BHASKAR BHATTACHARYA, J. - (1.) These two mandamus-appeals were heard together as the questions involved herein are to some extent interlinked.
(2.) A.P.O.T. No. 7 of 2007 is at the instance of a writ petitioner (hereinafter referred to as Anil) and is directed against order dated 19th December, 2006 passed by Patherya, J. thereby dismissed the writ application filed by Anil praying for cancellation of the Kerosene Oil Dealership Licence issued in favour of the respondent No. 6 (hereinafter called Madhusudhan). The other appeal being A.P.O.T. No. 36 of 2007 is at the behest of the State of West Bengal and other officials thereof and is preferred against the order dated November 30, 2006 passed by Maharaj Sinha, J. in G.A. No. 2923 of 2006 as well as an earlier order dated 14th July, 2006 passed by His Lordship disposing of a writ application filed by Madhusudhan thereby praying for direction upon the State Government to appoint him in the vacancy of the selfsame Kerosene Oil Dealership over which Anil also put forward his claim. The following facts are not in dispute : (a) One Shyamal Kumar Mukherjee, a Kerosene Dealer having surrendered his licence, a proposal was given by the Area Inspector to tag ration cards attached to the said Dealership with two other Dealers of the locality, namely, Smt. Gita Mukherjee and Satinath Chakraborty. Subsequently, the Area Inspector gave a proposal for declaration of vacancy subject to the approval of the District authority and the Sub-Divisional Officer, Howrah, being the competent District Authority, approved the proposal of the Area Inspector and duly forwarded the same to the Sub-Divisional Controller, Food & Supply. Consequently, on September 2, 2004 a notice declaring vacancy was published by the Sub-Divisional Controller, Food & Supply. (b) Pursuant to such declaration of vacancy, both Anil and Madhusudhan along with others applied for being considered for the said licence. On November 12, 2004, the Chief Inspector recommended Madhusudhan for the said vacancy based on his report and the Sub-Divisional Controller, Food and Supply called for the antecedent- report of Madhusudhan. On 13th April, 2005. the Sub-Divisional Officer, the competent authority authorized by the District Magistrate, approved the recommendation. (c) On 10th May, 2005, a writ-application was filed by Anil claiming licence in his favour on the basis of the mass-petition filed by the local people demanding his appointment but the said writ-application was dismissed by J. K. Biswas, J. inter alia, holding that the villagers of the area were not entitled to interfere in the selection-process and no response should be given to the application received by the Sub Divisional Controller, Food & Supply ("SCFS") from the local people. (d) Subsequently, on May 15, 2005, the Sub-Divisional Officer proposed departmental action against the Inspector who gave the proposal for declaration of the vacancy. Two days thereafter, on May 17, 2005, Madhusudhan made a complaint against the SCFS before the Director DDP & S alleging that SCFS demanded a bribe of Rs. 50,000/- for issue of the licence in his favour. (e) On 20th May, 2005, Madhusudhan filed his writ-application thereby praying for direction upon the State Government to select him. During the pendency of the said writ-application, on 3rd June, 2005, a proposal for cancellation of the said vacancy was moved by SCFS and Madhusudhan made another complaint before the Deputy Secretary, Vigilance, against the SCFS alleging illegal demand of money. On June 7, 2005, the SCFS obtained the approval of cancellation of vacancy from the SDO but subject to any order that may be passed in the writ-application already filed by Madhusudhan. On June 20, 2005, an interim order was passed in the writ-application filed by Madhusudhan directing that all steps taken in the meantime would abide by the result of the writ application. (f) On July 6, 2006 when the writ-application filed by Madhusudhan was called for hearing, none appeared for the State-respondent and the matter was adjourned till 13th July, 2006 and on 14th July, 2006 Maharaj Sinha, J. disposed of the writ-application filed by Madhusudhan with a direction for issue of licence to Madhusudhan if he was otherwise eligible. (g) Ultimately, an application for contempt was filed by Madhusudhan before Maharaj Sinha, J. alleging that in spite of the order passed by His Lordship, the State Government did not issue an order of licence. On November 23, 2006 when the matter came up for hearing, the learned counsel appearing on behalf of the contemners, i.e. the officials of the State respondents, was directed to ask his clients to implement the earlier order dated 10th November, 2006 to enable the writ-petitioner to distribute the quantity of Kerosene Oil which the petitioner received pursuant to the order dated 14th July. 2006 passed by the Court while allowing the writ-application. Madhusudhan, therefore, got Dealership licence based on the order passed by Maharaj Sinha, J. (h) In the meantime, the State Government filed an application for recall of the order passed by Maharaj Sinha, J. disposing of the writ-application on the ground that the vacancy declared earlier was not proper and secondly, on the ground that the writ-application was disposed of on the basis of affidavit alleged to have been filed by the State-respondent which was not the real affidavit affirmed by the State. (i) On November 30, 2006 Maharaj Sinha, J. disposed of the said application for contempt by holding that as the learned counsel appearing on behalf of the contemners had submitted before His Lordship that the ration-cards had already been tagged in favour of the writ-petitioner and that the writ-petitioner would receive the allocation of Kerosene Oil on regular basis, His Lordship did not wish to proceed any further in exercise of contempt jurisdiction against the contemners. In the next paragraph of the order, His Lordship recorded that in view of the above order, the application filed by the State Government being G. A. No. 2943 of 2006 was also disposed of. His Lordship assigned no reason on the merit of the G.A. No. 2943 of 2006. (j) Being dissatisfied with the original order dated July 14, 2006 disposing of the writ-application and also the subsequent order dated November 30, 2006 passed by Maharaj Sinha, J. disposing of the application for reconsideration of the order dated July 14. 2006, the Slate has come up with one of the present mandamus-appeals being A.P.O.T. No. 36 of 2007. (k) On the other hand, Anil filed a separate writ-application being W.P. No. 1930 of 2006 alleging that the licence granted in favour of Madhusudhan was illegal as there was no finding recorded by the State-respondent that Madhusudhan was otherwise eligible to obtain licence in accordance with the order passed by Maharaj Sinha, J. (1) According to Anil, the State Government granted licence in favour of Madhusudhan in view of pendency of the application for contempt and thus, a direction should be given to the State Government to reconsider the respective claims of Anil as well as Madhusudhan on the question of filling up of the vacancy. (m) Patherya, J. by order dated 19th December, 2006 dismissed the said writ-application on the ground that in view of the earlier decision passed by Maharaj Sinha, J. there was no scope of passing any further direction on the writ-application filed by Anil. (n) Being dissatisfied with the order dated December 19, 2006 passed by Patherya, J. Anil has filed the other mandamus-appeal being A.P.O.T. No. 7 of 2007 before us.
(3.) As indicated earlier, both the previously mentioned appeals were heard together and for the purpose of disposal of the appeals, we directed the learned advocate for the State to produce before us the original records relating to the vacancy in question. Accordingly, the original records were placed before us. On March 9, 2007, when the hearing of the appeals was concluded and we were about to deliver the judgment, Mr. Behani, the learned senior advocate appearing on behalf of Madhusudhan submitted before us that he was not prepared for hearing of the appeal but was under the impression that the stay application in connection with the appeal would be heard. In view of such submission, we had adjourned the matters for a week to enable Mr. Behani to prepare himself for hearing of the appeals after giving him opportunity of inspecting the original records produced by the respondents.;