under Kultali
block.â€
The aforesaid judgment dated 3rd February, 2106 is impugned before this Court at the instance of the respondent no. 5 in the writ petition (Kultali) as
well as the State. The primary contention of the appellant Kultali is that the respondent no. 1 Barun Ghosh cannot claim his appointment as distributor
against the vacancy at Jamtalahat as there was no mandate by this Hon’ble Court directing the authorities to fill up the vacancy. The learned Trial
Judge had only directed the DCFS to consider the report of SCFS and send his recommendations. The Director was directed to decide the matter
afresh and if required by making a fresh enquiry upon hearing both the contesting parties and thereafter send the matter to the appropriate authority of
the State Government. No right accrued in favour of either of the parties by virtue of the aforesaid order. It has been further submitted that the
Director DDPS had no jurisdiction to recommend the candidature of the respondent no. 1 Barun Ghosh under the 2013 Control Order. It was
submitted that there was conflict in the report of SCFS and recommendation of DCFS. It was submitted that the State Government was the final
authority to take a decision in the matter and as long as the said authority did not pass any final order for appointment of the respondent no. 1 Barun
Ghosh he cannot claim appointment as a matter of right. It was also submitted that as the State Government did not accept the report of the Director,
DDPS accordingly the learned Trial Judge ought not to have interfered with the said decision and ought to have allowed the appointments to be made
pursuant to the notification of vacancy and advertisement dated 13th July, 2015.
It was contended that merely because the name of the respondent no. 1 Barun Ghosh appeared in the select list the same does not give him an
indefeasible right to be appointed and the Government may decide not to fill up the vacancy for valid reasons. It was not open for the Court to issue
any Mandamus to fill up the said vacancy. It was strenuously argued that the advertisement and vacancy notice had been declared for giving
appointment in the vacancy at “near BDO office in Kultali block†and the same had no relevance with the earlier vacancy at Jamtalahat. It was
submitted that the vacancy was declared strictly in terms of the procedure laid down in the Control Order 2013.
It was submitted that the National Food Security Act, 2013 was promulgated by the Central Government whereby the policy of Public Distribution
System was considerably changed and new Control Order 2013 was promulgated. No reason was required to be assigned for cancellation of the
vacancy at Jamtalahat. The procedure for appointment of distributor prescribed in the Control Order 2013 is inconsistent with the procedure
prescribed under Control Order 2013 and as the steps taken under the 2013 Control Order was not saved as per the savings clause of the 2013
Control Order the steps taken pursuant to the Control Order 2003 came to an end and the present procedure for appointment of distributor in
accordance with 2013 Control Order is liable to be upheld. The learned Advocate for the appellant relies upon the following decisions in support of his
case:-
P. Suseela & Ors. vs. University Grants Commission reported in (2015) 8 SCC 129 wherein it had been held that when UGC itself has not
accepted the recommendations of the said Committee, we do not understand how the High Court sought to give effect to such recommendations. We,
therefore, set aside the Allahabad High Court judgment dated 6th April, 2012 in its entirety.
Sethi Auto Service vs. Delhi Development Authority reported in (2009) 1 SCC 180 wherein it had been held that noting in a departmental file do not
have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion
by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority.
Needless to add that internal noting are not meant for outside exposure. Noting in the file culminate into an executable order, affecting the rights of the
parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person
concerned.
Manoj Manu & Ors. vs. Union of India reported in (2013) 12 SCC 171 held merely because the name of a candidate finds place in the select list, it
would not give him/her indefeasible right to get appointment as well. It is always open to the Government not to fill up all vacancies. However, there
has to be a valid reason for adopting such a course of action.
A person whose name is included in the select list does not acquire any right to be appointed. The Government may decide not to fill up all the
vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or
unreasonable but must be based on sound, rational and conscious application of mind. Once it is found that the decision of the Government is based on
some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies.
Raj Rishi Mehra & Ors. vs. State of Punjab reported in (2013) 12 SCC 243 held that the question whether the candidates whose names are
included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in the
negative.
