Mukul Gopal Mukherjee, J. - (1.) The petitioner has impugned in the present rule the grant of a temporary M. R. dealership to respondent No. 9 pursuant to the notice as given in Annexure 'A' to the writ application issued by the Sub-divisional Controller, Food and Supplies, Krishnagar. The petitioner contends that his father Md. Sirajuddin Biawas was the M. R. dealer of village Gomakhali under Natidanga Anchal and when his father's dealership was suspended by the Sub-divisional Controller of Food and Supplies, his father moved this Hon'ble Court under Article 226 of the Constitution of India in Civil Rule No. 998(W) of 1974, where an interim order of injunction was also passed by the Hon'ble Judge. His father died on 15.6.76 during the pendency of the said Rule and thereafter the petitioner filed an application for substitution and got himself substituted in the place of his father. With the death of his father a vacancy was declared in respect of his father's M. R. dealership at Gomakhali and offers were invited from the applicants to fill up the said vacancy. It was given out in the notice itself that the intending candidate should not be a member of the Gram Sabha or Anchal Panchayat and should not be a relation of any member thereof and should not be a person convicted of any criminal offence in a court of law. It was given out that the appointment should be a temporary one. The petitioner applied for the M. R. dealership and a local enquiry was held on 5.11.76 by the Inspector, Food and Supplies, who visited his godown along with the godown of the intending candidates and ascertained the financial position of each of the applicants. Though the petitioner was found the most suitable candidate from all points of view and a favourable report was submitted by the Inspector before the Sub-divisional Controller of Food and Supplies, there was a further local enquiry on 20.7.77 by the District Controller at the behest of the District Magistrate. The District Controller was also pleased to recommend the petitioner for the M.R. dealership and submitted a report to that effect on 3.8.77. Though the petitioner was given an order to continue as an M. R. dealer on a temporary basis, no formal appointment order was issued to him. The petitioner was ultimately given to understand that the Sub-divisional Officer (North), Krishnagar directed the B. D. O. to make further enquiry over the eligibility of all the candidates. The B. D. O. asked the petitioner to meet him on 20.9.77 at Natidanga Anchal Office. The petitioner appeared before the B.D.O. The B. D. O. however, sent an adverse report against the petitioner. The petitioner apprehends that it was because of his father filing a proceeding against the Department that an adverse report was not placed against him. The S. D. O. Krishnagar North directed the Sub-divisional Controller, Food and Supplies to appoint respondent No. 9, and accordingly the respondent No. 9 was appointed an M. R. Dealer on temporary basis at Gomakhali by an order which formed Annexure 'G' to the writ application. The petitioner contends that the respondent No. 9 happens to be the son-in-law of the Anchal Pradhan and there were a number of civil and criminal cases against him as would be evident from the report of the Inspector of Food and Supplies, Karimpur (Annexure 'C').
(2.) Mr. J. Islam, the learned advocate for the petitioner contends before me that when the notice inviting applications for the M. R. Dealership gave out, inter alia, as one of the pre-conditions that the applicant should not be a member of the Gram Sabha or the Anchal Panchayat and should not also be related to any member thereof, it was highly illegal to appoint respondent No. 9 who was himself the son-in-law of the local Anchal Pradhan. The report of the Inspector was not duly considered by the Sub-divisional Controller in the case and that apart, there was no due application of mind by the Sub-divisional Controller in this case who acted collaterally at the behest of his superior officers on extraneous considerations other than the merits of the candidates. Mr. Islam also cited before me a judgment Smt. Chandrakala Choudhury v. State of West Bengal & Ors. reported in AIR 1987 Cal page 11 decided by Paritosh Kumar Mukherjee, J. contending that the transfer of ownership of Ration Slop could not be refused on the ground of concentration of business in a family. The facts in the present case are different, Mr. Islam thereafter contended with reference to the decision in Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC page 16 that the public orders passed in exercise of statutory authority could not be construed in the light of explanation subsequently given by the officer making the order, that is, whatever is contained in the order could not be supplemented by the reasoning given way of affidavit by the respondent subsequently and the very fact that the respondent No. 9 may not be related to the Anchal Pradhan of the present day, should not form any consideration for allowing him to continue as M. R. dealer when on the date of such appointment his candidature was liable to cancellation because of the very terms of the notice inviting applications for the M. R. dealership in being flanted. I quite agree with the rates decided in Mahindar Singh Gill v. Chief Election Commr. New Delhi reported in AIR 1978 SC 851, that when a statutory functionary makes an order based on certain grounds, it validity must be judged by reasons so mentioned and cannot be supplemented by fresh considerations on a later date. The learned advocate for the respondent No. 9 or of the State Respondents has not filed any affidavit in-opposition in matter till in opposition to controvert the allegations as made by the petitioner and that being so I am to accept the averments made by the petitioner in course of the writ application as uncontroverted and untraversed In that view of the matter I am constrained to hold that there has not been a due application of mind by the Sub-divisional Controller, Food and Supplies, Krishnagar while granting the appointment of a temporary M. R. dealership in favour of the respondent No. 9. In that view of the matter I would direct the Sub-Divisional Controller to apply his mind over again regarding the contentions raised by the petitioner within a period of two months from today. I make it clear that the appointment as given to the respondent No. 9 by virtue of the order impugned as contained in Annexure 'C' should not be allowed to subsist for a period more than three months from today. I have already directed the Sub-divisional Controller to decide the matter agfresh in the light of my directions by giving a hearing to the petitioner as well as the respondent No. 9 in the matter as early as possible but in any case within a period of 2 months. I make it clear that the appointment of the respondent No. 9 pursuant to the order as contained in Annexure 'C' should not subsist for a period of three months from to day and to have been deemed to have been revoked and quashed after the expiry of three months from today. I make it clear that this order impugned shall stand quashed on this order being enforced after a period of three months. This does not in any manner disentitle respondent No. 9 to be eligible for fresh consideration along with the petitioner, if the Sub-divisional Controller so decides, on due application of mind to the facts and circumstances of the present case.
(3.) It would not be out of place to remind the Sub-divisional Controller and the District Inspector, Food and Supplies that a temporary vacancy should not be allowed to continue in this fashion for an indefinite period and a permanent vacancy has to be declared with utmost expedition and if any legal impediments are there, the Department should try to obviate such difficulties with utmost expedition;