Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Barun Ghosh & Anr on 7 June, 2017
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
F.M.A. 2272 of 2016
Form No. J. (2)
(ss)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present :
The Hon'ble Justice:- Rakesh Tiwari
And
The Hon'ble Justice:- Shivakant Prasad.
F.M.A. 2272 of 2016
With
C.A.N. 3493 of 2016
State of West Bengal & ors.
Vs.
Barun Ghosh & anr.
With
M.A.T. 201 of 2016
With
C.A.N. 1355 of 2016
Kultali Food Marketing Pvt. Ltd.
Vs.
Barun Ghosh & ors. ,
For Appellants: None
For the respondents: None
Heard on:-
Judgment on: 7th June, 2017.
Hon'ble Justice Rakesh Tiwari:
The appeal being F.M.A.2272 of 2016 along with appeal being M.A.T. 201 of 2016 have been taken up for disposal.
The appeal being F.M.A.2272 of 2016 is filed by the State of West Bengal and ors. against Barun Ghosh & anr.1
F.M.A. 2272 of 2016 We note that Counsel of this Court have gone on cessation of work upto 17.6.2017 on the ground of humid weather condition. We find that the ground is not a good ground. Advocates of other parts of the country including Chennai and Allahabad, they are working in courts during temperature of 48º C. Therefore, there is no ground for the learned Counsel not to work in this Court where temperature is around 40º - 42º C. This is a noble profession and the Court cannot be expected to be so unjustified towards the litigants or the lawyer should be rational before taking such resolution of cease work. Such a practice has already been condemned by the Apex Court in a number of decisions. Moreover, we do not find any reason for the State-Advocate not to appear in the Court, though their accommodations are separate. Therefore, we take up this case.
This appeal has been preferred by the State being aggrieved by and dissatisfied with the judgement and order dated 3.2.2016 passed in W.P. no.21333(W) of 2015 with W.P. no.17744(W) of 2015 (Barun Ghosh Vs. State of West Bengal & ors.). The aforesaid writ petition was disposed of with certain observations and directions along with connected writ petition, which reads thus -
" I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.
A close perusal of the order dated 31st January, 2014 reveals that the government decided to cancel the said vacancy at Jamtalahat 'considering that the situation regarding appointment against such vacancy has been materially changed'. The said order is absolutely vague and there is no explanation as regards 'the situation regarding appointment' and the order also does not mention the 'material changes' which prompted the government to cancel the said vacancy. The government decided to cancel the said vacancy in a cryptic manner without disclosing the grounds towards such cancellation. The said memorandum also does not reveal any independent application of mind on the part of the government and in arriving at the said decision there is no indication to the effect that the order of the Director dated 11th November, 2013 was at all considered. The 2 F.M.A. 2272 of 2016 order dated 31st January, 2014 is not legally sustainable due to breach of basic principle of law that every order passed by any administrative body or any quasi judicial body and/or even by the judicial body must disclose the reason, so that the person concerned who is affected thereby, may approach the higher forum and/or higher Court assailing the decision thereof.
The operative part of the judgment dated 14th August, 2013 runs as follows :-
The Director shall decide the matter afresh. If he is dissatisfied with either the report of the sub-divisional controller or the recommendation of the district controller, 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 shall be sent to the appropriate authority of the State Government.' The State respondents proceeded to act on the basis of the said judgement and the Control Order of 2003 as would be explicit from the memorandum dated 11th November, 2013 issued by the Director wherein it has, inter alia, been recorded that the DC, South 24-Parganas considered the enquiry reports of the SC, Baruipur and sent the records to the Directorate and that the Directorate agreed with the views of the DC and recommended the candidature of the petitioner herein for engagement as distributor in the vacancy at Jamtalahat.
A close perusal of the memorandum dated 31st January, 2014 reveals that in contained three directives. First was the decision to cancel the vacancy at Jamtalahat. Second was a direction upon the SC to initiate a fresh proposal in terms of the Control order of 2013. Third was a direction to intimate all the applicants, whoever participated in the earlier process for filling up the vacancy at Jamtalahat, about its cancellation. The fact that the declaration of such vacancy 'near the office of BDO' is consequential to the cancellation of the vacancy at Jamtalahat is explicit from the subject of the memorandum dated 31st January, 2014 which runs as follows :-
'Fresh proposal for vacancy of a distributor against the cancelled vacancy of Jamtalahat, Kultali P.S.' Mr. Bandopadhyay has argued in support of the government's decision towards cancellation of the said vacancy though fact remains that KFMC itself did challenge such decision of cancellation by a writ application being W.P. No.10608(W) of 2014 and the said writ application is still pending. Thus the arguments advanced on behalf of KFMC is an instance of reprobation of its contention as urged in the earlier writ application and the KFMC has now sort to wriggle out from such contradictory stand by submitting that it is ready and willing to withdraw the said writ application. From the report filed by DC it appears that in the fresh selection process KFMC has an edge over the other contestants and that as such today it has been argued on behalf of KFMC that the government decision towards cancellation of the vacancy at Jamtalahat is appropriate and the such decision is not required to be interfered with.
Admittedly, the said vacancy was declared prior to promulgation of the Control Order of 2013 and that no appeal has been preferred by the State respondents against the order dated 14th August, 2013 and the State respondents proceeded in terms of the directions contained in the said judgement applying the provisions of the said Control order of 2003. Though, the said Control order of 2003 was repealed by the said Control Order of 2013 notified on 8th August, 2013, there is no indication from the steps taken by the State respondents on and from the date of delivery of the judgment and order on 14th August, 2013 till the date of cancellation of the said vacancy on 31st January, 2014 to the effect that the provisions of the new Control Order of 2013 would be applicable for filling up the said vacancy. Furthermore, in the affidavit-in-opposition filed by the State respondents in connection with W.P. No.17744(W) of 2015 it has been categorically stated that 'it is denied that the vacancy was cancelled upon repeal of the Control order of 2003 only, as alleged'.
