Calcutta High Court (Appellete Side)
Gour Chandra Gorai & Ors vs State Of West Bengal & Ors on 19 May, 2017
Author: Shivakant Prasad
Bench: Rakesh Tiwari, Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATRE JURISDICTION
APPELLATE SIDE
ASTA 85 of 2016
In
AST 328 of 2016
With
CAN 11816 of 2016
In
MAT 2050 of 2016
With
CAN 11817 of 2016
In
MAT 2051 of 2016
With
ASTA 86 of 2016
In
AST 329 of 2016
With
ASTA 88 of 2016
In
AST 332 of 2016
With
ASTA 89 of 2016
In
AST 333 of 2016
With
ASTA 90 of 2016
In
AST 334 of 2016
Gour Chandra Gorai & Ors.
Vs.
State of West Bengal & Ors.
Coram : Rakesh Tiwari, J.
Shivakant Prasad, J.
For the Appellants : Mr. Debabrata Saha Roy (Except MAT 2050/16 and 2051/16) Mr. Pingal Bhattacharya For the Appellants : Mr. Parimal Kumar Dwari in MAT 2050 of 2016 81, Mr. Prasanta Behari Mahato MAT 2051 of 2016 Mr. Lal Ratan Mondal For the State : Mr. Kishore Dutta, Ld. A.G. Mr. Amitesh Banerjee Mr. Suddhadev Adak Heard on : 03.05.2017 C.A.V. on : 03.05.2017 Judgment on : 19.05.2017 SHIVAKANT PRASAD, J.
The instant appeal is directed against the judgment dated 08.11.2016 passed in W.P. No. 31930 (W) of 2013 (Gour Chandra Gorai & Ors. v. The State of West Bengal & Ors.), inter alia, on the grounds that the learned Judge failed to understand the true scope and meaning of West Bengal Public Distribution System (Maintenance & Control) Order, 2013.
The brief facts of the case is that the appellants are the fair price dealers of the District of Paschim Medinipur and are running their business in fair price shop by virtue of their liceses granted under the West Bengal Public Distribution System (Maintenance & Control) Order, 2003 (hereinafter referred to as the Control Order, 2003) by the Food & Supply Department. Block Development Officer, Shalbani and Garbeta-II Block under the jurisdiction of Sub-Divisional Controller (F & S), Medinipur Sadar Sub-Division, Paschim Medinipur by two separate orders dated 18.7.2011 and 09.8.2011 instructed the appellants to open special counters/ additional outlets for distribution of ration articles to the ration card holders for beneficiaries of people of Jungle Mahal and their ration cards were tagged with the respective F.P. shops of the appellants. Accordingly, the appellants started distribution of ration articles to their respective tagged card holders from those additional outlets and have been submitting returns showing segregated number of cards, temporarily attached to their respective additional outlets/special counters.
It is contented that in the aforesaid back drop while the appellants have been distributing ration articles to those temporarily segregated card holders from the newly set up additional outlets, Project Director, DRD Cell, Paschim Medinipur Zilla Parishad, by Memo dated 06.9.2012, instructed the B.D.O., Shalbani and Garbeta- II Block to select the self-help group for running those newly set up additional outlets of the appellants herein and by Memo No. 461/DCM(W)/13 dated 07.02.2013 District Controller F & S forwarded list of self-help groups for running 17 additional outlets in the District of Paschim Medinipur whose names were suggested by the Project Director, DRD Cell vide Memo No. 177/DRDC dated 12.10.2012 as per the approval of the District Magistrate, Paschim Medinipur.
Challenging the said memo the appellants as writ petitioners preferred writ being W.P. No. 6252(W) of 2013 and the writ court passed an interim order directing the respondents maintain status quo as regards supply of ration articles to the appellants vide order dated 04.3.2013 which was extended vide order dated 29.4.2013.
