Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Biswajit Cha on 13 September, 2018
Author: Shampa Sarkar
Bench: Dipankar Datta, Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Appellate Side)
(Mandamus Appeal)
Present:
The Hon'ble Justice Dipankar Datta
And
The Hon'ble Justice Shampa Sarkar
F.M.A NO. 1681 of 2016
The State of West Bengal & Ors.
-Versus-
Biswajit Cha
Biswajit Chakraborty
For the Appellant : Mr. Sushovan Sengupta,
Mr. Subir Pal.
For the Respondent : Mr. BiswanathChakrabarti
: Mr. Krishnendu Bera
Heard on : 13/6/2018, 20/6/2018, 25/6/2018, 03/7/2018
Judgment on: September 13, 2018
Shampa Sarkar, J. :
This intra-court appeal has been filed, challenging the judgment and order dated July 23, 2015, passed by a learned single judge, in W.P. No 24691 (W) of 2014.
2. By the judgment impugned the learned single judge set aside and quashed the notification dated July 11, 2014, issued by the Director of Rationing, West Bengal, Food and Supplies Department, Government of West Bengal, (hereafter referred to as the Director), thereby, directing the appellants to consider the writ petitioner/ respondent no. 1 herein (hereinafter referred to as the writ petitioner) under the West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2003 (herein after referred to as the Control order 2003) and not under the West Bengal Urban Public Distribution System Control Order, 2013 (hereinafter referred to as the Control Order 2013).
3. The case set up in the writ petition was that the writ petitioner in response to a notification dated January 4, 2011, issued by the Director of Rationing, Government of West Bengal Food and Supplies Department, under the Control Order 2003, submitted an application for appointment as Fair Price Shop (in short FPS) Dealer in Rishra, Konnagar Sub-Area, at Kalitala in Ward No. 7 under Konnagar Municipality. After enquiry and primary scrutiny by the Shop selection Committee, the Rationing Officer and also the Joint Director of Rationing recommended the case of the writ petitioner for appointment as FPS Dealer on February 5, 2011 and the application of the writ petitioner along with all relevant records were sent to the Government, Food and Supplies Department on December 16, 2011.
4. On December 22, 2012 the Commissioner and Principle Secretary, Food and Supplies Department in terms of Clause 14 of the Control Order, 2003, accepted the suggestion of the selection committee and accorded approval for appointment of the writ petitioner as FPS Dealer. Thereafter, the authorities sat tight over the matter and although, in terms of the Control Order, 2003, the selection process was complete, the authorities sent the entire file to the Minister-in- charge of the Food and Supplies Department (hereinafter referred to the Minister-in-charge). That the writ petitioner had incurred considerable expenditure towards rent and other infrastructural facilities on the expectation that he would be given appointment in view of the completion of the selection process. The writ petitioner made several representations before the appellants as also the Minister-in-charge, but the authorities did not issue the formal letter of appointment. Thereafter, the writ petitioner filed an application under Article 226 of the Constitution of India, challenging the inaction on the part of the authorities in issuing the letter of appointment for FPS dealership. The said application was registered as W.P No. 15325 (W) of 2014, (herein after referred to as the first writ petition).
5. The first writ petition was disposed of by a learned single judge of this court by an order dated June 11, 2014 with the following observation:
"***** since I find that opening of a fair price shop pertains to policy matter of the Government, no order is passed on the writ petition. The writ petition is disposed of."
6. Subsequently, after having sat idle over the matter for two years from the date of selection, the authorities issued a notification No. 120/DRSSC/5/10 dated July 11, 2014, thereby cancelling the vacancy for setting up FPS at Kalitala Colony, Ward no, 7, Konnagar Municipality under Rishrah-Konnagar Sub-Area of Hooghly,in respect of which the writ petitioner had been selected. In view of the promulgation of the Control Order, 2013, which had came into effect from August 12, 2013, by the notification dated July 11, 2014, the Rationing Officer Rishrah-Konnagar, Sub-Area was instructed to take steps for setting up a shop near Sakuntala, S. C. Chatterjee Street, of Ward No. 7 of Konnagar Municipality under Rishrah-Konnagar Sub- Area and to consider the case of the writ petitioner afresh under Control Order, 2013. Aggrieved by the above mentioned notification the writ petitioner invoked the jurisdiction under Article 226 of the Constitution of India once again by filing W.P. No. 24691 (W) 2015 (hereinafter referred to as the second writ petition). The second writ petition was allowed by the learned single judge, by judgment and order dated July 23, 2015 which has been impugned by the State of West Bengal and other authorities before us in this appeal.
