Calcutta High Court (Appellete Side)
Dipta Kumar China & Anr vs The State Of West Bengal & Ors on 3 February, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
WPA 20951 of 2022
Dipta Kumar China & Anr.
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Ashok Kr. Banerjeee
Mr. Ramesh Dhara
Ms. Mousumi Chaudhury
.....Advocates
For the State : Mr. Susovan Sengupta
.....Advocate
Heard lastly on : 09.11.2022
Judgment on : 03.02.2023
Jay Sengupta, J.:
1. This is an application under Article 226 of the Constitution of India
praying for direction upon the respondents to rescind, recall and/or
withdraw the impugned vacancy notification published in the website and
the vacancy notification, both dated 29.07.2022.
2. The petitioners were running a partnership business under the name
and style of M/s. D.K. Enterprise. The petitioner's firm was engaged as a
wholesaler in the year 2016 under the West Bengal Public Distribution
System (Maintenance and Control) Order 2003. After the said Control Order
was replaced by the West Bengal Public Distribution System (Maintenance
and Control) Order 2013, a fresh licence was granted to the firm being no.
24P (S)-ALP-S-195-20. In 2016 the State Government granted approval in
favour of the firm to cater to the FPS dealers in the areas of Garden Reach
and New Alipore. However, subsequently the State Government published a
notice in the website that they were notifying vacancy in respect of 25 areas
under the 2013 Control Order. On 29.07.2022 the State Government
published a vacancy notification inviting application for appointment a
wholesaler for the areas of Garden Reach and New Alipore. Being aggrieved,
the petitioner preferred this writ application.
3. Learned senior counsel appearing on behalf of the petitioner
submitted as follows. The petitioner challenged the vacancy notification no.
448/DR/SSLC/54/22 dated 29.07.2022 in respect of the area Garden
Reach and 440/DR/SSLC/54/22 dated 29.07.2022 in respect of the area
New Alipore, issued under the West Bengal Urban Public Distribution
System (Maintenance and Control) Order, 2013. After being engaged as a
wholesaler, the petitioner firm invested crores of rupees for building the
infrastructure for the said business including three godowns, office room,
loading unloading place and arranged for vehicle to reach the food grains to
the doorstep of the dealers. It engaged about 76 direct employees and paid
provident fund and ESI with the appropriate authorities. Without any
complaints from any corner the petitioner firm successfully ran the
distributorship business. That is why the firm was asked by the State
Government to cater to the new areas of Garden Reach and New Alipore.
They complied with the requirement of National Food Security Act, 2013 and
executed doorstep delivery to the FPS dealers under the targeted public
distribution system of 2015. The engagement or selection of the petitioner
firm to cater to the FPS dealers of the new areas constituted an assurance or
promise upon which the petitioner acted and made investments. The
question of creating new vacancy for wholesaler did not arise as the
petitioner firm was already selected and was operating in the area for a
number of years. On the question of substantive appointment, reliance was
placed on the decision reported at (1980) 3SCC 174. The Control Order of
2013 was made by the State Government in terms of delegation of powers
under the Central Control Order being the Public Distribution System
(Maintenance and Control) Order, 2001. Thereafter, the Central Government
enacted the National Food Security Act, 2013 to provide for food and
nutritional security in human life. The Central Government thereafter made
the targeted Public Distribution System (Maintenance and Control) Order
2015 to implement NFS Act 2013. The 2015 Control Order superseded the
2001 Central Control Order. The State Government had not yet made any
Control Order under the powers delegated in the Central Control Order of
2015. However, the licence and other existing rights were continuing in
terms of the saving clause of the 2015 Central Control Order. The petitioner
firm was an authorised agency approved by the State Government within
the meaning of the Central Control Order of 2015. However, the said
vacancy notifications were issued under the State Control Order of 2013 in
exercise of powers delegated by the Central Control Order of 2001. But, the
latter had already been superseded. After supersession of 2001 Control
Order, except in respect of things done or omitted to be done, the 2013
Control Order could not survive. Therefore, the vacancy notice issued by the
State respondents under the Control Order of 2013 was without jurisdiction
and was liable to be set aside. In fact, in their opposition it was admitted by
the State that the petitioner firm was selected to ensure doorstep delivery of
goods to the dealers for complying with the National Food Security Act 2013
in terms of the State Control Order of 2013.
4. Learned counsel appearing on behalf of the State submitted as
follows. There were two primary legislations that governed the present field-
one was the Essential Commodities Act under which the Control Order was
promulgated and the other one was the National Food Security Act. The
National Food Security, in fact, recognised the Central Control Order of
2001. Therefore, there was no harm if actions were continued to be taken in
terms of the State Control Order of 2013, which owed its origin to the said
2001 Control Order. The petitioner firm was accorded approval for
engagement only as a short term measure, to execute door step delivery to
the PDS outlets in Garden Reach and New Alipore sub-area under the
Kolkata sub-south control. Thereafter, there was a process for appointment
of 15 wholesalers against vacancies including the two vacancies in question.