State of Uttaranchal vs. Dinesh Kumar Sharma reported in (2007) 1 SCC 683 held that unless a selection is made in accordance with the rules and
in the absence of rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government, there can
be no automatic promotion or appointment to any post on the recommendation of the Public Service Commission, unless the Government sanctions
such promotion and appointment.
East Coast Railway vs. Mahadev Appa Rao reported in (2010) 7 SCC 687 held that there is no quarrel with the well-settled proposition of law that
an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any
record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority
passing the order stating such reason in an affidavit filed before the court where the validity of any such order is under challenge.
A Constitution Bench of this Court in Shankarsan Dash v. Union of India reported in (1991) 3 SCC 47 had an occasion to examine whether a
candidate seeking appointment to a civil post can be regarded to have acquired an indefeasible right to appointment against such post merely because
his name appeared in the merit list of candidates for such post. Answering the question in the negative this Court observed: (SCC pp. 50-51, para 7)
“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate numbers of candidates are found fit, the
successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to
an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant
recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the
licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons.
Jairaj Bhai Jayanti Bhai Patel vs. Anil Bhai Nathu Bhai Patel reported in (2006) 8 SCC 200 held that it is manifest that the power of judicial review
may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in
the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case
has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the
indelible effects it generates in the operation of law or affects the individual or society.
Hanuman Prasad & Ors. vs. Union of India reported in (1996) 10 SCC 742 relied on the case of Maharashtra State Board of Secondary and
Higher Secondary Education v. K.S. Gandhi reported in (1993) 2 SCC 573 wherein the Court held that if the order cancelling the examination came to
be passed, the record should indicate the reason, though order may not contain the reasons as indicated in para 21 of the judgment. In that case, it was
held that the order did not contain the reasons but the record indicated the same. The administrative order cancelling the examination in which mass
copying was alleged, was sustained.
Ramchandra Murarilal vs. State of Maharashtra reported in (2007) 2 SCC 588 held that some reasons may be required to be assigned for rejecting
the bid, but in the instant case, in our opinion, no reason was required to be assigned as there has been a change in the policy decision.
Anil Kumar Shaw vs. State of West Bengal reported in (2007) 3 CHN 1 held that it is now settled law that in order to invoke the writ jurisdiction
under Article 226 of the Constitution of India, a writ petitioner must prove the existence of a legal or fundamental right in his favour and that such a
legal or fundamental right has been infringed by the action or inaction on the part of a “State†within the meaning of Article 12 of the Constitution
of India.
It has been argued on behalf of the writ petitioner / respondent no. 1 Barun Ghosh that the judgment dated 14th August, 2013 passed by this Court in
WP No. 132 of 2012 had attained finality. In the said order the learned Court had held that DCFS had committed error in undertaking a full-fledged
enquiry and hearing at that stage. The learned Court quashed the report dated 8th February, 2012 and the enquiry conducted pursuant to the notice
dated 29th November, 2011. The learned Court directed the DCFS to consider the report of the SCFS and send his recommendations. The Director
was directed to take a fresh decision and if required a fresh enquiry may be made. The DCFS in compliance with the direction passed on 14th August,
2018 furnished a report recommending the name of the respondent no. 1 Barun Ghosh and the Directorate accepted the said recommendation. The
Directorate forwarded the case record to the Secretary, Food and Supplies Department on 11th November, 2013. The Special Secretary illegally and
arbitrarily recommended further enquiry in violation of the order passed by this Court and contrary to the provisions of the Control Order 2013. It has
been submitted that the Principal Secretary had taken a decision contrary to the order passed by this Hon’ble Court and suggested that the entire
process of vacancy be declared cancelled and fresh gazette notification be made under the Control Order 2013. The Principal Secretary in fact sat on
appeal over the order dated 14th August, 2013 which had reached finality and could not have been interfered with by an executive authority. It was
submitted that though the Secretary had opined for declaration of fresh vacancy he never intended to change the place of vacancy from Jamtalahat to