It is also contended by the appellants that during existence of such interim order, vide his order dated 02.9.2013 the District Controller was instructed to obtain proposal for creation of vacancies of F.P. Shop dealers in respect of those sub-centers of appellants from the concerned Sub-Division Controller F & S. District Controller F & S, Paschim Medinipur on 09.09.2013 directed Sub-Divisional Controller (F & S), Medinipur Sadar Jhargram to submit proposal as per the instruction of Joint Secretary, F & S. The District Controller, F & S, Paschim Medinipur submitted proposal for creation of vacancies of new F.P. shop dealer in place of appellants sub-centers with proposal for curtailment of 50% of ration card from the appellants shop, thereby instructing and directing that the 50% of tagged ration cards of the appellants are to be tagged with the newly appointed self-help groups. Sub-Divisional Controller (F & S), Midnapur Sadar, Jhargram invited application from bona fide citizen of Sub-Division, Self-help Groups, Registered Co-operative Societies, Semi Government Bodies, Group of Individuals as an entity of area/locality covered for filling up the vacancies of M.R. dealership (FPS) outlets constructed under IAP under Jungle Mahal, Midnapur Sadar Sub-Division at as many as eight places, indicating that self-help groups shall have the preference.
Challenging the entire selection process of self-help groups prior to declaration of vacancy and vacancy declaring notice, appellants had moved writ petition being W.P. No. 31930(W)/2013 and by order dated 09.10.2013 an interim order was passed by the writ court directing respondent not to tag any further action on the basis of the vacancy declaring notices dated 23.9.2013 and the said interim order was extended till disposal of the writ petition. Thus, 11 writ petitions were decided analogously on the identical issue by the judgment dated 08.11.2016 dismissing the writ petitions except the writ petitions filed by the writ petitioners of Purulia District.
Challenge in the writ petitions was the purported vacancy declaring notice dated 03.9.2013 issued by the Sub-Divisional Controller, F & S for appointment of F.P. dealers by delinking the tagged ration cards from the appellants F.P. Shops.
The impugned judgment has been challenged inter alia, on the grounds that delinking of cards and curtailments of allotment of ration articles has the civil consequences on the dealer concerned, such steps cannot be taken without following rule of natural justice without providing any opportunity to dealer to defend his case. It is submitted that a decision of the respondents to close those sub-centers to provide undue advantage to a particular group is unreasonable, unfair and unjust violating the appellants right under Article 14, 19(i)(g) and 21 of the Constitution of India.
Mr. Debabrata Saha Roy, learned Advocate for the appellants submitted that there was no allegation or complaint against the appellants regarding distribution of ration articles in the Left Wing Extremist (LWE) affected areas and there was no need for engagement of other dealer in those area curtailing ration cards of the appellants dealership as delinking of ration card of a dealer amounts to a punishment enumerated in Paragraph 24(a) of Control Order, 2013 which deals with provision of penal action against the F.P. Shop dealers.
It is argued that Paragraph 20(ii) of the Control Order, 2013 has been framed by the State Government in exercise of the power conferred under Section 3 of Essential Commodities Act, 1965 read with Government of India, Ministry of Consumer Affairs, Food & Public Distribution (Department of Food & Public Distribution) Order No. G.S.R. 630C dated 31st August, 2001. It deals with the provision pertaining to declaration of vacancy of fair price shop which reads thus--
"20(ii) If it appears necessary for the District Administration to declare a new vacancy for catering to the need of consumers in any particular area, the vacancy has to be declared with the approval of Department. In that case, the Sub-divisional Controller, Food and Supplies shall submit the proposal of any vacancy of dealer to the concerned District Controller (F&S), who in turn, will send it to the Director of DDP&S. The Director, DDP&S will examine the proposal, if necessary, make re-enquiry and send the proposal to the Department for approval. After obtaining approval of the State Government, the Sub-divisional Controller, Food and Supplies shall declare such vacancy stating the eligibility criteria through notice in the office notice board and official Gazette notification/ advertisement in a local as well as in a widely circulated daily news paper. The last date of receiving applications shall be thirty days from the date of notification of the vacancy."
It is pointed out that it would be evident from the above provision that the Sub-divisional Controllers (F & S) being the licensing authorities of the F.P. Shop Dealers are only competent authorities to ascertain and determine as to whether there is any need to declare a fresh vacancy at a particular location taking into consideration convenience and inconveniences of the ration card holders of the subject area and such decision of the Sub-divisional Controllers (F & S) shall first be ratified by the District Controllers (F & S) and only then question of consideration of declaration of vacancy does arise by the State authorities.
