Calcutta High Court (Appellete Side)
Sudip Sarkar vs State Of West Bengal & Ors on 10 April, 2026
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(APPELLATE SIDE)
Present:
The Hon'ble Justice Smita Das De
WPA 6533 of 2025
Sudip Sarkar
-Vs-
State of West Bengal & Ors.
With
WPA 29160 of 2025
Mahesh Toshniwal
-vs-
State of West Bengal & Ors.
With
WPA 29162 of 2025
Kartick Chandra Saha
-vs-
State of West Bengal & Ors.
For the Petitioner : Mr. Debobrata Saha Roy, Sr. Adv
: Mr. Pingal Bhattacharyya
: Mr. Subhankar Das
: Mr. Neil Basu
: Mr. Sankha Biswas
For the State : Mr. Kishore Dutta, Ld. AG
: Mr. Sirsanya Bandyopadhyay, Ld. Sr.
Standing Counsel
: Mr. Ritesh Kr. Ganguly
Reserved on : 23/03/2026
Judgment on : 10/04/2026
Smita Das De, J.:-
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1. The three writ petitions are heard together and disposed of
accordingly by a common order, as the issue pertains to the
petitioner's debarment from participating in the selection process for
Fair Price Shop Dealership due to the age limit. For the sake of
convenience and in order to effectively address the issue involved
herein, the facts relevant for adjudication are being culled out and
taken from WPA No. 6533 of 2025.
2. The petitioner in the instant case challenges inter alia, Clause 9(ii) of
the Vacancy Notification dated December 17, 2024 and Clause 11(v) of
the Control Order, 2024 , whereby a restriction has been imposed on
the individuals who have crossed the age of 45 years cannot submit
any application for grant of Fair Price Shop licence.
3. Apropo the facts of the case is that the petitioner participated in the
selection process of the Fair Price Shop dealer (hereinafter referred to
as the "F.P Shop Dealer") on the terms and conditions of the Vacancy
Notice dated December 17, 2024. At the time of participation it has
been found by the petitioner that a new condition/criteria has been
incorporated, following new Control Order, 2024 which states that the
age of the applicants must not be more than 45 years on the date of
application.
4. The Sub-Divisional Controller (F&S), Gangarampur notified vacancy of
F.P Shop at Central Location: Ward No. 0013,0016,005(Central
Location: Bhodangpara F.P School), Service Area : Ward
No.0005,0013,0016,P.O: Gangarampur, Ward No. 0005,0013,0016,
P.S : Gangarampur , Municipality :Gangarampur under Gangarampur
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Sub-Division in the District of Dakshin Dinajpur on December 17,
2024 vide Memo No.748/MR/SCFS/GMP under West Bengal Targeted
Public Distribution System (Maintenance & Control) Order, 2024 .The
vacancy has been published in the Bengali Newspaper having wide
circulation.
5. The petitioner is an educated unemployed person, resident of
Gangarampur Sub Division having all eligibility criteria for
appointment as a F. P Shop Dealer including suitable shop-cum-
godown in a single compartment for setting up Fair Price Shop in the
central point of the advertised location where Sub-Divisional
Controller(F&S), Gangarampur declared vacancy for Fair Price Shop
vide vacancy notice dated December 17, 2024.As prescribed in the
advertisement dated December 17, 2024, the petitioner disclosed a
bank balance exceeding the required amount but the age exceeds the
limit mentioned in the vacancy notice in question.
6. After consulting with the vacancy notice dated December 17, 2024
and the West Bengal Targeted Public Distribution System
(Maintenance & Control) Order,2024 (hereinafter referred to as
"Control Order,2024") the petitioner challenged the vires of the
provision of the Control Order,2024 which debarred the petitioner to
participate in the selection process, despite having all other eligibility
criteria.
7. The petitioner has filed a writ petition being W.P.A No 6533 of 2025
which has been taken up for hearing along with five other writ
petitions by the Coordinate Bench of this Court on April 07, 2025.
4
Upon hearing the parties, the Coordinate Bench has been pleased to
pass an interim order directing inter alia, the state respondents to
proceed with the vacancy notifications, however ,insofar as the grant
of license to the applicant is concerned, the same shall not be issued
till final decision of the instant matter.
8. The State respondents preferred an appeal being M.A.T No. 745 of
2025 before the Hon’ble Division Bench of this Hon’ble Court
challenging the order of the Single Bench dated April 7,2025 wherein
the Division Bench of this Court has been pleased to modify the
interim order without affirming the observations of the Ld. Single
Judge, and directed the state respondents to proceed and issue
license in favour of the F.P Shop Dealers, however, there shall be a
rider to each licence issued indicating that the same shall be abide by
the result of the proceedings pending before the Ld. Single Judge.
9. Sub-clause (ii) of Clause 9 under heading “Eligibility Criteria” of the
vacancy notice dated December 17, 2024 is the re-production of
Clause 11(v) of the Control Order,2024 which states that an individual
applicant has to be below 45(forty-five) years of age on the date of
submission of the application.
10. In the vacancy notification dated December 17, 2024 in sub-clause (xi)
of Clause 11, it has been stated that proof of date of birth of the
individual applicant/all partners has to be uploaded in the official
portal along with the application.
11. Being aggrieved by the Clause 9(ii) of the vacancy notification dated
December 17, 2024 bearing Memo No. 748/MR/SCFS/GMP issued by
5
the Sub-Divisional Controller (F&S) , Gangarampur , District Dakshin
Dinajpur and also Clause 11(v) of the West Bengal Targeted Public
Distribution System (Maintenance & Control) Order,2024 , which is
the subject matter of challenge in the instant writ petition filed by the
petitioner.
Contention of the Petitioner-
12. Learned Counsel on behalf of the petitioner states that the
incorporation of Clause 11(v) in the State Control Order,2024,
restricting the eligible applicants more than 45 years age to
participate in the selection process for appointment of F.P Shop Dealer
is unfair and discriminatory, which takes away the fundamental
rights of the petitioner in the following manner:
a) Right to participate or right to contest selection process is a
fundamental right, imposition of unreasonable restriction
without any logic and object takes away the fundamental
rights of the petitioner protected under Article 14 of the
Constitution of India i.e to say equality before the law.
b) Right to participate in the selection process to do lawful
business is a fundamental right protected under Article
19(I)(g) of the Constitution Of India.
c) Right to earn livelihood in lawful manner is a fundamental
right of a citizen, protected under Article 21 of the
Constitution of India.
13. It has been stated by the petitioner that although the entry in the
dealership business by an individual has been restricted to the age of
6
45 but no upper age limit has been prescribed for continuation of the
business. In the case of compassionate appointment there is no
restriction of age bar at the entry point.
14. Reliance has been placed by the petitioner on Chapter VI, Clause 39(3)
of the State Control Order, 2024, that deals with the provision for
compassionate appointment, and reliance has been placed on that if a
dealer dies at the age of 90 years, his widow at the age of 87/88 years
may apply for dealership on compassionate appointment and on
getting the license, she may even continue the dealership business at
the age of 100 years.