any place “near the BDO office.†He submitted that the issue of cancellation of vacancy at Jamtalahat is pending in a writ petition at the instance
of the appellant Kultali being WP no. 10608 (W) of 2014. It was submitted that after the order of cancellation of vacancy, fresh vacancy was
declared at a place ignoring the earlier place of vacancy at Jamtalahat and the DCFS grossly abused his power and permitted the appellant Kultali to
come back to the competition as on the earlier occasion his candidature was rejected on the ground that he did not have his godown within the
Jamtalahat area. As the godown of the appellant Kultali is near to the BDO office Kultali accordingly fresh vacancy had been declared at “near
the BDO office Kultali block.â€
It is the specific case of the writ petitioner/respondent no. 1 Barun Ghosh that at the time of passing the judgment in WP No. 132 of 2012 on 14th
August, 2013 the learned Advocate appearing for the State never apprised the learned Court that Control Order 2013 had been promulgated in the
meantime and steps to be taken under the new Control Order. He submitted that the learned Court specifically directed the authorities to take steps
under the Control Order of 2003 in the presence of the learned counsel appearing for the State. The said order not being appealed against had attained
finality and the plea of change of procedure due to promulgation of the Control Order 2013 was not open to the respondents. It was submitted that no
reason whatsoever had been put forward by the respondent authority necessitating the change of location from Jamtalahat to “near the BDO
office at Kultali block.†He submitted that public interest will not be served in shifting the location of vacancy by just 200 meters. It is a categorical
case that the location had been changed at the instance of the appellant Kultali for its sole benefit.
It was submitted that when the process of selection of distributor started in the year 2003 Control Order 2003 was in force and assuming that the
Control Order of 2013 came into effect in the year 2013 the earlier process had been rightly saved by virtue of the savings clause incorporated in the
new Control Order of 2013. Abandoning the process of selection on the pretext of promulgation of new Control Order tantamount to interference in
the process of administration of justice and the same is liable to be set aside and has rightly been set aside by the learned Trial Judge. He relied upon
the following judgments in support of his case:-
Daryao & Ors. Vs. The State of UP & Ors. AIR 1961 SC 1457 wherein it had been held that the binding character of courts of competent
jurisdiction is in essence a part of the Rule of law of which the administration of justice so much emphasized by the Constitution is founded and a
judgment of the High Court under Article 226 passed after hearing on merits must bind the parties till the same is set aside in appeal.
Food Corporation of India vs. S.N. Nagarkar (2002) 2 SCC 475 wherein the Hon’ble Supreme Court held that an order had attained finality as
no appeal had been preferred against it. In execution proceedings the appellant cannot go beyond the order passed by the Court in the writ petition and
the question whether such relief ought to have been granted cannot be agitated in the execution proceedings.
Union of India vs. Major S.P. Sharma & Ors. (2014) 6 SCC 351 wherein it was held that the principle of finality of litigation is based on a sound
and firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as
there will be no end to litigation. The doctrine of res judicata has been evolved to prevent such an anarchy.
In para 82 of the said judgment it has been held that in a country governed by the Rule of law finality of judgment is absolutely imperative and great
sanctity is attached to the finality of judgment and it is not permissible for the parties to reopen the concluded judgment of the Courts as it would not
only tantamount to merely an abuse of the process of the Court but would have far reaching adverse effect on the administration of Justice. It would
also nullify the doctrine of stare decisis a well established valuable principle of precedent which cannot be departed from unless there are compelling
circumstances to do so. The judgments of the Court and particularly the Apex Court of a country cannot and should not be unsettled lightly.
Mehsana District Central Cooperative Bank Ltd. vs. The State of Gujrat â€" AIR 2004 SC 1576 wherein the Court held the Acts and Rules are
made to be followed and not to be violated. When the statute prescribed the norms to be followed it has to be done in that fashion. Converse would be
contrary to law. If there is any allegation of violation of statutory rules which have been brought to the notice of the authorities and if the concerned
authorities do not perform their statutory obligation any aggrieved citizen can bring to the notice of the High Court about the inaction of the statutory
authorities and in such event it would always be open to the High Court to pass an appropriate order as deemed fit and proper in the facts and
circumstances of the case.