It is further submitted that the highest authority of Food & Supplies Department instructed the Director, DDP & S to obtain proposal for declaration of vacancy of new F.P. Shop Dealers in place of appellants' sub-centers from the respective Sub-divisional Controller (F & S) through the District Controller (F & S), Paschim Medinipur and proposal for declaration of vacancies with proposal for curtailment of 50% ration card for appellants dealership.
It is argued that delinking of ration cards from F.P. Shop Dealer amongst to a punishment under Paragraph 24(ii) of the Control Order, 2013 and the action so taken by the respondents' authority is without following due process of law in utter violation of principle of natural justice.
On behalf of the appellants it is also submitted that the appellants have invested huge money from their own pockets, engaging number of labourers and after making infrastructures have set up sub-centers for distribution of ration articles, so the appellants have legitimate expectation that such sub-centers will be continued inasmuch as the declared policy of the State to make the F.P. Shop Dealership business economically viable, at least 5,000 ration cards shall be tagged with a Dealer in terms of G.O. dated 13.04.1999.
This G.O. has been well discussed by the learned writ court at page 178 of the Paper Book.
On behalf of the respondent authorities Mr. Kishore Dutta, learned Advocate General of State of West Bengal submitted that the contention of the appellants that they are entitled to hold 5000 ration cards and delinking of ration cards is violative of the circular dated 13th April, 1999 of the Government authority has no legal basis.
It is submitted that appellants' licensees are guided by the Control Order of 2013 which provides about the rights and obligation of the license holder but that does not guarantee 5000 ration cards for economic viability of the business of the M.R. dealer. On the other hand, the condition of the licence provides that the writ petitioners/respondents are bound to carry out any order given to him by the officer not below the rank of Sub-Inspector under the Food & Supply Department.
It would be apt to reproduce the said Memo No. 1478- FS dated 13th April, 1999 of the Commissioner of Food & Supply, Secretary to the Government of West Bengal Department of Food and Supply for better appreciation which reads thus--
"Government of "West Bengal Department of Food and supplies 11A, Mirza Galib Street, Calcutta-87.
---------------
No. 1478-FS Dated: 13th April, 1999
FS/SECTT/FOOD/6F-5/85 Pt.I
MEMORANDUM
The Public Distribution System in the State functions under a large net/ark of State agencies known as Distributor, Wholesaler and Dealer. Procedures have been laid down for selection and appointment of such state agencies, under various orders issued from time to time. But the actual number of such agencies as would be necessary for smooth and effective running of the PDS keeping in view their economic viability has never been worked out. This had resulted in disparities from place to place, as agencies were appointed in terms of different local considerations without any uniform basis of appointment. With the introduction of the T.P.D.B. from 01.6.97 and the consequent drastic reduction central allocations of food-grains to the State, the entire Public Distribution System has undergone a drastic change, necessitating the adoption of a uniform basis in respect of declaration of vacancies, appointment and tagging .retagging of state agencies under the Public Distribution System.
Under the circumstances, I am directed by order of the Governor to state that, in supersession of all orders issued earlier in this regard, the following guidelines shall be followed in respect of appointment, tagging and retagging of Distributors, Wholesalers and retailers in MR areas.
A. Not more than 5000 ration cards shall be tagged with a MR dealer.
B. (1) Not more than 50 MR dealers and (2) 2.50 lakh ration cards shall be tagged with a MR Distributor/Wholesaler.
C. Appointment, tagging or retagging may be considered only when the total number of dealers and rations exceed those specified at A and both (1) and (2) of B above.
However, under exceptional circumstances arising out of geographical barriers and unusually long distances required to be covered by the dealers causing drainage on account of high transport charges, to the State revenue, such conditions may of course be reviewed accordingly.
All proposals of declaration of vacancies interns of the aforesaid guidelines may henceforth be submitted to the Government through the district level statutory authorities for approval, with sufficient justification. However, the procedure already laid down in respect of selection and appointment of dealer/distributor will remain unchanged.
This order shell take immediate effect and shall remain in force until further orders.
( Dipak Rudra ) Commissioner of Food & Secretary to the Government of West Bengal."