7. It was urged by Mr. Sushovan Sengupta, learned advocate appearing on behalf of the appellants that the second writ petition was barred by the principles of res judicata as also constructive res judicata in view of the order passed by a learned single judge of this court on June 11, 2014 while disposing of the first writ petition without granting any relief. He submitted that the prayers of the writ petitioner in the first writ petition were identical with those in the second writ petition and as such the first writ petition having been disposed of without any order, the same amounted to denial of the claim of the writ petitioner for appointment as FPS Dealer against the concerned vacancy. It is, thus, contended by him that on the self- same cause of action, as well as for similar relief the second writ petition was not maintainable.
8. On the point of res judicata, Mr. Sengupta relied on the decision in State of U.P. vs Nawab Hussain reported in (1997) 2 Supreme Court Cases 806. In order to emphasize that the cause of action in the second writ petition had merged with the cause of action in the first writ petition, Mr. Sengupta relied on Som Dev and Others Vs. Rati Ram and Another, reported in (2006) 10 Supreme Court Cases 788.
9. The next contention of Mr. Sengupta was that Clause 14 of the Control Order, 2003 was amended by a notification dated February 26, 2004 issued by the Director General of Food and ex- officio Principal Secretary to the Government of West Bengal to the effect that all proposals relating to filling up of the post of Dealer / wholesaler/FPS owner in terms of the said notification should be submitted to the Government and the appointment would be made subject to the approval of the Government and the final approval of the Minister-in-charge. According to Mr. Sengupta, as the said notification was issued under the direction of the Governor and the same was sustainable in law, the writ petitioner's appointment/ selection would be complete only if the Minister-in-charge had finally approved the recommendation of the Commissioner. Mr. Sengupta further contended that as the Minister-in-charge had not accorded his final approval to the recommendation made by the Commissioner and Principle Secretary to the Government of West Bengal, Food and Supplies Department, the writ petitioner did not acquire any right to be considered for appointment under the Control Order, 2003 in view of the promulgation of the Control Order, 2013 his case was to be decided afresh under the Control Order, 2013 and the notification dated July 11, 2011 was sustainable in law.
10. Mr. Sengupta, submitted that only a right, privilege, obligation or liability acquired or accrued or incurred under the Control Order, 2003 was saved by the new Control Order 2013. It was urged by him that in view of the fact that the approval for appointment of the petitioner as a FPS Dealer had not been given by the Minister-in- charge, he did not have any right under Control Order, 2003 in terms of Clause 39, sub-clause (c) of the Control Order, 2013. Referring to the documents relied upon by the, writ petitioner, which were supplied to the writ petitioner pursuant to a query under The Right to Information Act 2005, Mr. Sengupta contended, that those were internal communications and would not create any legitimate expectation in favour of the petitioner for being appointed under the Control Order, 2003. In this connection he relied on the decision in Sethi Auto Service Station and Another vs. Delhi Development Authority and Others reported in (2009) 1 Supreme Court Cases
180. According to Mr. Sengupta, award of FPS being a matter of policy, the case of the writ petitioner would be considered in terms of the changed policy and not the superseded one.
