Calcutta High Court (Appellete Side)
Munsef Mondal vs The State Of West Bengal & Ors on 22 July, 2022
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Subrata Talukdar
and
The Hon'ble Justice Ananda Kumar Mukherjee
FMA 4583 of 2015
Munsef Mondal
-vs.
The State of West Bengal & Ors.
With
FMA 3657 of 2015
Sk. Afsar Ali
-vs.
The State of West Bengal & Ors.
For the Appellant : Mr. Debabrata Saha Roy
in both the appeals Mr. Pingal Bhattacharyya
Mr. Subhankar Das
.....Advocates
For the State : Mr. Sushovan Sengupta
in both the appeals Mr. Subir Pal
.....Advocates
Heard on : 12.05.2022
Judgment on : 22.07.2022
Subrata Talukdar, J.:- The short question in both the appeals turns on the
legal issue as to whether the selection process pertaining to the appellants
for being licensed as Fair Price Shop Dealers (for short referred to as FPS
Dealers) under the West Bengal Rural Public Distribution System
(Maintenance and Control) Order,2003 (for short the 2003 Rural Control
Order) stood preserved in the context of the amended savings clause of the
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West Bengal Rural Public Distribution System (Maintenance and Control)
Order, 2013 (for short the 2013 Control Order).
The brief facts pertaining to the above legal issue is that both the
appellants in the two appeals, who were the writ petitioners before the
Hon'ble Single Bench, were recommended for appointment as FPS Dealers
under the 2003 Control Order. Such recommendation was however not acted
upon by the selecting authority which is the Department of Food and
Supplies (F&S), Government of West Bengal, for a period of nearly 30
months.
In the meantime, when the recommendation of the appellants for
being ultimately selected as FPS Dealers under the 2003 Rural Control Order
was kept pending, there was a change in the law and the 2013 Rural Control
Order came into force. Similarly, the 2003 Urban Control Order stood
amended in the form of the 2013 Urban Control Order. The savings clause in
the new 2013 Urban Control Order was Clause No. 39 which read as follows:
"39. Repeal and savings. The West Bengal Urban Public
Distribution Sustem (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2003 is hereby repealed but such repeal shall not affect.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repealed; or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 thereunder; of
(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 orders; or
(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
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may be instituted, continued or enforced and any such
penalty or forfeiture or punishment may be imposed as
if the said orders have not been repealed."
By the Judgement impugned in these appeals dated the 27th of July,
2015 of the Hon'ble Single Bench it was, inter alia, held that the savings
clause 39 of the 2013 Urban Control Order and savings clause 42 of the 2013
Rural Control Order are distinguishable. Since savings clause (a), (b) and (c)
of Clause 39 of the 2013 Urban Control Order preserved the right of selection
under the previous repealed Act being the 2003 Urban Control Order to be
continued under the amended Act, such provision being absent in Clause 42
of the 2013 Rural Control Order, the right of the writ petitioners, i.e. the
present appellants, to be ultimately selected post recommendation under the
2003 Rural Control Order cannot be said to have been preserved.
Accordingly, the Hon'ble Single Bench permitted the writ petitioners
who were similarly circumstanced as the present appellants the benefit of
being continued in their selection process under the 2013 Urban Control
Order but the recommendations of the present appellants made under the
2003 Rural Control Order were extinguished.
The Judgement and Order of the Hon'ble Single Bench dated the 27th
of July, 2015 in a bunch of writ petitions underscoring the above mentioned
point of distinction in the savings clauses of the respective 2013 Urban and
Rural Control Orders as well as the validity of the consequential action
taken thereto, was challenged by the State respondents in appeal. However,
the Hon'ble Division Bench by Judgement and Order dated 20th July, 2016
dismissed the appeals and the Special Leave Petition (SLP) filed thereafter
challenging the order of the Hon'ble Division Bench dated 20th July 2016
also stood dismissed on 14th July 2020.
Thereafter by a further notification dated 4th November 2015, the F&S
Department, Government of West Bengal, further amended savings clause
42 of the 2013 Rural Control Order. As a result of the insertion of the new
savings clause 42 in the 2013 Rural Control Order the same became pari
materia to the savings clause 39 of the 2013 Urban Control Order.
The appellants have therefore argued that since both classes of writ
petitioners under the 2013 Rural and Urban Control Orders were declared to
be at par by legislative action, the benefit of such action should proceed
identically in respect of both classes of writ petitioners who were differently
dealt with by the Hon'ble Single Bench vide its Judgement and Order dated
27th July 2015. In other words, the present appellants want that their
recommendations be converted into full-fledged appointments as has been
done in cases of incumbent appointees under the 2013 Urban Control Order,
by applying the benefit of insertion of Clause 42 in the 2013 Rural Control
Order retrospectively.
