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Judgment
DIPANKAR DATTA, J
The challenge in this intra-court writ appeal is to a judgment and order dated March 8, 2016 passed by a learned Judge of this Court, whereby W.P.
1671(W) of 2016 presented by the writ petitioner/respondent no. 1 in this appeal, Jakir Hossain Mondal (hereafter Jakir) was allowed. The appeal is at
the instance of the respondent no. 5 in such writ petition, Sahidul Mondal (hereafter Sahidul). The learned Judge while setting aside an order of the
respondent no. 3, i.e., Joint Director (Licence) dated June 8, 2012 impugned in the writ petition, directed the respondent no. 2, i.e., Director, District
Distribution Procurement & Supply, Food & Supplies Department (hereafter the Director) to ‘revisit the matter and pass order as expeditiously as
possible and positively within a period of six weeks from the date of communication’ of a copy of such order on such respondent.
To appreciate ‘the matter’, which the Director by the impugned judgment and order was directed to revisit, we need to take note of the
previous rounds of litigation initiated by and between the private parties, i.e., Jakir and Sahidul.
The basic facts are not in dispute.
a. On August 21, 2007, a vacancy for appointment of a M.R. dealer was notified. Along with others, Sahidul and Jakir responded to such notification
and offered their candidature. Upon receipt of the applications from the candidates aspiring to be appointed as such dealer, the Area Inspector (Food
& Supplies) conducted an inquiry. The report contained the following conclusions:
“Considering the position of godown and all other points SL. No. â€" 18 (Eighteen) out of 18 (Eighteen) applicants appears to be fit for appointment
of M.R. Dealer and hence his case is recommended for issue of a M.R. Licence in the name of Jakir Hossain Mondal .... if no bar. Submitted to S.C.
(F+S) Baruipur for kind information and n/a.â€
b. The Sub-Divisional Controller (Food & Supplies), Baruipur, 24 Parganas (South) (hereafter the Sub-Divisional Controller) accepted the inquiry
report and forwarded the file to the District Controller (Food & Supplies), 24 Parganas (South) (hereafter the District Controller). The District
Controller, vide memo dated February 7, 2008, forwarded the original file containing the recommendation for appointment of Jakir as M.R. Dealer to
the Director. For quite some time, the Director did not initiate any action on the file. This resulted in a writ petition [WP 14620(W) of 2008] being
presented by Jakir (the first in a series of litigation) seeking a direction on the respondents to appoint him as M.R. Dealer. Such writ petition was
disposed of by a learned Judge of this Court by an order dated July 23, 2008, with a direction upon the respondents to take an appropriate decision
upon consideration of all materials including the report of inquiry within a period of six weeks.
c. While considering the issue of appointment of M.R. Dealer in compliance with the aforesaid order, the Joint Director (Licence) by his memo dated
September 24, 2008, inquired from the Sub-Divisional Controller as to why Jakir had been recommended for appointment as M.R. Dealer, although on
examination of the inquiry report and the related case records it appeared to such Joint Director that the status of Sahidul was more favourable than
Jakir. A reply followed from the end of the Sub-Divisional Controller dated November 3, 2008.
It was observed by the Sub-Divisional Controller therein that although the status of the godown proposed by Sahidul was better than the one proposed
by Jakir, the status of the godown might not be the sole criterion for selecting a candidate; public interest and distance to be covered by the public to
draw ration articles have to be kept in mind and in this respect Jakir has a comparative advantage over Sahidul. Besides the local public, the
people’s representatives had also expressed their views in favour of Jakir and his proposed site of godown. Considering the same, Jakir was
preferred to Sahidul at the time of making the recommendation.
d. While the Department was yet to take a final decision to appoint any M.R. Dealer, three writ petitions were filed before this Court: the first by
Jakir, the second by Sahidul and the third by one Md. Noor Mohammad Sarkar and two others. All three writ petitions were considered together by a
learned Judge of this Court and dismissed by a common judgment and order dated January 19, 2009. The relevant part of the order of the learned
Judge is quoted below:
“It seems to me that there is no cause of action in any of the three writ petitions. Simply because Jakir moved a previous writ petition, he is not
entitled to say that once some authority recommended his case, he became entitled to get a mandamus directing the appointing authority to appoint
him. Whether Sahidul is entitled to be appointed is a question to be decided by the appointing authority who is also competent to examine the worth of
the views expressed by the sub-divisional controller, keeping in view whether the sub-divisional controller intended to overrule the views of his higher
authority. Needless to say that if any complaint has been made by Noor Mohammed & ors., the appointing authority has incurred an obligation to
make appropriate investigation for ascertaining the correctness of the allegations, and hence unless an illegal appointment is made, Noor Mohammed
& ors. are not entitled to say that their genuine allegations have been overlooked by the appointing authority.
