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Judgment
Ravi Krishan Kapur, J.:
Both these appeals arise from a common judgment dated 20 August 2022 disposing of WP 431 of 2022. By consent of the parties, the appeals were heard together. By the impugned judgment, the appointment of the appellant (in MAT 2113 of 2024) has been cancelled without impleading him as a party to the writ petition.
Briefly, on 31 December 2003 the West Bengal Public Distribution System (Maintenance and Control) Order 2003 [Control Order 2003] was introduced. Subsequently, upon a vacancy being created for a fair price shop at Ranibandh, Bankura as notified on 18 July 2021 by the Sub-Divisional Controller (F&S) Khatra, the respondent no. 1/writ petitioner alongwith other candidates had applied for such vacancy. However, during pendency of the selection process, the West Bengal Public Distribution System (Maintenance and Control) Order 2013 [Control Order 2013] came into effect, repealing the prior Control Order 2003. Thereafter, on 10 September 2013, the National Food Security Act 2013 (NFSA 2013) was also promulgated by the Central Government whereby the concept of Targeted Public Distribution System was implemented and consumers came to be identified as eligible households under NFSA 2013.
Pursuant thereto in 2015, all the vacancies for Fair Price and MR Distributors which were awaiting the results of selection process under the Control Order 2013 were cancelled for implementation of NFSA 2013. Significantly, the respondent no 1 had filed an earlier writ petition being WP No 19714 (W) of 2015 for consideration of its application for M R dealership and for confirming the dealership in view of the fact that the authority had completed all procedures after spot verification and site enquiry. The writ petition was disposed of with directions to consider the prayer of the respondent. On 18 November 2015, the respondent no 2 intimated the respondent no 1 that all the vacancies of fair price shops all over West Bengal had been cancelled and withdrawn due to promulgation of NFSA 2013.
Being aggrieved by the above communication, the respondent no 1 filed this writ petition being WPA No 431 of 2016. Subsequently, on or about 5 January 2022, fresh vacancies for fair price shop dealership were notified by the Sub- Divisional Controller for the village of Ranibandh, Bankura under Control Order 2013 when the appellant alongwith other candidates had applied for the same. Subsequently, the appellant was selected as a successful candidate and was issued a fair price shop license on 7 June 2024 when the appellant his its dealership business.
On 20 August 2024, after almost eight years, the writ petition WPA No 431 of 2016 was taken up for hearing and was allowed directing the respondent authority to grant a fair price shop license to the respondent no 1 and further cancelled the license of the appellant. During the interregnum, despite having full knowledge that new vacancies had been issued on 5 January 2022 and that the appellant had already been granted a license against the said vacancy, the appellant was not made a party to the writ petitioner. The fact of the NFSA 2013 being introduced and governing the relationship between the parties was not even brought on record. In such circumstances, the appellant Badal Chandra Das and the State of West Bengal have filed separate appeals praying for quashing and setting aside of the impugned order.
It is alleged that the Learned Single Judge failed to consider that the Badal Chandra Das was a proper and necessary party to the writ petition whose rights would be adversely affected by any order which may be passed in the writ petition and hence he should have been impleaded as a party respondent. The passing of the impugned order in the absence of the appellant is in gross violation of the principles of natural justice. It is also contended that the mere participation in the selection process or even selection does not entitle a participant or the selected person to any rights unless an appointment letter is issued in his name even more post the implementation of the Control Order 2013 when all the vacancies under the Control Order 2003 and all applications stood automatically withdrawn and cancelled.
On behalf of the respondent no 1, it is contended that the appellant’s father was an existing FPS dealer and thus by the Notification dated 5 January 2022, the appellant was ineligible to apply for dealership since his family member was an existing licensee. This fact had also been suppressed by the appellant at the time of making the application for dealership, which was contrary to the Notification dated 5 January 2022. It is also contended that despite being aware of the pending writ proceedings, the respondent authorities published an advertisement for vacancy and selected an ineligible candidate i.e. the appellant. During the hearing of the writ petition, the authorities had also failed to disclose that fresh advertisements had been published for selection against the vacancy. It is contended that unless the impugned order is set aside all subsequent steps taken during the pendency of the writ petition would automatically stand nullified.