15. Reliance has also been placed by the petitioner on Chapter V, Clause
30(c) of the Control Order, 2024, and it is submitted that in case of
appointment of M.R Distributor, 50 years age limit has been fixed in
the entry point, although job of a Distributor is more responsible,
since a Distributor is dealing with normally 50 F.P Shop Dealers.
16. Learned Counsel for the petitioner submits that in the State Control
Order, 2003, State Control Order, 2013, NFSA, 2013 and TPDS
Central Control Order, 2015 there is no provision for restriction in the
entry point to get license of F.P Shop Dealer.
17. It has been contended by the petitioner that if an applicant has
applied for grant of F.P Shop license at the age of 44 years 11months
29 days and if the applicant is selected as an F.P Shop Dealer, in that
event, the applicant is entitled to continue his Dealership business till
his last breath, since there is no retirement / upper age limit to
continue the Dealership business.
7
18. The petitioner submitted that it is settled principle of law that right to
do business is the fundamental right of a citizen of India and in the
instant case the petitioner did not pray for grant of Fair Price Shop
Licence, but to allow the selection process, to proceed in a fair
manner. It is the duty of the state to choose the suitable candidate
without debarring any eligible candidate by incorporating age limit in
the entry point.
19. It is also stated by the petitioner that Public Distribution System,
more so, Targeted Public Distribution System only meant for
convenience of the consumers, removing the inconveniences and for
their betterment.
20. The petitioner has relied upon the following judgments –
(a) When Court can interfere in the policy decision of the State-Brij
Mohan Lal vs Union Of India & Ors reported in (2012) 6 SCC
502,
“100. Certain tests, whether this Court should or not interfere in
the policy decisions of the State, as stated in other judgments,
can be summed up as”
(i) If the policy fails to satisfy the test of reasonableness, it would
be unconstitutional.
(ii) The change in policy must be made fairly and should not give
the impression that I was so done arbitrarily on any ulterior
intention.
(iii) The policy can be faulted on grounds of mala fides,
unreasonableness, arbitrariness or unfairness, etc
(iv)If the policy is found to be against any statute or the
Constitution or runs counter to the philosophy behind these
provisions.
(v) It is de hors the provisions of Act or legislation.
(vi) If the delegate has acted beyond its power of deligation.
8
(b) If there is no upper age limit, there should not be any age limit in
the entry point- Indian Council of Legal Aid and Advice and
Others vs Bar Council of India reported in (1995) 1 SCC 732 .
“13.The next question is, is the rule reasonable or arbitrary and
unreasonable?
The rational for the rule, as stated earlier, is to maintain the
dignity and purity of the profession by keeping out those who
retire from various Government, quasi- Government and other
institutions since they on being enrolled as advocated used their
past contacts to canvass for cases and thereby bring the
profession into disrept and also pollute the minds of young fresh
entrants to the profession. Thus the object of the rule is clearly to
shut the doors of the profession for those who seek entry into the
profession after completing the age of 45 years. In the first place
there is no reliable statistical or other material placed on record
in support of the inference that ex -Government or quasi-
Government servants or the like indulge in undesirable activity
of the type mentioned after entering the profession. Secondly, the
rule does not debar only such persons from entry into the
profession but those who have completed 45 years of age on the
date of seeking enrollment. Thirdly, those whose were enrolled
as advocated while they were young and had later taken up
some job in any Government or quasi-Government or similar
institutions and has kept the sanad in abeyance are not
debarred from reviving their sanads even if they have completed
45 years of age. There may be a large number of persons who
initially entered the profession but latter took up jobs or entered
any other gainful occupation who revert to practice at a later
date even after they have crossed the age of 45 years and under
the impugned rule they are not debarred from practicing.
Therefore, in the first place there is no dependable material in
support of the rationale on which the rule is founded and
secondly the rule is discriminatory as it debars one group of
persons who have crossed the age of 45 years from enrollment
while allowing another group to revive and continue practice e
even after crossing the age of 45 years. The rule, in our view,
therefore, is clearly discriminatory .Thirdly, it is unreasonable
and arbitrary as the choice of the age of 45 years is made
keeping only a certain group in mind ignoring the vast majority
of other persons who were in the service of Government or quasi-
Government or similar institutions at any point of time. Thus, in
our view the impugned rule violates the principal of equality
enshrined in Article 14 of the Constitution.
14. in the view that we take on the aforesaid points we do not
consider it necessary to examine the larger question whether or
not the impugned rule violates Article 19(1)(g) of the Constitution.
We, therefore, do not express any view on the said question.
15. In the result, these petitions succeed. The new Rule 9
inserted in Chapter III extracted in the opening paragraph of this
judgment is struck down as ultra vires the Act and opposed to
9Article 14 of the Constitution. The Bar Council of India and the
State Bar Council are directed not to implement the said rule. No
order as to costs.”(emphasis supplied)Contention of the State Respondent-
21. Learned Counsel on behalf of the state respondent submits that the
petitioner is an ineligible intending candidate having no right to
participate in the selection process as the petitioner has crossed the
age limit of 45 years. It has been further submitted that Clause 11(v)
has been incorporated by the State in the State Control Order, 2024
and it is a policy decision of the State and that policy decision cannot
be challenged and therefore, there is no scope to interfere in the policy
decision.
22. Learned counsel on behalf of the state respondent submits that the
incorporation of 45 years age limit in the entry point for making
application does not infringe any fundamental right of the petitioner.
23. It is stated by the respondents that the petitioners approached this
Hon’ble Court after the lapse of the last date of making an application
against the FPS Dealership Vacancy notice dated December 17, 2024
and therefore, the petitioner has no locus to challenge the eligibility
criteria of the said vacancy.
24. Learned counsel on behalf of the state respondent submits that the
power to fix a cut- off date or age limit is incidental to the regulatory
control exercised by an authority over the selection process. While a
certain degree of arbitrariness may appear in any prescribed cut-off or
age limit, since a candidate on the wrong side of the line may stand
10
excluded as a consequence there is no reason to hold that the cut- off
that is prescribed is arbitrary.
25. It is also stated by the respondent that executive authorities may have
various considerations for fixing a particular age ceiling. These
considerations can be financial, administrative, operational or other
considerations. The Court must exercise judicial restraint and must
ordinarily leave it to the executive authorities to determine the
eligibility criteria.
26. It has been contended that the prescription of the upper age limit is
akin to the fixation of a cut-off date in a selection process, both of
which are well recognized, falling within the realm of policy-making
and administrative discretion. It is further submitted that judicial
review in such matters is confined to examining whether the policy is
unconstitutional or contrary to any statutory provision, beyond the
scope of delegation or so manifestly arbitrary and irrational that it
shocks the conscience the Court. The judgments relied on by the
respondent on this proposition is Government of Andhra Pradesh vs
N. Subbarayudu reported in (2008) 14 SCC 702, Hirandra Kumar vs
High Court Juridicature at Allahabad reported in (2020) 17 SCC
401 and Eastern Regional Electrical Contractor’s Association(
India) Ltd. vs Union of India, MAT 1116 of 2022.