It is argued by Mr. Dutta that assuming but not admitting that the petitioner is entitled to hold 5000 ration cards, the same memorandum also provides that circumstances the conditions can be reviewed. The guidelines dated 5th July, 2011 discloses the exceptional circumstances as to the hardship faced by the inhabitant of Jungle Mahal area and for that the appropriate Government decided to create new vacancy and to appointment new M.R. dealers at Jungle Mahal area preferably from the self-help groups. Accordingly, the list of self-help groups was prepared and forwarded to the authority concerned for approval.
We agree with such contentions of Mr. Dutta that the provision of Paragraph 24 of the Control Order of 2013 is applicable only when the Department indicates a proceeding for violation of the conditions of the license but in this particular case there is no allegation against the petitioners/ appellants rather a policy decision has been taken in larger conspectus.
On plain reading of the above quoted memorandum and the guidelines provided therein does not give any right to the writ petitioner/appellants to hold 5000 ration cards therefore, the respondents authorities can very well delink ration cards from the M.R. dealer shop of the appellants as legal right has not been any way fettered.
Therefore, the Joint Secretary, Food & Supply, Government of West Bengal by a notification dated 27th August, 2013 directed the Director, DDP&S to urge the respective SCF &S of the three Districts of Jungle Mahal area to send proposal for creation of vacancy of M.R. dealers and thereafter issued notice inviting application from eligible candidates for M.R. dealers in new vacancy in the Jungle Mahal area under the said notification under clause 20(ii) of the Control Order of 2013 whereunder the self-help groups have been given preference, accordingly State policy cannot be faulted with.
It would appear that the State Government took decision for setting up additional outlets for the PDS beneficiary in Jungle Mahal by issuing Memo no. 4776- FS/FS/Sectt/Food/13A-02/2011 dated 5th July, 2011 addressed to the Director DDP & S which stipulates--
"It has been observed that a section of the poor in the Left Wing Extremist (LWE) affected areas of West Midnapore, Bankura and Purulia is being deprived of the P.D.S.- benefits for various reasons causing unrest in the locality. In many cases Ration Card holders are to travel a long distance to purchase P.D.S.- items which the poor residing in far flung areas could hardly afford. In such cases attempts are being made to appoint more MR. Dealers which, of course, will take a lot of time. In the meantime, it has been decided to distribute ration commodities in some far flung areas in 23 Blocks of these districts from a few temporarily identified outlets. In addition to the existing M.R. Dealers, as per the 'Micro Plans' to be prepared by the concerned District Magistrates in consonance with the discussions held in the meeting with the Chief Secretary on 4th July, 2011.
The salient features of the programme is appended below--
1. For streamlining TPDS in Jungle Mahal additional retail outlets will be opened in B.D.O. offices, G.P. offices, near Police Station/Police camps and even in Polling Stations (if required) --as will be decided by the District Magistrate who will set up these outlets in consultations with DCF & S, SCF & S, SDOs and BDOs. Area of operation of existing M.R. dealer will be decreased in small circle which is to be defined also.
2. These outlets are to be set up mainly to serve people of far flung areas so that Ration Card holders need not move a long way to have their allotted P.D.S. items.
3. The District administration will chalk out suitable plans, fix well defined command areas of proposed outlets and make wide publicity so that people should know exactly where to go, on which days and time.
4. Initially, these outlets shall be manned by casual workers/volunteers to be deployed by the district administration. Other work forces for supporting the programme, may be drafted from the B.D.O. office, G.P. Office and other areas as will be deemed fit by the District Magistrate.
5. Food-grains allotted to the selected outlets shall be delivered by concerned M.R. Distributor directly under the doorstep delivery scheme.
6. Separate accounts shall be maintained by the in-charge of the outlets. Allocation of Food-grains shall be made taking into account the number of units tagged, prescribed scale and closing stock. Of course, commissions allowed for Food-gains allotted and distributed from the outlets shall be handed over to the M.R. dealer concerned.
7. Tagging of beneficiaries/allocation of ration commodities etc. shall be done by the filed officials of Food & Supplies Department under the guidance of DCF & S informing the District Magistrates from time to time.
8. The DCF & S shall be responsible for ensuring timely availability of stock of ration commodities at all such outlets. To avert harassment of the public, time schedule for distribution is to be maintained strictly.
