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Judgment
By means of the instant writ petition, the writ petitioner No.1, a duly registered cooperative society has placed a challenge to the approval letter dated 13th May, 2019 and the impugned appointment letter dated 28th May, 2019 issued under the provisions of the Meghalaya Food Grains (Public Distribution System) Control Order 2004 as amended in 2012.
The grievances of the writ petitioner is that the respondents, in pursuance to the advertisement dated 1st November, 2018, for submission of applications for appointment of the government nominee/agent in Ri-Bhoi District as PDS distributor, in total disregard to the status of the petitioner cooperative society and its experience have instead appointed the respondents who have no experience and are not members of a cooperative society, which the petitioner claims is in violation of the Control Order of 2004.
Heard learned counsels for the parties.
Mr. H.L. Shangreiso, learned counsel appearing on behalf of the petitioner while opening his submissions states that the petitioner which is a registered cooperative society, enjoys preferential treatment under the provisions of the Meghalaya Food Grains Public Distribution System Control Order, 2004, and has been engaging in the Public Distribution System of food-grains as government nominees/agents for the last 10(ten) years and that they have gained vast experience in this field. He submits that the as per the Control Order of 2004, Cooperative societies are given preference in the allotment of PDS dealerships, and this concession/condition has also been upheld by the Hon'ble Gauhati High Court in its judgment dated 22.11.2012 passed in WP(C) No. 142 (SH) of 2012.
Learned counsel submits that the respondent No. 3 vide letter dated 17th October, 2018, had also pointedly instructed all the appointing authorities in the State to adhere to the provisions of the Control Order, 2004 as amended in 2012,while inviting applications for appointment as government nominees/agents for smooth distribution of essential food grains in the State, and that this included the direction that applications of Co-operative societies, N.G.O.'s and SHG's if found capable be given preference.
Learned counsel submits that in pursuance to the advertisement dated 1st November, 2018, the writ petitioner having fulfilled all the essential criteria under the Control Order of 2004, had submitted an application before the respondent/Deputy Commissioner, but strangely the appointment was granted to the private respondents, who he submits do not satisfy the essential requirements as prescribed. Learned counsel submits that the approval letter dated 13th May, 2019 had been issued by the respondent No. 2, approving the agency of the private respondents and that in pursuance to the said latter, the impugned appointment letter dated 28th May, 2019 was issued. Learned counsel submits that the impugned appointment letter dated 28th May, 2019, is a mere consequential order of the basic impugned approval letter dated 13th May, 2019 and contends that once the basic impugned approval letter 13th May, 2019 is bad in law, the consequential impugned appointment letter dated 28th May, 2019 does not survive alone and as such, the writ petitioner has approached this Court directly and not resorted to the appellate remedy as provided under the Control Order of 2004.
Learned counsel also submits that the decision of the State Government was with the approval of the Minister of Food Civil Supplies and Consumer Affairs and as such, the impugned appointment letter dated 28th May, 2019 is not required to be challenged before the appellate forum for the reason that the writ petitioner will not be offered any substantial or adequate relief so long as the basic impugned approval letter survives.
Learned counsel thereafter draws the attention of this Court to the various clauses contained in the Meghalaya Food Grains (Public Distribution System) Control Order, 2004 and has referred to Amended Clause 5, which prescribes the procedure to be followed and requisites to be taken into consideration, for appointment of nominees/agents. The learned counsel then refers to Clause 5 (1) which stipulates that consideration should be given to an applicant cooperative society, and also the Amended Control Order, 2004, at Clause 5 [1] (d) which also stipulates a similar condition. He also refers to Clause 5 (c) which speaks of experience, and other criteria such as possession of go-down and storage space.
Learned counsel thereafter places reliance on the letter dated 17th October, 2018 issued by the respondent No. 3 to all the Deputy Commissioners, wherein directions have been prescribed especially direction No. 6, which he submits, that the Co-operative Societies, N.G.Os and S.H.Gs, if found capable to run a Dealership, may also be given preference. Learned counsel submits that though the Control Order, 2004 is unambiguous in its stipulation, and the petitioner possessing all the requirements, the action of the respondents in awarding the agency/dealership to the private respondents who are not cooperative societies or not having any experience in the PDS, is patently illegal and in violation of the Control Order, 2004. As such, he prays that interference is called for by this Court to set aside the impugned letters and the respondents be directed to re-examine and consider the case of the petitioner. To buttress his submissions and contentions, learned counsel for the petitioner places reliance on the following judgments: -
(i) Ram and Shyam Company v. State of Haryana & Ors: (1985) 3 SCC 267.