Today there is no certainty that Jakir or Sahidul will be appointed by the authority. It is entirely for the appointing authority to decide who is fit to be
appointed. It may so happen that allegations made by Noor Mohammed & ors. are found to be true. Any development may take place at any future
point of time, and hence there is no certainty that the selection process will culminate in an appointment. This being the position, I am unable to see
how tow of the applicants can approach the writ court seeking mandamus directing the appointing authority to appoint them. These are the reasons,
why I say that there is no cause of action for moving all these writ petitions.
For these reasons, I dismiss all the three writ petitions. It is made clear that nothing in this order shall prevent the authorities under the control order
from bringing the selection process to a legal conclusion in accordance with law. It is also made clear that nothing in this order shall be interpreted as
any observation against the merits of the respective cases. Merits of the cases will be examined by the authorities without feeling influenced in any
manner whatsoever by anything said in this judgment. There shall be no order for costs.â€
e. After dismissal of these writ petitions, the Director passed a reasoned order on July 2, 2009 recommending Sahidul for appointment as M.R.
Dealer. On July 23, 2009, the Joint Director (Licence) had requested for according of approval in favour of Sahidul so that the concerned vacancy
could be filled up at an early date in the interest of the public distribution system. The recommendation having been approved by the Government in
the Food and Supplies Department on October 8, 2009, Sahidul was appointed as M.R. Dealer by an order dated October 22, 2009 and till date he has
been continuing to act as such dealer.
f. The aforesaid order dated July 23, 2009 of the Joint Director (Licence) was subjected to challenge by Jakir by filing a writ petition [WP 3252(W) of
2010]. The prayers of such writ petition read as follows:
“ a) A writ in the nature of Mandamus directing the respondents not give any effect and/or further effect to the impugned amendment of the W. B.
Public Distribution System (M&C) Order, 2003 notified under No. 7044-FS dated 18th November, 2004 being ultra vires to the statute;
b) A writ in the nature of Mandamus commanding the respondent nos. 1, 2 and 3 to act in accordance with law and to forthwith rescind/recall the
decision pertaining to appointment to respondent no. 7 since contained in annexure ‘P-14’ to this petition;
c) A writ in the nature of Mandamus commanding the State Respondents particularly respondent Nos. 1, 2 and 3 to appointment (sic appoint) the writ
petitioner as FPS Dealer in terms of recommendation made in strict compliance with the statute by the respondent nos. 5 and 6;
d) A writ in the nature of Certiorari commanding the respondents to forthwith certify and transmit certify and transmit the record relating to the case
so as to recall and/or rescind the impugned decision since contained in annexure ‘P-14’ to this writ petition;
e) A writ in the nature of Prohibition prohibiting the State Respondent from allowing the respondent no. 7 to act as FPS dealer in pursuance of the
impugned appointment given by the respondents;â€
g. Upon hearing the parties, a learned Judge of this Court by judgment and order dated April 2, 2012 allowed WP 3252 (W) of 2010 and directed as
follows:
“Accordingly, I set aside the impugned order dated 23rd July, 2009 and direct the Joint Director (Licence) to consider the same afresh taking note
of the fact that the record of right disclosed by the writ petitioner shows that the father of the landlord of the writ petitioner is owner of the aforesaid
plot being Plot No. 1785 under Khatian No. 116 and there cannot be any dispute about the possessional right of the landlord of the writ petitioner. The
Joint Director of Licence is to decide over the matter within a period of four weeks from the date of communication of this order and to pass
appropriate order upon giving an opportunity of hearing to the present allottee as well as the writ petitioner and take a decision on the issue. In case it
is found by the Joint Director (Licence) that the rejection on the aforementioned ground is not proper, in that event he will grant licence in favour of
the writ petitioner.â€
h. In compliance with the aforesaid order, the Joint Director (Licence) passed an order dated June 8, 2012, reading as follows:
“Now it appears that as per provision of clause 19 of the W.B.P.D.S (M&C) Order, 2003, Govt. is the final authority in the matter of selection of
the Candidate for M.R. Dealership. In the instant case neither the reasoned order of the Director nor the Govt. approval dated 08.10.2009 have been
set aside by the Hon’ble High Court. Even the appointment letter issued by the S.C. F&S, Baruipur (empowered officer) and licence issued in
favour of the allottee have not been nullified. The impugned memo dated 23.07.2009 of the Joint Director (Licence) is a mere communication of the
decision taken by the Director, DDP&S to the Govt.