S.G. Jaisanghani vs. Union of India & Ors. â€" (1967) 2 SCR 703 held that “in this context it is important to emphasize that the absence of
arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by the rule of law,
discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means
that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen
should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a
decision taken in accordance with the rule of law.â€
Mahesh Chandra vs. Regional Manager, U.P. Financial Corporation & Ors. â€" AIR 1993 SC 935 held that “it is now well-settled as a result of
the decisions of this Court in E. P. Rayappa v. State of Tamil Nadu (AIR 1975 SC 555) and Maneka Gandhi v. Union of India that Article 14 strikes
at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on
some rational and relevant principle which is non-discriminatory. It must not be guided by any extraneous or irrelevant considerations, because that
would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality
or non-arbitrariness is projected by Article 14 and it must characterize every State action, whether it be under authority of law or in exercise of
executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third
party, but its action must conform to some standard or norm which is rational and non-discriminatory.â€
Gammon India Ltd. vs. Special Chief Secretary & Ors. (2006) 3 SCC 35 held that “in case the repeal is followed by fresh legislation on the
same subject the Court has to look to the provisions of the new Act for the purpose of determining whether they indicate a different intention. The
question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. The
application of this principle is not limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. As this
Court has said, it is both logical as well as in accordance with the principle, upon which the rule as to implied repeal rests, to attribute to that legislature
which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to
effect a repeal is attributed to a legislature then the same would attract the incident of saving found in Section 6.â€
It has also been held:
“On critical analysis and scrutiny of all relevant cases and opinions of learned authors, the conclusion becomes inescapable that whenever there is
a repeal of an enactment and simultaneous re-enactment, the re-enactment is to be considered as reaffirmation of the old law and provisions of the
repealed Act which are thus re-enacted continue in force uninterruptedly unless, the re-enacted enactment manifests an intention incompatible with or
contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the
re-enacted enactment and the mere absence of saving clause is, by itself, not material for consideration of all the relevant provisions of the new
enactment. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to preserve all
the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether.â€
Learned Advocate appearing on behalf of the State supports the case of the appellant Kultali. He submits that no right accrued in favour of the writ
petitioner/respondent no. 1 Barun Ghosh due to recommendation of his name as the said recommendation was not approved by the State Government.
The State Government being the appropriate authority for approving the distributorship did not accept the recommendation of the DCFS. He further
submits that the selection procedure in terms of the Control Order 2003 could not be proceeded with any further. He submits that the steps taken in
accordance with the Control Order 2003 not having being saved by virtue of the savings clause of the Control Order 2013, fresh steps had been
initiated by the department for granting distributorship in favour of eligible candidates. Since the writ petitioner/respondent no. 1 Barun Ghosh did not
apply in terms of the advertisement published in accordance with the Control Order 2013 accordingly no relief can be granted in his favour. He further
submits that prior to cancellation of the vacancy and declaration of new vacancy the department in their file had mentioned the reasons for the same.
He submits that sufficient reasons are mentioned in the file which resulted in cancellation of the earlier vacancy and that the said reasons were not
required to be mentioned in the advertisement. The learned Advocate relies upon a judgment delivered by the Constitution Bench of the Supreme
Court reported in AIR 2000 SC 811 Kolhapur Cane Sugar Works Ltd. & Anr vs. Union of India & Ors. and also relies upon the judgment of Howrah
Municipal Corporation & Ors. vs. Ganges Rope Co. Ltd. & Ors. reported in (2004) 1 SCC 663. Relying on the aforesaid judgments the learned
Advocate tried to impress the Court that no right crystallises in favour of the writ petitioner/respondent no. 1 Barun Ghosh for being appointed as
distributor and any steps taken under the repealed Act lost its force.
