Dismissed¶¶68

Krishna Ghosh v. State of West Bengal and Ors.

Calcutta HC5 Apr 2024MAT/792/2020

Case brief

AI extract

What is this about?

Fair Price Shop vacancy notice 06.03.2020; West Bengal Public Distribution System (Maintenance and Control) Order 2013; Control Order 2013 Clause 19 Clause 20(iii a); Section 3 Essential Commodities Act; Article 43 B Constitution of India; Rs. 5 lakh deposit solvency; residence requirement discrimination; self-help groups women; eligibility criterion No. 8; interim relief stay refused; Single Judge order 03.12.2020 affirmed; MAT appeals dismissed; interim orders vacated; Calcutta High Court Division Bench; State unpresented Advocate General.

What did the court decide?

None; the appeals were dismissed and any interim orders stood vacated. ¶¶68

Krishna Ghosh Vs State of West Bengal and Ors. — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

None; the appeals were dismissed and any interim orders stood vacated.

¶¶68

Issue for consideration

Whether the requirement of maintaining Rs. 5 lakh in deposit for a period of one year preceding the date of application, imposed by the impugned notification dated 06.03.2020, is an unreasonable/arbitrary restriction. +3 more

¶¶37

Court's answer

The objection to the Rs. 5 lakh deposit requirement proceeds on a misconception that the notice targets unemployed youth; the requirement instead enables assessment of the solvency of persons to run the dealership, which must operate uninterruptedly by procuring and transporting essential commodities.

¶¶58

Ratio / Principle

The impugned notification was issued in furtherance of the statutory objective under Section 3 of the Essential Commodities Act, i.e. securing equitable distribution and availability of essential commodities at fair price; the public purpose is overwhelming.

¶¶47

Key takeaways

The exclusion of persons employed in Government/Semi-Government Organization/School and persons elected to Panchayati Raj institutions/urban local bodies is in terms of Clause 20 of the Control Order 2013; the petitioners are not of the restricted category and are unaffected by the exclusion.ratio¶¶52
The State's policy preference for self-help groups, especially women's self-help groups, furthers the constitutional directive of promoting the co-operative movement under Article 43 B and is based on a valid classification; no individual can complain of discrimination on that account.ratio¶¶62

Detailed headnote1 paragraphs

Batch of six intra-court appeals (MAT 786, 788, 789, 790, 791 and 792 of 2020, each with CAN 1 of 2020) before a Division Bench of the Calcutta High Court (judgment authored by Madhuresh Prasad, J.; Harish Tandon, J. agreeing) against the Single Judge's order dated 03.12.2020 refusing interim stay of the Government notification dated 06.03.2020 inviting applications for a vacant Fair Price Shop under the West Bengal Public Distribution System (Maintenance and Control) Order 2013. Appellants contended the Rs. 5 lakh one-year deposit condition was unreasonable for purportedly unemployed-youth applicants, and that the residence requirement and eligibility criterion No. 8 discriminated against individual applicants vis-a-vis self-help groups, co-operatives and companies. HELD: the notification was issued in furtherance of Section 3 of the Essential Commodities Act and the public purpose is overwhelming; the notice is not confined to unemployed youth and the exclusions mirror Clause 20(iii a) of the Control Order 2013, which does not affect the petitioners; the deposit tests solvency needed for uninterrupted dealership operations; preference to self-help groups implements Article 43 B and is a valid classification; the residence condition is rational given the Clause 19 duties demanding the dealer's personal presence. No infirmity in the order under appeal; appeals dismissed and interim orders vacated. The State remained unpresented despite adjournments for the learned Advocate General.

¶1

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE

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Present:-

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The Hon’ble Justice Harish Tandon

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And

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The Hon’ble Justice Madhuresh Prasad

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MAT 786 of 2020 with

¶7

I.A No. CAN 1 of 2020

¶8

Kuntal Sinha

¶9

Vs.

¶10

State of West Bengal & Ors.

¶11

with

¶12

MAT 788 of 2020 I.A No. CAN 1 of 2020 Gautam Sarkar

¶13

Vs.

¶14

State of West Bengal & Ors. With

¶15

MAT 789 of 2020 I.A No. CAN 1 of 2020 Koushik Das

¶16

Vs.

¶17

State of West Bengal & Ors. with

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MAT 790 of 2020 I.A No. CAN 1 of 2020 Raju Datta Banik

¶19

Vs.

¶20

State of West Bengal & Ors. With

¶21

MAT 791 of 2020 I.A No. CAN 1 of 2020 Amit Mondal

¶22

Vs.

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State of West Bengal & Ors. with

¶24

MAT 792 of 2020 I.A No. CAN 1 of 2020 Krishna Ghosh

¶25

Vs.

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State of West Bengal & Ors.

¶27

For the Appellants : Mr. Debabrata Saha Roy,

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Mr. Subhankar Das,

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Mr. Neil Basu,

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Mr. Sankha Biswas.