27. Learned Counsel on behalf of the state respondent submits that it is
trite law that matters relating to the fixation of eligibility criteria,
including age limits or cut-off dates, fall within the exclusive domain
of the executive and is essentially policy decision. The Writ Court, in
11
exercise of the jurisdiction under Article 226 of the Constitution of
India, does not sit in appeal over administrative or policy choices of
the Government. The judgment relied on by the state respondent
relating to this is Directorate of Film Festivals vs Gaurav Ashwin
Jain reported in (2007) 4 SCC 737.
28. It is stated by the respondent that the petitioner allegedly being an
intending applicant against the impugned vacancy cannot compare
himself with any existing FPS Dealers of State who continue their
dealership beyond the age of 75-80 years, or any other applicant
above 45 years of age seeking appointment as an FPS Dealer on
compassionate ground after the demise of his family members, who
has an existing dealer in the State of West Bengal in as much as an
intending applicant against a new FPS vacancy , an existing FPS
Dealer , and an applicant seeking appointment as FPS Dealer on
compassionate ground forms three distinct classes. The three classes
are unequal and therefore they cannot be treated equally, granting
equal treatment to unequal classes of persons would amount to a
violation of Article 14 of the Constitution of India.
29. Learned Counsel on behalf of the state respondent submits that a
compassionate appointment constitutes a distinct class of
appointment in which the Government shows empathy and
compassion by granting an FPS license to a dependent family member
of a deceased dealer who had discharged his duties till his death. The
purpose of such an appointment is to alleviate the immediate
12
hardship which befalls upon the dependant family members of the
deceased dealers after the demise of the dealer.
30. It has been also stated by the respondents that the Central Control
Order, 2015 does not prohibit the State Government from prescribing
eligibility criteria for the issuance of a Fair Price Shop Licence.
Furthermore, there is no provision regarding age limit in the entry
point either in the Essential Commodities Act, 1955 or in the National
Food Security Act, 2013 and Central TPDS Control Order, 2025.The
Central Control Order delegates the entire power for framing a Control
Order in this regard upon the State Government and therefore it
cannot be said that the eligibility criteria prescribed by the State
Government are in contravention of any of the provisions of the
Control Order, 2015 or that the State Government has exceeded
delegation by prescribing the criteria for licensing.
31. Learned Counsel on behalf of the state respondent submits that the
Control Order consists of a provision, which allows a FPS Licensee to
nominate a dependent “family member” in case of his medical
incapacitation for which the State Government provides the upper age
limit to ensure that new FPS Dealers are engaged at a young age and
are able to serve the FPS beneficiaries for a longer period.
32. It is further stated that there is no fundamental right available to any
of the applicants to do business with the Government. As a citizen of
India individual has full right to do a business of his choice till the age
he wants or is capable but when a party engages another person it is
up to him to engage a person fixing certain criteria or eligibility,
13
experience age or fitness. The Government of West Bengal has thought
it fit to prescribe an upper age limit of 45 years in order to ensure that
the unemployed youth of the State of West Bengal can be selected as
FPS Dealers. The policy cannot be questioned by persons above the
age of 45 years merely because the policy causes hardships to such
persons, since the policy is not devoid of rationale.
33. Learned Counsel on behalf of the state respondent submits that the
citizens are free to do the business of food grains on their own, but no
citizen has any right, much less a fundamental right, to compel the
state to enter into business with him. Thus the impugned clause does
not take away the petitioner’s livelihood or prevent the petitioner from
doing any lawful business. Clause 11(v) of the Control Order, 2024
can’t be said to be violative of the right guaranteed under Article
19(1)(g) of the Constitution of India, in as much as the right
guaranteed under Article 19(1)(g) is not an absolute right. Prescribing
the maximum age of 45 years for making an application for FPS
License cannot be said to be illegal or violative of Article 19(1)(g) of the
Constitution of India, since the state is free to prescribe the eligibility
criteria for intending applicants to apply against the new Fair Price
Shop vacancies.
34. Learned Counsel on behalf of the state respondent submits that the
ownership of the goods or ration articles vests in the state and no
Dealer or Distributor has any right upon the goods. Therefore, fixation
of age limit akin to prescribing cut-off marks is not open to judicial
review. The judgments relied upon by the state respondent is –
14
Sarkari Sasta Anaj Vikreta Sangh , Tahsil Bemetra vs State of
Madhya Pradesh reported in (1981) 4 SCC 471,Madhya Pradesh
Ration Vikreta Sangh vs State of Madhya Pradesh reported in
(1981) 4 SCC 535 and Ashoka Smokeless Coal India (P) Ltd vs
Union Of India reported in (2007) 2 SCC 640.
35. It is also stated that the petitioner has not made any representation
before the answering respondents, disclosing his intention to
participate against the vacancy within the stipulated time period. The
petitioner has not disclosed sufficient documents to convince before
this Hon’ble Court that is otherwise eligible to participate against the
impugned vacancy and, there is an inherent lack of bonafide on the
part of the petitioner herein, and it is apparent that the petitioner has
filed this writ petition at the instance of some other person who wants
to stall the selection process against the impugned vacancy and
preserve the status quo in the Public Distribution System of the area.
36. Learned Counsel on behalf of the state respondent submits that there
is very limited scope to challenge the sub-ordinate legislation and it
can be challenged when there is gross violation of fundamental rights,
gross violation of Constitutional rights, contrary to the provisions of
the Constitution and contrary to the Principal Legislation.
37. Age-based eligibility criteria have also been prescribed by the other
states in India, such as the State of Rajasthan, the State of Telangana,
the Union of Territories of Jammu and Kashmir etc. Thus, it cannot
be said that the prescription of an age-based eligibility criterion for the
15
issuance of FPS License is unique to the State of West Bengal and is
unheard in the Public Distribution System.
38. It is stated that the comparison drawn by the petitioner between an
individual and Sanghas, Maha Sanghas, Self Help Groups or Co-
operative Societies is misconceived, as these groups and societies do
not have any individual entity which is dependent on its members.
The members may come and go, but a Sangha, Maha Sangha, Self-
Help Group, or Co-operative Society has perpetual existence till their
dissolution in accordance with law and therefore, the individual
applicant and partners cannot be treated on the same footing as that
of the Sanghas, Maha Sangha, Self-Help Group, or Co-operative
Society. It is practically impossible to put age bar over Sanghas, Maha
Sangha, Self-Help Group, or Co-operative Society as these groups are
managed and run by several persons and the membership of these
groups does not affect the FPS License held by these groups. Thus,
the petitioner cannot seek equality between two unequal classes since
the same would amount to a violation of Article 14 of the Constitution
of India.
