Calcutta High Court (Appellete Side)
Sudip Sarkar vs State Of West Bengal & Ors on 7 April, 2025
ASR/np. 1-6.
Ct. no. 24.
04.03.2025
WPA 6533 of 2025
Sudip Sarkar
Vs.
State of West Bengal & Ors.
With
WPA 6617 of 2025
Tapan Kumar Mondal
Vs.
State of West Bengal & Ors.
With
WPA 6691 of 2025
Gobinda Charan Bag
Vs.
State of West Bengal & Ors.
With
WPA 6692 of 2025
Sk. Nurul Hassan
Vs.
State of West Bengal & Ors.
With
WPA 7121 of 2025
Arun Kumar Maiti
Vs.
State of West Bengal & Ors.
With
WPA 7261 of 2025
Swadesh Mishra
Vs.
State of West Bengal & Ors.
Mr. Debabrata Saha Ray, Sr. Ad.
Mr. Pingal Bhattacharyya
Mr. Subhankar Das
Mr. Neil Basu
Mr. Sankha Biswas
.....For the petitioners
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Mr. Sirsanya Bandopadhyay
Mr. Ritesh Kumar Ganguly
....For the State
(WPA 6533 of 2025/WPA
6617 of 2025/WPA 6691 of
2025/WPA 6692 of 2025)
Ms.Sonal Sinha
Mr. Avishek Prasad
....For the State (WPA 6533 of 2025)
Mr. Biswabrata Basu Mallick
Ms. Parna Roy choudhury
....For the State (WPA 6692 of 2025)
Mr. Suman Sengupta
Ms. Amrita Panja Mullick
...for the State (WPA 7121 of 2025)
Mr. Sirsanya Bandopadhyay
Mr. Debopriyo Karan
....For the State (WPA 7261 of 2025)
Petitioners of the batch of writ petitions have
challenged the vires of Clause 11(V) of West Bengal
Targeted Public Distribution System (Maintenance &
Control), Order, 2024.
It is the case of the petitioners that the
concerned Sub-Divisional Controller, (Food & Supply)
had issued vacancy notifications, wherein the eligible
criteria has been incorporated in Part II. Including the
eligible criteria the parameter of age limit of individual
applicants or partners have been specified that their
age must be above 21 years and below 45 years on the
date of application.
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The said eligible criteria followed Clause 11 (V)
of the Control Order, 2024.
For the better appreciation of the discussion, let
me set out the relevant clause of Control order, 2024.
" 11. Eligibility criteria for
application for grant of license for
Fair Price Shop- An individual or a
registered partnership firm or a
registered Co-operative Society or a
Self Help Group or a Sangha and
Mahasangha of Self-Help Groups, who
fulfills the following eligibility
criteria may apply for grant of a
license for fair price ship on payment
of an application fee of Rs. 1,000/-
namely:-
(i) The individual applicant of the
registered partnership firm
or members of the registered
Co-operative Society or
members of the Self-Help
Groups or Sangha or
Mahasangha of Self-Help
Groups applying for a Dealer
vacancy must be adult Indian
Citizen(s).
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(ii) If the applicant be Self-Help
Groups or Sangha or
Mahasangha of Self-Help
Group or registered Co-
operative Society, it shall
have their registered address
in the concerned district.
(iii) In case of individual applicant,
he should be a bona-fide
resident of concerned Gram
Panchayat or the Ward or
Sub-area, as the case may be,
in which vacancy occurred.
In case of registered
partnership firm at least one
partner shall be permanently
residing in the concerned
district.
(iv) The applicant must have basic
knowledge of handing smart
phones/e-POS devices.
(V) The Individual Applicant or
partners in the partnership firm
must be above 21 (Twenty-one) years
of age and below 45 (forty Five) years
of age on the date of application.
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Proof showing date of birth should be
furnished.
It is the case of the petitioner that they have just
cross the age limit of 45 years. So, they are debarred to
participate in the vacancy notice.
Mr. Debbrata Saha Ray learned senior Advocate
submits that the impugned notification following the
Clause 11 (V) of West Bengal Targeted Public
Distribution System (Maintenance & Control), Order,
2024 is violative to the fundamental rights of the
petitioners.
