Calcutta High Court (Appellete Side)

Paltu Kumar Kar vs The State Of West Bengal & Ors on 20 September, 2024

                                         1


              IN THE HIGH COURT AT CALCUTTA
                  Constitutional Writ Jurisdiction
                         Appellate Side

Present: -        Hon'ble Mr. Justice Subhendu Samanta.

                       WPA 3668 of 2024
                      IN THE MATTER OF

                         Paltu Kumar Kar.
                                Vs.
                   The State of West Bengal & Ors.

For the Petitioners           :       Mr. Debajyoti Deb, Adv.,
                                      Mr. Tamal Ghosh, Adv.,
                                      Mr. Subrata Ghosh, Adv.,
                                      Ms. Somdyuti Parekh Adv.


For the State                  : Mr. Suman Sengupta, Adv.,
                                 Mr. D. Basu Mallick, Adv.,
                                 Mr. Sanatan Panja Adv.



Reserved on                       :    07.08.2024

Judgment on                       :   20.09.2024


Subhendu Samanta, J.

1. The petitioner by way of filing the present writ petitioner has

challenged the rejection of his application for engagement of FPS

dealership in Birinchi Bari 193, Basanti, South 24 Parganas.

2. In terms of Notification under Memo No.

614/SCF&S/Can/vacancy/ 2022 dated 8th August, 2022, the

petitioner applied for engagement as FPS dealer. The enquiry was

conducted upon the proposed godown and show room. Since after

enquiry, the petitioner did not got any information of the fate of his

application, he searched the Official Website of the Department

wherefrom he came to learn his application has been rejected. It is the

case of the State Authority that the roof of the godown has proposed

by the petitioner is not concrete but was made asbestos. Furthermore,

one family member of the petitioner was already dealer.

3. Thus, the application of the petitioner was rejected on the

ground, Firstly-- the godown had asbestos roof, and another ground

that the petitioner's brother viz- Pranab Kumar Kar also has existing

FPS shop.

4. It is the further case of the State Authority that none of the

candidates appears to be fulfilled the eligible criteria. Thus the State

Authority has issued a vacancy notification for fresh vacancy.

5. Learned Counsel, for the petitioner submits that the vacancy

notification dated 08.08.2022 refers the suitability of proposed

godown in terms of notification dated 21.07.2014, the said notification

disclosed that the applicant should possessed the godown "which

must be well ventilated pakka structure with concrete floor" he

submits that no G.O. requires the roof of the godown should be

concrete. Thus the grounds for rejection of the petitioner's application

by the concern authority is not tenable in the eye of law. He further

submits, if it is requirement of the State that in cyclone prone area the

roof of the godown should be concrete, then the requirements must

have to be notified. He further submits that the present petitioner has

applied for the FPS dealer in respect of notification published on 08th

August, 2022. The petitioner has satisfied of eligible criteria has

specified for the FPS vacancy notice. He further argued by virtue of

notification dated 17th August 2023 'brother' is included within the

meaning of the relative; such notification dated 17th January 2023

could never be given retrospective effect. Thus, the said notification

dated 17th January 2023 cannot have any effect the application of the

petitioner which he filed in pursuance of the notification dated 08th

August 2022.

6. Mr. Suman Sengupta Learned Counsel, appearing on behalf of

the State Authority submits that this Hon'ble Court as well as the

different Benches of Supreme Court has affirmed the position that

when an amendment/ notification is clarifacatory in nature, it would

have retrospective effect. It is true that the 'brother' was included in

the definition of relative in Section 2 (xa) on 17the January 2023 prior

to the rejection of the petitioner's application. The respondent

authority has acted upon such notification in deciding the vacancy

notification dated 08.08.2022. Mr. Sengupta further submits that the

retrospective operation of a notification under the control order 2013

on the ground of the same being clarificatory in nature, has been

affirmed by the Hon'ble Division Bench in 2024 SCC Online Cal 2550

(Shakina Bibi Vs. Saidur Rahaman and Ors.) as well as in another

Division Bench of Gurupada Das Vs. State of West Bengal.

7. Refuting the contention of the respondent authority, Learned

Counsel, for the petitioner argued that the vacancy notification was

published on 08th August 2022 on the basis of which the present

petitioner has applied for FPS vacancy but it cannot be suddenly and

whimsically cancelled by the State on the ground that the law has

been changed. He submits that the ratio laid down in Sakina Bibi is

not applicable in this case. further more, the Hon'ble Supreme Court

has specifically dealt with the issue of retrospective effect of

subsequent notification in Sri Sankaracharya University of Sanskrit

and Ors. Vs. Dr. Manu and Anr. reported in 2023 SCC Online SC

640.

8. Learned Counsel, for the petitioner submits that the notification

cannot be said to be clarificatory and it must not have affect settled

position with an unanticipated burden or withdrawing from any party

and anticipated benefit.