39. It has been also stated that the petitioner has no right as an
individual to carry as F.P Shop Dealer. Learned counsel for the state
respondent has distinguished (1995) 1 SCC 732, Indian Council of
Legal Aid and Advice and Others vs Bar Council of India and
stated that running of F.P Shop business is not a right. Since there is
no right, the question of any infraction of right does not arise. In this
context the State respondent also distinguishes (2012) 6 SCC 502,
16
Brij Mohan Lal vs Union Of India & Ors and states that no case has
been made out in the writ petition from where it can be shown that
fundamental as well as Constitutional right has been infringed and
there is unreasonableness, arbitrariness, and therefore, this judgment
is not applicable for the instant case.
40. The judgments relied upon by the State respondent are follows-
(a) In Sarkari Sasta Anaj Vikreta Sangha vs State of M.P reported in
(1981)4 SCC 471 it has been held that –
“Shri Gopala Subrahmanyam, who presented the case for the
State of Madhya Pradesh with ability and clarity drew our
attention to the history of the scheme of distribution of foodstuffs
in the State of Madhya Pradesh and pointed out, with reference
to the counter-affidavit filed on behalf of the State of Madhya
Pradesh, how the well intentioned efforts of the Government to
distribute foodstuffs in a fair and equitable manner were foiled
and frustrated by the “appointed retailers”. It appears from the
counter-affidavit that many serious irregularities were being
committed with impunity and without hindrance, under the 1960
Scheme and because of the provision for appeals and revisions,
erring traders could not be brought to book in time. In the past
few months, there was a tremendous increase in flagrant
violations of the 1960 Control Order. Shops were opened well
after the appointed time and closed well before the appointed
time. Consumers found it difficult to obtain their rations easily.
Traders would hoard foodstuffs and refuse to sell them to the
customers. They would not maintain sufficient stocks and they
would not lift stocks from Government godowns in time. The
situation was getting so much out of control that in July 1980 the
Chief Minister called a conference of responsible officials
including the Director of Civil and Food Supplies and the
Collectors of the Districts. There was considerable discussion, in
the course of which the Collectors of the Districts drew the
attention of the Chief Minister to the plight of the poor consumers
and the abuse to which the existing system had lent itself at the
hands of the retailers. Thereafter a conscious and responsible
decision was taken to scrap the existing system of distribution of
foodstuffs through “appointed retailers” and to introduce a
system of distribution of foodstuffs by authorised agents who
were preferably to be cooperative societies. The impugned
wireless message was therefore, issued by the Government to
the Collectors incorporating the decision of the Government. It
was rightly conceded by Shri Gopala Subrahmanyam that the
wireless message should have properly come after the
amendment of the Control Order but in the circumstances of the
17case no harm was done as no action was taken pursuant to the
wireless message until after the Control Order was amended.
This circumstance, we may mention here, meets one of the
submissions of the learned counsel for the petitioners that the
wireless message should have been issued after the amendment
of the Control Order.”
(b) In Madhya Pradesh Ration Vikreta Sangh Society & Ors. vs
State of Madhya Pradesh & Anr. reported in (1981) 4 SCC 535 it
has been held that-
” The validity of the impugned scheme has been upheld by this
Court in Sarkari Sasta Anaj Vikreta Sangh, Tahsil
Bemetra v. State of M.P. [(1981) 4 SCC 471] The main challenge
was that the Scheme created a monopoly in trade in favour of
cooperative societies and was thus violative of Articles 14 and
19(1)(g) of the Constitution. This Court, agreeing with the High
Court rejected the contention in view of Mannalal Jain v. State of
Assam [ : AIR 1962 SC 386 : (1962) 3 SCR 936 : (1962) 2 SCJ
93] . In that case, the question was whether clause 5(e) of the
Assam Foodgrains (Licensing and Control) Order, 1961, which
provided for giving preference to cooperative societies created a
monopoly in trade in favour of cooperative societies. On a
construction of clause 5(e) which merely embodied a rule of
preference in favour of cooperative societies, this Court
in Mannalal Jain case [ : AIR 1962 SC 386 : (1962) 3 SCR 936 :
(1962) 2 SCJ 93] held that clause 5(e) did not have the effect of
creating a monopoly in favour of cooperative societies. In
upholding the validity of clause 5(e), the Court observed: (at SCR
p. 949)
“We are of the view that by reason of the position which
cooperative societies may occupy in the village economy of a
particular area, it cannot be laid down as a general proposition
that sub-clause (e) of clause 5 of the Control Order, 1961, is
unrelated to the objects mentioned in Section 3 of the Essential
Commodities Act, 1955. There may be places or areas where
cooperative societies are in a better position for maintaining or
increasing supplies of rice and paddy and even for securing their
equitable distribution and availability at fair prices.”
The Court, therefore, repelled the contention that clause 5(e) had
no relation whatever to the objects mentioned in Section 3 of the
Act and went on to say: (at SCR p. 951)
“Sub-clause (e) of clause 5, we have already stated, enables the
licensing authority to give preference to a cooperative society in
certain circumstances; but it does not create a monopoly in
favour of cooperative societies. The preference given has a
reasonable relation to the objects of the legislation set out in
Section 3 of the Act.”
18
In the Sarkari Sasta Anaj Vikreta Sangh case [(1981) 4 SCC 471]
the impugned scheme was also challenged on various other
grounds but the Court negatived all the contentions raised and
we need not refer to them as they are not really relevant for our
purposes. Suffice it to say, the Court pointed out that the Scheme
had been framed by the State Government in exercise of its
executive function under Article 162 of the Constitution; that
under the Scheme the fair price shops were to be run by
consumers’ cooperative societies; that the Scheme was framed
by the State Government in public interest with a view to
securing equitable distribution of foodgrains at fair prices to the
consumers, that the rule of preference to cooperative societies
does not create a monopoly in trade and is, therefore, not
violative of the petitioners’ fundamental rights under Articles 14
and 19(1)(g) of the Constitution; and that no one had a
fundamental right to be appointed a Government agent for
running a fair price shop which was a matter of grant of
privilege. The validity of the impugned scheme has, therefore,
been upheld in all its aspects.”
(c) In Ashoka Smokeless Coal India Pvt Ltd vs Union Of India
reported in (2007) 2 SCC 640 it has been held that –
“The learned Additional Solicitor General placed strong reliance
on a decision of this Court in State of Orissa v. Harinarayan
Jaiswal [(1972) 2 SCC 36] wherein this Court held: (SCC pp. 44-
45, para 13)
“13. Even apart from the power conferred on the Government
under Sections 22 and 29, we fail to see how the power retained
by the Government under clause (6) of its order, dated 6-1-1971,
can be considered as unconstitutional. As held by this Court
in Cooverjee B. Bharucha case [Cooverjee B. Bharucha v. Excise
Commr., AIR 1954 SC 220] , one of the important purposes of
selling the exclusive right to sell liquor in wholesale or retail is to
raise revenue. Excise revenue forms an important part of every
State’s revenue. The Government is the guardian of the finances
of the State. It is expected to protect the financial interest of the
State. Hence quite naturally, the legislature has empowered the
Government to see that there is no leakage in its revenue. It is for
the Government to decide whether the price offered in an auction-
sale is adequate. While accepting or rejecting a bid, it is merely
performing an executive function. The correctness of its
conclusion is not open to judicial review. We fail to see how the
plea of contravention of Article 19(1)(g) or Article 14 can arise in
these cases. The Government’s power to sell the exclusive
privileges set out in Section 22 was not denied. It was also not
disputed that those privileges could be sold by public auction.