It is the contention of Mr. Saha Ray that by
virtue of Article 19 of the Constitution of India the
present petitioner being a citizen of India shall have
right to practice any profession or carry on any
occupation, trade or business. By promulgation of the
clause 11(V) of Control Order, 2015 the valuable right of
the petitioner to conduct the business has been
debarred by the State.
Mr. Saha Ray has argued that the Hon'ble
Supreme Court has decided the issue in Brij Monhan
Lal Vs. Union of India & Ors. reported in (2012) 6
SCC 502 in paragraph 100 that, when High Court can
interfere in the policy decision of the State.
Mr. Saha Ray further submits that there is no
reasonableness of the State to promulgate such Clause,
moreover in the earlier control order that is
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Control Order, 2003 or Control order, 2013, there are
no such provisions for limitation regarding filing
application within a particular age.
He further argued that the Control Order, 2024
also did not make any provision for age limit for
compassionate appointment, which prove arbitrary
action of the State.
He further submits that the policy as laid down
by the State is purely unjust and cannot be allowed to
be continued.
Mr. Saha Ray also cited a decision of Indian Bar
Council of legal and legal aid and advise and others
Vs. bar council of India reported in 1995 (1) SCC
732 and argued that the Bar council of India has
restricted the law graduate to entry in the legal
profession beyond 45 years. Such decision was under
challenged of the Hon'ble Supreme Court. In deciding
the issue the Hon'ble Supreme Court has held where
there is no upper limit for practicing as an advocate
there must not be any entry limit in the said profession.
Thus, the decision of the Bar Council of India was
strucked down by the Hon'ble Supreme Court.
Mr. Saha Ray further argued that the instant
petitioners have demonstrated the fact before this court
that if the impugned vacancy notification is allowed to
be continued and if one selected and ultimately
petitioner if got success in the writ petition, the entire
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selection procedure would be vitiated, so he submits at
this juncture, the selection procedure as adopted by the
concerned SCFS through the vacancy notification is
required to be stalled.
Mr. Sirsanya Bandopadhyay, learned senior
standing counsel appearing on behalf of the State
respondent submits that the petitioners has no locus
standi to file the instant writ petition as the writ
petition was filed after last date of application. He
further submits that that there is presumption of
correctness of every statute. Thus, at this juncture, the
petitioner cannot have any interim order.
He further placed his reliance upon the same
provisions of State of Rajasthan, State of Jammu
Kashmir and State of Telengana, where in case of
appointment of fair price shop dealer, there are age
limit. It is the conscious submission of Mr.
Bandopadhyay that the State of West Bengal following
the other States of all over India has followed the same
instances so that the similar statute may be follow all
over the country.
He further argued that different authorities has
decided the issues that the State has the authority to
fixed the criteria for age limit for entry of a particular
business, trade, profession.
In support of his contention, he cited a decision
of Hon’ble Division of this Court passed in MAT 1166
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of 2020. Mr. Bandopadhyay has placed some pragraph
of the judgment of the Division Bench has pointed that
the term “qualificastion” as appearing in article 19(6) of
the constitution of India cannot be limited to education
and technical qualification only and must necessarily
included age, designation, experience amongst the
others. Mr. Bandopadhyay has also placed his reliance
upon the same decision of the Hon’ble Supreme Court
in Rachana & Ors. Vs. Union of India & Ors. reported
in (2021) 5 SCC 638, Directorate of film Festivals &
Ors. Vs. Gaurav Ashwin Jain & ors. reported in (2007)
4 SCC 737, Union of India Vs. Swapnaneel Deka &
ors. reported in (2013) 6 Gauhati Law Reports 587.
In Rachana(Supra), the decision of the
concerned authority is under challenge regarding Civil
Service(Preliminary Examination) for administrative
service. The Hon’ble Supreme Court has specifically
dealt with the issue and is of opinion that paragraph 43
reads as follow:
“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. The relevant portion is as under:
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47. There is one more reason due to which we are
unable to subscribe to the view taken by the Madras
High Court and the Delhi High Court. The horizontal
reservation and relaxation for physically handicapped
category candidates for Civil Services Examination, is a
matter of governmental policy and the Government after
considering the relevant materials has extended
relaxation and concessions to the physically
handicapped candidates belonging to the reserved
category as well as general category. It is not in the
domain of the courts to embark upon an enquiry as to
whether a particular public policy is wise and acceptable
or whether better policy could be evolved. The Court can
only interfere if the policy framed is absolutely capricious
and non-informed by reasons, or totally arbitrary,
offending the basic requirement of Article 14 of the
Constitution.”
