Calcutta High Court (Appellete Side)
(Saswata Banerjee vs The State Of West Bengal & Ors.) on 22 December, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
1 W. P. 18593 (W) OF 2013 22.12.2016 (Saswata Banerjee -vs- The State of West Bengal & Ors.) No.81 WITH urt no.13 W. P. 17433 (W) OF 2013 (Dhanaraj Dhankani -vs- State of West Bengal & Ors.) Mr. Biswanath Chakraborty Mr. Krishnendu Bera - for the Petitioner (In W.P.18593 (W) of 2013) Mr. Debabrata Saha Ray - for the petitioner (In W.P. 17433 (W) of 2013) Mr. T. M. Siddiqui - for the State Two writ petitions are taken up for hearing as they involve the award of a licence for a Fair Price Shop in respect of a declared vacancy.
One of the writ petitioners has been declared to be the successful candidate entitled to fill up such vacancy. The successful candidate has filed a writ petition being W. P. 18593 (W) of 2013 claiming that in spite of directions of the Hon'ble Division Bench of this Court and in spite of the finding that, the petitioner is successful, the State authorities have not taken the follow up steps for granting the licence of the Fair Price Shop.
The other writ petition being W. P. No. 17433 (W) of 2013 is at the behest of the unsuccessful candidate who challenges the recommendation for grant of licence in favour of the successful candidate.
The State authorities are represented.
2For the sake of convenience, the writ petitioner of W. P. 18593 (W) of 2013 is referred to as the successful candidate and the writ petitioner of W. P. 17433 (W) of 2013 is referred to as the unsuccessful candidate.
The learned advocate for the successful candidate submits that, the authorities had declared a vacancy for a Fair Price Shop. The successful candidate had participated in the selection process. Being aggrieved by the action of the authorities in cancelling the process and issuing a notification declaring a fresh vacancy, the successful candidate had filed a writ petition. Such writ petition was initially dismissed. On appeal, the writ petition was allowed by the judgement and order dated September 24, 2012. Declaration of fresh vacancy was set aside. The Director of Rationing was directed to take a decision on the recommendation made by the Rationing Officer.
He submits that, the Director of Rationing has taken a decision as would appear from the writing dated January 14, 2013. He submits that, the authorities after having found the successful candidate as the candidate suitable for grant of licence, such licence has not been granted till date.
The learned advocate for the unsuccessful candidate submits that, the unsuccessful candidate was not a party in the writ petition resulting in the judgement and order dated September 24, 2012 passed by the Hon'ble Division Bench. In any event, he submits that, the Hon'ble Division Bench did not direct that the authorities will grant the licence in favour of the successful candidate. The Hon'ble Division Bench, in fact, directed consideration of the recommendations made by the Rationing Officer. In all fairness, the candidature of the unsuccessful candidate ought to have been considered by the Director of Rationing while considering the question of grant of licence for the vacancy. He refers to the order dated January 14, 2013 passed by the Director of Rationing pursuant to the judgement and order dated September 24, 2012. He submits 3 that, the Director of Rationing has proceeded to give an opportunity of hearing to the successful candidate, although the order of the Division Bench does not require him to do so. He submits that, in all fairness action, the unsuccessful candidate ought to have been granted an opportunity of hearing by the Director of Rationing. At least, the candidature of the unsuccessful candidate ought to have been considered by the Director of Rationing inasmuch as the unsuccessful candidate was a participant in the selection process. The Director of Rationing has erred in not doing so. Consequently, the decision dated January 14, 2013 is bad. He submits that, the successful candidate is guilty of suppressing of material fact. He further submits that, the terms and conditions governing the selection process entail that a person guilty of suppression will be disqualified. He submits that, the successful candidate had suppressed his residential address and educational qualification. This suppression was subsequently sought to be rectified. The subsequent action of the successful candidate in seeking to give such explanation cannot be construed as valid discharge. Therefore, on the ground of suppression of declaration the candidature of the successful candidate should be rejected.
He points out that, the subsequent to the declaration of the vacancy the authorities have cancelled the selection process and had declared a fresh vacancy. He contends that, the wife of the successful candidate had participated in the new declared vacancy. In such circumstances, he submits that, the order dated January 14, 2013 impugned by the unsuccessful candidate should be set aside.