Since no one applied, the Department accorded approval for re-notification
of the vacancies in 2018. Thereafter, the Department was again directed to
cancel the vacancy notification for different reasons. By an order dated
06.01.2001 passed by this Court in WPA 20918/2021, the respondent
authorities were directed to take steps for filling up of vacancies strictly in
accordance with the Control Order of 2013 at the earliest. That is why the
respondents started the process to engage wholesaler. Moreover, the
petitioner firm was a distributor having licence under WBPDS (M&C), Order
2013 and operated in the South 24 Paraganas. As the firm was engaged to
cater to the sub-areas Garden Reach and New Alipore as a short term
measure, no right had accrued to the petitioner as such.
5. I heard the submission of learned counsels for the parties and
perused the writ petition, the application and the written notes of
submissions.
6. The NFS Act of 2013 referred to the Central Control Order of 2001
because by the time the former was promulgated, the subsequent targeted
Public Distribution System of 2015 had not come into force. Therefore, it
does not amount to a post - 2015 revalidation of the Central Control Order
of 2001.
7. The West Bengal Urban Public Distribution System (Maintenance and
Control) Order of 2013 has thus spent its force as the same was brought in
pursuance of the said Central Control Order. The State Government is
indeed yet to formulate a Control Order in terms of the Central Control
Order of 2015.
8. However, this does not mean that the entire Public Distribution
System would come to a grinding halt.
9. An Hon'ble Division Bench of this Court in Sekh Abdul Majed vs. State
of West Bengal & Ors., 2022 SCC Online Cal 3030, laid down as follows -
"54. When learned Advocate General being the highest officer of the State and
supposed to be in know of the facts is submitting that 'NFS Act' has not yet
been implemented in full in the State, in absence of positive averments in the
pleadings in the writ petition by the petitioner-appellant, we cannot simply
deny the assertion made by learned Advocate General. Clause 2 of 'Central
Control Order, 2015' clearly negated the contention raised by Mr. Kar, learned
Senior Counsel appearing for the appellant and it cannot be held that 'Rural
Control Order, 2013' and 'Urban Control Order, 2013' are non-existent in view
of supersession of 'Central Control Order, 2001'. In view of such fact the
amendment carried out by the State Government in both the aforesaid Control
Order of 2013 cannot be held to be invalid."
10. Therefore, till the NFS Act is fully implemented in the State or for that
matter, an appropriate pleading in this regard is available, one may fairly
continue to take steps in terms of the State Control Orders of 2013.
11. Thus, it cannot be said that the impugned vacancy notice is bad
simply because it was passed in terms of the State Control Order of 2013.
12. Now, on the question of whether the petitioner firm could hold on to
its distributorship for a larger area simply because it was permitted to do so
some time ago, it appears that the initial licence for the petitioner firm to
operate was for a rural area of South 24 Paraganas as a distributor. In this
context, the contention of the State that the petitioner firm could not act as
a wholesaler for the urban area because its initial licence was as a
distributor for a rural area is not quite tenable. The respondent authorities
themselves permitted the petitioner firm to act as a wholesaler in the urban
area for a very long time.
13. However, there is no law which grants the petitioner a right to hold on
to such extra business in perpetuity, simply because it was asked to cater to
such areas as a temporary measure.
14. The State respondents have been able to show that as a matter of
policy, they were looking for appointing others as wholesalers for the two
urban areas. Finally, they started acting in terms of an order passed by this
Court. Such actions on their part cannot be faulted with simply because the
petitioner had made more investments for catering to the other areas.
15. When the other urban areas were given to the petitioner, the petitioner
was well aware that it was not a permanent measure. Otherwise, he would
have been granted a formal licence under the relevant Control Order for the
same. He might have made investments for this extra business and must
have reaped profits for the same. Thus, it pertains more to the appetite of
the petitioner firm to take risks for having additional business even on a
temporary arrangement. However, this cannot amount to an entitlement to
carry on such additional business for eternity.
16. Besides, the policy of the State to encourage different entities to cater
to the needs of the people through the Public Distribution System, thus
preventing monopolies in this, is quite sound and well tested. This Court
would loath to interfere with such fair and reasonable policy decisions of the
Executive.
17. In view of the above discussions, I do not find any merit in this
application.
18. Accordingly, the writ petition is dismissed.
19. However, there shall be no order as to costs.
20. Urgent photostat certified copies of this judgment may be delivered to
the learned Advocates for the parties, if applied for, upon compliance of all
formalities.
(Jay Sengupta, J.)
S.M
