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High Court of Judicature at Calcutta
PINAKI CHANDRA GHOSE & SOUMEN SEN
Barun Ghosh
Versus
Goutam Kumar Saha & Others
G.A. No.1800 of 2011, A.P.O.T. 261 of 2011, W.P. 144 of 2010
Decided On : 01-09-2011
PUBLIC DISTRIBUTION SYSTEM - APPOINTMENT OF DISTRIBUTOR - INTERPRETATION OF PUNCTUATION ‘/’ USED BETWEEN ‘PUBLIC NOTIFICATION/ADVERTISEMENT’ IN CLAUSE 23 OF THE WEST BENGAL PUBLIC DISTRIBUTION SYSTEM (MAINTENANCE & CONTROL) ORDER, 2003 - PUBLIC NOTIFICATION MANDATORY AND NOT OPTIONAL - PUBLICATION IN OFFICIAL GAZETTE AND NOTICE BOARD OF CONCERNED DISTRICT CONTROLLER OR SUB-DIVISIONAL CONTROLLER - PUBLICATION IN LOCAL NEWSPAPERS OR JOURNALS OF LIMITED CIRCULATION NOT SUFFICIENT - PUBLICATION IN NEWSPAPERS OF WIDE CIRCULATION NECESSARY.
Fact of the Case:
The appellant challenged the interpretation of punctuation ‘/’ used between the expressions “public notification/advertisement” in Clause 23 of the West Bengal Public Distribution System (Maintenance & Control) Order, 2003, as amended. The issue arose from a writ petition challenging a notice inviting applications for filling up a vacancy of Modified Rationing Distributorship, published only in the office of the District Controller, Food & Supplies, South 24 Parganas, and two newspapers of limited circulation.
Finding of the Court:
The Court held that the punctuation ‘/’ between the expressions “public notification/advertisement” in Clause 23 of the 2003 Order, as amended, is to be construed as conjunctive and not disjunctive. The Court found that the State Government’s interpretation of the punctuation as “disjunctive” was incorrect and that the vacancy notice must be widely circulated.
Issues: 1. Whether the punctuation ‘/’ used between the expressions “public notification/advertisement” in Clause 23 of the West Bengal Public Distribution System (Maintenance & Control) Order, 2003, as amended, should be construed as conjunctive or disjunctive? 2. Whether publication of a vacancy notice for appointment of distributors, on the notice board of the office of the District Controller concerned and in newspapers of limited circulation, meets the requirements of the 2003 Order?
Ratio Decidendi: 1. The Court held that the punctuation ‘/’ between the expressions “public notification/advertisement” in Clause 23 of the 2003 Order, as amended, is to be construed as conjunctive and not disjunctive. The Court relied on the following factors: a. The fundamental right to equality under Articles 14 to 16 of the Constitution of India includes the right to fair consideration for selection for appointment to public posts and other appointments which involve distribution of largesse. b. The State cannot act arbitrarily or discriminate between citizens in the matter of appointment of inter alia dealers and distributors. c. Vacancies are advertised to give all eligible candidates the opportunity to apply and not just to fill up the vacancies somehow. 2. The Court held that publication of a vacancy notice for appointment of distributors, on the notice board of the office of the District Controller concerned and in newspapers of limited circulation, does not meet the requirements of the 2003 Order. The Court held that such publication is inadequate and unsatisfactory, as it does not enable all eligible candidates to become aware of the vacancy.
Final Decision: The Court dismissed the appeal and upheld the interpretation given by the learned single Judge of Clause 23 of Control Order, 2003. The Court directed that henceforth, in addition to public notification in the Official Gazette and a display in the notice board in the office of the concerned District Controller, Food & Supplies or the Sub-divisional Controller, Food & Supplies, adequate publicity should be made in newspapers of wide circulation so that all the bona fide citizens of the State could apply.
Soumen Sen, J.
The interpretation of punctuation ‘/’ used between the expressions “public notification/advertisement” in Clause 23 of the West Bengal Public Distribution System (Maintenance & Control) Order, 2003 as amended by notification No.7044FS dated 18th November, 2004 published in the Kolkata Gazette on 25th March, 2005 given by the learned single Judge in the order dated 5th May, 2010, has been the subject-matter of challenge in this appeal.
The present appellant was not a party to the original writ petition being W.P.No.144 of 2010 in which the said order was passed but was subsequently added as a party respondent in the said proceeding. Since we propose to dispose of the appeal on the interpretation of the punctuation ‘/’ we may only refer to some of the facts that are necessary for determination of the said issue.
In the writ petition, the petitioner has challenged a notice dated 31st December, 2009, being annexure P-3 to the writ petition, inviting applications for filling up the vacancy of Modified Rationing Distributorship at Jamtalahat, Kultali Police Station in South 24 Parganas.
The impugned notice was apparently published only in the office of the District Controller, Food & Supplies, South 24 Parganas and in two newspapers, a fortnightly newspaper “Superhit Khabar” and a weekly newspaper, “Alipore Barta”. It is not in dispute that the notification was never published in any Official Gazette.
The appointment of Distributors is governed by Clause 23(i) of the West Bengal Public Distribution System (Maintenance & Control) Order, 2003, hereinafter referred to as the 2003 Order issued vide Notification No.55880FS dated 22nd December, 2003, in exercise of power conferred under Section 3 of the Essential Commodities Act, 1955.
In the writ petition, the principal issue raised was whether publication of a notice for appointment of distributors, on the notice board of the office of the District Controller concerned and in newspapers of limited circulation, meets the requirements of the 2003 Order.
Clause 23 of the 2003 Order, as amended by Notification No.7044FS dated 18th November, 2004, published in the Kolkata Gazette on 25th March, 2005 is set out herein below:
“23. Appointment of Distributor: (i) In the event of a vacancy arising out of death or resignation of an existing distributor or for better functioning of PDS in a particular area, the vacancy is to be declared with the approval of the Government. The concerned SCFS will report the vacancy to the respective DCFS within 10 days from the date of receipt of vacancy report and the DCFS will transmit the same to Director-DDP & S for necessary action in the matter. The Director-DDP & S after obtaining necessary approval from the Government shall declare such vacancy through public notification/advertisement in the concerned SCFS/DCFS office for new vacancy only.
Where vacancy arises due to incapacitation on medical ground for existing Distributor, such vacancy shall not initially be notified. In such cases, prayer of the legal heirs will be considered…….” Prior to amendment paragraph 23 provided as follows:
“23. Appointment of Distributor: (i) In the event of a vacancy arising out of death or resignation of an existing distributor or for better functioning of Public Distribution System in a particular area, the vacancy is to be declared with the approval of the Regional Deputy Director. The Sub divisional Controller, Department of Food and Supplies shall seek an approval of the Regional Deputy Director through the concerned District Controller, Department of Food and Supplies and on obtaining approval, shall declare such vacancy through public notification/advertisement.”
Prior to amendment, a vacancy had to be declared through public notification/advertisement. After the amendment vacancy is to be declared through public notification/advertisement in the concerned SCFS/DCFS office.
‘Public notification’ has been defined in Article 366 (9) of the C
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