The learned advocate for the State submits that, subsequent declaration of vacancy was set aside by the Hon'ble Division Bench. He submits that, the authorities have acted strictly in terms of the judgement and order dated September 24, 2012 passed by the Hon'ble Division Bench.
4
I have considered the rival contentions of the parties and the materials made available on record.
Both the successful and unsuccessful candidates are participants in the selection process for the purpose of grant of licence of a Fair Price Shop in Asansol Sub Division.
The candidature of the successful candidate was rejected at the initial stage. Being aggrieved by the rejection of the candidature as also being aggrieved by declaration of fresh vacancy in respect of such Fair Price Shop, the successful candidate had filed a writ petition. Such writ petition was dismissed. Being aggrieved, the successful candidate preferred an appeal. Such appeal was disposed of by the judgement and order dated September 24, 2012. The operative portion of the judgement and order dated September 24, 2012 is as follows:
"Under these circumstances, we think that judgement and order of the learned Trial Judge is not sustainable and the same is accordingly, set aside. We allow the writ petition to the extent that Director of Rationing shall take decision on perusal of the report of the Chief Inspector and the recommendation of the Rationing Officer. Obviously, such decision has to be taken objectively examining the materials underlying such recommendation. If it is found that the materials which form the basis of the recommendation and the report is acceptable, in usual course under the law, obviously such report and recommendation cannot be rejected. We repeat that howsoever his recommendation is favourable and apparently acceptable, such final decision has to be taken by the Director of Rationing under the law.
We, accordingly, set aside the notification and direct the Director of Rationing to take decision on the recommendation made by the Rationing Officer within a period of 12 weeks from the date of communication of this order and till such decision is taken, no step shall be taken to fill up the above vacancy."
Admittedly, the unsuccessful candidate was not a party either to the writ petition or before the Appeal Court. However, the unsuccessful candidate became aware of the 5 judgement and order dated September 24, 2012, at least at the time of filing of his writ petition, which is under consideration herein. The unsuccessful candidate did not take any steps for the purpose of having the judgement and order dated September 24, 2012 passed by the Hon'ble Division Bench modified or altered suitably.
The authorities are bound to act in terms of the order dated September 24, 2012. The order dated September 24, 2012 requires the Director of Rationing to take a decision on the recommendation made by the Rationing Officer.
The recommendation of the Rationing Officer is on record. The Rationing Officer had considered the candidature of both the candidates and had found in favour of the successful candidate. Therefore, the contention on behalf of the unsuccessful candidate that the candidature of the unsuccessful candidate was not considered at all is without any basis. The candidature of the unsuccessful candidate was considered at least at the stage of the Rationing Officer, where the Rationing Officer had made recommendation. The Hon'ble Division Bench has directed the Director of Rationing to take decision on the recommendation made by the Rationing Officer.
By the order dated January 14, 2013, the Director of Rationing had taken a decision on the basis of the recommendation of the Rationing Officer. Such order has not been demonstrated to be perverse.
True the Director of Rationing had proceeded to give an opportunity of hearing to the successful candidate, although not required to do so in express words by the Hon'ble Division Bench; but the order of Hon'ble Division Bench also does not preclude the Director of Rationing to afford an opportunity of hearing to the successful candidate. The Director of Rationing having embarked upon an exercise of following the principle of natural justice by affording a reasonable opportunity of hearing to the successful candidate, I am of the view that, such course of action should not be faulted. The 6 Hon'ble Division Bench did not require the Director of Rationing to hear the other candidates afresh. It had directed the Director of Rationing to take a decision on the basis of the recommendation of the Rationing Officer. At the stage of the Rationing Officer the candidatures of the respective candidates have been considered. Therefore, the unsuccessful candidate was not denied an opportunity to have his candidature considered by the authorities.
In such circumstances, I do not find any merit in the writ petition filed by the unsuccessful candidate.
W. P. 17433 (W) of 2013 is dismissed without any order as to costs. So far as the successful candidate is concerned, W. P. 18593 (W) of 2013 is disposed of by directing the authorities to take steps in terms of the order dated January 14, 2013 in accordance with law. The authorities are expected to take such steps within six weeks from the date of communication of this order to them. There will be no order as to costs.
The learned advocate appearing for the unsuccessful candidate prays for stay of the order.
In view of the direction being given to the authorities to take steps within a period of six weeks, in my view, stay of this order is not warranted.
The prayer for stay is considered and rejected.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)