Hon’ble High Court has made it clear that there can not be any dispute about the possessional right of the landlord of the petitioner. Hence I am
not going into that point. But on careful study of the case records I find that as on the date of inspection, Sahidul Mondal was in a better position than
the petitioner both in terms of status of the godown and financial strength. Enquiry report reveals that the area of the hired godown of the petitioner
was only 141 Sq. Ft. which space is inadequate for storing two weeks’ allotment of food grains. Roof of the said godown was made with asbestos
sheets. On the other hand the godown of the allottee was pucca with RCC roof and well conditioned. The area of the said godown was 272 Sq. Ft.
which was storage worthy for PDS articles. Moreover recommendation of the S.C. F&S, Baruipur was influenced by the people’s representative
who has no statutory power in the matter of appointment of M.R. Dealer. The fact of influence has been admitted by the SCF&S, Baruipur in his
report on being asked for justification of his recommendation.
Since the vacancy at Padmajala has already been filled up by a suitable candidate and the M.R. Dealership is being run without any hindrance, there is
hardly any scope to accommodate another candidate in the same place. Upon hearing the submission of the petitioner and the present allottee and
having regard to the statutory provisions as contained in the W.B.P.D.S (M&C) Order, 2003, I am of the opinion that there was ample grounds to
reject the application of the petitioner for M.R. Dealership at Padmajala. The appointment of Sahidul Mondal as an M.R. Dealer and subsequent issue
of licence in his favour by the S.C. F&S, Baruipur, are hereby upheld, since approval of the Government (Final Authority) vide. Order dated
08.10.2009 still stands valid.
The case is thus disposed of. Let copies of this order be communicated to all concerned.â€
i. Instead of challenging the order of the Joint Director (Licence) dated June 8, 2012 by initiating fresh writ proceedings, Jakir initiated proceedings in
the contempt jurisdiction. A Rule was issued against the incumbent Joint Director on January 17, 2013 numbered as WPCRC No. 84(W) of 2013.
Upon such Rule for contempt being issued and served, the incumbent Joint Director (Licence) passed a fresh order on March 14, 2013, which reads
as follows:
“In compliance with Hon’ble High Court’s order dated 02.04.2012 issued against W.P. No. 3252(W) 2010 and subsequent order dated
17.01.2013 issued against WPCRC No. 84(W) of 2013, my earlier order communicated under No.3312/1(5)/FMR/10D-27/05 dated 08.06.2012 is
hereby substituted in the following manner:-
According to the observation of the Hon’ble High Court, the Court is satisfied with the legal/possessional right of the land-owner of whom Jakir
Hossain Mondal, the petitioner is a tenant. Although Hon’ble High Court has given the undersigned the liberty to take personal hearing of both
Jakir Hossain Mondal, the petitioner and Sahidul Mondal, the present allottee, the order of the Hon’ble High Court came to me as fait accompli.
Hence, I would like to direct the Sub-divisional Controller, Food & Supplies, Baruipur, the Licensing Authority to issue M.R. dealership Licence in the
name of Jakir Hossain Mondal against the vacancy at Padmajala under Dhapdhapi-I G.P. of Baruipur Sub-division in the District of South 24
Parganas in place of Sahidul Mondal, the out-going licensee after observing all formalities and pre-requisites.â€
Considering the aforesaid order dated March 14, 2013, the learned Judge who had issued the Rule for contempt, discharged the same on April 12,
2013.
j. While the contempt rule was discharged on April 12, 2013, it was not brought to the notice of the learned Judge that an order dated March 25, 2013
in WP 8897(W) of 2013 had intervened. The order dated March 14, 2013 of the Joint Director (Licence), referred to above, was challenged by
Sahidul in a writ petition [WP 8897(W) of 2013]. A learned Judge of this Court by the said order dated March 25, 2013 stayed the operation of the
impugned order till a final decision is taken in the contempt action. It was also observed that in the event of any further direction of the learned Judge
hearing the contempt petition regarding the validity of the order passed on March 14, 2013, the said order would be revived, if so mandated. The writ
petition, accordingly, stood disposed of.
k. Coming to learn of the order dated March 25, 2013, Jakir filed an application being CAN 4792 of 2014 seeking recall of the order dated April 12,
2013, whereby the Rule for contempt stood discharged. By an order dated May 14, 2014, the order dated April 12, 2013 was recalled. A fresh Rule
was directed to be issued thereafter by the learned Judge on June 3, 2014. An order was passed on July 15, 2014 by the learned Judge, whereby His
Lordship proposed to impose seven days civil imprisonment on the alleged contemnor/respondent and at the same time proposed to direct the alleged
contemnor/respondent to issue licence in favour of Jakir. The alleged contemnor/respondent having prayed for some time to issue the order of
cancellation of Sahidul’s licence and to issue licence in favour of Jakir, hearing of the Rule for contempt was adjourned till July 16, 2014. An order
of July 16, 2014 reveals that the Rule was required to appear on July 18, 2014.
l. It, however, appears that in the meanwhile two appeals had been carried before a coordinate Bench of this Court against the order dated July 15,
2014 passed in WPCRC 84(W) of 2013 - AST 335 of 2014 by the alleged contemnor/respondent, Jamini Kumar Baidya and the other, AST 327 of
2014, by Sahidul. Sahidul had prayed for leave to appeal because he was not a party to the proceedings. Such leave was granted by an order dated
July 23, 2014. The coordinate Bench in its order dated January 7, 2016 noted that the question which required consideration was whether the learned
Judge was justified in passing an order directing cancellation of licence in favour of Sahidul and for issuance of fresh licence in favour of Jakir, in
contempt proceedings. It was noted that no such direction was passed on April 2, 2012 by the learned Judge while disposing of the writ petition [WP
3252(W) of 2010].