In Directorate of Flim Festivals & Ors(supra)
when a Director was debarred to entry in the
International Flim Festival without having a necessary
certificate from the concerned authority he approached
the Hon’ble Supreme Court, the Hon’ble Supreme Court
after categorical discussion upon the matter has
pointed out the power of judicial review of Court at
paragraph 16 as follows:
“16. The scope of judicial review of governmental
policy is now well defined. Courts do not and cannot act
10as 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 Consitution,
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, Sitaram Sugar Co. Lotd. V. Union of
India, Khoday Distilleries Ltd. vs. State of Karnataka,
BALCO Emplouyees’ Union v. Union of India, State of
Orissa vs. Gopinath Dash and Akhil Bharat Goseva
Sangh(3) vs. State of A.P.”
In Swapananeel Deka & Ors(Supra), the Hon’ble
Division Bench of Gauhati High Court was held with
the scope of State Police Service Officer to participate in
India Police Service Examination after five years’
experience. In dealing with the said issue, the Hon’ble
Division Bench of the Gauhati High Court has also
upheld the decision of the State.
Now, dealing with the entire issue herein in the
preliminary stage, it appears to me that the petitioners,
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who are aspirants to the vacancy notification issue by
the concerned Sub-division Controller (F&S) are
debarred due to their age i.e. to say they all have cross
the age of 45 years. Let me consider whether the said
vires of the statute i.e. the sub-clause (V) of Clause 11
of West Bengal Targetted Public Distribution System
Maintance and Control Order, 2024, which restrict the
petitioner to participate in the vacancy notification of
the Sub-division Controller is prima facie violates
fundamental right of the petitioner or not.
This Court has to consider whether any
fundamental right of the petitioners has been violated
by promungation of sub-clause (V) of Clause 11 of the
Controller Order, 2024.
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 as a notification to the
State as follows:
“WHEREAS 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) has
issued Targetted Public Distribution System (Control)
Order, 2015, by GSR 213(E) dated 20th March, 2015 as
subsequently amended.
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AND WHEREAS, 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
matter connected therewith an incidental thereto”
NOW, THEREFORE, the Governor is, in exercise of
power conferred by Section 3 and Section 5 of the
Essential Commodities Act, 1955(10 of 1955) read with
Government of India, Ministry of Consumer Affairs, Food
and Public Distribution (Department of Food and Public
Distribution) Order No.GSR 213(E), dated 20th March
2015, pleased hereby to make the following Orders:-
The Control Order, 2013, which was earlier
prevailing now has abolished by the promulgation of
National Food Security Act, 2013 and Targetted Public
Distribution(Control) Order, 2015. NFSA, 2013 or
TPDS(Control) Order, 2015 admittedly does not provide
any age restriction for the aspirant in the vacancy
notification Control Order, 20245 is a delegated
legislation. It is the fact that the State of West Bengal
has introduced the age limit for the candidate, who can
apply for FPS licence. Whether this restriction at all
13violates the fundamental rights of the petitioners is the
sole question before this Court. In dealing with the
issue I take assistant the observations of Hon’ble
Supreme Court in Brij Mohan Lal(Supra) on the
paragraph 100 wherein it has been enumerated:
“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.
In deciding the instant issue, under the right of
Hon’ble Supreme Court in in Brij Mohan Lal(Supra) to
be justified whether the sub-clause (V) clause 11 of
Control Order, 2014 is at all reasonable. The policy for
age limit had been introduced. The basic purpose of
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the State to appoint a fair price shop dealer to
distribute the ration articles to the PDS beneficiaries. It
is the policy of the State that the PDS beneficiaries may
appear before of the fair price shop to collect food grain
dealer or the dealers may distribute the ration articles
at their door step in the scheme of Duara Ration. The
required purpose can be fulfilled by a person of more
than 45 years. The responsibility of ration articles
cannot so hazardous or troublesome, so that a person
aged more than 45 years cannot perform the same. It
further appears that till today there are number, of
ration dealers in the state aged more than 50 years,
who are performing the business of FPS in unblemished
manner. Moreover, the State cannot introduce a policy,
which can take award the right of an individual to take
participate in a business to their wish. So, assessing
the duty entrusted upon ration dealer and the
restriction as imposed under sub-clause (V) of Clause
11 of the Control Order, 2024, prima facie, I find no
reasonableness to introduce such restriction.
