Asit Kumar Mondal vs State Of West Bengal & Ors
2023 Latest Caselaw 4309 Cal

19.07.2023
Srimanta
Sl. No. 02
Ct. No. 42
                             IA No.: CAN/1/2023
                                      in
                              WPA/27955/2022

                              Asit Kumar Mondal
                                       -Vs.-
                         State of West Bengal & Ors.
                   Mr. Debabrata Saha Roy,
                   Mr. Pingal Bhattacharyya,
                   Mr. Subhankar Das
                                                 ...for the petitioner.
                   Mr. T. M. Siddiqui,
                   Ms. Amrita Panja Moulick
                                                      ...for the State.
                   Mr. Ram Chandra Agarwal
                                  ...for the applicant in CAN/1/2023.


                   Affidavit-of-service filed in Court today be kept
             with the record.
                   CAN/1/2023     is   an   application   filed   by    an
             applicant who contemplates that he will be getting a
             job of management of stock in the godown of the
             wholesaler of Public Delivery System if the vacancy in
             terms of vacancy declaration dated 29th July, 2022 is
             fulfilled by appointing a wholesaler of PDS.              The
             petitioner is not the applicant for being selected as a
             wholesaler. He does not have any privity of contract
             between himself and one of such candidates who
             applied for selection as wholesaler to the effect that if
             such candidate is appointed as a wholesaler he will
             get a job.    Moreover, any such agreement between
             the parties if at all be there would have been in the
             nature of personal contract of service which cannot be
             specifically enforced under Section 14 of the Specific
             Relief Act.   The Writ Court deals with public law
             remedy.   There is no element of public law in mere
             expectation of having a private employment in the
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office    of    a   wholesaler   of   a    particular    locality.
Therefore, I do not find any merit in the instant
application and accordingly the application is rejected.
         The matter does not end here.          The applicant
has filed a copy of the judgment passed by the
Division Bench of this Court in FMA/764/2022.                It is
pointed out by the learned Advocate for the applicant
that in the said appeal the Division Bench formulated
certain questions for considerations.            Question (iii)
and (iv) are recorded below:-
         (iii) Whether both the State Control Order of
2013 for urban and rural area is non-existent in view
of coming into effect of 'Central Control Order, 2015;
         (iv) Whether both the Control Orders of 2013
are saved by either Section 24 of the General Clauses
Act or by provisions contained in 'NFSA' OR 'Central
Control Order, 2015'
         It is also pointed out by the learned Advocate
for the applicant that in paragraph 26 of the said
judgment it is observed :-
         "26. 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
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State Government in both the aforesaid Control Order
of 2013 cannot be held to be invalid".
        The learned Advocate for the applicant also
takes    me    to   an      unreported         decision   passed     in
WPA/20951/2022 (Dipta Kumar China & Anr. -Vs.-
The State of West Bengal & Ors.) decided by a
Coordinate Bench on 3rd February, 2023 where the
Coordinate Bench held in paragraph 10 that 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. It is also
contended by the learned Advocate for the applicant
that    the   order    passed        in      WPA/20951/2022         was
challenged     by     the        petitioners     in    appeal    being
MAT/335/2023. The Division Bench of this Court held
that Hon'ble Supreme Court has not stayed the
operation     of      the     judgment          but     has     allowed
continuance of the scheme that was the subject-
matter of challenge in the appeal giving rise to the
judgment      under         challenge         before    the     Hon'ble
Supreme Court.
        Be it mentioned here that the judgment of the
Division Bench of this Court in FMA/764/2022 was
challenged by the State of West Bengal & Anr. in
Special Leave to Appeal (C) No. 20838/2022 and
while admitting the Special Leave Petition it is held by
the Hon'ble Supreme Court as hereunder:-
        "In the meanwhile, status quo as was prevailing
before the pronouncement of the impugned judgment
dated    28.09.2022         shall       be   maintained       and   will
continue."
        On    perusal       of     the       judgment     passed     in
FMA/764/2022          the     appellants        challenged      'Duare
Ration Scheme' introduced by the State Government
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under the Control Order of 2013. The said scheme
was declared invalid by the Division Bench. The State
of West Bengal challenged the said observation of the
Division Bench before the Hon'ble Supreme Court.
The Hon'ble Supreme Court while passing the order of
status quo directed continuation of the said scheme.
      Since the vires of 2013 Control Order was
challenged by the petitioner in the instant writ petition
and the issue has already been decided by the
Division Bench of this Court, this Court likes to hear
out the instant writ petition on an early date.
      Ms. Amrita Panja Moulick, learned Advocate for
the State respondents submits that she received an

information over whatsapp that the entire Notification dated 29th July, 2022 was cancelled. The learned Advocate for the State respondent is requested to submit a report in this regard on the next date of hearing.

Matter be listed under the same heading on 24 th July, 2023.

Since the instant matter pertains to series of writ petitions having similar issue and question, the learned Advocate General is requested to assist this Court in the instant matter.

Learned Advocate for the applicant whose application for addition of party has been rejected prays for audience. Since his application has been rejected I am not in a position to allow him to submit in the instant matter. Moreover, when the learned Advocate General has been requested to address this Court on the issue, I think that no other Advocate's assistance is required on behalf of the State Government. Ms. Amrita Panja Moulick is requested to inform the matter to the learned Advocate General, Government of West Bengal.

(Bibek Chaudhuri, J.)