9. Heard the Learned Advocate perused the observation of Hon'ble

Apex Court as well as the Divison Bench of this Court. the State

Authority rejected the application of the petitioner on two grounds.

Firstly, it is the case of the State Authority that the roof of the

proposed godown is not made concrete. On perusing the vacancy

notification as well as the notification dated 21st of July 2014, it is the

clear findings and requirement for the applicant that the godown must

be made Pakka with concrete floor nothing has been said in the

notification regarding the roof.

10. The petitioner has applied on the basis of vacancy notification

dated 08th August 2022 the godown and shop room of the petitioner

appears to be within the eligible criteria as enumerated in the

notification itself thus the State Authority cannot whimsically import

new criteria regarding requirements of concrete roof of the proposed

godown. Thus the rejection of application of the petitioner on that

ground appears to be not justified.

11. Let me consider about regarding the retrospective operation of

the notification dated 17th January 2023 upon the vacancy

notification dated 08th August, 2022. In the case of Sakina Bibi

(Supra) the Hon'ble Division Bench has decided the issue of

notification dated 13.12.2022 in Sub-Clause (iv) of Clause (2) (m) of

the words "widow of predeceased son" has been substituted by "son's

spouse". It is the observation of the Hon'ble Division Bench that the

substitution of "widow of predeceased son" in Sub-Clause (iv) Clause 2

(m) by the words "Son's spouse" is mere clarification to overcome a

situation. It is the further observation of the Hon'ble Division Bench

that where amendment is mere clarificatory, explanatory or

declaratory, usually, its operation is retrospective in nature.

12. In the case of Sakina Bibi the proposed amendment regarding

"the widow of predeceased son" and the "Son's spouse" denote a same

unidentical person thus, the amendment as observed by the Hon'ble

Division Bench in Sakina Bibi obviously clarificatory and declaratory

in nature.

13. In perusing the present case it appears that initially under the

definition of relative in Clause 2 (xa) (iii) the entry was "Brother's

spouse, son or daughter" by virtue of the notification dated

17.01.2023, it was substituted with the term "brother, his spouse,

son or daughter". Thus in the same entry the amendment has

introduced "brother"; the said amendment is not denoting same

person, rather a inducted a new relation. Thus, it cannot be said that

the amendment is explanatory or declaratory in nature. Moreover, it

appears that at the time of vacancy notification dated 08th August

2022 the definition of "relatives" includes only "brother's spouse, sons

and daughters". By virtue of amendment vide notification dated

17.01.2023 the 'brother' i.e. a new relative was included the definition

of relative. Such notification of inclusion of a new relative 'brother'

cannot be said to be clarificatory in nature. Moreover the said

notification has deprived right of expectancy of the petitioner for

getting the FPS license. It is true, if the 'brother' was included in the

definition of relative at the time of vacancy notification dated

08.08.2022; the petitioner must not have applied for the vacancy. The

notification dated 17th January 2023 must have withdrawn the

legitimate benefit of the petitioner to have the license

14. Hon'ble Apex Court in Sri Shankaracharya university of

Sanskrit (supra) has specifically dealt with the issue as follows:-

52. From the aforesaid authorities, the following principles could be culled out:

i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted.

     ii)   In    order    for   a     subsequent
     order/provision/amendment          to    be

considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively.

iii) An explanation/clarification may not expand or alter the scope of the original provision.

iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively.

53. Applying the law as discussed hereinabove to the facts of the present case, we are of the view that the subsequent Government Order dated 29th March, 2001 cannot be declared as a clarification and therefore be made applicable retrospectively. The said order has substantively modified the Government Order dated 21st December, 1999 to the extent of stating that teachers who had already got the benefit of advance increments for having a Ph.D. degree, would not be eligible for advance increments at the time of their placement in the selection grade. As noted above, the law provides that a clarification must not have the effect of saddling any party with an unanticipated burden or withdrawing from any party an anticipated benefit. However, the Government Order dated 29th March, 2001 has restricted the eligibility of lecturers for advance increments at the time of placement in the selection grade, only to those who do not have a Ph.D. degree at the time of recruitment and subsequently acquire the same.

15. Following the Hon'ble Apex Court in Sri Shankaracharya

university of Sanskrit (supra) I am of a view that the ratio laid down

by the Hon'ble Division bench in Sakina Bibi is not at all applicable in

this case rather the law laid down by the Hon'ble Supreme Court in

Sri Shankaracharya university of Sanskrit (supra) is more

applicable.

16. Under the above observation it appears to me that the State

Authority has illegally and arbitrarily rejected the application of the

petitioner on the ground that his "brother" is having FPS license.

17. On the above score the writ petition appears to be meritorious

one.

18. The order of rejection of petitioner's application in respect of the