(ii) Sanjana M. WIG (Ms) v. Hindustan Petroleum Corporation Limited: (2005) 8 SCC 242.
(iii) Chairman-cum-Managing Director, Coal India Ltd. & Ors v. Ananta Saha & Ors: (2011) 5 SCC 142.
(iv) Nand Kishore Saraf v. State of Rajasthan & Anr: AIR 1965 SC 1992.
(v) Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr: (2007) 10 SCC 260.
Mr. B. Bhattacharjee, learned AAG assisted by Ms. I. Lyngwa, learned GA appearing on behalf of the respondent No. 1-4 at the outset has put a strong challenge to the maintainability of the instant writ petition on the ground of availability of alternate remedy by way of appeal, which should be preferred before the appellate forum i.e. the Commissioner of Food and Civil Supplies & Consumer Affairs Department. He submits that the petitioner by preferring the instant writ petition at this stage is seeking to convert the jurisdiction of this Court into that of an appellate forum.
To substantiate his challenge, learned AAG has read out the relevant provisions of the Control Order, 2004 as contained in Clause 2. Clause 2 (c) he submits, defines 'who is the Appointing Authority' and he states the definition "Appointing Authority" means the Director of Food Civil Supplies and Consumer Affairs, Government of Meghalaya and includes the Deputy Commissioner/Additional Deputy Commissioner and Sub- Divisional Officer (Appointing Authority) in their respective jurisdiction. He submits that as per Amended Clause 2 (d), the Appellate Authority means the Commissioner, Weight and Measures Department or any other Officers to be appointed by the Government for the purpose. He also refers to Clause 2 (e) of the Control Order, 2004 which reads that the Director of Food Civil Supplies and Consumer Affairs, Government of Meghalaya, and includes any other Officers authorized by the Government to perform all or any function of the Director. He then submits that Clause 19 provides that an appeal against the order of the Director shall lie to the Appellate Authority within 30(thirty) days of the date of the order appealed against and Clause 46 which also provides that an appeal against the order of the Deputy Commissioner/Sub-Divisional Officer (Appointing Authority) shall lie to the Appellate Authority within 30(thirty) days of the date of the order appealed against. Learned AAG contends that there being a clear provision for appeal, the writ petition is not maintainable at this stage.
The learned AAG also submits that the approval letter dated 13th May, 2019, having been issued by the Respondent No. 2 Under Secretary to the Government of Meghalaya, Food Civil Supplies & Consumer Affairs Department, the same would constitute to be an approval passed by the Director itself. He submits that as per Clause 2 (e), the term Director includes any other Officer authorized by the Government to perform all or any function of the Director, and as such, the mere issuance of the approval letter by the Under Secretary to the Government of Meghalaya, Food Civil Supplies & Consumer Affairs Department will not tantamount to the approval being made by the Head of the said Department.
He further submits that the petitioner has not made out any valid grounds for not taking recourse to the remedies as provided in the Control Order of 2004, and as such the writ petition is not maintainable.
With regard to the other submissions advanced by the learned counsel for the petitioner, learned AAG refutes the same and submits that preference will not mean that the writ petitioner shall have a monopoly to the exclusion of any other contenders. He submits that the two main grounds with regard to suitability, as put up by the writ petitioner of preference and experience, cannot be said to be possessed only by the writ petitioner, inasmuch as, the experience as prescribed is not confined only to experience in PDS activities. He further contends that the Government has the right to select the most suitable persons from among many eligible persons and that there has been no arbitrariness in granting of the appointments to the private respondents. Learned counsel submits that judicial review would be called for, only if the respondents had acted arbitrarily or in violation of Article 14. He lastly submits that none of the rights of the petitioner have been infringed and the writ petition being not maintainable on the face of the record itself is liable to be dismissed.
I have heard learned counsels for the parties, considered the submissions and also examined the materials on record.