¶31

Heard on : March 05, 2024

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Calcutta High Court MAT 786 of 2020 dt. 05.04.2024

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Judgment on : April 05, 2024

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Madhuresh Prasad, J.:

¶35

The present batch of MATs are by way of an intra Court appeal being aggrieved and dissatisfied with the order dated 03.12.2020, rejecting the prayer of the writ petitioners for interim relief seeking stay of Government notification dated 06.03.2020 whereby and whereunder a vacancy notice for Fair Price Shop (FPS) was issued by the Government.

¶36

The learned Single Judge has refused the prayer for interim relief at the ad interim/ preliminary stage, on the ground that the same would not be prudent in view of the public purpose involved in the impugned notice dated 06.03.2020, that also without affording the state an opportunity to place its stand by way of affidavit/s. The learned Single Judge thereafter has directed affidavit-in-opposition to be filed and the matter has been directed to be listed under the heading for hearing.

¶37

Mr. Debabrata Saha Roy appearing for the appellant submits that the requirement of maintaining an amount of Rs. 5 lakh in deposit for a period of one year, preceding the date of application is an unreasonable restriction imposed by the impugned notification. Such a condition is arbitrary and unsustainable. It is not in furtherance of; rather it is detrimental to the objective of running Fair Price Shop by an unemployed youth, and would serve no useful purpose.

¶38

¶39

Calcutta High Court MAT 786 of 2020 dt. 05.04.2024

¶40

This was the only issue raised by the appellant/petitioner before the learned Single Judge. In these proceedings, however, the learned Counsel representing the appellant/petitioners has submitted that the impugned notification suffers from various other infirmities rendering it legally and constitutionally unsustainable. He has alleged the same to be discriminatory.

¶41

Though “individual” applicants are required to be residents of the locality where the vacancy has arisen, there is no such requirement in the case of Co-operative Societies, Self-help Groups and Companies.

¶42

Another discrimination alleged is regarding the requirement specified in eligibility criteria No. 8 of the impugned notice that applicant (in case of individual) should not be employed in any Government/Semi-Government Organization/ School and should not be an elected Member of any Panchayati Raj institution/ urban local body. Whereas there is no such restriction operating against applicants under the category self-help groups/ registered cooperative societies, semi Government bodies, group of individuals.

¶43

At this juncture we consider it appropriate to record that the instant appeal was listed earlier on 04.03.2024 only to be adjourned for sending intimation to the learned Advocate General and enabling his appearance. The matter was thus fixed at 02:00 pm. Unfortunately, the learned Advocate General could not appear in the matter, when it was called on 02:00 pm, whereafter it was adjourned to the next date (05.03.2024). On 05.03.2024 also the State

¶44

¶45

Calcutta High Court MAT 786 of 2020 dt. 05.04.2024

¶46

remained unpresented and we thus proceeded to hear the learned Counsel for the appellant/petitioner.

¶47

We find the impugned notification containing notice of vacancy for appointing FPS under the West Bengal Public Distribution System (Maintenance and Control) order 2013 (‘the Control Order 2013’ for short) was issued in furtherance of the statutory objective contained in the Section 3 of the Essential Commodities Act for control, protection supply and distribution of essential commodities for securing their acquitable distribution and availability at fair price. The entire exercise of issuing the impugned notification, therefore, is to achieve the social objective of securing supply of essential commodities for the public. The public purpose is, therefore, overwhelming.

¶48

Having said so, we consider it appropriate to deal with the objections taken by the appellant to the requirements under the impugned notice dated 06.03.2020. The premise for the objection regarding the requirement of maintaining 5 lakh rupees in deposit for

¶49

a year preceding the advertisement/notice is founded on a misconception that since applicants are expected to be unemployed youth, requirement of maintaining such an amount idle for a year preceding the advertisement is unreasonable. Upon going through the impugned notice/notification, we find that the notice/notification is not restricted to appoint an unemployed youth as FPS. The impugned notice merely excludes a particular class of employed persons, namely those who are employed in any Government/ Semi-

¶50

¶51

Calcutta High Court MAT 786 of 2020 dt. 05.04.2024

¶52

Government Organization/ School. It also excludes person elected to a Panchayati Raj institution/ urban local body. The petitioners are not claiming to be employee/s of the restricted category, and are not affected by this exclusion. This exclusion is also in terms of the provisions contained in the Control Order 2013 as contained in Clause 20 thereto dealing with engagement of dealers. Clause 20 (iii a) specifies persons who are ineligible to apply for a license subClause (b) and (e) thereof reads as follows:-

¶53

“(iiia) Following person shall not be eligible to apply for a licence of a dealer, namely –

¶54

(b) a member of local bodies, local authorities, Panchayati Raj Institutions, board or corporation, or Member of Legislative Assembly or a Member of Parliament during his tenure as such capacity;

¶55

(e) a person holding a post in the establishment of any State Government or Central Government or any authority or body or institution of local self-Government established or constituted by or under the Constitution or by any other law made by the Parliament or a State Legislature or by notification issued or order made by the Central Government or a State Government;

¶56

…”

¶57

The very premise for assailing the requirement of maintaining 5 lakh

¶58

rupees, that advertisement has been issued for unemployed youth like the petitioner, therefore, is unsustainable. In fact, such requirement would enable assessment of requisite solvency of the person to be appointed as FPS as the dealership, which is required to be operated uninterruptedly by procuring and getting transported the foodgrains and other essential commodities from the lifting points for their distribution to the beneficiaries through FPS.