Moreover, the Hon’ble Supreme Court in Brij Mohan
Lal (Supra) also discussed to find out the philosophy
behind this provision. Prima facie I find no philosophy
at this juncture, however, these issue can be very well
decided in affidavits. Moreover, the Control Order,
2024 has its source urgent under NAFA 2013 and TPDS
(Control) Order, 2015, which does not restrict any
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aspirant to participate in the selection process within a
beyond age limit. Thus, this provision prima facie
appears to me beyond its power of deligation. The State
legislation shall not be act beyond its power of
delegation.
Learned Standing counsel has relied upon the
decision of Hon’ble Division Bench of this Court in MAT
1116 of 2023 and submits that the Division Bench has
clarified the position that the State Government may fix
the age limit regarding entry point in the business or
trade or profession.
After careful considering of the decision of
Hon’ble Division Bench it appears to me that the
illegality of Rule 23(C ) and 31(5) of the West Bengal
Electrical License Rule 2017, which imposed an age
restriction on the issuance of renewal of certificates for
electrical supervisory under Electricity Act, 2013 is
under challenge with a ground that the same is untra
vires to the constitution and violative to the article
19(1)(g) of the constitution of India. Before the Hon’ble
Division Bench, it is also the issue that the Central
Electricity Regulation 2016 and Section 80 of the
Electricity Act, 2003 does not empower the State to
make regulation lying done the age bar for renewal of
licnece. The Hon’ble Division Bench has discusses the
entire issue and upheld the decision of the State on the
ground the term “Qualification” in Article 19(6) of
16
Constitution includes not only educational but also
includes age, designation experience etc. The Hon’ble
Division Bench has also decided the issue of facts,
which disclosed that the responsibility and the act to be
done to a electrical supervisors. After through
consideration, of the performance to be done by the
electrical supervisors and their service hazardous/
responsibility to be performed, it appears to me that the
electrical supervisors are entrusted to such serious job,
which if done in less care or caution and a slight
infraction thereof may cause serious injuries to public.
The serious nature of performance of electrical
supervisors as discussed by the Hon’ble Division Bench
in its decision is not squarely similar to that of the
work condition and responsibility required to be
performed by a MR dealers. Thus, it appears that the
decision of the Hon’ble Supreme Court in the Eastern
Regional Electrical Contractors(MAT 116 of 2022) is
factually different to that of the instant writ petition.
Considering the entire aspect and also in
considering the argument advance on behalf of the
parties, prima facie it appears to me that the petitioner
have successfully demonstrates the fact that the
provision enshrined in sub-clause (V) of clause 11 of
Control Order, 2024, prima facie violative to the
guarantee under article 19(g) of the constitution of
India. In deciding the balance of convenience and
17
inconvenience of this case, it appears to me that the
same is tilting in favour of the petitioner i.e. to say if
any person was appointed by strength of the impugned
vacancy notification and after final decision of this case,
if writ petitioner succeeds the entire procedure of
selection would be vitiated, 3rd party right but during
that period may would be created therein, and
multiplicity of proceedings would be cropped up. Thus,
I think it necessary to pass an interim order in this
matter.
Under the above observation, it is ordered that
that the State authority concerned may proceed with
the impugned vacancy notifications, but so far the grant
of licence to any individual/applicant, is concerned, the
same shall not be issued till the final decision of the
instant matter.
The State authority is at leave to file affidavit-in-
opposition within three weeks from date, reply if any, by
the petitioner within two weeks thereafter.
Let the matter go out of list.
Parties are liberty to mention.
All parties shall act on the server copy of this
order duly downloaded from the official website of this
Court.
( Subhendu Samanta, J.)
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