Public auctions are held to get the best possible price. Once these
aspects are recognised, there appears to be no basis for
contending that the owner of the privileges in question who had
offered to sell them cannot decline to accept the highest bid if he
19thinks that the price offered is inadequate. There is no concluded
contract till the bid is accepted. Before there was a concluded
contract, it was open to the bidders to withdraw their bids–
see Union of India v. Bhim Sen Walaiti Ram [(1969) 3 SCC 146] .
By merely giving bids, the bidders had not acquired any vested
rights. The fact that the Government was the seller does not
change the legal position once its exclusive right to deal with
those privileges is conceded. If the Government is the exclusive
owner of those privileges, reliance on Article 19(1)(g) or Article 14
becomes irrelevant. Citizens cannot have any fundamental right
to trade or carry on business in the properties or rights belonging
to the Government–nor can there be any infringement of Article
14, if the Government tries to get the best available price for its
valuable rights. The High Court was wholly wrong in thinking
that purpose of Sections 22 and 29 of the Act was not to raise
revenue. Raising revenue as held by this Court in Cooverjee B.
Bharucha case [Cooverjee B. Bharucha v. Excise Commr., AIR
1954 SC 220] was one of the important purposes of such
provisions. The fact that the price fetched by the sale of country
liquor is an excise revenue does not change the nature of the
right. The sale in question is but a mode of raising revenue.
Assuming that the question of arbitrary or unguided power can
arise in a case of this nature, it should not be forgotten that the
power to accept or reject the highest bid is given to the highest
authority in the State i.e. the Government which is expected to
safeguard the finances of the State. Such a power cannot be
considered as an arbitrary power. If that power is exercised for
any collateral purposes, the exercise of the power will be struck
down. It may also be remembered that herein we are not dealing
with a delegated power but with a power conferred by the
legislature.
The High Court erroneously thought that the Government was
bound to satisfy the Court that there was collusion between the
bidders. The High Court was not sitting on appeal against the
order made by the Government. The inference of the Government
that there was a collusion among the bidders may be right or
wrong. But that was not open to judicial review so long as it is
not proved that it was a make-believe one. The real opinion
formed by the Government was that the price fetched was not
adequate. That conclusion is taken on the basis of Government
expectations. The conclusion reached by the Government does
not affect any one’s rights. Hence, in our opinion, the High Court
misapplied the ratio of the decision of this Court in Barium
Chemicals Ltd. v. Company Law Board [AIR 1967 SC 295]
and Rohtas Industries v. S.D. Agarwal [(1969) 1 SCC 325] .”
Citizens may not have any fundamental right to carry on trade or
business in a commodity belonging to the Government. But
therein, the Court was concerned with liquor which was
considered to be res extra commercium.”
(d) In Hirandra Kumar vs High Court of Judicature at Allahabad
and Anr. reported in (2020) 17 SCC 401 it has been held that –
20
“21. The legal principles which govern the determination of a cut-
off date are well settled. The power to fix a cut-off date or age-
limit is incidental to the regulatory control which an authority
exercises over the selection process. A certain degree of
arbitrariness may appear on the face of any cut-off or age-limit
which is prescribed, since a candidate on the wrong side of the
line may stand excluded as a consequence. That, however, is no
reason to hold that the cut-off which is prescribed, is arbitrary.
In order to declare that a cut-off is arbitrary and ultra vires, it
must be of such a nature as to lead to the conclusion that it has
been fixed without any rational basis whatsoever or is
manifestly unreasonable so as to lead to a conclusion of a
violation of Article 14 of the Constitution.
25. In Shivbachan Rai [Union of India v. Shivbachan Rai, (2001)
9 SCC 356 : 2002 SCC (L&S) 197] , the Union Public Service
Commission advertised for direct recruitment to the post of
Assistant Director in the Central Poultry Breeding Farms and
prescribed an age-limit of 35 years as on 31-5-1990 with a
relaxation of five years for government servants. The earlier
notification did not provide a limitation on the age relaxation. The
five-year stipulation was challenged as being arbitrary and ultra
vires. A two-Judge Bench upheld the notification and held thus :
(SCC p. 358, para 6)
“6. … Prescribing of any age-limit for a given post, as also
deciding the extent to which any relaxation can be given if an
age-limit is prescribed, are essentially matters of policy. It is,
therefore, open to the Government while framing rules under the
proviso to Article 309 of the Constitution to prescribe such age-
limits or to prescribe the extent to which any relaxation can be
given. Prescription of such limit or the extent of relaxation to be
given, cannot be termed as arbitrary or unreasonable. The only
basis on which the respondent moved the Central Administrative
Tribunal was the earlier Rules of 1976 under which, though an
age-limit was prescribed, a limit had not been placed on the
extent of relaxation which could be granted. If at all any charge
of arbitrariness can be levied in such cases, not prescribing any
basis for granting relaxation when no limit is placed on the
extent of relaxation, might lead to arbitrariness in the exercise of
power of relaxation.”
26. In Ramesh Chandra Agrawal [Council of Scientific &
Industrial Research v. Ramesh Chandra Agrawal, (2009) 3 SCC
35 : (2009) 1 SCC (L&S) 547] , the Council of Scientific and
Industrial Research framed a scheme for the absorption of
researchers working in their laboratories and institutes following
the directions of this Court. It was prescribed that eligible
applicants must have 15 years of continuous research on 2-5-
1997. The Director was conferred powers to relax the
requirement. Contending that the tenure of researchers is
ordinarily 13 years, the prescription of 15 years was challenged
as being ultra vires and arbitrary. This contention was accepted
by the High Court. On appeal, a two-Judge Bench of this Court
examined the scheme and applicable avenues to researchers.
21
Noting that there was no ceiling of 13 years on researchers, this
Court upheld the prescription of 15 years and the cut-off date.
The Court held thus : (SCC p. 52, paras 29-30)
“29. “State” is entitled to fix a cut-off date. Such a decision can
be struck down only when it is arbitrary. Its invalidation may
also depend upon the question as to whether it has a rational
nexus with the object sought to be achieved. 2-5-1997 was the
date fixed as the cut-off date in terms of the Scheme. The reason
assigned therefor was that this was the date when this Court
directed the appellants to consider framing of a regularisation
scheme. They could have picked up any other date. They could
have even picked up the date of the judgment passed by the
Central Administrative Tribunal. As rightly contended by Mr
Patwalia, by choosing 2-5-1997 as the cut-off date, no illegality
was committed. Ex facie, it cannot be said to be arbitrary.