The coordinate Bench, thus, recorded that an order passed in the writ proceedings cannot be altered and/or varied and/or modified in contempt
proceedings and, accordingly, set aside the order dated July 15, 2014. The appeals were, accordingly, allowed.
m. As a result of the aforesaid order of the coordinate Bench, Sahidul continued to act as M.R. Dealer and distributed ration articles to the
consumers. Having failed to obtain licence, Jakir invoked the writ jurisdiction once again, the fourth in the series by him, by presenting WP 1671(W) of
2016, out of which this intra-court writ appeal arises. The order dated June 8, 2012, passed by the Joint Director (Licence) was under challenge in
such writ petition. Prayer (A) of the writ petition reads as follows:
“(A) A Writ and/or writs in the nature of Mandamus commanding the respondents and each one of them, their agents, servants and/or
subordinates to issue license and appointment letter in favour of the petitioner by setting aside the impugned reasoned order dated 08th June, 2012 as
the said order has been passed in excess of jurisdiction by the Jt. Director Licence and in quite distraction of specific directions contained in the order
dated 02nd April, 2012 in W.P. No. 3252 (W) of 2010 as well as the provision contained in the purported West Bengal Public Distribution System
(Maintenance & Control) order, 2003.â€
n. The writ petition was disposed of on the first day it was moved by the learned Judge with directions that have been noted at the commencement of
this judgment.
While hearing an application for stay filed in the appeal, a coordinate Bench on March 15, 2016 granted stay of operation of the impugned judgment
and order dated March 8, 2016. Such interim order has been continued with the result that Sahidul continues to function as M.R. Dealer till date.
Mr. Saha Roy, learned advocate appearing for Sahidul, contended that there was no infirmity in the action of the official respondents in selecting
Sahidul for appointment as a licensee. The godown proposed by Sahidul was better than the one proposed by Jakir and Sahidul also fulfilled all other
requirements for issuance of a licence in his favour. A decision having been taken by the official respondents upon due application of mind, there was
no occasion for the learned Judge to interfere.
Mr. Saha Roy further contended that the exercise of interpreting Clause 19 of the West Bengal Public Distribution (Maintenance and Control)
Order, 2003 (hereafter the Control Order), which is the relevant statutory provision, by the learned Judge was flawed. The appointing authority is not
bound by any recommendation of a subordinate authority/officer and a decision has to be taken considering all relevant factors by such appointing
authority. In fact, that position found reiteration in the common judgment and order dated January 19, 2009 of the learned Judge while the writ petitions
of Jakir and Sahidul were dismissed. The decision to select Sahidul was based on an objective assessment of the merits/demerits of the aspiring
candidates and the learned Judge grossly erred in reaching a conclusion that the District Controller not having disagreed with the Sub Divisional
Controller’s recommendation contained in his report, a right of selection accrued in favour of Jakir.
The further contention of Mr. Saha Roy was regarding the delay in invocation of the writ jurisdiction by Jakir and disposal of the writ petition by the
learned Judge without even calling for affidavits. It was contended that the order dated June 8, 2012 was challenged in a writ petition presented in
2016 and no explanation has been furnished by Jakir for such delay; although it is apparent that much of the time in the interregnum was spent by Jakir
by pursuing his remedy in the contempt jurisdiction, but none can possibly dispute the legal position that with the passing of the order dated June 8,
2012, there was no contempt of the order dated Aprila 2, 2012. There being utter lack of good faith on the part of Jakir in urging the Court to exercise
its contempt jurisdiction and obtaining orders prejudicial to Sahidul’s interest behind his back instead of moving a writ petition with expedition, it
was contended that the writ petition itself ought to have been thrown out at the threshold as not bona fide. That apart, he contended that the issue
involved in the writ petition was not so simple so as to warrant a disposal without considering Sahidul’s version on affidavits and the learned Judge
proceeded with haste in disposing of the writ petition without granting adequate opportunity to Sahidul to present his defence.
It was also contended by Mr. Saha Roy that WP 1671(W) of 2016 was hit by the principles of res judicata and/or analogous principles and,
therefore, should not have been entertained by the learned Judge. Referring to prayers (b) and (e) made in WP 3252(W) of 2010, which were not
granted by the learned Judge while disposing of such writ petition on April 2, 2012, and prayer (a) of WP 1671(W) of 2016, it was urged that the
principle flowing from Explanation V, Section 11 of the Code of Civil Procedure got attracted and the learned Judge failed to notice this aspect
altogether, thereby causing failure of justice.
