Calcutta High Court: In a writ petition challenging a vacancy declaration notice dated 17-07-2019, issued by the District Controller, Food and Supplies Department, for not giving any preference to women run Self-Help Groups, a single-judge bench comprising of Moushumi Bhattacharya,* J., held that the impugned vacancy notice must comply with the Division Bench order in Kultali Food Marketing (P) Ltd. v. Barun Ghosh, dated 25-09-2018 and be modified to ensure uniformity in notifications across the State, including financial solvency criteria and directed the State to modify the notice within four weeks and ensure transparent selection procedures.
Factual Matrix
In the instant matter, the petitioner, a registered and recognized Self-Help Group run by 12 women from West Bengal, challenged a vacancy declaration notice dated 17-07-2019 issued by the District Controller, Food and Supplies Department, at Jamtalahat, Kultali, South 24 Parganas, for the appointment of a Modified Rationing Distributor (M.R. Distributor) and sought its withdrawal. The petitioner contended that the notice is contrary to Articles 14, 19(1)(g), and 21 of the Constitution of India, as it did not give preference to women-run SHGs and imposed a financial criterion of a bank balance of Rs. 50 lakhs.
The respondent 5, i.e. Kultali Food Marketing Co. Ltd., was added as a party to the writ petition. The petitioner cited earlier proceedings and a judgment dated 03-02-2016, wherein a Co-ordinate Bench stayed a vacancy notification dated 13-07-2015, directing the State Government to notify a fresh vacancy at Jamtalahat Kultali, leading to the impugned vacancy notification dated 17-07-2019.
Moot Point
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Whether the vacancy notice is discriminatory and violates the petitioner’s right to carry on business under Article 19(1)(g) of the Constitution of India?
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Whether the petitioner can challenge the dilution of preference to women-run SHGs post-amendment of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013 (Control Order of 2013)?
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Whether the financial criterion imposed in the vacancy notice sustainable?
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Whether the change of location of the distributorship favors the private respondent?
Parties’ Contentions
The petitioner contended that the impugned notice is discriminatory and contrary to Articles 14, 19(1)(g), and 21 of the Constitution of India. Further, the preference to women-run self-help groups was withdrawn by a notification dated 18-12-2018, but exceptions were made for certain vacancies, including the impugned one. The petitioner also contested the financial criterion and the change of location favoring the private respondent. On the other hand, the State argued that the impugned notice was issued in compliance with the direction of the Division Bench in Kultali Food Marketing (P) Ltd. (Supra) and amendments to the Control Order of 2013, regarding preference to Self-Help groups in Clause 26 of the Control Order of 2013 on 18-12-2018, which was done prior to the vacancy notice of 17-07-2019. The private respondent also supported the State’s stance, asserting compliance with the Division Bench’s directions.
Court’s Observation
The Court noted that the Division Bench in Kultali Food Marketing (P) Ltd. (Supra), cancelled the earlier advertisement vacancy notice published by the State on 13-07-2015, and directed the State Government to issue a fresh advertisement for filling up the vacancy at Jamtalahat, in accordance with the Control Order of 2013. The Court noted that the part of judgment also emphasised on the preference given to women run Self-Help Groups in the Control Order of 2013, therefore, “it is clear that the Division Bench considered the preference to women run Self-Help Groups in the Control Order, 2013 as an opportunity for the State to select the best possible candidate against the vacancy for M.R. Distributorship.”
The Court noted that while the observation of the Division Bench, in Kultali Food Marketing (P) Ltd. (Supra), in relation to women Self-Help Groups is relevant, the contention of the State and the private respondent regarding the amendment of the Control Order of 2013 also cannot be ignored. The Court observed that the amended notification dated 18-12-2018 delineated the widening of the zone to encompass not only Self-Help Groups but also registered cooperative societies, semi-government bodies, individuals, and groups of individuals. The Court noted that the petitioner did not contest the amendment made to the 2013 Control Order.
The Court acknowledged the reduction in financial solvency threshold from 50 to 25 lacs but held that the petitioner cannot claim benefit of this Order because the same will only apply to to notifications issued after 22-12-2020 and the impugned notification was issued on 17-07-2019, therefore, not applicable to vacancies notified before the relevant order’s publication. The Court noted that the petitioner’s challenge to the change of location of the distributorship only for favouring the private respondent has some substance and stated that the Division Bench found some of the actions taken on behalf of the State to be arbitrary in the sense of not being backed by any reason; for instance, the change of location of the distributorship. The Court noted that the petitioner’s contention that respondent 5 is not entitled to apply against the impugned vacancy notification will be subject to the decision of the tendering/selection authority.
Court’s Decision
The Court refused to cancel the impugned Notification in light of the undisputed fact that “the vacancy in question could not be filled up for more than 20 years due to one litigation after another”. It, hence, directed modification of the impugned notice to ensure conformity with the Division Bench’s directions in Kultali Food Marketing (P) Ltd. (Supra) and relevant government orders, including reducing the financial solvency requirement to Rs. 25 lakhs. The Court directed the State to modify the impugned vacancy notice within four weeks, ensuring transparent selection without favoritism. The case was disposed of accordingly.
[Shyama Self Help Group v. State of W.B., 2024 SCC OnLine Cal 1840, order dated 23-02-2024]
*Judgment by Justice Moushumi Bhattacharya
Advocates who appeared in this case :
Mr. Debabrata Saha Roy, Mr. Pingal Bhattacharyya, Mr. Neil Basu, Mr. Subhankar Das, Counsel for the Petitioner
Mr. Ram Anand Agarwal, Ms. Nibedita Pal, Mr. Ramesh Dhara, Mr. Ananda Gopal Mukherjee, Ms. Sonam Ray, Counsel for the Private Respondent
Mr. Susovan Sengupta, Mr. Sanatan Panja, Counsel for the State
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