30. The High Court, however, proceeded on the basis that the
cut-off date should have been the date of issuance of the
notification. The employer in this behalf has a choice. Its
discretion can be held to be arbitrary but then the High Court
only with a view to show sympathy to some of the candidates
could not have fixed another date, only because according to it,
another date was more suitable. In law it was not necessary.
The court’s power of judicial review in this behalf although exists
but is limited in the sense that the impugned action can be struck
down only when it is found to be arbitrary. It is possible that by
reason of such a cut-off date an employee misses his chance
very narrowly. Such hazards would be there in all the services.
Only because it causes hardship to a few persons or a section of
the employees may not by itself be a good ground for directing
fixation of another cut-off date.”
27. These judgments provide a clear answer to the challenge.
The petitioners and the appellant desire that this Court should
rollback the date with reference to which attainment of the upper
age-limit of 48 years should be considered. Such an exercise is
impermissible. In order to indicate the fallacy in the submission,
it is significant to note that Rule 12 prescribes a minimum age of
35 years and an upper age-limit of 45 years (48 years for
reserved candidates belonging to the Scheduled Castes and
Tribes). Under the Rule, the age-limit is prescribed with reference
to the first day of January of the year following the year in which
the notice inviting applications is published. If the relevant date
were to be rolled back, as desired by the petitioners, to an
anterior point in time, it is true that some candidates who have
crossed the upper age-limit under Rule 12 may become eligible.
But, interestingly that would affect candidates who on the
anterior date may not have attained the minimum age of 35
years but would attain that age under the present Rule. We are
adverting to this aspect only to emphasis that the validity of the
Rule cannot be made to depend on cases of individual hardship
which inevitably arise in applying a principle of general
application. Essentially, the determination of cut-off dates lies in
the realm of policy. A court in the exercise of the power of judicial
review does not take over that function for itself. Plainly, it is for
22
the rule-making authority to discharge that function while
framing the Rules.
28. We do not find any merit in the grievance of discrimination.
For the purpose of determining whether a member of the Bar has
fulfilled the requirement of seven years’ practice, the cut-off date
is the last date for the submission of the applications. For the
fulfilment of the age criterion, the cut-off date which is prescribed
is the first day of January following the year in which a notice
inviting applications is being published. Both the above cut-off
dates are with reference to distinct requirements. The seven year
practice requirement is referable to the provisions of Article
233(2) of the Constitution. The prescription of an age-limit of 45
years, or as the case may be, of 48 years for reserved category
candidates, is in pursuance of the discretion vested in the
appointing authority to prescribe an age criterion for recruitment
to the HJS.
29. For the same reason, no case of discrimination or
arbitrariness can be made out on the basis of a facial
comparison of the Higher Judicial Service Rules, with the Rules
governing Nyayik Sewa. Both sets of rules cater to different
cadres. A case of discrimination cannot be made out on the basis
of a comparison of two sets of rules which govern different
cadres.”
(e) In Directorate of Film Festival and Ors. vs Gaurav Ashwin Jain
&Ors. reported in (2007) 4 SCC 737 it has been held that –
“16. The scope of judicial review of governmental policy is now
well defined. Courts do not and cannot act as Appellate
Authorities examining the correctness, suitability and
appropriateness of a policy, nor are courts advisors to the
executive on matters of policy which the executive is entitled to
formulate. The scope of judicial review when examining a policy
of the Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the provisions
of the Constitution, or opposed to any statutory provision or
manifestly arbitrary. Courts cannot interfere with policy either on
the ground that it is erroneous or on the ground that a better,
fairer or wiser alternative is available. Legality of the policy, and
not the wisdom or soundness of the policy, is the subject of
judicial review (vide Asif Hameed v. State of J&K [1989 Supp (2)
SCC 364] , Sitaram Sugar Co. Ltd. v. Union of India [(1990) 3
SCC 223] , Khoday Distilleries Ltd. v. State of Karnataka [(1996)
10 SCC 304] , BALCO Employees’ Union v. Union of India [(2002)
2 SCC 333] , State of Orissa v. Gopinath Dash [(2005) 13 SCC
495 : 2006 SCC (L&S) 1225] and Akhil Bharat Goseva Sangh
(3) v. State of A.P. [(2006) 4 SCC 162] )”
(f) In Government of Andhra Pradesh and Ors. vs N.Subbarayudu
& Ors. reported in (2008) 14 SCC 702 it has been held that –
23
“7. There may be various considerations in the mind of the
executive authorities due to which a particular cut-off date has
been fixed. These considerations can be financial, administrative
or other considerations. The court must exercise judicial restraint
and must ordinarily leave it to the executive authorities to fix the
cut-off date. The Government must be left with some leeway and
free play at the joints in this connection.”
(g) In Eastern Regional Electrical Contractor’s Association (India)
Ltd. and Ors. vs Union Of India and Ors., M.A.T No. 1116 of
2022 (Order dated 7.10.2024) it has been held that-
“62. No doubt, there is no master servant relationship between
an electrical supervisor and the State Government. Absence of
such relationship also does not prevent the State Government to
make appropriate legislation to regulate the affairs of an
electrical supervisor. It is more so when, provisions of the Act of
2003 through the Central Electricity Authority have required the
State Government to certify and license an electrical supervisor.
70. Restricting the term “qualification” as has been used in
Article 19 (6) of the Constitution of India in the facts and
circumstances of the present case, as contended on behalf of the
appellants is not warranted. Prescription of age has to be
considered as a valid qualification within the meaning of Article
19 (6) in the factual matrix of this case. A restrictive
interpretation would have ramifications with regard to public
safety. That would be prejudicial to the contours of the Act of
2003.
76. In view of the discussions above, we are not in a position to
arrive at a finding that, State Government does not have the
requisite competence to prescribe an age bar for the renewal of
the license of an electrical supervisor as done by the impugned
Rules or that the age bar prescribed under the two impugned
Rules violate Article 19 (1) (g) of the Constitution of India.”
Analysis –
41. The moot questions involved herein pertains to the alleged violation of
the fundamental right by the promulgation of Clause 9(ii) of the
Vacancy Notification dated December 17, 2024 bearing Memo No.
748/MR/SCFS/GMP issued by the Sub-Divisional Controller (F&S),
Gangarampur, District Dakshin Dinajpur and Sub-clause (V) of
Clause 11 of the State Control Order, 2024.Secondly, whether the
States power to regulate a trade under Article 19(6) of the Constitution
24
has crossed the line into “Manifest Arbitrariness” can be a ground for
striking down Subordinate Legislation under Article 14.
42. The petitioner is an eligible intending candidate for appointment as an
F.P Shop Dealer, however, the restriction imposed by the State
Government by incorporating an age bar in the eligibility criteria
precludes the petitioner from submitting an application pursuant to
the said notification.
43. The age limit is arbitrary, discriminatory and creates an artificial
classification intelligible differentia. The Executive Authority has
exceeded its power by imposing an age restriction not contemplated in
the Parent Act, thereby imposing an unreasonable restriction on the
petitioner’s right to practice his profession or trade. The sudden
change in age criteria adversely affects those who had a reasonable
expectation, and the age limit creates two classes of citizen (those
under 45 and those above 45) without any reasonable classification.
