Calcutta High Court (Appellete Side)
Rahima Bibi vs The State Of West Bengal & Ors on 5 December, 2023
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
M.A.T. 1835 of 2023
with
CAN 1 of 2023
Rahima Bibi
VS.
The State of West Bengal & Ors.
For the Appellant : Mr. Prosenjit Mukherjee
Mr. Aslam Parvez
Mr. Jahangir Hossain
For the State : Mr. Amitesh Banerjee, Sr.St. Counsel
Mr. Suddhadev Adak
Heard on : December 5, 2023
Judgment on : December 5, 2023
DEBANGSU BASAK, J.:-
1.
The appeal is directed against the judgment and order dated
September 4, 2023 passed in W.P.A. 24450 of 2018.
2. By the impugned judgment and order, the learned Single Judge
dismissed the writ petition.
3. Learned advocate appearing on behalf of the appellant submits
that, the deceased husband of the appellant was a dealer of a Fair
Price Shop as also kerosene oil. The husband of the appellant
expired on October 16, 2011. An application for compassionate
engagement was made by the younger son of the appellant which
was granted. Immediately, after the grant of such appointment,
the younger son also expired. The younger son expired on October
12, 2023. The appellant applied for compassionate engagement for
her elder son by an application dated December 6, 2013, which
was recommended to by one of the authorities. Thereafter, the
appellant applied for compassionate engagement on September 23,
2015. He submits that, the application for compassionate
engagement of the appellant was rejected.
4. Learned advocate appearing for the appellant draws the attention
of the Court to the provisions of the West Bengal Public
Distribution (Maintenance and Control) Order, 2013, particularly
to the provisions relating to engagement on compassionate ground.
He submits that, engagement on compassionate ground is
permissible. He draws the attention of the Court to the authorities
prescribed for the purpose of considering an application for grant
of compassionate engagement. He submits that, under the West
Bengal Public Distribution System (Maintenance and Control)
Order 2013, the authority prescribed is different to that prescribed
under the Kerosene Control Order. He submits that in the facts of
the present case, the impugned order of rejection of the application
of the appellant, under the Order of 2013 was considered and
rejected by an authority not prescribed by the Order of 2013.
5. Learned advocate appearing on behalf of the appellant submits
that, the time period of 60 days prescribed in the Order of 2013 is
not mandatory. In support of such contention, he relies upon a
decision of the Co-ordinate Bench reported in AIR 2021 Cal 5
(Bakul Rani Patra vs. State of West Bengal & Ors.).
6. In support of the contention that compassionate appointment can
be granted even if the application for grant of the same is said to
be belated, learned advocate appearing for the appellant relies
upon (2006) 9 SCC 195 (Syed Khadim Hussain vs. State of
Bihar & Ors.) and (2011) 2 CHN 17 (DB) (Syed Iftikar Ali vs.
State of West Bengal).
7. Learned Senior Standing Counsel appearing for the State submits
that when the husband of the appellant died he was survived by
the appellant as his widow as also two sons. In the application for
grant of compassionate engagement for the younger son, the
appellant and the younger son stated that the elder son was
disinherited from the properties and the estate of the deceased
husband. Thereafter, on such factual matrix, compassionate
engagement was granted to the younger son of the appellant. The
younger son expired on October 12, 2013. The appellant made an
application for compassionate engagement of the elder son on
December 6, 2013. He submits that the appellant was well aware
of the provisions of the Order of 2013 with the appellant taking
benefit thereunder once. Therefore, today, the appellant cannot
plead that she was ignorant of the provisions of the Order of 2013.
He refers to the provision of the Control Order of 2013 and submits
that, the elder son does not come within the definition of a family
member of the younger son in view of the facts that the two sons
are brothers. Brothers are not included into the definition of
family under the Order of 2013. The appellant applied for
compassionate engagement on December 17, 2015 which cannot
be allowed inter alia on the ground of delay.
8. Relying upon (1994) 4 SCC 138 (Umesh Kumar Nagpal vs. State
of Haryana & Ors.) and (2013) 1 CHN 18 (Piali Saha vs. State
of West Bengal), learned Senior Standing Counsel appearing for
the State submits that when a time is fixed by a Sub-ordinate
Legislation, the same is to be taken as mandatory as the Court
cannot amend the standing order.
9. The husband of the appellant was engaged as a Fair Price Shop
Dealer as also a Kerosene Oil Dealer. He expired on October 16,
2011. He left behind surviving the appellant and his two sons.
10. Engagement of the husband of the appellant was under the
provisions of the West Bengal Public Distribution System
(Maintenance and Control) Order 2013. Such order of 2013
provideds for engagement on compassionate ground which is as
follows:-
"vi) Engagement on compassionate grounds;- In case of
vacancy arising out of death or in case of incapacitation on
medical ground, subject to satisfaction of the authority, of
any existing dealer, such vacancy shall not initially be
notified. Prayer of any of the family members of the
deceased/incapacitated dealer having no regular means of
subsistence, will be considered with preference on
compassionate ground provided such prayer along with
formal application in Form 'C' along with Annexure 1 with
requisite fee is submitted within 60 days from the
occurrence of such vacancy.
