Ishita Bhattacharya Majumder vs State Of West Bengal & Ors
2023 Latest Caselaw 4969 Cal

                 IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                       APPELLATE SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI


                            WPA/811/2022
                  Ishita Bhattacharya Majumder
                             -Vs-
                  State of West Bengal & Ors.

      For the Petitioner:      Mr. Soumik Ganguly, Adv.,
                               Mr. Susnigdho Bhattacharyya, Adv.,
                               Ms. Chandana Chakraborty, Adv.

      For the private respondent:

Mr. Ram Anand Agarwala, Adv., Ms. Nibedita Pal, Adv., Mr. Ananda Gopal Mukherjee, Adv., Ms. Sonam Ray, Adv.

      For the State:           Mr. Sirsanya Bandopadhyay, Adv.,
                               Mr. Arka Kumar Nag, Adv.


Hearing concluded on: 25 July, 2023.
Judgment on: 11 August, 2023.

BIBEK CHAUDHURI, J. : -

1. On the basis of an advertisement published in a Bengali Daily

"Bartaman" on 4th September, 2020 under the signature of respondent

No.2, the Sub-Divisional Controller, Food and Supplies Barasat, North 24

Parganas, a vacancy notification was declared for filing up the vacancies

of Fair Price Shop under the provision of WBPDS (Control and

Maintenance) Order, 2013. The terms and conditions to be fully filled up

for filing the application was also notified in the Kolkata Gazette on 13th

March, 2020 and 7th July, 2020. The petitioner applied for the grant of

licence in respect of the vacancy arising at Ashokenagar in the district of

North 24 Parganas on 24th September, 2020 along with all supporting

documents which was duly received by the respondent No.4 on 30th

September, 2020. The petitioner received a notice, dated 9th January,

2021 from the respondent No.4 intimating her that physical inspection

would be conducted on 14th January, 2021 at around 2 pm at the

proposed location of the petitioner at Ashokenagar. She was asked to

remain present in the said location. After conducting physical inspection

on the aforesaid date, the petitioner reasonably thought that she would

get to know the result of the said inspection. However, she did not get any

reply as to the status of her application. The petitioner wrote a letter by e-

mail. On 5th January, 2022 she received a reply from respondent No.4

wherefrom she came to know all the previous notifications were cancelled

as per the instruction from the Directorate of DDP & S for re-notification

of the appointment of FPS dealer against the said notification. The said

Sub-Divisional Controller also received another instruction from the

Directorate, DDP & S for reconsideration of the case of Smt. Anjana

Bhattacharjee, private respondent No.6 herein for appointment of FPS

dealer of compassionate ground in place of her deceased father Late Anil

Chandra Chakraborty.

2. Therefore, the instant writ application is filed by the petitioner for a

direction of issuance of a writ in the nature of mandamus upon the

respondent authority to adhere to the Rules and Regulations contained in

WBPDS (Maintenance and Control) Order, 2013 as amended from time to

time. The case of the private respondent No.6, on the other hand, is that

her father was the MR dealer in respect of the fair price shop at

Ashokenagar. He died on 2nd February, 2013 and upon his demise, the

petitioner made an application for her appointment on compassionate

ground before the Sub-Divisional Controller, Food and Supplies, Barasat

on 2nd May, 2013. The Sub-Divisional Controller, Food and Supplies

Department, Barasat summoned all the legal heirs of the said deceased

dealer for hearing and the said legal heirs gave their no objection in

favour of the petitioner. The Sub-Divisional Controller rejected the

petitioner's application on 6th January, 2015 on the ground that the

petitioner applied for licence of dealership of fair price shop on the basis

of Control Order of 2003. However, the said Control Order was repelled by

2013 Control Order. The application for compassionate appointment

ought to have filed by the respondent No.6 under 2013 Control Order.

Thus, the application was rejected by the Sub-Divisional Controller, but it

was never communicated to the respondent No.6. The respondent No.6

made an appeal before the First Appellate Authority, i.e., the District

Controller, Food and Supplies, Barasat and subsequently to the Director,

DDP & S for consideration of her application for appointment on

compassionate ground. During the pendency of the said appeal the Sub-

Divisional Controller declared vacancy in respect of dealership of fair price

shop at Ashokenagar on 4th September, 2020.

3. Since the appeal of the respondent No.6 was pending before the

Appellate Authority, the Appellate Authority directed the Sub-Divisional

Controller not to renotify the vacancy and the said resultant vacancy was

cancelled on 29th April, 2022. The Appellate Authority, upon consideration

of the legitimacy of the respondent No.6 for appointment on

compassionate ground granted approval and accordingly a licence was

issued on 5th July, 2022 in favour of the respondent No.6. However, the

said licence could not be acted upon because of the interim stay passed

by this Court in the instant proceeding.

4. Under such circumstances, the writ petitioner was not found

eligible against the vacancy in question and therefore, she is not entitled

to any relief.

