Dipankar Datta, J. - (1.) The challenge in this intra-court writ appeal is to a judgment and order dated March 8, 2016 passed by a learned Judge of this Court, whereby W.P. 1671(W) of 2016 presented by the writ petitioner/respondent no. 1 in this appeal, Jakir Hossain Mondal (hereafter Jakir) was allowed. The appeal is at the instance of the respondent no. 5 in such writ petition, Sahidul Mondal (hereafter Sahidul). The learned Judge while setting aside an order of the respondent no. 3, i.e., Joint Director (Licence) dated June 8, 2012 impugned in the writ petition, directed the respondent no. 2, i.e., Director, District Distribution Procurement & Supply, Food & Supplies Department (hereafter the Director) to 'revisit the matter and pass order as expeditiously as possible and positively within a period of six weeks from the date of communication' of a copy of such order on such respondent.
(2.) To appreciate 'the matter', which the Director by the impugned judgment and order was directed to revisit, we need to take note of the previous rounds of litigation initiated by and between the private parties, i.e., Jakir and Sahidul.
(3.) The basic facts are not in dispute. a. On August 21, 2007, a vacancy for appointment of a M.R. dealer was notified. Along with others, Sahidul and Jakir responded to such notification and offered their candidature. Upon receipt of the applications from the candidates aspiring to be appointed as such dealer, the Area Inspector (Food & Supplies) conducted an inquiry. The report contained the following conclusions: "Considering the position of godown and all other points SL. No. 18 (Eighteen) out of 18 (Eighteen) applicants appears to be fit for appointment of M.R. Dealer and hence his case is recommended for issue of a M.R. Licence in the name of Jakir Hossain Mondal .... if no bar. Submitted to S.C. (F+S) Baruipur for kind information and n/a." b. The Sub-Divisional Controller (Food & Supplies), Baruipur, 24 Parganas (South) (hereafter the Sub-Divisional Controller) accepted the inquiry report and forwarded the file to the District Controller (Food & Supplies), 24 Parganas (South) (hereafter the District Controller). The District Controller, vide memo dated February 7, 2008, forwarded the original file containing the recommendation for appointment of Jakir as M.R. Dealer to the Director. For quite some time, the Director did not initiate any action on the file. This resulted in a writ petition [WP 14620(W) of 2008] being presented by Jakir (the first in a series of litigation) seeking a direction on the respondents to appoint him as M.R. Dealer. Such writ petition was disposed of by a learned Judge of this Court by an order dated July 23, 2008, with a direction upon the respondents to take an appropriate decision upon consideration of all materials including the report of inquiry within a period of six weeks. c. While considering the issue of appointment of M.R. Dealer in compliance with the aforesaid order, the Joint Director (Licence) by his memo dated September 24, 2008, inquired from the Sub-Divisional Controller as to why Jakir had been recommended for appointment as M.R. Dealer, although on examination of the inquiry report and the related case records it appeared to such Joint Director that the status of Sahidul was more favourable than Jakir. A reply followed from the end of the Sub-Divisional Controller dated November 3, 2008. It was observed by the Sub-Divisional Controller therein that although the status of the godown proposed by Sahidul was better than the one proposed by Jakir, the status of the godown might not be the sole criterion for selecting a candidate; public interest and distance to be covered by the public to draw ration articles have to be kept in mind and in this respect Jakir has a comparative advantage over Sahidul. Besides the local public, the people's representatives had also expressed their views in favour of Jakir and his proposed site of godown. Considering the same, Jakir was preferred to Sahidul at the time of making the recommendation. d. While the Department was yet to take a final decision to appoint any M.R. Dealer, three writ petitions were filed before this Court: the first by Jakir, the second by Sahidul and the third by one Md. Noor Mohammad Sarkar and two others. All three writ petitions were considered together by a learned Judge of this Court and dismissed by a common judgment and order dated January 19, 2009. The relevant part of the order of the learned Judge is quoted below: "It seems to me that there is no cause of action in any of the three writ petitions. Simply because