From the submissions made on behalf of the parties it appears that while dealing with the earlier writ petition Justice Aniruddha Bose (as his Lordship
then was) in his judgment dated 14th August, 2013 passed in WP No. 132 of 2012 specifically directed the District Controller to consider the report of
the Sub-Divisional Controller and to send his recommendations. His Lordship directed the Director to decide the matter afresh. His Lordship further
ordered that if the Director was dissatisfied with either the report of the Sub-Divisional Controller or the recommendation of the District Controller
then it shall be upon to him to make a fresh enquiry and at that stage he may hear the two contesting parties. Thereafter the matter shall be sent to the
appropriate authority of the State Government. On the date when the said order was passed the Control Order 2013 was already in operation. The
State did not raise any objection to passing of the said order. None of the parties appeared to be aggrieved with the said order as no appeal was
preferred against the same. The order of Justice Bose was acted upon and the Director after considering the applications and the enquiry report
received with regards to the vacancy of distributorship at Jamtalahat and recommended the name of the writ petitioner/respondent no. 1 Barun Ghosh.
The recommendation was forwarded to the Commissioner, Food and Supplies Department for consideration and approval of the candidature of the
writ petitioner/respondent no. 1 Barun Ghosh vide his memo dated 11th November, 2013. The Commissioner, Food and Supplies without appreciating
the order passed by Justice Bose and without proper application of mind noted a suggestion in the file that the entire process of the vacancy be
declared cancelled and fresh gazette notification be made under PDS Control Order 2013. The action of the Commissioner, Food and Supplies
appears to be contrary to and in violation of the order passed by Justice Bose on 14th August, 2013.
Moreover, though the State Government in its memo dated 31st January, 2014 indicated that the Government decided to cancel the vacancy but no
formal order cancelling the vacancy was placed before this Court. It is pertinent to mention that though the earlier vacancy was in respect of
Jamtalahat, Kultali P.S. but the fresh advertisement that had been issued on 13th July, 2015 declared vacancy at “near the office of BDO under
Kultali block.†No reason whatsoever had been placed before the Court necessitating the change of location of the vacancy. It will not be out of
place to mention that on an earlier occasion the candidature of the appellant Kultali was rejected on the ground that the proposed godown of the
appellant Kultali was not located within the advertised area. The sudden shift of location of the vacancy in the absence of any reason on record
smacks of bias and undue favouritism in favour of a particular candidate.
The State issued the subsequent advertisement and vacancy notice on the plea that the law had changed in the meantime. The repeal and savings
clause as mentioned in clause 42 of the Control Order 2013 is as follows:-
Repeal and savings.â€"(1) The West Bengal Public Distribution System (Maintenance and Control) Order, 2003 and the West Bengal Public
Distribution System (Special Provision for Tea Garden) Order, 2006 are hereby repealed.
(2) Notwithstanding such repeal,--
(a) It shall not affect any proceeding, investigation, penalty, for any offence by the licensee in respect of any of the provisions of the orders so
repealed as if the said orders have not been repealed.
(b) anything done or any action taken or purported to have been done or taken including any inspection done or any order made or any notice issued
under the orders so repealed shall, in so far as it is not inconsistent with the provision of this Order, be deemed to have been done or made or issued
under the corresponding provisions of this Order. The above clause was substituted by Notification No. 3207-FS/Sectt/Food/4P-11/2015, dated 30th
December, 2015.
The said clause was substituted vide notification dated 30th December 2015 with the sole objective of saving the steps taken validly in accordance
with the Control Order 2003. In the savings clause it had been specifically mentioned that notwithstanding the repeal of 2003 Control Order anything
done or any action taken or purported to have been done or taken including any inspection done or any order made any order notice issued in the
orders so repealed shall the deemed to have been done or made or issued under the corresponding provisions of this Order.
