Calcutta High Court (Appellete Side)
Imal Kujur & Ors vs The State Of W. B. & Ors on 28 March, 2011
Author: Indira Banerjee
Bench: Indira Banerjee
1
2.
28.03.2011.
d.d.
W. P. No.25304 (W) of 2010
With
CAN 835 of 2011
With
CAN 836 of 2011
Imal Kujur & Ors.
Vs.
The State of W. B. & Ors.
Mr. Saptangshu Basu, Sr. Adv.,
Mr. Rajendra Nath Barik,
Mr. J. N. Mohanty,
Mr. Argha Banerjee
........ For the Petitioners.
Mr. Milon Ch. Bhattacharyya,
Mr. Sajal Kumar Chakroborty,
Mr. Syed Nazmul Hossain
..... For the State.
Mr. Samindra Kumar Das
.... For the Applicants in CAN 835 of 2011 & CAN
836 of 2011.
This writ application is directed against a notice dated 10th
December, 2010, inviting applications from adult citizens, for
appointment as dealers of Fair Price Shops in the tea garden areas
under the Siliguri Sub-Division.
In terms of the notice, the last date for submission of
applications was 24th December, 2010. The notice made it clear
that applicants who had applied in response to earlier notifications,
were not required to apply afresh.
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The conditions for making an application, as stipulated in the
said notice, are set out hereinbelow for convenience:
" CONDITIONS:
1. Applicant(s) must fulfill above eligibility criteria before
submission of the application in prescribed proforma.
2. Applicant(s) must submit along with prescribed proforma
the Photo copies of supporting documents as follows (i)
Proof of nationality (ii) Proof of residence (iii) Ration Card
(iv) Proof of age (v) Proof of educational qualification (vi)
Proof of SC/ST, if any (vii) proof of financial solvency (viii)
Proof of un-employment by means of an applicant (ix)
Proof of ownership of go-down-cum-shop with a sketch
map (x) Trade license/enrolment certificate (xi)
Declaration in the form of an Affidavit about non-
conviction/non-pending case in any Court of law.
3. Applicant(s) without the above supporting documents
should be liable for rejection without any reference.
4. Applications should be submitted in person to produce
original supporting documents for verification of the
Photo copy at the time of receipt of application form.
5. Applications received by Post/Courier Service shall not
be considered.
Prescribed proforma of application will be available at the
Office of the Sub-Divisional Controller, Food & Supplies,
Siliguri.
Last date of submission of application 24/12/2010 upto 5-30
P.M. "
Mr. Basu, appearing on behalf of the petitioners, pointed out
that there was a requirement to furnish proof of financial solvency
and proof of ownership of suitable go-down-cum-shops along with a
sketch map. However, the criteria and/or yardstick of financial
solvency and/or suitability of go-down-cum-shops had nowhere
been indicated.
Relying on the judgment of the Supreme Court in Reliance
Energy Ltd. & Anr. Vs. Maharashtra State Road Development
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Corpn. Ltd. & Ors., reported in (2007) 8 Supreme Court Cases 1,
Mr. Basu submitted that when a notification for distribution of
largesse was published, the terms and conditions ought to indicate,
with legal certainty, the norms and benchmarks.
In Reliance Energy Ltd. (supra), the Supreme Court held:
" This "legal certainty" is an important aspect of the rule
of law. If there is vagueness or subjectivity in the said norms it
may result in unequal and discriminatory treatment. It may
violate doctrine of "level playing field". "
Mr. Basu also submitted that in terms of the provisions of
the Public Distribution Order and in particular, paragraph 9
thereof, the vacancy was required to be declared through public
notification/advertisement. Public notification meant notification
in an Official Gazette. There could be no declaration without
notification in the Official Gazette.
Mr. Bhattacharyya, appearing on behalf of the respondents,
submitted that the judgment of the Supreme Court in Reliance Energy Ltd. (supra) was rendered in the context of a commercial tender involving crores of rupees. The judgment can have no application in the facts and circumstances of this case.
Mr. Bhattacharyya also submitted that a notification had earlier been issued inviting applications for appointment of dealers. The earlier notification had been challenged on the ground that applications had been restricted to local persons alone.
Restriction of applications to local persons was in clear contravention of the West Bengal Public Distribution System 4 (Maintenance and Control) Order 2003, hereinafter 'the Public Distribution System Order', in terms whereof applications are to be invited from all bona fide citizens of the State.
The Notification was set aside by this Court by an order dated 30th November, 2010 in W. P. No.861(W) of 2010 and pursuant to the aforesaid order, the impugned notice has been issued.
Mr. Bhattacharyya argued that persons with vested interests were causing writ applications to be filed one after the other to stall the process of appointment of dealer with ulterior intent. The issues raised in this writ application were not raised in the earlier writ application referred to above.
Mr. Bhattacharyya also submitted that the authorities had the option to declare vacancies either through public notification in the Official Gazette or by advertisement. Emphasis was placed on the use of the punctuation '/', which stands for "or". The State is bound by the principles of Article 14 of the Constitution of India. The process of selection in matters involving distribution of largesse must be transparent with the least possible scope for discrimination and arbitrariness.