Mr. Saha Roy, accordingly, prayed for quashing of the impugned judgment and order.
Mr. Chakraborty, learned advocate appearing for Jakir supported the impugned judgment and order on the basis of the reasons assigned by His
Lordship. In addition, he referred to the doctrine of finality to contend that the order dated April 2, 2012 passed in W.P. 3252(W) of 2010 [quashing
memo dated July 23, 2009 of the Joint Director (Licence)] had attained finality and, therefore, Sahidul’s appointment on the basis of a
recommendation which had been set aside by a competent court of law is non est. It was further contended that Jakir’s possessional right in
respect of the godown proposed by him not being in dispute, the Joint Director (Licence) was left with no other option but to issue licence in favour of
Jakir in terms of the order dated April 2, 2012 and by failing to do so, he acted illegally. The decision of the Supreme Court in Daryao v. State of U.P.,
AIR 1961 SC 1457, was relied on by Mr. Chakraborty to highlight the binding character of judgments of courts of competent jurisdiction and it was
urged on the basis thereof that the issues decided in W.P. 3252(W) of 2010 cannot be reopened and decided de novo.
Next, Mr. Chakraborty, referred to Clause 19(ii) of the Control Order to impress upon us that the District Controller having forwarded the records
to the Director along with the recommendation for appointment of Jakir as M.R. Dealer, it ought to be presumed that the District Controller agreed
with the views of the Sub- Divisional Controller and bearing in mind the provisions of such Control Order, the Director was bound to accept the
recommendation made in favour of Jakir. In that view of the matter and also bearing in mind the fact that the godown proposed by Jakir was
conveniently located for the consumers to draw ration articles, there was no scope for the Joint Director (Licence) to take a contrary view and
thereby prefer Sahidul to Jakir.
Our attention was thereafter drawn by Mr. Chakraborty to the common judgment and order dated January 19, 2009, whereby the three writ
petitions were dismissed. It was sought to be highlighted that the learned Judge had directed examination of the merits of the claims of the candidates
by the ‘authorities’ and that ‘authorities’ would mean the Sub-Divisional Controller and the District Controller. He further submitted that
the learned Judge having directed appointment to be made in accordance with law, it obviously meant the Control Order as the law arising for
compensation. Having regard to such judgment and order too, it is clear as crystal that the Joint Director (Licence) subverted the legal provisions as
well as judicial orders in proceeding to select Sahidul for issuance of licence.
Mr. Chakraborty was thereafter heard to allege mala fide against the Director. It was submitted that after receiving the recommendation made by
the Sub-Divisional Controller, since forwarded by the District Controller, the Director remained inactive for nearly five months and only after an order
dated July 23, 2008 was made on Jakir’s first writ petition that an explanation was sought for from the Sub-Divisional Controller. The Director had
thereafter arranged for a hearing. In course thereof, documents were submitted by Jakir in support of his title in respect of the land in question where
he proposed to set up a godown but no acknowledgement of receipt was made. This necessitated submission of those documents in the office of the
Director by Jakir’s learned advocate. While forwarding the documents to the Secretary, Food & Supplies Department, the Director had
deliberately suppressed the fact regarding the possessional right over the godown on the basis of which the candidature of Jakir was rejected. The
records being clear that Jakir had undisputed title, the Director excluded Jakir from the zone of consideration mala fide.
Insofar as the effect of the contempt proceedings initiated by Jakir is concerned, it was admitted that Jakir had committed an error in law in so
initiating and the correct step was to present a fresh writ petition challenging the order of the Joint Director (Licence), who had passed an order
contrary to the order dated April 2, 2012 of the learned Judge while disposing of W.P. 3252(W) of 2010 (this admission also appears in the written
notes of argument filed on behalf of Jakir). The learned Judge in passing the impugned judgment and order dated March 8, 2016 rightly noticed such
violation and having rendered a decision based on correct interpretation of the legal provision as well as previous judicial orders passed from time to
time, did not commit any illegality warranting interference.
Finally, it was submitted by Mr. Chakraborty that having regard to the facts and circumstances and keeping in view the statutory provisions as well
as the settled principles of law, the appeal deserved no consideration at all and is liable to be rejected.
Appearing on behalf of the official respondents, Mr. Sengupta, learned senior Government advocate, contended that the official respondents
having acted in accordance with law, there was no occasion for the learned Judge to interfere. He practically adopted the contentions advanced by
Mr. Saha Roy.
The parties have been heard at length. The records pertaining to selection and appointment of Sahidul along with the records of the earlier
proceedings have also been perused. The point that requires examination is, whether the learned Judge was justified in interfering with the process of
selection and consequent appointment of Sahidul as a licensee.