From the above clause it is crystal clear that the Government never intended to discontinue the steps taken pursuant to the Control Order 2003. On the
contrary the savings clause of the Control Order 2013 authorises the Government to continue with the pending proceedings and/or action initiated in
accordance with the Control Order 2003. Therefore the submissions made on behalf of both the appellants i.e, Kultali as well as the State that in view
of the repeal of the Control Order 2003 no steps can be taken pursuant to the order of Justice Bose does not have any force. The argument put
forward by the both the appellants that no right accrued in favour of the writ petitioner/respondent no. 1 Barun Ghosh also does not hold much water
in view of the fact that in compliance of the order passed by Justice Bose the Director, Food and Supplies had considered the case and passed
necessary orders in favour of the writ petitioner/respondent no. 1 Barun Ghosh. The State Government was also bound to act in accordance with the
direction passed by Justice Bose but by not doing so the State Government practically sat in appeal over the order passed by this Hon’ble Court
and directed cancellation of vacancy and for issuance of fresh gazette notification. The State misused the power that has been trusted upon him. The
learned Trial Judge had rightly observed that the Director passed order recommending the candidature of the writ petitioner/respondent no. 1 Barun
Ghosh vide his memo dated 11th November, 2013 and the Commissioner made the file note dated 3rd January, 2014 suggesting cancellation of earlier
vacancy and publication of fresh gazette notification indicating new vacancy. The proposal for vacancy was issued on 31st January, 2014 whereas the
advertisement and vacancy notice was published on 13th July 2015 that too with a change in the location of vacancy. No reason has been put forward
either for the delay or for shifting the location. The decision-making process does not appear to be fair and/or bona fide. It tilts heavily in favour of
favouritism and bias. The Government practically did not take proper initiative in the matter on and from the date the judgment was passed by Justice
Bose on 14th August, 2013 and came up with the purported vacancy notice on 13th July, 2015.
The judgment relied upon by the appellant in the case of P. Suseela (supra) the Hon’ble Supreme Court held that when the authority did not
accept the recommendations of the committee the High Court ought not to have sought for recommendation of the same. In the case of Sethi Auto
Service Station (supra) the Supreme Court held that noting of a departmental file do not have a sanction of law. It is a mere expression of his view
point on the subject. Only when a final decision is taken by the authority and the same is communicated to the parties then only the rights of the parties
accrue in the matter. In the case of Majoj Manu (supra) the Supreme Court held that if the decision of the government is based on some valid reason
the Court would not issue any mandamus to unsettle the same. The decision of the government must be based on sound, rational and conscience
application of mind. In Dinesh Kumar Sharma (supra) the Hon’ble Supreme Court held that the selection has to be made in accordance with the
rules. In Jayram Bhai Jayanti Bhai Patel (supra) it has been held that the power of judicial review may not be exercised unless the administrative
decision is illegal or suffers from procedural impropriety or it shocks the conscience of the Court. Only if the decision of the government is based on
irrelevant consideration or it is so absurd that no reasonable person could arrive at on the given material, it may be struck down. It is only when the
Court is satisfied that there is an abuse or misuse of power it is incumbent on the Court to intervene. Judicial review is limited to the deficiency in the
decision making-process and not the decision.
The doctrine of finality as relied upon by the writ petitioner/respondent no. 1 Barun Ghosh is a settled one. The constitution bench of the Hon’ble
Supreme Court in Daryao & Ors. (supra) stresses upon the binding character of judgments of Courts. It held that a judgment of the High Court
passed after hearing on merits bind the parties till the same is set aside in appeal and the same cannot be circumvented. In SN Nagarkar (supra) it
was held that an order attains finality if it is not appealed against. The question whether relief ought to have been granted cannot be agitated in an
execution proceeding.
In Major SP Sharma & Ors. (supra) the Hon’ble Supreme Court categorically held that the principle of finality in litigation is based on a sound and
firmed principle of public policy. The doctrine of res judicata has been evolved to prevent anarchy. It is not permissible for the parties to reopen the
concluded judgment of the Court as it would lead to nullify the doctrine of stare decisis. The judgments of the Court cannot and should not be unsettled
lightly.
The learned Advocate for the writ petitioner/respondent no. 1 Barun Ghosh submits there is no other alternative on the part of the respondents but to
act strictly in compliance of the order dated 14th August, 2013 passed by Justice Bose. In Mahesh Chandra (supra) the Supreme Court relying on the
judgment of Ryappa vs. State of Tamil Nadu AIR 1975 SC 555 held that State action must not be arbitrary but must be based on some rational and
relevant principle. It must not be guided by any extraneous or irrelevant considerations.