5. The learned Additional Government Pleader on behalf of the

respondent No.1-5 submits in a written notes of argument stating, inter

alia, that one Anil Chandra Chakraborty was a licence dealer of a fair

price shop lying and situated at Ward No.18, Ashokenagar. The said

licencee died on 3rd February, 2013. On the demise of the original licency,

his daughter Smt. Anjana Bhattacharjee, respondent No.6 herein made

an application for dealership in respect of the said fair price shop on 2nd

March, 2013 within the prescribed period of time. The Sub-Divisional

Controller vide memo No.17 dated 6th January, 2015 rejected the prayer

of respondent No.6 and sent a proposal for declaration of the resultant

vacancy at Ashokenagar to the Department of Food and Supplies. The

department approved the creation of resultant vacancy vide G.O No.914-

FS dated 4th March, 2020. Accordingly the vacancy was notified and it

was published in the newspaper on 4th September, 2020. The petitioner

applied for engagement as a dealer through selection process on 30th

September, 2020. The application was duly processed as per the Control

Order of 2013. There were two other applicants who applied for selection

against the said vacancy on 6th March, 2020. It was found on scrutiny

that none of the applicants was able to fulfill the eligibility criteria as

mentioned in the vacancy notification. The District Controller was

directed to take necessary measure for renotification vide memo No.2463-

FMR dated 30th September, 2021. In the interregnum, the respondent

No.6 made a representative before the Directorate, DDP & S for

reconsideration of her prayer for engagement as a dealer on compassion

ground on the death of her father. As directed by the Directorate, DDP &

S a personal hearing was given to the respondent No.6 by the Deputy

Directorate (Licence). The respondent No.6 was informed by the Deputy

Directorate (Licence) that her application was already rejected on 6th

January, 2015. However, the said order of rejection was not

communicated to her. The record revealed that the order of rejection of

the application made by the respondent No.6 was received by one Tapasi

Sarkar claiming to be her sister. The respondent No.6 pleaded that she

has no sister named Tapasi and the signature on the receipt copy of the

communication was forged. The Deputy Director (Licence) was satisfied

with the reasons provided by the respondent No.6. He further found that

the respondent No.6 was completely dependent on the dealership

business at the time of death of her father as her husband was bed ridden

and her son was unemployed. The respondent No.6 was also able to

satisfy that she had duly obtained no objection form of the surviving legal

heirs of the original licencee, namely, Late Anil Chandra Chakraborty. On

being satisfied with as such the Deputy Directorate (Licence) held that the

initially rejection of the application filed by the respondent No.6 was

improper and the order of rejection was not properly communicated upon

her due to which she could not prefer an appeal before the appropriate

authority within the stipulated time under Clause 25 of WBPDS

(Maintenance and Control) Order, 2013. The Deputy Directorate (Licence)

vide memo dated 17th December, 2021 directed the Sub-Divisional

Controller to reconsider the application of the respondent No.6 for

engagement as a fair price shop dealer on compassionate ground and

keep the renotification of the resultant vacancy in abeyance till the

disposal of the application of the respondent No.6. Thereafter by an order

dated 20th December, 2021 the Sub-Divisional Controller directed the

respondent No.6 to submit a fresh application as per Form-C of the

Control Order of 2013. The said application was submitted by the

respondent No.6 on 25th January, 2020.

6. Simultaneously, on 3rd January, 2022 the petitioner made

application before the Sub-Divisional Controller to know the status of her

application which she made against the vacancy notification dated 6th

March, 2020. The Sub-Divisional Controller by a letter dated 5th January,

2022 informed the petitioner about the status of her application. He also

intimidated the reasons as to why the application of the respondent No.6

was being reconsidered by the Sub-Divisional Controller as well as the

Appellate Forum. The petitioner without availing the opportunity of appeal

before the District Controller, filed the instant writ petition on 28th

January, 2022. It is also urged on behalf of the state respondents that in

the absence of any order of stay, the application filed by the respondent

No.6 was considered by the Sub-Divisional Controller, Barasat and she

was found to be eligible to be appointed as FPS dealer on compassionate

ground. Proposal was sent for appointment of respondent No.6 on

compassionate ground to the government. The Additional Secretary to the

Government of West Bengal vide G.O No.1796-FS dated 29th April, 2022

accorded approval for cancellation of resultant vacancy. Subsequently,

the Sub-Divisional Controller vide memo No.17th May, 2020 approved the

application dated 25th January, 2022 filed by the respondent No.6 and

granted licence of FPS dealership in her name as per the Control Order of

2013.

7. Having heard the learned Advocates for the petitioner, respondent

No.6 and the state respondents and on perusal of the materials on record

as well as the written notes of argument it is ascertained that the

petitioner's application for grant of licence of FPS dealership against the

vacancy notification dated 6th March, 2020 was rejected on the ground

that the petitioner failed to maintain balance of Rs.5 lakhs in her bank

account for a period of one year proceedings the date of her application.