9. In case of any local dispute, the B.D.O. is consultation with officials of Food & Supplies Department shall take suitable decisions.
10. If any genuine inhabitant is found without having ration card he/she should be covered by issued new ration cards as per guideline issued vide No. 3477-FS/Sectt/Food/13A- 02/2011 dated 17.06.2011 if, of course, found otherwise eligible.
11. All formalities for implementation of the Special Scheme shall have to be completed by 15.07.2011.
12. To ameliorate hardships of the people in 23 identified blocks and serve the consumers more effectively, concerted efforts are necessary."
It is argued on behalf of the appellants that the said memorandum is a guidelines issued by the State Government and it cannot be read as a legislative policy. It is an internal document of the Department under which the respondents authorities cannot do in view of the fact that as per the Governments directive the writ petitioners/appellants have set up sub-centers on the request of the Block Development Officer, Shalboni, Paschim Medinipur vide letter dated 18.7.2011 to open the existing counter on every Thursday and Friday at the specific location with further instruction to distribute the allotted PDS to the ration card holders of those far flung areas.
Our attention is drawn to the said order which is reproduced hereunder--
"ORDER In pursuance of Order No. 1446-FS F.S/Sectt/Food/13A-02/2011 dated 5th July, 2011, the following Gram Panchayat Officials are hereby Ordered to be attached with the additional outlets in Jungle Mahal as per Annexure-I. The additional outlets will be opened by extension of the existing M.R. shop at those locations. They will be responsible for opening and functioning of those outlets to serve people of far flung area so that Ration Card holders need not move a long way to have their allotted P.D.S. items. The existing M.R. Dealers will lift their allotted foods of those people and distribute from additional counters. The officials will monitor the whole procedure & remain present at those counters which should be opened for two days (Thursday & Friday) per week. The Officials will submit the report on weekly basis as per Annexure-II. The M.R. Dealer will maintain the account of receipt & payment of allotment items.
Enclo. Order No. 1446-FS F.S/Sectt/Food/13A-02/2011 Block Development Officer Salboni, Paschim Medinipur"
The memorandum of the Joint Secretary to the Government of West Bengal, Department of F& S dated 5th July, 2011 clearly provides that as a temporarily measure the existing M.R. Dealers the writ petitioners/appellants ration cards of a section of poor in the Left Wing Extremist (LWE) affected areas of West Midnapore, Bankura and Purulia were tagged with the exiting M.R. Dealer for distribution of ration commodities in those far flung areas in 23 Blocks of the said three Districts from a few temporarily identified outlets in addition to the existing M.R. dealers as per the macro plans to be prepared by the concerned District Magistrate.
The learned counsel for the writ petitioners/appellants has relied on a decision in case of J. N. Ganatra Versus Morvi Municipality, Morvi reported in AIR (1996) 9 Supreme Court Cases 495 wherein it has been held thus--
"The General Board of the Municipality had the power under the Act to dismiss the appellant but the said power could only be exercised in the manner indicated by Rule 35 of the Rules. Admittedly the power of dismissal has not been exercised the way it was required to be done under the Act. It is settled proposition of law that a power under a statute has to be exercised in accordance with the provisions of the statute and in no other manner. The dismissal order in the present case could only be passed by following the procedure laid down under Rule 35 of the Rules. The Municipal Board had no jurisdiction or authority to dismiss the appellant without following the mandatory procedure. In view of the categorical finding given by the High Court to the effect that the order of dismissal was on the face of it illegal and void, it must be held that the dismissal of the appellant was not an act done in pursuance or execution or intended execution of the Act. The order of dismissal being patently and grossly in violation of the plain provisions of the Rules, it cannot be treated to have been passed under the Act."
We have gone through the cited decision which in our humble opinion is distinguishable from the facts of the instant case as the issue involved in the cited case related to an order of dismissal from service of an employee (appellants) by Municipality (respondent) in violation mandatory provision of Rule 35 of the Rules.