Jakir moved a previous writ petition, he is not entitled to say that once some authority recommended his case, he became entitled to get a mandamus directing the appointing authority to appoint him. Whether Sahidul is entitled to be appointed is a question to be decided by the appointing authority who is also competent to examine the worth of the views expressed by the sub-divisional controller, keeping in view whether the sub-divisional controller intended to overrule the views of his higher authority. Needless to say that if any complaint has been made by Noor Mohammed & ors., the appointing authority has incurred an obligation to make appropriate investigation for ascertaining the correctness of the allegations, and hence unless an illegal appointment is made, Noor Mohammed & ors. are not entitled to say that their genuine allegations have been overlooked by the appointing authority. Today there is no certainty that Jakir or Sahidul will be appointed by the authority. It is entirely for the appointing authority to decide who is fit to be appointed. It may so happen that allegations made by Noor Mohammed & ors. are found to be true. Any development may take place at any future point of time, and hence there is no certainty that the selection process will culminate in an appointment. This being the position, I am unable to see how tow of the applicants can approach the writ court seeking mandamus directing the appointing authority to appoint them. These are the reasons, why I say that there is no cause of action for moving all these writ petitions. For these reasons, I dismiss all the three writ petitions. It is made clear that nothing in this order shall prevent the authorities under the control order from bringing the selection process to a legal conclusion in accordance with law. It is also made clear that nothing in this order shall be interpreted as any observation against the merits of the respective cases. Merits of the cases will be examined by the authorities without feeling influenced in any manner whatsoever by anything said in this judgment. There shall be no order for costs." e. After dismissal of these writ petitions, the Director passed a reasoned order on July 2, 2009 recommending Sahidul for appointment as M.R. Dealer. On July 23, 2009, the Joint Director (Licence) had requested for according of approval in favour of Sahidul so that the concerned vacancy could be filled up at an early date in the interest of the public distribution system. The recommendation having been approved by the Government in the Food and Supplies Department on October 8, 2009, Sahidul was appointed as M.R. Dealer by an order dated October 22, 2009 and till date he has been continuing to act as such dealer. f. The aforesaid order dated July 23, 2009 of the Joint Director (Licence) was subjected to challenge by Jakir by filing a writ petition [WP 3252(W) of 2010]. The prayers of such writ petition read as follows: " a) A writ in the nature of Mandamus directing the respondents not give any effect and/or further effect to the impugned amendment of the W. B. Public Distribution System (M&C) Order, 2003 notified under No. 7044-FS dated 18th November, 2004 being ultra vires to the statute; b) A writ in the nature of Mandamus commanding the respondent nos. 1, 2 and 3 to act in accordance with law and to forthwith rescind/recall the decision pertaining to appointment to respondent no. 7 since contained in annexure 'P-14' to this petition; c) A writ in the nature of Mandamus commanding the State Respondents particularly respondent Nos. 1, 2 and 3 to appointment (sic appoint) the writ petitioner as FPS Dealer in terms of recommendation made in strict compliance with the statute by the respondent nos. 5 and 6; d) A writ in the nature of Certiorari commanding the respondents to forthwith certify and transmit certify and transmit the record relating to the case so as to recall and/or rescind the impugned decision since contained in annexure 'P-14' to this writ petition; e) A writ in the nature of Prohibition prohibiting the State Respondent from allowing the respondent no. 7 to act as FPS dealer in pursuance of the impugned appointment given by the respondents;" g. Upon hearing the parties, a learned Judge of this Court by judgment and order dated April 2, 2012 allowed WP 3252 (W) of 2010 and directed as follows: "Accordingly, I set aside the impugned order dated 23rd July, 2009 and direct the Joint Director (Licence) to consider the same afresh taking note of the fact that the record of right disclosed by the writ petitioner shows that the father of the landlord of the writ petitioner is owner of the aforesaid plot being Plot No. 1785 under Khatian No. 116 and there cannot be any dispute about the possessional right of the landlord of the writ petitioner. The Joint Director of Licence is to decide over the matter within a period of four weeks from the date of communication of this order and to pass appropriate order upon giving an opportunity of hearing to the present allottee as well as the writ petitioner and take a decision on the issue. In case it is found by the Joint Director (Licence) that the rejection on the aforementioned ground is not proper, in that event he will grant licence in favour of the writ petitioner." h. In compliance with the aforesaid order, the Joint Director (Licence) passed an order dated June 8, 2012, reading as follows: "Now it appears that as per provision of clause 19 of the W.B.P.D.S (M&C) Order, 2003, Govt. is the final authority in the matter of selection of the Candidate for M.R. Dealership. In the instant case neither the reasoned order of the Director nor the Govt. approval dated 08.10.2009 have been set aside by the Hon'ble High Court. Even the appointment letter issued by the S.C. F&S, Baruipur (empowered officer) and licence issued in favour of the allottee have not been nullified. The impugned memo dated 23.07.2009 of the Joint Director (Licence) is a mere communication of the decision taken by the Director, DDP&S to the Govt. Hon'ble High Court has made it clear that there can not be any dispute about the possessional right of the landlord of the petitioner. Hence I am not going into that point. But on careful study of the case records I find that as on the date of inspection, Sahidul Mondal was in a better position than the petitioner both in terms of status of the godown and financial strength. Enquiry report reveals that the area of the hired godown of the petitioner was only 141 Sq. Ft. which space is inadequate for storing two weeks' allotment of food grains. Roof of the said godown was made with asbestos sheets. On the other hand the godown of the allottee was pucca with RCC roof and well conditioned. The area of the said godown was 272 Sq. Ft. which was storage worthy for PDS articles. Moreover recommendation of the S.C. F&S, Baruipur was influenced by the people's representative who has no statutory power in the matter of appointment of M.R. Dealer. The fact of influence has been admitted by the SCF&S, Baruipur in his report on being asked for justification of his recommendation. Since the vacancy at Padmajala has already been filled up by a suitable candidate and the M.R. Dealership is being run without any hindrance, there is hardly any scope to accommodate another candidate in the same place. Upon hearing the submission of the petitioner and the present allottee and having regard to the statutory provisions as contained in the W.B.P.D.S (M&C) Order, 2003, I am of the opinion that there was ample grounds to reject the application of the petitioner for M.R. Dealership at Padmajala. The appointment of Sahidul Mondal as an M.R. Dealer and subsequent issue of licence in his favour by the S.C. F&S, Baruipur, are hereby upheld, since approval of the Government (Final Authority) vide. Order dated 08.10.2009 still stands valid. The case is thus disposed of. Let copies of this order be communicated to all concerned." i. Instead of challenging the order of the Joint Director (Licence) dated June 8, 2012 by initiating fresh writ proceedings, Jakir initiated proceedings in the contempt jurisdiction. A Rule was issued against the incumbent Joint Director on January 17, 2013 numbered as WPCRC No. 84(W) of 2013. Upon such Rule for contempt being issued and served, the incumbent Joint Director (Licence) passed a fresh order on March 14, 2013, which reads as follows: "In compliance with Hon'ble High Court's order dated 02.04.2012 issued against W.P. No. 3252(W) 2010 and subsequent order dated 17.01.2013 issued against WPCRC No. 84(W) of 2013, my earlier order communicated under No.3312/1(5)/FMR/10D-27/05 dated 08.06.2012 is hereby substituted in the following manner:- According to the observation of the Hon'ble High Court, the Court is satisfied with the legal/possessional right of the land-owner of whom Jakir Hossain Mondal, the petitioner is a tenant. Although Hon'ble High Court has given the undersigned the liberty to take personal hearing of both Jakir Hossain Mondal, the petitioner and Sahidul Mondal, the present allottee, the order of the Hon'ble High Court came to me as fait accompli. Hence, I would like to direct the Sub-divisional Controller, Food & Supplies, Baruipur, the