Judgment :

Joymalya Bagchi, J. 

1. Appellant-State has appealed against judgment and order dated 16.08.2023 passed by the Hon’ble Single Judge whereby the Hon’ble Judge set aside the decision of the Sub-Divisional Controller, Food & Supplies, Diamond Harbour, 24-Parganas (South) holding the respondent no.1/writ petitioner ineligible and remanding the matter for fresh enquiry on the basis of the observations made in the judgment and after considering the financial solvency of preceding one year from the date of enquiry of the applications of respondent no.1/writ petitioner and private respondent no.2 i.e. successful applicant.

2. Facts giving rise to the appeal are as follows :-

3. A vacancy notification for engagement of dealership of fair price shop in respect of Village: Bhushna, P.O. & G.P. – Kamarpole, P.S. Diamond Harbour, Block: Diamond Harbour-II, District: South 24-Parganas was issued on 11.03.2020.

4. In response to the vacancy notice, respondent no.1/writ petitioner and private respondent no.2 made applications for dealership. One of the eligibility criteria set out in the vacancy notice i.e. Clause 6 reads as follows :-

“6. The applicant, for dealership must have Bank Balance of at least Rs.5.00 lakh (Five Lakh) as working capital reflected on the day of application and one year preceding the date of application.”

5. Referring to the said clause, Sub-Divisional Controller, Food & Supplies, held respondent no.1/writ petitioner ineligible and recommended private respondent no.2 as the successful applicant.

6. Challenging the said order respondent no.1/writ petitioner approached the Hon’ble Single Judge. It was argued respondent no.1/writ petitioner had bank balance of more than Rs.5 lakhs from the date of application and preceding eight months from the said date. Though private respondent no.2 also did not have a minimum balance of Rs.5 lakhs for the entire year preceding the date of his application, his candidature was recommended whereas the candidature of respondent no.1/writ petitioner was turned down.

7. Accepting the said argument, Hon’ble Single Judge, inter alia, held as follows :-

“I have also held that the father of the respondent No.6 has a subsisting licence of kerosene oil dealership. Prima facie the application of respondent No.6 cannot be considered in view of the provision contained in Clause 20(IIa). Secondly, it is found that the Enquiry Officer considered solvency of the petitioner with effect from 16.10.2019, which ought to be looked into with effect from 13^th October, 2019. When the respondent No.6 was given relaxation in order to prove his solvency, why such relaxation was not provided to the petitioner. Thirdly, the Enquiry Authority failed to consider that the petitioner has his godown at Village Bhushna where the fair price shop was intended to be set up, whereas the godown of respondent No.6 is situated at Village Sarisha under Police Station Diamond Harbour. Village Sarisha is not even within the Gram Panchayat area of Kamarpole G.P. ”

8. In view of the aforesaid, Hon’ble Single Judge directed Sub- Divisional Controller, Food & Supplies, to conduct fresh enquiry in light of the aforesaid observations and after considering the financial solvency of preceding one year from the date of enquiry of the applications of both the parties.

9. We are informed the order has been implemented and Sub- Divisional Controller, Food & Supplies, has not recommended private respondent no.2 on the ground that his shop room was not within the vacancy area and has recommended the case of the respondent no.1/writ petitioner.

10. Mr. Sirsanya Bandyopadhyay, learned Junior Standing Counsel for the appellant-State argues the order was implemented under threat of contempt. This would not render the appeal infructuous. He strenuously argues the observations made in the impugned judgment are erroneous as the direction to consider financial solvency preceding one year from the date of enquiry alters the terms of vacancy notice itself