Misuse of statutory power by the respondent authorities and the vitiation of the order dated April 8, 2015 by fraud.

JUDGMENT

Hiranmay Bhattacharyya, J. - This writ petition is at the instance of a co-operative society praying for a writ in the nature of mandamus to set aside the Memo dated May 12, 2015 issued by the respondent no. 5 and for setting aside the Memo dated April 8, 2015 issued by the Deputy Secretary, State of West Bengal and for prohibiting the respondents not to fill up the vacancy declared vide vacancy notice dated 12.05.2015.

2. The facts leading to the filing of the instant writ petition is as follows:-

A notification dated March 23, 2007 was issued by the District Controller, Food and Supplies, Murshidabad declaring the vacancy for new M.R. Distributorship at Chowki-Mouza under Bewa-II Gram Panchayat in the District of Murshidabad and applications were invited from the intending parties. Petitioner as well as other intending candidates submitted their applications for obtaining M.R. Distributorship. The Sub-Divisional Controller issued a Memo dated September 29, 2008 informing the petitioner to remain present on October 16, 2008 for holding enquiry of the godown. Petitioner claims to be present on October 16, 2008 and the inspection team made enquiry with regard to the fulfilment of criteria mentioned in the advertisement. A writ petition being WP No. 18223 (W) of 2009 was filed by one Rabindranath Das claiming to be a partner of the partnership firm namely 'Baba Baidyanath Bhander' which was disposed of by an order dated July 29, 2010 by directing the respondent no. 2 to consider the representation dated September 9, 2009 and to take a decision thereon in accordance with law within a stipulated time frame. The respondent no. 2, by an order dated November 12, 2010, rejected the claim of M/s. Baba Baidyanath Bhander upon holding that the partnership firm does not qualify for the proposed distributorship. Another applicant of the said notification dated March 23, 2007 namely Hossain Mohammad Kaizar filed a writ petition being WP 2394 (W) of 2011 challenging the order dated November 12, 2010 passed by the respondent no. 2. The said writ petition being WP 2394(W) of 2011 stood dismissed by an order dated April 7, 2011. The petitioner claims to have acquired knowledge from the order dated November 12, 2010 that the District Controller has recommended the name of the petitioner for filling up the vacancy in question as the most suitable candidate.

3. The petitioner claims to have submitted several representations, the last of which was dated December 10, 2011 requesting the concerned authority to dispose of the matter. The petitioner thereafter filed a writ petition being WP No. 16066 of 2012 alleging inaction on the part of the respondent authorities in granting licence of M.R. Distributorship. The said writ petition was disposed of by an order dated January 8, 2015 by directing the competent authority to issue the license of M.R. Distributorship under reference in favour of the petitioner provided the petitioner is otherwise eligible for granting the above license and subject to compliance of all formalities in accordance with law.

4. Pursuant to the said order a notice of hearing dated March 25, 2015 was issued directing the petitioner to attend the hearing before the respondent no. 2 on March 27, 2015. The petitioner alleges that subsequently a vacancy notice dated May 12, 2015 was issued and applications were invited from different class of entities for filling up the vacancies of M.R. Distributorship at NTPC More, Farakka in the District of Murshidabad. Being aggrieved, by the said action of the respondent authorities the instant writ petition has been filed.

5. The specific stand of the respondents in their affidavit-in- opposition is that the vacancy declared by Memo dated March 23, 2007 was under West Bengal Public Distribution System (Maintenance & Control) Order 2003 (for short 2003 Control Order') which stood repealed as on 08.08.2013 with the enforcement of the West Bengal Public Distribution System (Maintenance & Contro