It is difficult to accept Mr. Bhattacharyya's submission that the principle of level playing would apply only to commercial tenders and not to appointment of dealers.
Whenever the State and/or an authority which is 'State' within the meaning of Article 14 of the Constitution of India, invites applications for distribution of largesse, whether it is a notification 5 inviting tenders or a notification inviting applications for dealerships and distributorships, the notification must clearly indicate the benchmark and norms for consideration. When possession of a go-down is an essential pre-requisite and an application might be rejected on the ground of unsuitability of go- down, the yardstick for suitability must clearly be announced.
Distributorships and dealerships provide opportunity of self- employment for unemployed young persons. On a notification being issued, many unemployed persons would incur substantial expenses, may be by raising finance, to make arrangements for a go-down. Announcement of guidelines would prevent infructuous investments and/or infructuous applications.
There can be no doubt that principles of res judicata and/or constructive res judicata apply to writ proceedings as much as to civil proceedings. However, the petitioners herein were not parties to the earlier writ petition. In any case, the cause of action is a fresh cause of action in that the subsequent notice is being challenged.
When notices inviting applications for distribution of largesse are issued, such notices must conform to Article 14 of the Constitution of India as also the Public Distribution System Order under which the notice is issued. The earlier notice, inviting applications from persons of the locality, was ex facie contrary to the express provisions of the Public Distribution System Order.
It is reiterated at the cost of repetition that when a notification is issued inviting applications for distribution of largesse, such notifications should lay down with legal certainty, 6 the norms and benchmarks as laid down by the Supreme Court in Reliance Energy Ltd. (supra).
It is immaterial that the judgment was rendered in the context of a commercial contract. The proposition of law is binding notwithstanding the nature of the notice. Whether the notice is of a commercial nature or for appointment of dealers and distributors, the same involves distribution of largesse and must be in strict compliance with the principles of Article 14.
When applications are invited indicating that suitability of go-down and/or financial solvency would be taken into account for selection, the criteria for financial solvency and/or for suitability of go-down would have to be laid down. The essential pre-requisites for acceptance of go-down as suitable, for example, the capacity and size of the go-down, the requirement of the go-down to comply with fire safety and other safety norms and the like, should be announced. Of course, compliance with minimum requisites cannot ensure selection. The best candidates would necessarily have to be selected by a transparent process of selection.
The benchmark for selection of go-down and/or showroom has nothing to do with actual supply or sales. The indication of the benchmark for the purpose of selection does not, in any manner, affect the right of the State to vary the quantum of supply, to tag cards attached to dealerships to other dealers or to bifurcate dealerships and create new dealerships, should the exigencies so require. The benchmark is for the specific purpose of selection and selection alone. To cite an example, if the benchmark was a go- down of a certain specification suitable for storing 10,000 metric tons of cereals at a time, this would not necessarily cast an 7 obligation on the State to ensure that the dealer, if ultimately selected, is supplied with 10,000 metric tons of food cereals for sale. The quantity may be less.
The next issue is whether paragraph 19 of the Public Distribution System Order makes notification in Official Gazette mandatory. As argued by Mr. Bhattacharyya, there was "/"
between public notification and advertisement in the Public Distribution System Order. By a Notification No.7044 FS, 18th November 2004, paragraph 19 was amended by insertion of the word "or" between notification and advertisement.
The use of the word "or" is ordinarily disjunctive. However, it is a well established principle of interpretation that the word "or"
may, if the situation so demands, be construed as conjunctive.
To advertise is to make a thing known. Advertisement may be in various ways and means. Advertisements may be issued by putting up prominent hoardings. Advertisements may be issued by circulation of handbills. A common form of advertising is through newspapers. The choice of newspapers is with the authorities concerned.
There being no definite mode of advertisement prescribed in paragraph 19, the issuance of notification in the Official Gazette, is, in my view, obligatory and not optional. Gazette notification cannot be dispensed with.
Paragraph 19, in my view, casts an obligation to issue the notification in an Official Gazette and, in addition, to advertise in such manner as the authorities might deem fit and proper. The 8 object of paragraph 19 is to give adequate publicity to an appointment notice to enable people to apply. Intending applicants would, in view of paragraph 19, look out for notifications in the Official Gazette. It is also not understood why the State should shy away from publishing a notification in the Official Gazette.
The impugned notification cannot be sustained and the same is set aside and quashed. It will be open to the respondents to issue a fresh notification inviting applications, which shall indicate with certainty the norms and benchmarks for selection. If the norms and benchmarks for selection cannot be included in the advertisement, the same may be distributed through a brochure and/or booklet that might have to be purchased by intending applicants. The notification might only indicate that the details would be available from such booklet and/or brochure. Needless to mention that the notification shall be published in an Official Gazette. In addition, the notification may be advertised in such manner, as the authorities might deem fit and proper.
The writ application is disposed of accordingly. All connected applications are also disposed of.
Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
( Indira Banerjee, J )