While applying, the applicant shall have to furnish "No
Objection" from other family members in the form of an
Affidavit executed before a 1st Class Magistrate except in
the following cases: (a) if the applicant be the spouse of the
deceased licensee, (b) if the ex-licensee, because of his/her
being incapacitated/infirm has opted for the applicant.
The Sub-divisional Controller, Food and Supplies shall
arrange for an enquiry to verify the eligibility of the
applicant and submit the report with his opinion to the
District Controller, Food and Supplies. While forwarding a
case on medical ground the Sub-divisional Controller should
satisfy himself/herself on examination of the medical
prescription and certificate issued by a Registered
Government Medical Practitioner that the ex-licensee was
not in a position to run dealership business considering
his/her health ground. The District Controller, Food &
Supplies, shall forward the same with his comments to the
State Government through the Director, DDP&S for
necessary approval.
The Sub-divisional Controller, Food and Supplies after
having Government approval, shall issue an offer letter in
Form D to the approved candidate, directing him/her to
furnish recent passportsize photograph(s), security deposit
and licensing fee as per Clause 21(i) and Schedule A.
(vii) Dealership run by any individual person shall not be
allowed for inclusion of any partner(s). In the case of
induction of new partner or substitution or exclusion of an
existing partner, in an existing partnership licence, the
same may be considered on merit subject to the provision of
the Indian Partnership Act 1932 as amended from time to
time."
11. Engagement on compassionate ground is to be granted to the
family member of the existing dealer. Family member is defined
under the Order of 2013 as follows:-
(m) "Family members" means spouse, dependent parents,
dependent sons and daughters for the purpose of considering
engagement as Dealers/Distributors on compassionate
ground;
12. As noted above, the husband of the appellant was survived by the
appellant and their two sons. An application for compassionate
engagement was made on the death of the husband of the
appellant for the younger son of the appellant, inter alia, on the
premise that the elder son of the appellant stood disinherited from
the estate of the deceased husband of the appellant.
13. Younger son of the appellant was granted engagement as a Fair
Price Shop Dealer as also a Kerosene Oil Dealer on compassionate
engagement. The younger son of the appellant expired on October
12, 2013.
14. On the younger son of the appellant expiring, the family members
as defined under the Order of 2013 became entitled to apply for
engagement on compassionate ground.
15. The appellant took advantage of an engagement on compassionate
ground as provided under the Order of 2013 once on the death of
her husband on October 16, 2011. On the death of her younger
son, the appellant applied for engaging the elder son of the
appellant by a writing dated December 6, 2013. Elder son of the
appellant does not come within the definition of family member.
Moreover, on the earlier occasion for compassionate engagement,
the elder son was said to be disinherited from the estate of the
deceased husband of the appellant.
16. The appellant comes within the definition of family member of her
younger son who expired on October 12, 2013 as her younger son
was unmarried.
17. The appellant applied for engagement on compassionate
appointment on December 17, 2015, which as rejected by the
authorities.
18. Time prescribed for making an application for compassionate
engagement is 60 days in the Order of 2013. Whether such period
prescribed is mandatory or not was considered by the Co-ordinate
Bench in Bakul Rani Patra (supra). In the facts of that case, the
Co-ordinate Bench found that since the widow of the deceased
dealer made the application within 90 days from the date of death
and since the mental and other conditions of the widow did not
allow her to make the application within 60 days, the delay was
overlooked and the authorities were directed to consider and
decide upon the application for compassionate engagement.
19. Sayed Khadim Hussain (supra), Sayed Iftikar Ali (supra) and
Umesh Kumar Nagpal (supra) were rendered in the context of
service law and the provisions for appointment on compassionate
ground governing the service conditions of the deceased employee.
20. Again Piali Saha (supra) was rendered in the context of Rule 14 of
the West Bengal Primary School Teachers' Recruitment Rules,
2001. There, the Special Bench held that when the Legislature
fixed a time limit in relation to the substantive law, the Court
cannot take the task of legislature and extend the time limit as it
would amount to amendment of Rule which power the Court did
not possess.
21. In the facts of the present case, the appellant was well aware of the
provisions of the Order of 2013 and the nature and extent of a
family member as defined thereunder. She took advantage of the
Control Order of 2013 during the first round of compassionate
engagement in favour of her younger son. At that time, she
claimed that her elder son stood disinherited and, therefore, the
application of the younger son. Thereafter, on the death of her
younger son, she applied for compassionate engagement for her
elder son knowing fully well her earlier stand as also the provisions
of the Order of 2013.
22. Essentially, the appellant is seeking to treat the vacancy as an item
of inheritance. Compassionate engagement as contemplated
under the Order of 2013 is not a subject, which is to be dealt with
as a right of inheritance. Compassionate engagement is granted in
order to allow the family to tide over the financial difficulty on the
death of the dealer.
23. In such circumstances, we find no merit in the appeal. M.A.T.
1835 of 2023 along with connected application is dismissed
without any order as to costs.
(Debangsu Basak,J.)
24. I Agree.
(Md. Shabbar Rashidi, J.)