Reference has also been made to a decision of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and Others versus Director General of Civil Aviation and Others reported in (2011) 5 Supreme Court Cases 435, wherein it has been held that if any decision is taken by a statutory authority at the behest or in suggestion of a person who has no statutory role to play, the same would be patently illegal and authority vested with the power to act under the statute should exercise its discretion following the procedure therein and interference on the part of any authority even a senior official upon whom the statute does not confer any jurisdiction, is wholly and unwarranted in law. It violates the constitutional scheme. It is also held therein that executive instructions which had issued for guidance and to implement the scheme of the Act and do not have the force of law, can be issued by the competent authority and altered, replaced and substituted at any time. The law merely prohibits the issuance of a direction, which is not in consonance with the Act or the statutory rules applicable thereunder. An executive order is to be issued keeping in view the rules and executive business, though the executive order may not have the force of law but it is issued to provide guidelines to all concerned, who are bound by it. Bearing in mind the principle laid in the cited decision we do find that the dispute in the said case was relating the Flight Time (FT) and Flight Duty Time Limitation (FDTL), as there was some variance between the Aeronautical Information Circular and Civil Aviation Requirements and the appellant had challenged the Circular dated 29.5.2008 before the High Court on the grounds, inter alia, that even if CAR 2007 is kept in abeyance, AIC No. 28/1992, which stood obliterated, could not be revived; it was challenged that CAR 2007 has been kept in abeyance by the order of the authority, which did not have the competence to interfere in the functioning of DGCA, respondent no. 1. Since the appellants' case was dismissed by the Hon'ble Court before the Hon'ble Supreme Court appeal was filed and in that set of facts the Hon'ble Apex Court had laid down the aforesaid principle.
While deciding the writ petitions the learned Court was of the following opinion -
"When a statutory instrument mandates certain procedures to be followed in a particular manner, such procedure would have to be followed in that manner only. If the instrument mandates a particular decision to be taken by a specified authority applying his mind, decision would have to be taken by such authority only with his independent judgment. But have these cardinal principles of statutory construction been violated in these cases, with decision being taken at the higher levels of the decision making process, leaving the Controllers and Sub-Divisional Controllers to merely perform ministerial acts? I do not think so. The subject involved in these cases is distribution of ration articles to the consumers in a geopolitically identifiable area. Object of the State is to improve the distribution process, and for that purpose a policy decision has been taken. The area has been identified applying intelligible criteria and rational decision making process. I do not find any fault in the policy itself. There is a subsisting channel of distribution within a statutory framework for making the ration articles available. In such circumstances, if the State machinery wants to improve the distribution channel through a process which does not impinge upon any of the stakeholders' vested legal rights, in my opinion, merely because the decision has been taken initially at the top level of the administrative hierarchy and then the statutory bodies lower in the hierarchy has been activated to comply with the laid down statutory process for implementing the policy, the process would stand vitiated. The Sub-Divisional Controllers while discharging their duty in terms of Clause 20(ii) of the 2013 Control Order are not exercising any quasi-judicial power which would require their decision making process totally insulted. The State is empowered and entitled to implement its policy through its agencies. If these statutory authorities are left to do their own thinking before mooting the proposal, each Sub- Divisional Controller might initiate individual proposals which would frustrate the State policy. The provision in Clause 20 (ii) of the Control Order which provides proposal for a new vacancy to be mooted by the District Administration does not exclude or forbids the State acting through superior authorities to decide on the necessity to create new vacancies for a specified area covering multi-district territories. Moreover, the vacancy creation process contemplated in Clause 20(ii) of the 2013 Control Order is confined to identifying necessities of creating vacancies in individual districts. It does not envisage a situation where the State, on considering special need of a region comprised within several districts comes forward with a common distribution policy. But such decision has to be implemented through the subsisting statutory process. The State Government would also not be bound by the proposal of the Sub- Divisional Controllers or Controllers. The power of the State to take a contrary view is also implicit in Clause 20 (ii), which in effect provides for screening of such proposals by the Director; DDP&S, who has been authorized to make re-enquiry and then send the proposal for approval. If it was a lone case of superiors dictating a Sub-Divisional Controller to come forward with a proposal in a particular manner unsupported by nay policy, in that event such an action might have been legally flawed, but not in this batch of cases."
