Calcutta High Court (Appellete Side)
Sudhendu Kumar Hazra vs The State Bank Of India & Ors on 6 September, 2022
06.09.2022
Court No.12
S/L. No. 45
Sourav/
Suvayan
FMA 720 of 2018
With
IA No: CAN 1 of 2021
Sudhendu Kumar Hazra
Vs.
The State Bank of India & Ors.
Mr. Amal Baran Chatterjee, Sr. Adv.
Mr. Nirbanesh Chatterjee
...for the appellant.
Mr. Susovan Sengupta
Mr. Subir Pal
...for the State.
1. Heard Mr. Amal Baran Chatterjee, learned
Senior Counsel appearing for the appellant and Mr.
Susovan Sengupta, learned Counsel appearing for the
State.
2. The order dated January 10, 2017 passed by
the Hon'ble Single Judge in WP No. 28993 (W) of 2013
is impugned in this appeal.
3. Brief facts giving rise to this appeal is as
follows:-
A licence of M.R. Dealer at Village - Paraspur
within Jalangi Anchal of Jalangi Police Station,
Murshidabad was granted in favour of the petitioner's
father in the year 1972. The father of the petitioner
continued to run the Fair Price Shop till his death. On
his death, the vacancy for the aforesaid Fair Price
2
Shop was notified. In view of consensual arrangement
between the family members of the deceased M.R.
Dealer, the licence for M.R. Dealer was issued in
favour of the present appellant (the writ petitioner) as
he was the eldest son of deceased M.R. Dealer. The
present appellant who was continuing as a M.R.
Dealer got appointment as a Primary School Teacher
on August 24, 1995. Since July 12, 1987 he was
continuing as the M.R. Dealer after death of his father.
4. Said fact of appointment of the present
appellant as a teacher while he was continuing as a
M.R. Dealer having not been intimated to the
appropriate authority, enquiry was held and his
licence was terminated. Against such order, the
present appellant preferred a writ petition before this
Hon'ble Court alleging that his dealership was illegally
terminated and at least in his place his brother
(present respondent no. 1) should have been appointed
as M. R. Dealer. The writ petition was disposed of by
the Hon'ble Court thus:
"Accordingly, I grant liberty to the writ
petitioner to apply before the concerned
authority naming one of his brothers with
consent of all other family members for
granting licence of dealership. Such
application is to be made with a period of
three weeks from the date. In case any such
application is made, such application should
be considered by the concerned respondents
and a licence be issued within a period of six
weeks thereafter."
5. The matter was carried in appeal by the State.
The Division Bench, however, modified the order of the
Hon'ble Single Judge to the extent that the application
of the petitioner's brother shall be considered in
accordance with law and the order of the Hon'ble
Single Judge to the extent that licence be issued to the
brother of the petitioner within a period of six weeks
was set aside.
6. Pursuant to the order passed by the Hon'ble
Division Bench, the matter was taken up afresh by the
Director of District Distribution Settlement and Supply
and vide order dated August 9, 2010, he disposed of
the appeal confirming the order of termination of M. R.
dealership of the present appellant. Said order was
challenged before the Hon'ble Single Judge in the
aforesaid writ petition. The Hon'ble Single Judge
relying on the Notification No. 5880-FS dated March
28, 2005 and Notification No. 7044-FS dated
November 18, 2004 confirmed the order of the Director
and dismissed the writ petition.
7. The order passed by the Hon'ble Single Judge
is impugned before us on the following grounds:
i) The observation by the Hon'ble Single Judge
to the effect that a new vacancy has occurred
on account of resignation of the present
appellant, the Ex-M.R. Dealer is erroneous,
inasmuch as, the present appellant had not
resigned but his licence was terminated.
ii) The present appellant was appointed as a
M. R. Dealer in the year 1987 and he got
appointment as a Primary School Teacher in
the year 1995. As a dealer, he was getting
only commission and not monthly salary and
was not holding any post. In view of such fact
though he was appointed as a Primary School
Teacher, there being no bar in law, he could
have continued as a Primary School Teacher
as well as M. R. Dealer.
iii) Relying on the case of Associated Timber
Industries & Others Vs. Central Bank of
India & Another reported at (2000) 7
Supreme Court Cases 93, it is submitted
that before labeling the concerned vacancy as
a new vacancy, the Hon'ble Single Judge
ought to have considered the context, not the
text only. The context was that the dealership
of the present appellant was terminated and
he was thrown out from this position hence,
the vacancy is to be filled up by his brother
as held by this Court in earlier writ petition
and not through the procedure as described
in Clause 19 of the Notification dated
November 18, 2004.