11. Mr. Bishwanath Chakrabarti, learned advocate appearing on behalf of the writ petitioner urged that the recommendation of the selection committee, for appointment of the writ petitioner as FPS Dealer, was accepted by the Director, and the application of the writ petitioner along with all relevant documents were sent to the Government, namely the Food and Supplies Department on December 16, 2011. The recommendation of the Director was also accepted by the Commissioner and Principal Secretary of the Department in terms of the Control Order, 2003 and consequent approval was accorded on December 22, 2012. Mr. Chakrabarti urged that the Control Order 2003, there was no provision for the final approval of the Minister-in- charge of the Department and once the approval was accorded by the Principal Secretary, the writ petitioner's appointment as FPS Dealer was confirmed and the subsequent action of the authority in forwarding the matter to the Minister-in-charge was in violation to Clause 14 of the Control Order, 2003. The process of selection of the writ petitioner being complete he had a vested right to be appointed as a FPS Dealer against the vacancy declared by notification no. 135/DR/SSC/5/10 on January 4, 2011. Mr. Chakrabarti further submitted that the notification dated July 11, 2014 was not sustainable in law, and the cancellation of the vacancy against which the appointment of the writ petitioner as FPS Dealer was approved by the Government under the Control Order, 2003, was illegal, arbitrary and liable to be set aside. According to Mr. Chakrabarti the Control Order, 2013 was not applicable in this case as the appointment of the writ petitoner was complete and only pending formal issuance of a letter under the Control Order, 2003. The Control Order, 2013, it was contended could not be given retrospective effect especially in view of the saving provision contained in Clause 39 (c) of the Control Order, 2013, which saved, all rights, privilege, obligation, either acquired and accrued under the Control Order, 2003. The Control Order, 2013 it was submitted should take prospective effect. Mr. Chakrabarti finally concluded his argument by denying the applicability of the notification dated February 26, 2004 issued by the Director General of food and ex-officio Principal Secretary to the Government of the West Bengal, on the ground that the notification was not gazetted and not made known to the public and as such the amendment sought to be made by such notification was not sustainable in law.
12. We have considered the rival contentions of the parties. On the point of the res judicata, we are unable to accept the contention of Mr. Sengupta. By the order dated June 11, 2014, the first writ petition was disposed of without any interference but with the observation that the matter of appointment of an FPS Dealer was a policy decision of the Government. In the first writ petition, the writ petitioner had challenged the inaction on the part of the authorities in not issuing the appointment letter to the writ petitioner as FPS Dealer, despite the completion of the selection process in all respects as per Clause 14 of the Control Order, 2003.
13. In the second writ petition, the writ petitioner challenged the validity of the notification dated July 11, 2014, whereby, the vacancy against which he was sought to be appointed under the Control Order, 2003 was cancelled and a direction was issued upon the Rationing Officer to consider the case of the writ petitioner in terms of the Control Order, 2013 afresh. In the second writ petition, the writ petitioner challenged the subsequent events which took place after the disposal of the first writ petition and the said subsequent events had given rise to a new cause of action.
14. Section 11 of the Code of Civil Procedure, 1908 bars a court from trying any suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties in a court component to try such subsequent suit or the suit in which such issue has been subsequently raised, and had been heard and finally decided by the said court. In the instant case, the notification dated July 11, 2014 was not the subject matter of the first writ petition and nothing was decided as regards the claim of the writ petitioner for appointment as FPS Dealer. The matter was left to the discretion of the Government. The argument of Mr. Sengupta that the second writ petition was also barred by the principles of constructive res judicata, does not impress us. Explanation IV of Section 11 of The Code of Civil Procedure provides that any matter which ought to have been made a ground of defence or taken in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Considering the subject matters in the first and the second writ petitions we arrive at the conclusion that the second writ petition was also not barred by the principles of constructive res judicata. Mr. Sengupta's reliance on the decision in Nawab Hussain (supra) does not help him inasmuch as, the second writ petition is not barred under the principles of constructive res judicata, as the second writ petition arose subsequent to issuance of the notification dated July 11, 2014, by which the selection process for appointment of the petitioner as FPS Dealer was cancelled with a direction for consideration of his case under the Control Order, 2013. The writ petitioner did not have the opportunity to either urge or challenge the afore-said decision of the authorities in the first writ petition.
15. As regards merger of cause of action, the decision in Som Dev (supra) is not applicable as, there has not been merger of the cause of action in view of the discussions made herein above.