It is imperative that for deciding the aforesaid point the reasons assigned by the learned Judge for holding in favour of Jakir have to be examined.
However, since His Lordship referred to Clause 19 of the Control Order and interpreted it to hold selection of Sahidul as vitiated by non-adherence to
the relevant law, the same must be read first. For facility of reference, we reproduce Clause 19 hereinbelow:
“19. Appointment, issue of Licence and termination of Dealership â€
(i) In the event of resignation or death of any Dealer in a district, vacancy as may arise shall be reported to the concerned Directorate by the
concerned SCFS/DCFS within 10 days from the date of receipt of such information and if it appears to be necessary for the District Administration to
declare a new vacancy for catering the need of consumers in any particular areas the same may also be brought to the notice of the Directorate so
that Director-DDP & S may forward the proposals with his views to the Government for necessary approval in connection with declaration of
vacancy for filling up the posts of Dealer. On having the direction from the Directorate, the SCFS/DCFS concerned will notify the new vacancy only
through public notification or advertisement.
(ii) Any bona fide citizen of this State may apply for being appointed as a Dealer as per directions and the SCFS shall arrange for an enquiry within
one month and submit a report with his comments to the concerned DCFS. The DCFS will send the same to the Director-DDP & S with his views
and the Director-DDP & S or any officer empowered by the Director shall issue the appointment letter to the successful candidate after having
approval of the State Government.
In the event of any difference of opinion between the SCFS and DCFS, Director-DDP & S may enquire the matter by any Competent Officer or by a
team. In case of vacancy arising out of death in capacitation on medical ground of any existing Dealer, such vacancy shall not initially be notified. The
prayer of the legal heirs will be considered with preference on compassionate ground provided required minimum qualifications are fulfilled. If out of
several legal heirs, only one legal heir is the claimant he is to submit no objection of other legal heirs along with his prayer.â€
The following passages from the impugned judgment and order contain the reasons for the directions that His Lordship ultimately made. The same
read as under:
“At the Bar it has been submitted the above provisions in the said paragraph of the Control Order are those which govern the situation and there is
no other provision. It appears from such provision the SCFS is to arrange for an inquiry and submit a report with his comments to the concerned
DCFS. The DCFS is to send the same to the Director with his views and the Director shall issue the appointment letter to the successful candidates
after having approval of the State Government. In the event of any difference of opinion between the SCFS and DCFS the Director may enquire into
the matter by any Competent Officer or by a team. ****
On perusal of the report dated 3rd November, 2008 of the SCFS this Court finds the said office reiterated its recommendation. Elaboration on the
grounds of such recommendation was given in the report. There is concession made as appears from the report that the status of the godown of the
private respondent is better but distinction drawn regarding the criteria for selection of a candidate. The fact that emerges is the petitioner had and
continues to have concurrent recommendations by the offices required to recommend by the provisions of paragraph 19 of the said Control Order. In
such a situation why the Director felt compelled to not accept the recommendations, as empowered to do so, does not appear from the impugned
order. The report did not assert that the people’s representative had statutory power in explaining why the said office took notice of the views
expressed by such representative. It was an additional factor reported. On the other hand the criteria considered were not found to be not applicable
by the impugned order.
The contention of the petitioner was on the basis of the provisions in paragraph 19 of the said Control Order with reference to the function of the
Director in the matter of appointment, issuance of licence and termination of dealership. The said contention of the petitioner is a contention in law
arising from the facts pleaded and hence considered.â€
The essence of the above reasoning is that since the Sub-Divisional Controller and the District Controller did not offer conflicting views, there was
no occasion for the Director, or any other authority holding a superior position than the Director, to arrive at a different conclusion in the matter of
preferring Jakir to Sahidul for appointment as M.R. Dealer.
We are of the considered view that this interpretation of Clause 19 by His Lordship does not commend acceptance, on facts and in the
circumstances. Indeed there was a recommendation of the Sub-Divisional Controller in favour of Jakir. In terms of sub-clause (ii) of Clause 19, the
District Controller was required to furnish the comments of the Sub-Divisional Controller to the Director with his (the District Controller’s)
‘views’. These ‘views’ are required prior to seeking approval of the State Government. Reading the provisions of sub-clause (ii), it
admits of no doubt that the approval has to be based on the ‘views’ that are expressed not only by the Sub-Divisional Controller but the District
Controller as well. Although sub-clause (ii) does not expressly say that the Director is also required to give his own views in respect of the
recommendation received from the Sub-Divisional Controller and the District Controller, we are of the considered opinion that such a requirement has
to be read in sub-clause (ii) of Clause 19. Otherwise, the Director would be rendered a mere post office through which the recommendation would
have to pass through prior to reaching the State Government. That could not have been the intent of the provision. In the present case, the District
Controller by his memo dated February 17, 2008 simply forwarded the file to the Director.