8. It is submitted by the learned Senior Counsel
appearing for the appellant that the present
respondent no. 6, who is the brother of the present
appellant should be re-appointed as a dealer in the
resultant vacancy after termination of the dealership of
the present appellant.
9. A distinction is made before us so far as a
"new vacancy" and "repetitive vacancy" are concerned.
We are not able to understand the meaning of
"repetitive vacancy" as conveyed to us by the learned
Senior Counsel appearing for the appellant. According
to him, a new vacancy in accordance with the
Notification dated November 18, 2004, shall occur on
resignation or death of any dealer but not on
termination of any dealer's dealership. In the case of
termination, the dealership should go by preference to
the family members as held by this Court in the earlier
writ petition. In case of later event, therefore present
respondent no. 6, brother of the present appellant by
consent of all the family members should have been
appointed as a M.R. Dealer in the "repetitive vacancy".
10. We are in 76th year of independence and this
is the 73rd year of the adoption of the Constitution of
India. There is nothing in the law or the appropriate
control order framed by the State under Section 3 of
the Essential Commodities Act or any delegation under
Section 5 of the said Act to the effect that the M.R.
Dealership is hereditary in any manner. It has,
however, been recognized that compassionate
appointment should be given in case of death or
permanent incapacitation of a dealer. But in no event
any provision has been made for devolution of the
dealership on the next of kin of a dealer on his death
or on his dealership being terminated. If provision
would have been such, that provision must have been
struck out of the statute book being hit by Article 14 of
the Constitution of India and the principle of "Rule of
Law".
11. Vacancy is a vacancy and there cannot be
classification of vacancy, only because resignation or
death has been mentioned in Notification dated
November 18, 2004, it cannot be narrowed down to
show that in case of termination of dealership of a M.
R. Dealer no new vacancy occurs. In all the events
save and except compassionate appointment, all such
vacancies should be thrown open for public
participation to satisfy the requirement of Article 14 to
the Constitution of India.
12. According to the provisions of 2013 control
order, in case of death or permanent incapacitation,
however, no new vacancy occurs and same is not
notified to give a chance for compassionate
appointment as M.R. Dealer. But in any other event
including termination of dealership of a M. R. Dealer,
the vacancy so caused is a new vacancy and nothing
less. Such vacancy is to be filled up in accordance with
law and not otherwise. In no event, preference can be
given to a near relative or brother of a dealer whose
dealership has been terminated on narrow reading of
Clause 19 of Notification dated November 18, 2004,
which has no relevance now after coming into force of
2013 control order.
13. The Director while disposing the appeal filed
by the present appellant, brother of present
respondent no. 6 has specifically relied on Clause 5(2)
of the West Bengal Primary Education (Conduct of
Service of Teachers of Primary Schools) Rules, 2001
which reads thus:
"No teacher shall engage himself in any trade
or employment either part-time or whole time
except the honorary work of social and
charitable nature or of the co-operative
society. There shall be no bar in seeking
election to the Panchayat bodies,
Municipalities and legislature by a teacher."
14. Viewed from the nature of business of a M.
R. Dealer though he gets commission, it is a trade or
employment as an agent of the Government. There
may not be any bar in the appropriate control order
but the aforesaid Clause 5(2) of the Rules, 2001 clearly
bars a teacher from practicing any trade or
employment on a part-time or whole time basis. The
engagement as a M. R. Dealer cannot be brought
under honorary work or social and charitable nature
when the dealers are paid commission.
15. We also asked ourselves a question, can a
teacher concentrate his mind in imparting education
to the students if he is engaged otherwise than the
profession of teaching, our conscience says "no". A
teacher cannot be allowed to function as a M. R.
Dealer doing business at the notified time and
attending school and imparting education to students
of tender age. Such a combination even if not barred
by law, assuming arguenda the submission of Mr.
Chatterjee, learned Senior Counsel, it militate against
common sense and against public policy.
16. So far as the judgment of Hon'ble Supreme
Court in the case of Associated Timber Industries &
Others (Supra) is concerned, we respectfully hold that
the aforesaid decision specifically paragraph 35 of the
decision does not apply to the facts of the present
case.
17. In such view of the fact, we, accordingly, do
not find any infirmity in the impugned order and
dismiss the appeal.
18. Accordingly, the appeal being FMA 720 of
2018 is dismissed.
19. There shall be, however, no order as to
costs.
20. Urgent photostat certified copy of this order,
if applied for, be given to the parties on completion of
usual formalities
(Chitta Ranjan Dash, J.)
(Partha Sarathi Sen, J.)