There is no evidence that a person over and above 45 years of age is
less capable of running a shop than a person within the permissible
age limit, rendering the age cut off “arbitrary”.
44. The State cannot restrict entry into a trade on the basis of age unless
age directly affects the performance of the trade. Since a person above
60 years can take over a shop upon a parent’s death, the imposition of
a 45 years age limit for new applicant is discriminatory. The Essential
Commodities Act, 1955 does not empower the state to create personal
qualification restrictions that override fundamental right.
25
45. A policy that is capricious or lacks rational justification is liable to be
struck down. The state practice of allowing older individuals to obtain
licences through compassionate appointment while debarring them
from general vacancies weakens the rationale of physical fitness or
technical proficiency. Imposing an upper age limit of 45 years under
Clause 11(v) of the 2024 order, without a similar limit in other
allotment categories, creates an uneven ‘playing field’. The State’s
authority to regulate a trade under Article 19(6) has crossed into
“Manifest Arbitrariness” which is a ground for invalidating
subordinate legislation under Article 14.
46. The primary principle, as per the Supreme Court’s interpretation of
Article 14, is that a law is manifestly arbitrary if it is unfair,
unreasonable or imposed without adequate guiding principles. The
State has failed to furnish empirical data showing that a person aged
46 to 60 years are significantly less efficient in operating a retail shop.
In absence of a rational basis, the age limit of 45 years is deemed to
be an impermissible whim under the Constitution.
47. The reasoning for striking down or reading down Clause 11(v) of the
2024 Order the Court focuses on the transition from administrative
discretion to Constitutional Arbitrariness. The “Manifest Arbitrariness”
is mandatory as enunciated in the case of Shayara Bano vs Union of
India reported in (2017) 9 SCC 1 which is reproduced below-
“Manifest arbitrariness, therefore, must be something done by
the legislature capriciously, irrationally and/or without adequate
determining principle. Also, when something is done which is
excessive and disproportionate, such legislation would be
manifestly arbitrary. We are, therefore, of the view that
arbitrariness in the sense of manifest arbitrariness as pointed
26out by us above would apply to negate legislation as well
under Article 14.”
48. Comparing with the 2024 Order with the 2013 Order it is seen that
the 2013 order did not have such a restrictive age gap for general
applicants, such a change in circumstances justifies a drastic shift in
the 2024 order. The 2024 Order emphasizes biometric authentication
and digital weighing requirement of the state, a younger age group is a
“necessary class” to ensure the success of the tech driven PDS reform.
49. Creating a class within a class constitute hostile discrimination. By
applying the test of proportionality, it is to be examined whether the
means adopted by the State are proportionate to the ends sought to be
achieved.
50. Digital literacy is a skill and not a biological trait type to age. A 50
year old may be more tech savvy than a 25 year old. If the State wants
tech savvy dealers, it should mandate the computer proficiency
certificate as an eligible criteria rather than banning an entire age
group. The longevity of service is a weak state interest compared with
the citizen’s right to compete for a licence. Even if a dealer starts at 46
he can serve for 14 years before reaching the typical retirement age of
60 which is sufficient longevity. The Act does not grant the State the
power to impose moral or arbitrary personal qualification that are
unrelated to the actual distribution of food grains.
51. By imposing an age gap that restricts the pool of eligible distributors
without a functional reason, the state has exceeded the rule making
power granted to it by the Parliament. Clause 11(v) violates the basic
27
structure of Article 14 and compels the state to accept applications
from all eligible individuals, irrespective of the 45 year age ceiling.
52. In adjudicating the instant issue, the case in Brij Mohan Lal(Supra)
observed that the policy for age limit has been introduced in the
present case. The fundamental purpose of the State is to appoint a
fair price shop dealer to distribute the ration articles to PDS
beneficiaries. The state’s policy permits the PDS beneficiaries to
appear before the fair price shop and to collect food grain from dealer
or the dealers may distribute ration articles at beneficiaries door step
under the scheme of Duare Ration. The requisite objective can be
fulfilled by a person of more than 45 years, as distributing ration
articles is not so hazardous or onerous, that a person over 45 cannot
perform it. Moreover, numerous ration dealers in the state aged more
than 50 years, are conducting FPS business in an unblemished
manner. The State cannot enact a policy, that deprives an individual
of the right to participate in a business of his choice. Accordingly,
upon assessing the right to participate in business, Sub-clause (V) of
Clause 11 of the Control Order, 2024, and the restriction imposed
under Clause 9 of the Vacancy Notification are prima facie,
unreasonableness in introducing such an age restriction.
Furthermore, the learned counsel for the state respondent has relied
on the decision of Hon’ble Division Bench of this Court in MAT 1116
of 2023 which clarified the position that the State Government may
fix the age limit regarding entry point in the business or trade or
profession.
28
53. Admittedly, there are previous Control Orders, in the State of West
Bengal, they are WBPDS (M & C), 2003 and WBTPDS Control Order,
2013. The instant Control Order has published a notification to the
State as follows:
“The Government of India, Ministry of Consumer Affairs, Food
and Public Distribution (Department of Food and Public
Distribution), in exercise of power conferred by section 3 of the
Essential Commodities Act, 1955(Central Act 10 of 1955), issued
Targeted Public Distribution System (Control) Order, 2015, vide
order no. GSR 213(E) dated 20th March, 2015.
In pursuance of Clauses 4, 9, 10, 11, 12, 13, 14 and 15 of the
Targeted Public Distribution System(Control Order, 2015), the
State Government is empowered to issue order under section 3 of
the Essential Commodities Act, 1955, for regulating the ration
cards, licensing and regulation of Fair Price Shops, operation of
Fair Price Shops, monitoring, ensuring transparency and
accountability, penalty, powers of inspection, search and seizure
and appeal, and the other incidental issues”
54. In Rachana & Ors vs The Union Of India reported in (2021) 5 SCC
638 it has been held by the Hon’ble Supreme that –
“43. It is the settled principle of law that policy decisions are
open for judicial review by this Court for a very limited purpose
and this Court can interfere into the realm of public policy so
framed if it is either absolutely capricious, totally arbitrary or not
informed of reasons and has been considered by this Court
in Union of India Vs. M. Selvakumar.”
55. The state respondent submits that the ownership of ration articles or
goods vests exclusively in the state and no dealer or distributor posses
any proprietary rights over such goods. Moreover the imposition of an
age limit analogous to the prescription of ‘cut off’ is not amenable to
judicial review. Nevertheless, even assuming that ownership of the
goods remains with the state, the distribution thereof through dealers
constitutes a privilege regulated and controlled by the state.
Consequently, any condition imposed on such distribution , including
an age restriction, must satisfy the Constitutional requirements that it
29
be reasonable, non- arbitrary based on rational , non- discriminatory
principle, as established in the judgment of Ramana Dayaram Shetty
vs The International Airport Authority reported in 1979 (3) SCC
489 where the Hon’ble Supreme Court has held that-
“Therefore where the Government is dealing with the public,
whether by way of giving jobs or entering into contracts or
issuing quotas or licences or granting other forms of largess. The
Government cannot act arbitrarily at its sweet will and like a
private individual, deal with any person it pleases, but its action
must be in conformity with standard or norm which is not
arbitrary, irrational or irrelevant.