Per contra, the State respondents have argued that the
recommendations in favour of the present appellants to be appointed as FPS
Dealers have not accrued into a vested right. Second, since the 2003 Rural
Control Order was substituted by the 2013 Rural Control Order with a
savings clause which did not permit pari materia treatment as permitted
under the 2013 Urban Control Order, the effect of such repeal of the 2003
Rural Control Order automatically extinguishes the recommendation in
favour of the appellants.
Furthermore, the recommendations do not reflect a complete
transaction within the meaning of the expression anything duly done under
the newly incorporated savings clause 42 of the 2013 Rural Control Order.
The State respondents therefore submit that in the absence of an accrued
right, the reliefs claimed by the present appellants are unenforceable. It is
pointed out that pursuant to the Judgement and Order of the Hon'ble Single
Bench dated 27th July 2015, the State respondents issued a Notification
dated 17th August 2015 creating fresh vacancies of FPS Dealers by
cancelling the vacancies notified earlier under the 2003 Rural Control Order.
The creation of fresh resultant vacancies by the State respondents pursuant
to the Judgement and Order of the Hon'ble Single Bench dated 27th July
2015 is the subject matter of a pending lis before the Hon'ble Apex Court.
The State respondents therefore argue that since cancellation of the earlier
vacancies under the 2003 Rural Control Order pursuant to the Judgement
and Order dated 27th of July 2015 is pending before the Hon'ble Apex Court,
in law till the issue of cancellation is not finally decided the present
appellants cannot pray for the relief of being ultimately selected by applying
clause 42 of the new 2013 Rural Control Order.
In support of their arguments the appellants have relied on 2010 (1)
SCC 489 for the proposition that the newly amended savings clause 42 of
the 2013 Rural Control Order should be read to have retrospective effect. In
other words, since the Judgement and final Order of the Hon'ble Single
Bench dated 27th July 2015 have been ultimately upheld by the Hon'ble
Apex Court by dismissing the SLPs of the State respondents on 14th of
January 2020, the savings clauses being 39 and 42 respectively of the 2013
Urban and Rural Control Orders cannot convey pari materia legal protection.
The State respondents, rely upon the Notification dated 17th of August
2015 cancelling all vacancies published under the 2013 Rural Control Order
and the pendency of the lis connected thereto before the Hon'ble Apex Court
read in the light of Judgements reported in 2009 (1) SCC 180, 2019 (19) SCC
626, and 2017 (9) SCC 463, in support of their arguments.
Having heard the parties and considering the materials placed, this
Court finds that the recommendations of the appellants under the vacancies
declared under the 2003 Rural Control Order stood cancelled by the
Notification dated 17th August 2015. The cancellation took place prior to the
insertion of new Clause 42 of the 2013 Rural Control Order vide the
Notification dated 4th November 2015.
Also, the cancellation took place prior to the ultimate affirmation of
the Judgement and Order of the Hon'ble Single Bench dated 27th July 2015
by the Order of the Hon'ble Apex Court dated the 14th of January 2020.
Therefore, as on 17th August 2015 neither the recommendations of the
appellants against the vacancies of the 2003 Rural Control Order can be
stated to be alive nor, the Judgement and Order of the Hon'ble Single Bench
dated 27th July 2015 holding the two control orders to be distinguishable
can be said to be dead.
In other words, the two Control Orders stood legally distinguishable
and the cancellation of the vacancies under the 2003 Rural Control Order
stood poised for adjudication in a pending lis.
Second, arguably the effect of the new savings clause 42 of the 2013
Rural Control Order cannot be applied in a void when the vacancies stand
cancelled and poised for adjudication. Therefore, new Clause 42 of the 2013
Rural Control Order cannot be so applied in a situation where the
corresponding vacancies stand in suspended animation. Arguably, the
validity of the cancellation under the Notification dated 17th August 2015
and the retrospective operation of the new savings clause 42 of the 2013
Rural Control Order require conjoint consideration.
For the above reasons no relief can be extended at this stage to the
appellants.
FMA 4583 of 2015 with FMA 3657 of 2015 stand accordingly
disposed of.
The disposal of the appeals shall not however prevent the appellants
from ventilating their cause-of-action at the appropriate stage before the
appropriate authority/forum/Court and/or to participate in any fresh
selection exercise of FPS Dealers under the State respondents.
Parties shall be entitled to act on the basis of a server copy of the
Judgment and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this Judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
I agree.
(Ananda Kumar Mukherjee, J.) (Subrata Talukdar, J.)