Mr. Kishore Dutta, learned Advocate General supporting the finding of the learned writ court submitted that the writ petitioner having received the commission for distribution of rationed articles from the additional outlets under Paragraph 6 of the guidelines dated 5th July, 2011 is barred by the doctrine 'qui approbate non reprobate' that is one who approbates cannot reprobate and therefore, he cannot challenge the notification dated 27th August, 2013 and the appellant's plea as laid in this appeal would be clearly barred under the provisions of Section 115 of Evidence Act.
The provision of Paragraph 20(ii) of Control Order, 2013 and steps provided therein is completely a procedural in nature and the writ petitioner appellant herein has no vested right to challenge the procedure and the directive principle of the State policy because the Joint Secretary, F & S, State of West Bengal under the policy of the Government issued notification dated 27th August, 2013 directing the Director, DDPS for asking the respective Sub-divisional Control of Food and Supply of three Districts of Jungle Mahal area to send proposal for creation of vacancy of M.R. Dealers for inviting application from eligible candidates also for M.R. Dealer new vacancy in the Jungle Mahal area through outlets created at Jungle Mahal for distribution of ration commodities to the down trodden class.
Mr. Dutta also relied on the authority of Hon'ble Apex Court in case of Rani Kusum (Smt.) Vs. Kanchan Devi (Smt.) reported in (2005) 6 SCC 705, wherein it has been observed that a procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and aid to justice.
We find that the Joint Secretary, Department of Food and Supplies under Memo No. 4776- FS/FS/Sectt/Food/13A-02/2011 dated 5th July, 2011 has not been challenged by the appellants whereby and whereunder the Government took the policy for distribution of ration commodities to the section of the poor in the Left Wing Extremist (LWE) affected areas of West Midnapore, Bankura and Purulia for distribution of ration commodities in some far flung areas at 23 Blocks of those Districts from a few temporarily identified outlets, in addition to the existing M.R. Dealers, as per the 'Micro Plans' to be prepared by the concerned District Magistrates in consonance with the discussions held in the meeting with the Chief Secretary on 4th July, 2011 and in the meantime such decision was taken to tag the ration cards of those poor class in the Left Wing Extremist (LWE) affected areas with the existing M.R. Dealers to facilitate the distribution of ration commodities to them. Therefore, it can safely be said that by virtue of the said notification of the Government the writ petitioners/appellants cannot claim a legal right to maintain writ in the nature of mandamus, commanding the respondents, each one of them, their servants, agents and/or assigns to rescind, cancel and/or withdraw the purported memo bearing no. 3584(3) FMR/11S-3/2012 dated 02.9.2013 issued by the Director, DDP & S, Food & Supplies Department, Government of West Bengal and the memo declaring vacancy bearing no. 1020/S.C. F & S/MDN/13 dated 23.9.2013 issued by the Sub-Divisional Controller (F & S), Medinipur Sadar and restraining the respondent authority from engaging and/or appointing anybody/association/Group in respect of the additional outlet/special counters and distributing ration articles to their permanently tagged ration card holders and further from giving any effect and/or further effect to the memo bearing no. 1020/S.C.F&S/MDN/13 dated 23.9.2013 of Sub-Divisional Controller (F & S), Medinipur Sadar inasmuch as the self-help groups are being given preferential term as provided in Paragraph 20(ii) of the Control Order, 2013 and for the reasons that if Government so desires it may give such opportunity to only self-help groups or others and especially to the socially and economically backward including women to carry out the objects enshrined in Article 15 of the Constitution of India. We are of the view that decision of the Government cannot be faulted with, which has been taken in the larger interest of the poor public of the far flung area of Jungle Mahal in the district of Midnapur, Bankura and Purulia. We further hold that the authority which issues grants can very well recall and rescind the decision within the meaning of Section 21 of General Clauses Act.
In the above premises and for the reasons recorded hereinabove, we do not find any ground in appeal to interfere with the judgment passed by the learned writ court while dismissing the writ petition being nos. W.P. 31930(W) of 2013, W.P. 31935(W) of 2013, W.P. 32041(W) of 2013, W.P. 32042(W) of 2013, W.P. 33434(W) of 2013, W.P. 33436(W) of 2013 and W.P. 33437(W) of 2013.
We hold that the impugned judgment is not devoid of any merit. Ergo, the appeals are hereby dismissed, however, without any order as to costs.
Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(RAKESH TIWARI, J.) (SHIVAKANT PRASAD, J.)