He did not offer any comment/view upon making an assessment of the relative merits/demerits of Jakir and Sahidul. No ‘views’ were
expressed by the District Controller either accepting the Sub-Divisional Controller’s recommendation or expressing any contrary opinion. The
‘views’ which, thus, the District Controller in terms of sub-clause (ii) of Clause 19 was required to offer, were absent. That no conflicting
opinion was expressed by the District Controller in the present case does not advance the cause of Jakir. Lack of ‘views’ of the District
Controller does not amount to acceptance of the recommendation of Sub-Divisional Controller. On the face of absence of ‘views’ of the
District Controller, the Joint Director (Licence) by his letter dated September 24, 2008 sought for a clarification from the Sub-Divisional Controller as
to why Jakir had been preferred to Sahidul. The reasons for which the Sub-Divisional Controller preferred Jakir to Sahidul were given in the memo
dated November 3, 2008. It does appear on a reading thereof that there was some extraneous influence for which the Sub-Divisional Controller
preferred Jakir to Sahidul despite admitting that the godown proposed by Sahidul was better than Jakir’s proposed godown. What seemingly
appears to have escaped the notice of the learned Judge is the legal position of the ultimate say in the matter of appointment of M.R. Dealer resting
with the State Government. Surely, the ultimate say could not have rested only on the basis of a report of the Sub-Divisional Controller. That apart, the
public distribution scheme does not conceive of the Director or the State Government to be titular entities. The initial groundwork, without doubt, has to
be made by the Sub-Divisional Controller and the District Controller but the power to appoint a licensee is not limited to consideration of the Sub-
Divisional Controller’s report when the District Controller is found not to have given his ‘views’. Regardless of any conflict between the
reports of the Sub-Divisional Officer and District Controller, what Clause 19 envisages is an objective decision passing through different tiers and it is
always open to the Director or the State Government (read the Secretary of the Department) not to be bound by any recommendation of a
subordinate officer. The plinth on which the order of the learned Judge rests, appears to be unstable.
There is another reason for which we are not inclined to agree with the view taken by the learned Judge. In the judgment dated January 19, 2009,
a learned Judge of this Court had made it abundantly clear that it was uncertain who between Jakir and Sahidul would be appointed and it was entirely
for the appointing authority to decide who is fit to be appointed. Such observation was accepted by all the parties including Jakir. The learned Judge
was, however, of the view that the said observation in the judgment dated January 19, 2009 cannot be taken to mean that such authority can travel
beyond the provisions of Clause 19 of the Control Order. Whether the appointing authority can travel beyond the provisions of the Control Order
and/or has, in fact, travelled so, could not have been the subject matter of scrutiny before the learned Judge. Once a competent court of law upon its
interpretation of the legal provisions makes certain observations and the parties to the proceedings do not feel aggrieved thereby, it is not open to
another Bench of equal strength to explain away such observation in the manner it has been done in the impugned judgment. The appointing authority,
according to Clause 19(ii), is the Director or any officer empowered by him. Here, it was the Director who had taken the decision to appoint Sahidul in
preference to the claim of Jakir based on factors which were germane and not on his whims and caprices. Such appointment was ordered upon
obtaining approval from the State Government on October 8, 2009 and, therefore, was one which could not have been lightly interefered.
That the writ court does not sit in appeal over an administrative decision is settled law. It is equally well settled that a decision based on facts
found by the administrative adjudicator cannot be reopened on the plausible plea that a further enquiry should be made because that would be just. If
findings of fact are allowed to be disturbed in writ proceedings, it may lead to an interminable search for correct findings and would virtually convert
the writ courts into appellate courts competent to deal with questions of fact. Findings of fact by such adjudicator should be treated as final between
the parties unless, of course, it is shown that the impugned finding is based on no evidence. On facts, it is not a case of there being no evidence to
sustain the selection of Sahidul. Besides, the appointment was to be preceded by the approval of the State Government.
Once the State Government on October 8, 2009 had approved the recommendation of the Director for appointing Sahidul as a licensee, the conclusion
is irresistible that there was concurrence with the approach of the Director in selecting Sahidul and only thereafter was the order of appointment
given. In our considered opinion, the learned Judge missed a very vital part of Clause 19(ii) which conferred authority on the State Government to take
a final call as to who between two rival candidates is eligible for being appointed as M.R. Dealer. In fact, in the present case a decision was taken to
appoint Sahidul on the basis of the materials that were placed before the State Government and the Director having issued the licence on the basis of
approval accorded by the Government, the learned Judge was in error in interfering with the decision making process.
