Calcutta High Court
West Bengal M. R. Dealer Association ... vs The State Of West Bengal & Ors on 30 August, 2010
Author: Indira Banerjee
Bench: Indira Banerjee
GA No.2776 of 2010
WP No.861 of 2010
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
West Bengal M. R. Dealer Association (Siliguri Unit) and Another
Versus
THE STATE OF WEST BENGAL & ORS
BEFORE:
The Hon'ble JUSTICE
INDIRA BANERJEE
Date : AUGUST 30, 2010.
Appearance:
Mr. Shaktinath Mukherjee, Sr. Adv.
Mr.R.A.Agarwal, for the petitioners
Mr. Arun Kr. Deb, Adv. with
Mr. Dipak Das, Adv. for the State
Mr. Hirak Mitra, Sr. Adv. with
Mr. Dhruba Ghosh, for the added party.
The Court : The application being GA No.2776 of
2010 has been taken out challenging Memo No.1578 (88) dated August
16, 2010 issued by the Sub-Divisional Controller( F & S),
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Siliguri, which is hereinafter referred to as the impugned order.
The impugned order is extracted herein below for convenience:
" To continue supply of ration commodities to
the non workers & non eligible dependents Ration
Card holders residing in Tea Garden areas, it is
advised vide DCF&S, Darjeeling memo no.1576 dt.
11.8.10 to engage willing MR dealers of Panchayat
areas, one for each TG/distribution centre, having
ready infrastructure thereon, this will be a
temporary, stop gap arrangement due to pending
appointment of FPS dealers for them.
If you are willing to run distribution centre
as above, you may submit option in prescribed
proforma by 23rd August 2010".
There is a subsequent letter being Memo No.1661/1(4)
dated August 24, 2010 from the District Controller, F & S,
Darjeeling at Siliguri to the Sub divisional Controller, Food and
Supplies, Siliguri, the contents whereof are extracted herein
below for convenience:
" M.R. Dealers who are running distribution centers
at Tea gardens, to serve Non workers & Non eligible
dependents ration cards holders temporarily should also
submit options since validity of their permission to
run such distribution centre will expire on 29.08.2010.
In cases of nonsubmission of their willingness (option)
to continue, other willing MR dealers will have to be
engaged to run PDS in TG areas due pending appointments
of regular FPS dealers for the aforesaid rationees.
As such, in ref to your memo 1578 (88) dated
16.08.10 please allow MR dealers who are willing to
continue/open distribution centres at TGs for each 41
temporarily, with terms & conditions, to submit their
options by 30.08.2010 (28th & 29th being holidays)
Please inform MR dealers accordingly"
According to the petitioners, members of the petitioner
no.1 have been distributing ration commodities to non tea garden
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workers and other ration card holders of the tea garden areas
since 2006. Even though the arrangement is temporary, the
arrangement has from time to time been extended and has been
continuing for about four years. The petitioners are purportedly
aggrieved by the change sought to be introduced, to the existing
arrangement.
Mr. Mukherjee, learned Senior Counsel appearing on
behalf of the petitioners, cited the judgement of the Hon'ble
Supreme Court in The Manager, Govt, Branch Press and another Vs.
D.B. Belliappa, reported in AIR 1979 Supreme Court 429, where the
Supreme Court held that if the services of a temporary Government
servant were terminated arbitrarily and not on the ground of
unsuitability, unsatisfactory conduct or the like, which could put
him in a class apart from his juniors in the same service, a
question of unfair discrimination might arise, notwithstanding the
fact that in terminating his service, the appointing authority was
purporting to act in accordance with the terms of the employment.
Replying on the aforesaid judgment, Mr. Mukherjee argued
that the temporary arrangement with the existing dealers could not
be disturbed by entering into a temporary arrangement with others,
in the absence of any complaint against the existing dealers.
Mr. Mukherjee submitted that the petitioners were really
being penalised for filing the main writ petition being WP No.861
of 2010 in this Court, wherein the petitioners have challenged
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inter alia a notification dated 1st February, 2010, for appointment
of dealer, contending that the same was patently contrary to
paragraph 19 of the West Bengal Public Distribution System
(Maintenance & Control) Order, 2003.
In the main writ petition this Court passed an interim
order restraining the respondent authorities from appointing
dealers in contravention of the West Bengal Public Distribution System (Maintenance & Control) Order, 2003. The Court, however, made it clear that it would be open to the respondent authorities to take appropriate measures for supply of ration commodities to cater to the needs of the tea garden areas. The impugned order is not in violation of the aforesaid interim order of this Court.
The workers of the tea gardens and their dependents, it is submitted, are supplied ration commodities by the concerned tea garden. The present arrangement is for supply of ration commodities to non tea garden workers of the tea garden areas comprising, inter alia, retired workers and others who are not supplied with rationing commodities from the tea gardens. The interim order of this Court gave the respondent authorities the liberty to take appropriate measures for supply of ration commodities to cater to the tea garden areas. On a perusal of the impugned order dated August 16, 2010 it appears that options have even been invited from existing MR Dealers. The existing MR 5 Dealers had been directed to submit option in prescribed proforma by August 23, 2010, but they chose not to.
The communication dated August 24, 2010 from the District Controller, Food & Supplies, Darjeeling at Siliguri to the Sub divisional Controller, Food & Supplies, Siliguri, a copy of which has been annexed to this application is set out hereinbelow.
"M.R.Dealers who are running distribtion
centers at Tea gardens to serve Non workers & Non
eligible dependents rations cards holders temporarily
should also submit options since validity of their
permission to run such distribution centre will expire on 29.08.2010. in cases of nonsubmission of their willingness (option) to continue, other willing MR dealers will have to be engaged to run PDS in TG areas due pending appointments of regular PPS dealers for the aforesaid rationees.
As such, in ref to your memo 1578(88) dated 16.08.10 please allow MR dealers who are willing to continue/open distribution centres at TGs for each 41 TG temporarily, with terms & conditions, to submit their options by 30.08.2010 (28th & 29th being holidays).
Please inform MR dealers accordingly."
It is absolutely clear that other M R dealers will only be engaged if the existing dealers do not indicate their willingness to continue.
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The existing dealers, have only been directed to exercise their option to continue, after the existing arrangement expires on 29th August, 2008.
It is not for this Court exercising jurisdiction under Article 226 of the Constitution of India to sit in appeal over administrative decisions calling for options to continue to supply ration commodities after expiry of the existing arrangement with effect from 29th August, 2010. No legal right of the petitioners and/or the members of the petitioner No.1 have been affected. A direction on existing dealers to submit option within a certain date, does not call for interference of this Court.
The application being GA No.2776 of 2010 as misconceived is dismissed. The respondent authorities might,
however, consider extending the date of submission of option by at least one week from date of receipt of a copy of this order.
Time to file affidavit-in-opposition to the main writ application is extended by two weeks from date. Affidavit-in- reply thereto, if any, be filed within one week thereafter. Matter be listed as "For Orders" on the following working day.
The interim order earlier passed by this Court shall continue for a further period of six weeks or until further orders whichever is earlier.
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All parties are to act on a signed photostat copy of this order on the usual undertakings.
( INDIRA BANERJEE, J ) cs.