The above deficiency made the petitioner ineligible for consideration in

terms of the mandate dated 21st July, 2014. Moreover, during field

inspection it was found that the petitioner was not in possession of

godown and office space measuring about 400 sq.ft and 200 sq. ft.

respectively. The measurement of the petitioner's godown and office space

were 297 sq. ft. and 136 sq. ft. respectively. Being unsuccessful, the

petitioner has no locus standi to challenge the selection process against a

vacancy notification which was subsequently cancelled by the

department. The resultant vacancy was cancelled by the Deputy

Directorate (Licence) on the ground that the application for compassionate

appointment of the daughter of the original licensee was wrongly rejected

by the Sub-Divisional Controller on improper application of Control Order

of 2013. The Directorate of Food and Supplies Department did not take

the decision on its own. The claim of the respondent No.6 was sent to the

Secretariat and it was duly approved by the Secretariat and

communicated by the Additional Secretary to the Department. On the

basis of such order, the order of appointment was granted in favour of

respondent No.6.

8. The learned Advocate for the respondent No.6 submits that the

Control Order of 2013 was amended in the year 2021 which was

published in the Kolkata Gazette dated 9th August, 2021. Sub-Clause (VI)

of Clause 20 of the said Control Order states that in case of death of a

licensee, prayer for engagement on compassionate ground shall be

submitted within 90 days from the date of death of the licensee. The

original licensee died on 2nd February, 2013 and respondent No.6 filed

application on compassionate ground on 2nd May, 2013. She also filed no

objection affidavit of other family members of the deceased licensee.

Therefore, she was entitled to get licence on compassionate ground. The

Administrative Department rejected her application initially on wrong

assumption of applicability of Control Rule of 2013. The Control Order of

2013 was not made applicable in case of the respondent No.6.

Subsequently, the department rectified its own wrong by recalling

renotification of vacancy order in respect of Ashokenagar fair price shop.

It is submitted on behalf of the respondent No.6 that Administrative

Department is within its domain to rectify its own wrong.

9. It is also submitted by the learned Advocate for the State that the

petitioner has no judicially enforceable right in view of rejection of her

application. There must be a judicially enforceable as well as a legally

protected right before one suffering a legal grievance can ask for a

mandamus. A person can be said to be aggrieved only when a person is

denied a legal right by someone who has a legal duty to do something or

abstain from doing so. In support of his contention the learned Advocate

for the State refers to a decision of the Hon'ble Supreme Court in the case

of Mani Subrat Jain & Ors. vs. State of Hariyana & Ors. reported in

(1977) 1 SCC 486.

10. Learned Advocate for the petitioner, on the other hand submits that

compassionate appointment is required to be considered without any

delay because firstly, a compassionate appointment is made to meet the

sudden crisis occurring in a family on account of the death of its

breadwinner while in service and secondly, appointment of compassionate

ground is made to meet the crisis on account of medical incapacity of

the breadwinner. In the instant case the original licensee of the concerned

fair price shop died in the month of February, 2013. Compassionate

appointment was granted in favour of the respondent No.6 after a lapse of

long nine years without considering the fact as to whether the grounds for

compassionate appointment which exhausted in the year 2013 is still in

existence in the year 2022-2023.

11. It is also pointed out by the learned Advocate for the petitioner that

the respondent No.6's prayer was initially rejected by the Sub-Divisional

Controller after long lapse of time it was reopened on cancellation of

resultant notification for filling up of vacancy. The entire action of the

Administrative Department is mala fide and suspicion. Therefore, the

prayer made by the respondent No.6 is liable to be rejected and petitioner

may be allowed to apply afresh on the basis of re-notification of the

vacancy of Ashokenagar fair price shop.

12. Learned Advocate for the respondent No.6 submits that from the

submission made by the state respondents in the written notes of

argument, it appears that the Deputy Directorate (Licence) directed the

Sub-Divisional Controller to reconsider the application of respondent

No.6. The Sub-Divisional Controller on objective inquiry found respondent

No.6 eligible for engagement as a FPS dealer on compassionate ground.

Therefore, the resultant vacancy was cancelled vide order dated 29th April,

2023. The respondent No.6 within the statutory period of time made

application for compassionate appointment it was however rejected by the

respondent on misconception of the statutory provision. The

Administrative Department took long time to grant the application filed by

respondent No.6. For such delay the claim of the respondent No.6 cannot

be said to be non-existence. Even during inquiry in the year 2022 the SCF

& S was satisfied about the need of the respondent No.6 in support of her

claim for engagement as FPS dealer in the fair price shop. Since the

respondent No.6 has already been appointed the instant writ petition is

not maintainable.

13. Considering the submission made by the learned Counsels for the

parties this Court is of the view that the instant writ petition is not

maintainable in view of subsequent appointment of respondent No.6 as

FPS dealership on compassionate ground. It is also not maintainable on

the ground that the initial application of the petitioner was rejected for

want of financial solvency and non availability of godown and office space

as per the measurement stipulated in the Control Order. The writ petition

is also not maintainable as the re-notification of the vacancy was

cancelled by the administrative order.

14. For the reasons stated above the instant writ petition is dismissed

on contest, however without cost.

15. With the disposal of WPA 811 of 2022, WPCRC 152 of 2022 is also

disposed without any order.

(Bibek Chaudhuri, J.)