The first point that emerges for consideration in this instant writ petition is whether the presence of alternate remedy as provided in the Control Order, 2004 will disable the instant petition. It would be expedient in this regard to refer to the Meghalaya Food Grains (Public Distribution System) Control Order, 2004 and also the Amended portion of 2012. For easy reference Clause 2, (a), (b), (c), (d) and (e), Clause 5, Clause 19, Clause 46 as well as Amended Order 2 and 5 amended vide Notification dated 4th January, 2012 are quoted herein below:
"02. Definition: -In this Order, unless the context otherwise requires: -
(a) "Appointed Nominees/Agents" Government Nominees/Agents appointed or deemed to be appointed under Clause - 3.
(b) "Appointed Retailer" means a Retail Dealer appointed or deemed to be appointed under the Provision of Clause - 20, in respect of any Foodgrains.
(c) "Appointing Authority" means the Director of Food Civil Supplies and Consumer Affairs, Govt. of Meghalaya and includes the Deputy Commissioner/Additional Deputy Commissioner and Sub-Divisional Officer, (Appointing Authority), in their respective jurisdiction.
(d) "Appellate Authority" means the Commissioner and Secretary, Weight and Measures Department or any other Officers to be appointed by the Govt. for the purpose.
(e) "Director" means the Director of Food Civil Supplies and Consumer Affairs, Govt. of Meghalaya, and includes any other Officers authorized by the Govt. to perform all or any function of the Director.
Procedure to be followed and requisites to be taken into consideration for appointing as Nominees/Agents:-
[1] In appointing or refusing to appoint under this Order, the Appointing Authority shall, among other things, have regard to the following namely:-
(a) the stock of Foodgrains available in the Locality for which the appointment is required;
(b) the number of Persons who have applied for and those who have been appointed in respect of the Foodgrains under this Order in the Locality;
(c) the business ordinarily carried on by the Applicant;
(d) the past activities of the Applicant as Businessmen/Firm; and
(e) Whether the Applicant is a Co-Operative Society.
[2] Notwithstanding anything contained in Sub-Clause (1), the State Govt. may, if it is of opinion that it is necessary to finalise distribution of Foodgrains through any special or specialized Agencies or Channels [including Co-Operative Societies] direct the Appointing Authority to appoint under this Order only to such Agencies or Channels".
"19. Appeal: -
An Appeal against the Order of the Director shall lie to the Appellate Authority within 30 [thirty] days of the date of the Order appealed against.
Appeal: -
An Appeal against the Order of the Deputy Commissioner / Sub-Divisional Officer [C], shall lie to the Appellate Authority within 30 [thirty] days of the date of the Order appealed against".
Amended Order: -
"2. Amendment of Order 2: - In order 2 of the principal Order-
(i) For clause (c) the following new clause (c) shall be substituted, namely: -
"(c) "Appointing Authority" means the Deputy Commissioner & Sub-Divisional Officer (C) in their respective jurisdictions".
(ii) In clause (d), for the words "Weights & Measures Department" the words "Food Civil Supplies & Consumer Affairs Department" shall be substituted.
(iii) after clause (d), the following new clause (dd) shall be inserted, namely: -
(dd) "Approving Authority" means the State Government of Meghalaya.
Amendment of Order 5: - In Order 5 of the principal Order for clause (i), the following shall be substituted, namely: -
"5. Procedure to be followed and requisites to be taken into consideration for appointment as Govt. nominees/agents: - In appointing or refusing to appoint under this Order, the State Government shall, among other things, have regard to the following namely: -
(a) financial capability duly supported by documentary proof or Bank statement to that effect. In addition, Bank Guarantee shall also be accepted in computation of the financial capability of the applicant. The amount of which shall be fixed by Government from time to time.
(b) possession of Godown or storage space supported by documentary proof to that effect.
(c) production of any other documents/certificates as required by and mentioned in the advertisement including those relating to the business ordinarily carried on by the applicants and his/her past record as a dealer in foodgrains;
(d) whether the applicant is a Co-operative Society; and
(e) the quantity of foodgrains allotted to the whole sale centre for which the appointments is required keeping in view the commercial viability of the dealership proposed.
(f) all Non-Tribal applicants/Firm/Company are required to produce Trading License from the respective District Councils they reside with regard to the area of operation".