Licensing Authority to issue M.R. dealership Licence in the name of Jakir Hossain Mondal against the vacancy at Padmajala under Dhapdhapi-I G.P. of Baruipur Sub-division in the District of South 24 Parganas in place of Sahidul Mondal, the out-going licensee after observing all formalities and pre-requisites." Considering the aforesaid order dated March 14, 2013, the learned Judge who had issued the Rule for contempt, discharged the same on April 12, 2013. j. While the contempt rule was discharged on April 12, 2013, it was not brought to the notice of the learned Judge that an order dated March 25, 2013 in WP 8897(W) of 2013 had intervened. The order dated March 14, 2013 of the Joint Director (Licence), referred to above, was challenged by Sahidul in a writ petition [WP 8897(W) of 2013]. A learned Judge of this Court by the said order dated March 25, 2013 stayed the operation of the impugned order till a final decision is taken in the contempt action. It was also observed that in the event of any further direction of the learned Judge hearing the contempt petition regarding the validity of the order passed on March 14, 2013, the said order would be revived, if so mandated. The writ petition, accordingly, stood disposed of. k. Coming to learn of the order dated March 25, 2013, Jakir filed an application being CAN 4792 of 2014 seeking recall of the order dated April 12, 2013, whereby the Rule for contempt stood discharged. By an order dated May 14, 2014, the order dated April 12, 2013 was recalled. A fresh Rule was directed to be issued thereafter by the learned Judge on June 3, 2014. An order was passed on July 15, 2014 by the learned Judge, whereby His Lordship proposed to impose seven days civil imprisonment on the alleged contemnor/respondent and at the same time proposed to direct the alleged contemnor/respondent to issue licence in favour of Jakir. The alleged contemnor/respondent having prayed for some time to issue the order of cancellation of Sahidul's licence and to issue licence in favour of Jakir, hearing of the Rule for contempt was adjourned till July 16, 2014. An order of July 16, 2014 reveals that the Rule was required to appear on July 18, 2014. l. It, however, appears that in the meanwhile two appeals had been carried before a coordinate Bench of this Court against the order dated July 15, 2014 passed in WPCRC 84(W) of 2013 - AST 335 of 2014 by the alleged contemnor/respondent, Jamini Kumar Baidya and the other, AST 327 of 2014, by Sahidul. Sahidul had prayed for leave to appeal because he was not a party to the proceedings. Such leave was granted by an order dated July 23, 2014. The coordinate Bench in its order dated January 7, 2016 noted that the question which required consideration was whether the learned Judge was justified in passing an order directing cancellation of licence in favour of Sahidul and for issuance of fresh licence in favour of Jakir, in contempt proceedings. It was noted that no such direction was passed on April 2, 2012 by the learned Judge while disposing of the writ petition [WP 3252(W) of 2010]. The coordinate Bench, thus, recorded that an order passed in the writ proceedings cannot be altered and/or varied and/or modified in contempt proceedings and, accordingly, set aside the order dated July 15, 2014. The appeals were, accordingly, allowed. m. As a result of the aforesaid order of the coordinate Bench, Sahidul continued to act as M.R. Dealer and distributed ration articles to the consumers. Having failed to obtain licence, Jakir invoked the writ jurisdiction once again, the fourth in the series by him, by presenting WP 1671(W) of 2016, out of which this intra-court writ appeal arises. The order dated June 8, 2012, passed by the Joint Director (Licence) was under challenge in such writ petition. Prayer (A) of the writ petition reads as follows: "(A) A Writ and/or writs in the nature of Mandamus commanding the respondents and each one of them, their agents, servants and/or subordinates to issue license and appointment letter in favour of the petitioner by setting aside the impugned reasoned order dated 08th June, 2012 as the said order has been passed in excess of jurisdiction by the Jt. Director Licence and in quite distraction of specific directions contained in the order dated 02nd April, 2012 in W.P. No. 3252 (W) of 2010 as well as the provision contained in the purported West Bengal Public Distribution System (Maintenance & Control) order, 2003." n. The writ petition was disposed of on the first day it was moved by the learned Judge with directions that have been noted at the commencement of this judgment.;