16. We are unable to accept the applicability of the decision in Sethi Auto Service Station (supra), relied upon by Mr. Sengupta in order demonstrate that the policy relating to appointment of FPS Dealer, underwent a change by Control Order, 2013 before the final decision of the authority, and the doctrine of legitimate expectation shall not be attracted.
17. The contention of Mr. Sengupta was that the writ petitioner was not finally selected by the authority, as the Minister-in-charge of the concerned department had not approved the recommendation for appointment of the writ petitioner as a FPS Dealer. He relied on a notification dated February 26, 2004 issued by the Director General of Food and ex-officio Principal Secretary to the Government of West Bengal which stated as follows:
"All proposals for declaration of Vacancies as well as filling up of the post of Dealer / Wholesaler / F. P. Shop owner in terms of the aforesaid notifications should hence-forth be submitted to the Government and appointment to those posts shall be made subject to the approval of the Government and final approval of Hon'ble MIC."
18. The above submission of Mr. Sengupta, does not hold good, in view of the subsequent amendment dated November 18, 2004 by which Clause 14 of the Control Order 2003 has been substituted. The said amendment bearing notification no. 7044-FS dated November 18, 2004 was published in the Kolkata-gazette on March 28, 2005. The amended provision of the Clause 14 is quoted below:-
"Appointment of Wholesaler & Fair Price Shop Owner: - All proposals for declaration of vacancies as well as filling up of the post of Wholesale/Fair Price Shop Owner shall be submitted to the Government & appointment to those posts shall be made subject to the approval of the Government.
The Wholesaler or Fair Price Shop Owner so appointed shall be entitled to supply in accordance with the provisions of this Order Such public distribution commodity with such area or part thereof the Fair Price Shop ration card holders tagged to him by the appropriate authority."
19. In view of the amended provision of Clause 14, of the Control Order, 2003, all appointments shall be made subject to the approval of the Government. There is no provision for further/ final approval by the Minister-in-charge as was required by the notification dated February 26, 2004. In our view once the Commissioner and Principal Secretary, Food and Supplies Department, Government of West Bengal approved the selection of the writ petitioner, a right had vested upon him, and his selection saved by Clause 39 (c) of the Control Order, 2013. The amendment incorporated in Clause 14 of the Control Order, 2013 by the notification dated March 28, 2005 repealed the notification dated February 26, 2004.
20. In view of the above discussions, we hold that the case of the writ petitioner was saved under Clause 39 (c) of the Control Order, 2013. The Repeal and Saving clause is set out here under:-
"Repeal and Savings:- The West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2003 is hereby repealed but such repeal shall not affect:-
(a) The previous operation of any of the Orders so repealed; or
(b) Anything duly done or suffered there under; or
(c) Any right, privilege, obligation or liability acquired or accrued or incurred under any of the said orders; or
(d) Any penalty, forfeiture or punishment incurred under any of the said order and
(e) Any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceedings or remedy may be instituted, continued or enforced and any such penalty or forefeiture or punishment may be imposed as if the said orders have not been repealed."
21. Mr. Sengupta's reliance on an interim order dated February 20, 2017 passed by the Apex Court passed in SLP (c) No. 3706 of 2017 staying the operation of the order dated July 20, 2016 passed by another Division Bench in M.A.T 124 of 2016 is of no assistance to him. The order impugned before the Apex Court dealt with Clause 39
(b) of the Control Order, 2013. The instant case involves with the interpretation of Clause 39 (c) of Control Order, 2013.
22. In view of the aforesaid, we are in agreement with the learned single judge and we hold that her Ladyship has rightly held that the second writ petition was not barred either by the principles of res judicata or by the principles of constructive res judicata. We are also in agreement with the decision of the learned single judge in setting aside the impugned notification dated July 11, 2014 issued by the Director, with a further direction upon him to consider the writ petitioner's case under the Control Order, 2003 in view of Clause 39 (c) of the Control Order 2013, by which the right of appointment of the writ petition had been saved.
23. The appeal stands dismissed. There shall be no order as to costs.
24. Urgent Photostat certified copy of this judgment, if applied for be given to the parties on priority basis.
(Shampa Sarkar,J.) Dipankar Datta, J.
I agree, (Dipankar Datta, J.)