For convenience, section 12 of the National Food Security Act 2013 is set out below:
“12.(1) Reforms in Targeted Public Distribution System.— The Central and State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in this Act.”
Section 12 provides the State with a duty to progressively undertake reforms necessary in the Targeted Public Distribution System and the same should be in conformity with prevalent laws. In such circumstances, there had been no violation in issuing fresh vacancies for Fair Shop Dealers and modified rationing distributors in accordance with the Control Order 2013.
In view of the above, the Learned Single Judge was obliged to have taken into consideration the fact that against the fresh vacancies issued in terms of the Control Order 2013, new candidates had already been selected and that they have been running their business after obtaining the requisite license. All the subsequent facts have been completely suppressed and were never brought to the attention of the Learned Single Judge. In such circumstances, in giving effect to the Control Order 2003 which had been substituted by the subsequent Control Order 2013 and subsequently by the NFSA 2013 not only impinges directly on the validity of the subsequent Control Order but also adversely affects the rights of the candidates selected in the subsequent selection process. In such circumstances, it was both proper and necessary to implead the appellant, who would be vitally affected by any order passed in the writ petition. In Udit Narain Singh Malpaharia v. Board of Revenue, 1962 SCC OnLine SC 130 it has been held as follows:
“9.The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it. Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any or that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party.
Similar views have been consistently upheld in Avtar Singh Hit v. Delhi Sikh Gurdwara Management Committee (2006) 8 SCC 487, Chaman Lal v. State of Punjab (2014) 15 SCC 715, Kulwant Singh v. Daya Ram (2015) 3 SCC 177 and Ranjan Kumar v. State of Bihar, (2014) 16 SCC 187.
In any event, the respondent no. 1 candidate had only been considered and verified for clearance. However, that selection process had never been concluded. Mere consideration or participation of the respondent no. 1 in a selection process does not entitle has to an appointment. The respondent no. 1 in an incomplete selection process has no vested right in her favour to seek continuation of the notified vacancies. No person can claim a right to run a fair price shop in perpetuity and any candidate has the right to be considered for appointment. [Sarkari Sasta Anaj Vikreta Sangh v. State of M.P. (1981) 4 SCC 471].
The doctrine of legitimate expectation in public law is based on the principle of fairness and non-arbitrariness in the actions taken by governmental organizations. However, the same would not apply when the legislature enacts a statute. In any event, legitimate expectation cannot prevail over a policy introduced by the Government, which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights of the respondent no. 1. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in public interest unless the action taken amounts to an abuse of power. As far back as in, Food Corporation. of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71 it has been held as follows:
“8.The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.”
In State of West Bengal v. Gitashree Dutta (Dey), (2022) 19 SCC 388 it has also been held as follows:
“32.In the instant case, we have already noticed that the appellants were reposed with a responsibility of implementing the mandate of the 2013 Act, and more importantly, to bring about reforms in the existing public distribution system as stipulated under Section 12 of the said Act. The respondent herein being a mere applicant in an unfinalised selection process, has no vested right in his favour to seek continuation of the notified vacancies, when by recalling the vacancy notification, the appellants endeavoured to enforce the statute. Moreover, as discussed above, there can be no estoppel against a statute. Even going by the observations of the Division Bench in the impugned judgment [Gitashree Dutta (Dey) v. State of W.B., 2019 SCC OnLine Cal 9115] ,that the State was aware of the 2013 Act while issuing 30-1-2014 vacancy notification, the said notification cannot be sustained, being contrary to the mandate of the National Food Security Act, 2013, more importantly of Section 12 thereof as held in A.P. Dairy Development Corpn. Federation [A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286].”
In view of the above, the impugned order is unsustainable and set aside. The appellant was both a necessary and proper party to the writ petition. The impugned order has also been passed without taking into account the subsequent events including the change of law and the appointment of the appellant which is a glaring infirmity in the impugned order.
To this extent, both MAT 2113 of 2024 and MAT 2197 of 2024 stand allowed. All connected applications are automatically disposed of. The impugned order dated 20 August 2024 is set aside. WP 431 of 2022 is dismissed. All interim orders are vacated.
I agree,