We are also of the view that the learned Judge was not right in entertaining the writ petition of Jakir despite a point of maintainability having been
raised on behalf of Sahidul on, inter alia, the ground of res judicata and/or analogous principles. In W.P. 3252(W) of 2010, Jakir vide prayer clauses (b)
and (e) had prayed for cancellation of the appointment of Sahidul. The learned Judge who decided such writ petition (by order dated April 2, 2012) did
not set aside the appointment of Sahidul. The principle flowing from Explanation V to Section 11 of the Code of Civil Procedure is that the relief
claimed, if not expressly granted by the decree (here order), for the purposes of such section is deemed to have been refused. Prayers (b) and (e) of
W.P. 3252(W) of 2010, therefore, must be deemed to have been refused by the Court. In such circumstances, it was not open to the learned Judge to
direct the Director to revisit the entire matter.
The finding of the learned Judge that on the facts of the case res judicata did not operate as a bar was made even without looking into the relief that
Jakir had claimed in his previous three writ petitions. We are, thus, of the opinion that the point of res judicata that had been raised on behalf of Sahidul
was well-founded and the learned Judge erroneously decided such point while granting relief to Jakir. We also have no hesitation to record that a
counter affidavit should have been called for in the circumstances (as prayed by Mr. Saha Roy), because without such affidavit the history of the
litigation between the parties could not have unfolded and did not obviously unfold causing miscarriage of justice.
Additionally, it must be noted that in terms of the order dated April 2, 2012, it was the obligation of the Joint Director (Licence) to consider
whether Jakir could be appointed as a licensee or not without even touching the licence issued in favour of Sahidul. We hold this view because no
order in terms of prayers (b) and
(e) of WP 3252(W) of 2010 having been granted, by no means could Jakir have claimed that he should be appointed in the vacancy advertised on
August 21, 2007 where Sahidul had been appointed, upon cancellation of such appointment. The Joint Director (Licence) in his order dated June 8,
2012 correctly observed that neither was the approval of the State Government dated October 8, 2009 set aside nor was the appointment letter and
licence issued in favour of Sahidul on the basis of such approval nullified; and the vacancy having been filled up, there was no berth for
accommodating Jakir. On the face of such findings returned on the basis of appreciation of the undisputed factual matrix, the learned Judge clearly
erred in the exercise of His Lordship’s jurisdiction in setting aside the order dated June 8, 2012 on the specious ground that the Joint Director
could not have taken a decision contrary to the recommendation of the Sub-Divisional Controller, with which the District Controller did not disagree.
Finally, we come to the point of delay in presentation of WP 1671(W) of 2016. Section 14(1) of the Limitation Act, 1963 postulates that in
computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter
in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It is true
that provisions of the 1963 Act relating to limitation do not apply to writ proceedings. However, remedy of writs being discretionary, there can be no
gainsaying that the litigant approaching the writ court must do so without wasting any time. If there be delay or laches, the same has to be explained;
and in any case, the approach ought to be prior to accrual of third party rights.
Jakir in his pleadings referred to all the proceedings that had been initiated by the parties including the order dated January 7, 2016 passed by the
coordinate Bench on the appeals of the State and Sahidul and sought to explain that there was no lapse on his part in moving the writ court earlier.
That Jakir did not waste any time in knocking the doors of the Court is evident but one cannot ignore that he claimed the order dated June 8, 2012 of
the Joint Director (Licence) to constitute contempt of the order dated April 2, 2012 passed in WP 3252(W) of 2012 and obtained the order dated July
15, 2014 on the Rule for contempt behind the back of Sahidul. It was only after the order dated July 15, 2014 was set aside by the order dated January
7, 2016 of the appellate court that Jakir invoked the writ jurisdiction. We wonder whether a fresh writ petition challenging the order dated June 8, 2012
would be maintainable without leave being obtained by Jakir from the appellate court (that decided AST 335 of 2014 and AST 327 of 2014) in that
regard. The point is left open since the parties did not argue it. Nonetheless, the conduct of Jakir does not appear to us to be fair and honest. He did
not approach the writ court in good faith. He endeavoured to obtain relief from the Court exercising contempt jurisdiction despite the law having been
clearly laid down by the Supreme Court in J.S. Parihar v. Ganpat Duggar, (1996) 6 SCC 291, that an order passed in purported compliance with
directions earlier passed by the court gives rise to a fresh cause of action to seek remedy before the appropriate forum. Having abused the process of
law, and also bearing in mind that Sahidul has been continuing for the last several years as M.R. Dealer, we conclude that Jakir was not entitled to
discretionary relief.
On facts and in the circumstances, the principle of law laid down in Daryao (supra) relied on by Mr. Chakraborty does more harm than good to
the cause of Jakir.
For the reasons discussed above, we are of the view that the judgment and order dated March 8, 2016 cannot be sustained in law. The same,
accordingly, stands set aside. The writ petition, accordingly, stands dismissed.
There shall be no order as to costs.