On a bare perusal of the provisions of the Control Order, 2004 and the Amended portion thereto, Clause 2 defines the Appointing Authority which now includes the Deputy Commissioners and Sub-Divisional Officers. Further, a new clause has been inserted i.e. 2 (dd) which defines the Approving Authority as the State Government of Meghalaya. On an order passed by the Appointing Authority, the Control Order provides that an appeal shall lie before the Appellate Authority, which means the Commissioner and the Under Secretary to the Government of Meghalaya, Food Civil Supplies & Consumer Affairs Department. Similarly, Clause 2 (b) provides for an appeal against the order of the Director. Though, one of the impugned letters i.e. appointment letter dated 28th May, 2019 by the Appointing Authority has been issued by the Deputy Commissioner, a fact that cannot be ignored is that the approval letter dated 13th May, 2019 had been issued by the respondent No. 2 which would necessarily connote that this letter which has also been impugned will come within the meaning of the amended clause 2 (dd). The provision for appeal has been provided only against the order of the Director and the Appointing Authority. The approval as accorded therefore in my opinion is not appealable and hence, it would follow that in the circumstances as they pertain, the instant writ petition will be taken to be maintainable before this Court.
On the other aspect as on the grounds of suitability and criteria as sought to be made out by the petitioner, the stipulation as contained in the Control Order is only that regard should be given to an applicant, which is a Cooperative Society and does not necessarily mean that only Cooperative Societies are to be considered for grant of dealership. This provision as contained in Clause 5 (e) of the Control Order of 2004 also finds place at Clause 5 (d) of the Amended Order. The communication from the respondent No. 3 to the Deputy Commissioners dated 17th October, 2018 also directed that Co-operative Societies, N.G.Os and S.H.Gs, if found capable may also be given preference. As such, it cannot be said that being a Cooperative Society will automatically make the petitioner a better choice to the exclusion of other applicants, notwithstanding their personal business experience or financial capability. The other ground as set up by the petitioner of experience in the PDS, and that they have been engaged for 10(ten) long years in this business cannot also be held to be the only vital consideration and past personal experience also cannot be taken to mean only being engaged in distribution of PDS items. The requirements as per the Control Order (Amended) at Clause 5 (a) as quoted above speaks of financial capability and at Clause 5 (c) business ordinarily carried on by the applicants and his/her past record as a dealer in food-grains. The requirements and conditions as spelt out in Clause 5 to be eligible range from financial capability, possession of go-down or storage space, production of any other documents/certificates as mentioned in the advertisement, whether the applicant is a Co-operative Society and the commercial viability of the dealership proposed. These other factors as mentioned also deserve due consideration and the selection process has to be taken as a whole and not confined only to one or two aspects. Moreover, in the matter of allotting the said dealership the competent authority is also well within its rights to select the one most suitable.
The petitioner in this case has put up only two specific grounds of challenge, which are that of being a Cooperative Society and of having experience, to try to establish that the allotment to the private respondents were arbitrary and discriminatory. In fact, the whole case of the petitioner is hinged upon the word 'preference' in the context of the claim for selection and appointment. 'Preference' in such matters of selection or appointment means when things are qualitatively or quantitatively equal, and selection has to be made, it cannot be taken to mean that possession of such criteria will only make those parties eligible for selection irrespective of respective merit or suitability. Preference can mean only additional weightage and does not mean automatic selection.
No other materials or allegations are available or present, to enable this court to arrive at any other finding that the selection process was vitiated for the reason of any clear violation of the Control Order or is there anything to show that there was any arbitrariness or favouritism to warrant interference under Article 226. Keeping in mind the powers of judicial review as would apply to the exercise of contractual powers by the Government and also the fact that this Court is not sitting on an appeal against the allotment, what is to be examined is only as to whether any illegalities had been committed or whether the Government had acted in a manner which can be termed arbitrary and against public interest. The same not being present the writ petition therefore fails.
Further, the judgment as rendered by the Gauhati High Court is of no assistance to the case of the writ petitioner as it does not speak of 'preference' to co-operative society as being the underlying deciding factor for appointment, and what was examined and decided was only confined to the manner of appointment of agents as per the Un-amended Control Order of 2004.
It has also been put on affidavit by the private respondents that on the allotment, they have immediately deposited money on 31.05.2019 and 05.07.2019 for lifting of food-grains and had already supplied the same through PDS to the beneficiaries for the month of July, 2019. It is also stated on affidavit that further stocks have already been procured and the private respondents are continuing with the distribution. As such, disruption at this stage would be against public interest as it involves the distribution of food-grains to the needy sections of society.
For the foregoing reasons and the facts and circumstances of the case, the writ petition being devoid of merit is accordingly dismissed.
No order as to costs.