The learned Advocate for the writ petitioner/respondent no. 1 Barun Ghosh strongly contended relying on the principle laid down in Gammon India
Ltd. (supra) that in case of repeal of an Act the Court has to look to the provisions of the new Act for the purpose of determining whether they
indicated different intention. It is to be seen whether the new Act expressly keeps alive old rights and liabilities or whether it manifests an intention to
destroy them. Mere absence of the saving clause does not material for consideration of all the relevant provisions of the new Act. The learned
Advocate appearing for the writ petitioner/respondent no. 1 Barun Ghosh strenuously submits that shifting of the location of the distributorship is a
biased decision adopted with a view to uphold the cause of the appellant Kultali as on an earlier occasion the candidature of the appellant Kultali was
cancelled because its godown was not located within the advertised area. He refers to the judgment of Ramanna Dayaram Setti wherein it had been
held that if the action of the government is not in conformity with the standard or norm and it is arbitrary, irrational or irrelevant the action of the
government would be liable to the struck down. He prays for quashing the impugned order of cancellation of vacancy as well as directing the State to
take a fresh decision as regards the approval of the Director dated 11th November, 2013.
In the instant case mere noting in the file and recommending the name of the writ petitioner/respondent no. 1 Barun Ghosh did not create any legal
right in his favour. The recommendation in favour of Barun Ghosh was ultimately not approved by the State Government. A right would have accrued
in favour of Barun Ghosh had the recommendation in his favour been accepted by the State. At this stage Barun Ghosh cannot allege infringement of
any right far less legal or fundamental right if the State initiates fresh steps to fill up the vacancies which could not be filled up due to continuation of a
series of litigations in between the contesting candidates.
It is settled law that the decision of an authority is always supposed to be backed up with reasons. In the present case though the reasons are not
specifically mentioned in the fresh advertisement inviting applications for grant of distributorship but from the noting in the file it is apparent that the
authorities decided to invite fresh applications keeping in mind the change in the law which had taken effect during the pendency of the selection
process that is between 2003 till 2015. Accordingly the decision of the authority to cancel the selection process based on the earlier law and invite
fresh applications according to the present law does not appear to be arbitrary, unreasonable so as to shock the conscience of the Court that merits
interference. What is conspicuously missing is the reason necessitating the change of location of the distributorship. None of the documents placed
before this Court speaks of any reason as to why the location was changed.
It is not in dispute that the vacancy in question could not be filled up due to continuous litigations for the last fifteen years or more. When the vacancy
was declared initially in the year 2003 the Control Order of 2003 was in force. The Control Order 2013 came into effect on and from 8th August,
2013. As per Clause 26 (ii) of the new Control Order if the district administration feels necessary to declare a new vacancy the vacancy shall be
declared with the approval of the department. Such vacancy has to be widely published in the official notice board, official gazette
notification/advertisement in local as well as widely circulated daily newspaper. As per the 2013 Control Order there is a provision for giving
preference to self-help groups, special women self-help groups. In view of inclusion of the provision for giving preference to certain groups it implies
that the zone of consideration of eligible candidate gets widened and the State gets an opportunity to select the best possible candidate for the purpose
of distributorship. Accordingly, the decision of the State Government to invite fresh applications for grant of distributorship does not seem to be
arbitrary or unreasonable. The only pinching point is the issue of change of location of the distributorship. The vacancy at Jamtalahat could not be
filled up for a considerable period of time accordingly, the need to fill up the vacancy is very clear. Without any plausible reason to shift the location of
distributorship the action of the State in shifting the location smacks of mala fide and bias. It appears that the same had been done with the sole
intention to favour a candidate who did not have its godown within the advertised area. Such action on the part of the State cannot be supported and is
liable to be set aside.
In view of the aforesaid facts the impugned order of the learned Trial Judge is set aside. The advertisement and the vacancy notice published by the
State on 13th July, 2015 are also set aside. The appropriate authority of the State Government is directed to initiate steps for issuance of fresh
advertisement for filling up the vacancy of Jamtalahat mouja, Kultali P.S. in accordance with the provisions of the West Bengal Public Distribution
System (Maintenance and Control) Order, 2013. The advertisement and vacancy notice shall be given wide publicity in accordance with the provisions
of the Control Order of 2013. MAT 201 of 2016 and FMA 2272 of 2016 stand disposed of accordingly. There will however be no order as to costs.
Urgent certified photo copy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual
legal formalities.