¶59

¶60

Calcutta High Court MAT 786 of 2020 dt. 05.04.2024

¶61

Another ground urged by the learned Counsel for the appellant/petitioner regarding the requirement of individual applicants being a permanent resident in the sub-division where the vacancy occurs, to be discriminatory, we find the same also to be prima facie unsustainable from bare perusal of the impugned notice as well as the provisions contained in the Control Order 2013.

¶62

From bare perusal of the impugned notice, it is apparent that the same contains a policy decision of the State Government to give preference to self-help groups specially the women’s self-help groups. Such preference for promoting self-help groups is only in furtherance of the constitutional directive of promoting the co-operative movement as enshrined in Article 43 B of the Constitution of India and, therefore, is apparently based on a valid classification. No individual, therefore, can be heard to complain that the same is discriminatory in nature. The policy of the State to give preference to self-help groups is explicit from the impugned notification as well as the provisions in the Control Order 2013 under which the notification has been issued.

¶63

On further scrutiny of the provisions of the Control Order 2013, we find that the same also prescribed duties and responsibilities of dealers in Clause 19 at part III of the Control Order 2013. The nature of duties and responsibilities cast upon the dealer under the Control Order 2013 is such that it would require the Fair Price Shop dealer’s presence and personal participation in the day to day distribution of essential commodities to the beneficiaries. We, therefore, find that

¶64

¶65

Calcutta High Court MAT 786 of 2020 dt. 05.04.2024

¶66

the requirement of an “individual” applicant to be a permanent resident of the sub-division wherein the vacancy occurs also has a rational, and is based on such social objective sought to be achieved by appointment of FPS. The associations, including co-operatives, self-help groups, etc. on the other hand, would be comprised of more than one person so as to ensure that anyone of them is present and operates the FPS on a day to day basis uninterruptedly for ensuring equitable distribution of essential commodity/s for the local beneficiary.

¶67

For the reasons indicated hereinabove, and since we are also of the opinion that there is a very distinct and pronounced element of public purpose involved in the impugned notice dated 06.03.2020, we find no infirmity in the order under appeal. Rather we affirm the order dated 03.12.2020 in as much as the learned Single Judge has refused to grant any interim order of stay so as not to frustrate the process of appointment of Fair Price Shop, that also at the very initial stage of the writ proceedings, without affording any opportunity to the State to even file its affidavit in the writ petition.

¶68

We, therefore, dismiss the instant appeal. Interim order/s, if any shall stand vacated.

¶69

(Madhuresh Prasad, J.)

¶70

I agree.

¶71

(Harish Tandon, J.)

¶72

Issues for consideration

4 issues framed by the court

AI extract

1.
Whether the requirement of maintaining Rs. 5 lakh in deposit for a period of one year preceding the date of application, imposed by the impugned notification dated 06.03.2020, is an unreasonable/arbitrary restriction.¶¶37
The court held
The objection to the Rs. 5 lakh deposit requirement proceeds on a misconception that the notice targets unemployed youth; the requirement instead enables assessment of the solvency of persons to run the dealership, which must operate uninterruptedly by procuring and transporting essential commodities.ratio¶¶58
2.
Whether the impugned notification discriminates against individual applicants by requiring them to be residents of the locality/sub-division where the vacancy arises, while imposing no such requirement on co-operative societies, self-help groups and companies.¶¶41
The court held
The State's policy preference for self-help groups, especially women's self-help groups, furthers the constitutional directive of promoting the co-operative movement under Article 43 B and is based on a valid classification; no individual can complain of discrimination on that account.ratio¶¶62
3.
Whether eligibility criterion No. 8 of the impugned notice (excluding persons employed in Government/Semi-Government Organization/School and elected members of Panchayati Raj institutions/urban local bodies) is discriminatory as it operates only against individual applicants and not against self-help groups/registered cooperative societies/semi Government bodies/groups of individuals.¶¶42
The court held
The exclusion of persons employed in Government/Semi-Government Organization/School and persons elected to Panchayati Raj institutions/urban local bodies is in terms of Clause 20 of the Control Order 2013; the petitioners are not of the restricted category and are unaffected by the exclusion.ratio¶¶52
4.
Whether the learned Single Judge was justified in refusing interim relief (stay of the vacancy notice dated 06.03.2020) at the ad interim/preliminary stage of the writ proceedings.¶¶36
The court held
The impugned notification was issued in furtherance of the statutory objective under Section 3 of the Essential Commodities Act, i.e. securing equitable distribution and availability of essential commodities at fair price; the public purpose is overwhelming.ratio¶¶47

Krishna Ghosh v. State of West Bengal and Ors.

Case brief

What is this about?

What did the court decide?

Krishna Ghosh v. State of West Bengal and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

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Procedural history

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