It is well established that Art 14 requires that action must not
arbitrary and must be based on some rational and relevant
principle which is non- discriminatory. It must not be guided by
extraneous or irrelevant considerations. The state cannot act
arbitrarily in enter into relationship, contractual or otherwise
with a third party. Its action must conform to some standard or
norm which is rational and non- discriminatory.”
The Apex court has also held in the case of Tata Cellular vs
Union of India, reported in (1994) 6 SCC 651 that-
“The Government must have freedom of contract. In other words,
a fair play in the joints is a necessary concomitant for an
administrative body functioning in an administrative sphere or
quasi-administrative sphere. However, the decision must not
only be tested by the application of Wednesbury principle of
reasonableness (including its other facts pointed out above) but
must be free from arbitrariness not affected by bias or actuated
by mala fides”
56. In the case of Reliance Energy Limited & Another vs Maharashtra
State Road Development reported in (2007) 8 SCC 1 it has been
held by the Court that-
“Standards applied by courts in judicial review must be justified
by constitutional principles which govern the proper exercise of
public power in a democracy. Article 14 of the Constitution
embodies the principle of “non-discrimination”. However, it is not
a free- standing provision. It has to be read in conjunction with
rights conferred by other articles like Article 21 of the
Constitution. The said Article 21 refers to “right to life”. In
includes “opportunity”. In our view, as held in the latest
judgment of the Constitution Bench of nine-Judges in the case
of I.R. Coelho vs. State of Tamil Nadu (2007) 2 SCC 1, Article
21/14 is the heart of the chapter on fundamental rights. It
30covers various aspects of life. “Level playing field” is an
important concept while construing Article 19(1)(g) of the
Constitution. “
57. The Hon’ble Supreme Court in Jasbhai Motibhai Desai v. Roshan
Kumar reported in (1976) 1 SCC 671 held that a person has locus
standi if he suffers a legal grievance or is deprived of something to
which he is legally entitled. In the instant case, the petitioner, who is
otherwise fully qualified, suffers a clear disqualification solely due to
the impugned age restriction and therefore has locus standi to
challenge the vacancy of the F.P Shop Dealership.
58. It is also well established that when a statutory or executive action
allegedly infringes Fundamental Rights, the rule of locus standi is
applied liberally. The petitioner is not challenging the selection of
another candidate but the validity of the eligibility condition itself,
which directly affects his right to be considered. Moreover, the
contention that the petitioner is ineligible and therefore cannot
challenge the condition is untenable.
59. The contention of the State that subordinate legislation can be
challenged only on limited grounds such as violation of fundamental
rights is erroneous and contrary to settled law. Policy decision is
generally within the domain of the executive, they are subject to
judicial review if they offend the basis requirements of Article 14 of the
Constitution of India. The Hon’ble Supreme Court in Indian Express
Newspapers vs Union of India reported in (1985)1 SCC 641 has held
that subordinate legislation is subject to judicial review not only on
31
the ground of violation of fundamental rights but also on the grounds
of unreasonableness, arbitrariness, and if it ultra vires the parent act.
Further, in State of Tamil Nadu vs P Krishnamurthy, reported
(2006) 4 SCC 517 the Court laid down that subordinate legislation
can be struck down if it is manifestly arbitrary, violative of
constitutional provisions, or beyond the scope of delegated authority.
Thus, the scope of challenge is wide and not restricted as contended
by the respondents. In the present case, the impugned clause is
manifestly arbitrary and lacks rational nexus with the object sought to
be achieved, thereby violating Article 14 of the Constitution of India.
The doctrine of Arbitrariness, makes it clear that any provision which
is capricious or irrational is liable to be struck down. Moreover, the
impugned restriction unreasonably curtails the petitioner’s right to
practice a profession guaranteed under Article 19(1)(g) of the
Constitution of India and is not saved by the test of reasonableness
under Article 19(6). The arbitrary exclusion also adversely affects the
petitioner’s right to livelihood, which forms an integral part of Article
21 of the Constitution of India. Therefore, the impugned subordinate
legislation, being arbitrary, unreasonable, and violative of
fundamental rights, is ultra vires the Constitution and is liable to be
struck down.
60. Although the classification based on age constitutes an intelligible
differentia, the impugned age limit of 45 years lacks rational nexus
with the object sought to be achieved. In absence of any reasonable
justification, the classification becomes arbitrary and violative of
32
Article 14, thereby rendering the impugned provision ultra vires. The
impugned classification must satisfy the twin test laid down in State
of West Bengal vs Anwar Ali Sarkar reported in AIR 1952 SC 75
and elaborated in Ram Krishna Dalmia vs Justice Tendolkar
reported in AIR 1958 SC 538, namely intelligible differentia and
rational nexus. While the age-based classification may satisfy the
former, it fails the latter as no reasonable nexus with the object
sought to be achieved is demonstrated. Further, as held in E.P.
Royappa and Ramana Dayaram Shetty reported in (1974) 4 SCC 3,
arbitrariness is antithetical to equality. The impugned rule, being
capricious and without determining the principle, falls foul of the
doctrine of ‘Manifest Arbitrariness’ as affirmed in Shayara Bano vs
Union of India reported in (2017) 9 SCC 1. Accordingly the provision
is ultra vires and violates Article 14 of the Constitution of India.
61. After hearing the rival contentions of the parties in respect of the three
Writ Petitions, I am of the considered view that the provision
enshrined in Sub-clause (V) of Clause 11 of Control Order, 2024, and
Clause 9(ii) of the vacancy Notification dated December 17, 2024,
prima facie violative under Article 19(1)(g) guaranteed under the
Constitution of India.
62. In conspectus of the above, as adumbrated herein, the respondents
have failed to justify the constitutional validity of Sub-clause (V) of
Clause 11 of the Control Order, 2024, which stands in clear violation
of the Fundamental Rights of the petitioner and is ultra vires Articles
33
14, 19(1)(g), and 21 of the Constitution of India, and is liable to be
struck down.
63. With the above observation and directions this Court is inclined to
hold that Sub-clause (V) of Clause 11 of the Control Order, 2024 is
ultra vires and is consequentially struck down. Clause 9(ii) of the
Vacancy Notification dated December 17, 2024 is hereby quashed and
set aside. The State Respondent is directed to permit the petitioners to
participate in the selection process of the F.P Shop Dealership.
64. In view of the above Writ Petition No. 6533 of 2025, Writ Petition
No 29160 of 2025 and Writ Petition No. 29162 of 2025 are allowed
and disposed of. No order as to costs.
65. Urgent Photostat certified copy of this order if applied for be supplied
to the parties on priority basis upon compliance of all requisite
formalities.
(Smita Das De, J.)