The point of delay as urged by Mr. Bandopadhyay is not acceptable to this Court. The said vacancy was cancelled by an order dated 31st January, 2014. The writ application being W.P. No.10608(W) of 2014 was preferred by KFMC impleading the petitioner herein and an order was passed in the same in the month of June, 2014. Aggrieved by the said order the petitioner preferred an appeal which was dismissed by an order dated 16th July, 2014 observing, inter alia, that such dismissal will not prevent the appellant from challenging the subsequent steps or decision of the respondent authority for filling up the 3 F.M.A. 2272 of 2016 vacancy of distributor at Jamtalahat by filing appropriate application in connection with the pending writ petition (W.P. No.10608(W) of 2014). Subsequent thereto step was taken for filling up a vacancy 'at near the office of BDO under Kultali Block' on 13th July, 2015 and challenging the same the petitioner filed the writ application being W.P. No.17744(W) of 2015 on 27th July, 2015. Thereafter, the petitioner independently challenged the memorandum dated 31st January, 2014 by the writ application being W.P. No.21333(W) of 2015 on 24th August, 2015. Instead of filling an application in the pending writ application, in terms of the Appeal Court order dated 16th July, 2014, the petitioner preferred an independent writ application challenging the memorandum dated 13th July, 2015. This Court does not find any infirmity in such action of the petitioner.
The above sequence explains the delay as urged by the respondents and it is clear that there was no deliberate delay on the part of the petitioner to challenge the memorandum dated 31st January, 2014 and 13th July, 2015. No negligence or inaction or want of bona fide is imputable to the petitioner. As such, this Court is of the opinion that the writ applications cannot be dismissed on the ground of delay.
On the contrary there was a delay in the decision making process on the part of the State respondents inasmuch as the cancellation of the said vacancy at Jamtalahat was on 31st January, 2014 whereas decision to fill up the said vacancy was adopted almost 17 months thereafter on 13th July, 2015. The said period of delay stands unexplained on the part of the State respondents. Thus without any reasonable explanation for such delay in the decision making process, the respondent authorities cannot take shelter behind promulgation of a new Control Order, which would have the effect of negating the directions of this Court contained in the judgement dated 14thAugust, 2013. In my opinion, a legal right accrued in favour of the petitioner by virtue of the judgement and order delivered by this Court on14th August, 2013 and the petitioner has every right to challenge the abrupt cancellation of the said vacancy on 31st January, 2014.
The recommendation issued in favour of the petitioner by the respondents as explicit from the order dated 11th November, 2013 are not mere notings in a departmental file but the said recommendation is an expression of opinion by the competent authority in exercise of the jurisdiction conferred upon it by the Control Order. As such the judgement delivered in the case of M/s Sethi Auto Service Station (supra) and P. Suseela (Supra) have no manner of application in the instant case. It is true that it is always open to the government not to fill up a vacancy but there has to be a valid reason for adopting such a course of action. The contention of the private respondent to the effect that the cancellation of the vacancy was a policy decision does even stand reflected in the impugned order. The impugned order dated 31st January, 2014 does not reveal any independent application of mind on the part of the State respondents as regards the requirement to cancel the said vacancy at Jamtalahat and to create a new vacancy in its place and stead 'at near the office of BDO under Kultali block'. The said location pertaining to the vacancy notice dated 13th July, 2015 is only 200 meters away from the location of the said vacancy. Thus, the necessity of a distributorship under Kultali block exists but there is no reason why such vacancy is required to be shifted from Jamtalahat to 'near the office of BDO' both of which under Kultali block. As such, the decision towards cancellation of the said vacancy at Jamtalahat is not sustainable in law. the judgements delivered in the case of Ramchandra Murarilal Bhattad (Supra), Manoj Manu (Supra) and Raj Rishi Mehra (Supra) are, thus, distinguishable on facts.
For the reasons discussed above, this Court is of the opinion that the decision of the government to cancel the said vacancy of distributorship at Jamtalahat as indicated by the memorandum dated 31st January, 2014 is unsustainable in law and such decision is, accordingly, set aside. The appropriate authority of the State Government is directed to take a fresh decision as regards the approval of the order of the Director dated 11th November, 2013 and to communicate the said decision to the petitioner within a period of 6 weeks from the date of communication of this order.
Till such communication of the decision, the vacancy notice dated 13th July, 2015 issued by the District Controller (F & S) South 24 Parganas, Alipore shall remain stayed and the respondents shall not take any further steps to fill up the vacancy of distributorship 'at near the office of BDO under Kultali block' as notified by the said memorandum dated 13th July, 2015.
With the above observations and directions, both the writ applications, being W.P. No.21333(W) of 2015 and W.P. No.17744(W) of 2015 are disposed of. 4
F.M.A. 2272 of 2016 There shall, however, be no order as to costs. On perusal of the judgement we do not find that order requires any interference by this Court as it is based on the line with the judgement of the Apex Court. There is no illegality and infirmity with the order passed by the learned Trial Judge.
Accordingly, we confirm the order dated 3.2.2016 and the appeal is dismissed.
As a consequence thereof, the connected appeal and the applications are also dismissed.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on usual undertakings.
(RAKESH TIWARI, J.) (SHIVAKANT PRASAD, J.) 5