Rahima Bibi vs The State Of West Bengal & Ors
2023 Latest Caselaw 5880 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                            WPA 24450 of 2018
                CAN 1 of 2019 (Old No. CAN 4031 of 2019)
                               Rahima Bibi
                                    Versus
                      The State of West Bengal & Ors.


For the petitioner             :     Mr. Amales Roy
                                     Ms. Mousumi Bhowal
                                     Mr. Aman Gupta
                                     Mr. Ishan Bhattacharya
                                                              .....Advocates
For the State                   :    Mr. Amitesh Banerjee
                                     Mr. Suddhadev Adak
                                                              .....Advocates
Heard lastly on                 :    17.03.2023

Judgment on                     :    04.09.2023



Jay Sengupta, J.:

1.   This is an application under Article 226 of the Constitution of India

praying for a direction upon the respondent authorities to set aside and

cancel the impugned order being Memo No. 666/FMR/13L-26/2014 dated

28.02.2018 and the impugned Memo No. 470/SCF & S/MTB/18 dated

31.08.2018 and to appoint the petitioner as M.R. dealer and S.K. oil dealer

on compassionate ground in place of the late Minarul Islam.

2. Learned counsel appearing on behalf of the petitioner submitted as

follows. In the present writ petition, the petitioner challenged the validity of

the impugned order dated 28.02.2018, issued by the respondent no. 2 and

the order dated 01.08.2018, issued by the respondent no. 5 in which the

petitioner's application for appointment as dealer on compassionate ground

was rejected on the ground that she applied after a long gap of more than 2

years from the death of ex-dealer, the petitioner's son. On 12.10.2013

Minarul Islam, the existing dealer and the son of the petitioner, who was a

bachelor, died intestate. On 06.12.2013 Rahima Bibi, the petitioner being

the mother applied before the Sub-Divisional Control, Food & Supplies,

Mathabhanga for appointment of her surviving son namely, Abdul Wahed

Ahmed as the M.R. dealer on compassionate ground. On 10.12.2013 Abdul

Wahed Ahmed, the son of the petitioner then applied in the prescribed form

along with a forwarding memo which was received by the office of the Sub-

Divisional Controller, Food and Supplies, Mathabhanga. The District

Controller did not reject the prayer of Abdul Wahed Ahmed instantly on the

ground that the brother did not fall within the meaning of family member.

On the contrary, the District Controller, after expiry of about 11 months,

forwarded the case of Abdul Wahed Ahmed with recommendation for

appointment as dealer on compassionate ground to the Joint Director

(Licence). On 23.07.2015 the prayer for appointment of Abdul Wahed Ahmed

as a FPS dealer on compassionate ground was rejected as the case was

beyond the scope of the said Control Order, 2013. On 23.09.2015 the

petitioner then applied for FPS dealership on compassionate ground as a

dependent mother. On 15.02.2016 the District Controller forwarded the case

of the petitioner with regard to approval of appointment of the petitioner as

MR dealer on compassionate ground to the Joint Director (License). On

31.08.2018 the prayer of the petitioner for appointment FPS dealer on

compassionate ground was rejected since she applied after a long gap of

more than two years from the death of ex dealer. There were sufficient

grounds for condoning the delay in making an application by the petitioner,

the dependent mother for appointment as a dealer on compassionate ground

in terms of the said Control Order, 2013. The question as to whether the

time limit of sixty days for making the application for appointment as a

dealer on compassionate ground was directory and not mandatory was no

more res integra in view of the judgment passed by the Hon'ble Division

Bench of this Court in Bakul Rani Patra versus the State of West Bengal &

Ors. reported in AIR 2021 Cal 5. It was, therefore, submitted that the

judgment of the Special Bench in Piali Saha versus State of West Bengal,

reported in 2013 (1) CHN (Cal) 18, strongly relied upon by the respondents

in the present case, was no longer the ratio.

3. Learned counsel appearing on behalf of the respondents submitted as

follows. In Umesh Kumar Nagpal versus State of Haryana reported in (1994)

4 SCC 138, it was held that compassionate appointment could not be

granted after lapse of a reasonable period which must be specified in the

Rules. In another judgment, V Sivamurthy versus State of Andhra Pradesh

and Others reported in (2008) 13 SCC 730, the Hon'ble Supreme Court

summarized the principles relating to compassionate appointment. Reliance

was placed on Bhawani Prasad Sonkar versus Union of India and Others

reported in (2011) 4 SCC 209. In Teri Oat Estates versus U.T. Chandigarh

and others reported in (2004) 2 SCC 130, the Hon'ble Supreme Court held

that sympathy or sentiment by itself could not be a ground for passing an

order in relation whereto the appellants miserably failed to establish a legal

right. Reliance was placed on State Bank of India and Another versus

Somvir Singh reported in (2007) 4 SCC 778. In Piali Saha Versus State of

West Bengal, reported in 2013 (1) CHN (CAL) 18, a Larger Bench of the

Calcutta High Court discussed compassionate appointments at length and

held, inter alia, that the period which had not been contemplated in the

Rule intending to create a right could not be extended by the Court and the

Court could not have any amending power of the legislation. In Arindam

Choudhury versus State of West Bengal reported in 2019 (1) CHN (Cal) 614,

a Division Bench of this Court held, inter alia, that it was clear that an

applicant for compassionate appointment did not acquire a right of

appointment only upon proving the distressed condition of the family

members of the employee who had died-in-harness. An aspirant for a post

must have other necessary qualifications which, inter alia, would include

being of the required age for entry in service, possessing the minimum

educational qualifications and bearing good moral character as well as

health. Financial crisis would not automatically guarantee an appointment.

4. I heard the learned counsels for the parties and perused the writ

petitions, the affidavits filed and the written notes of submissions.

5. Government largesse is to be available equally to all. Otherwise, the

same would violate Articles 14 and 16 of the Constitution of India.

Compassionate appointment is indeed an exception to the normal rule of

public appointment and engagement. It is made to tide over an immediate

crisis and is clearly not heritable that a family member could claim as of

right. That is why the Hon'ble Apex Court repeatedly held that there must be

strict compliance in matters of compassionate appointment. Compassionate

appointment has to be invoked strictly in accordance with the scheme laid

down.

6. It is settled law that compassionate appointment has to be made soon

after the death or in any event within a reasonable period or else, one would

have to presume that the family of the deceased was not in any immediate

need of financial assistance.

7. Clause 20(vi) of the West Bengal Public Distribution System

(Maintenance and Control) Order 2013 sets a time limit of 60 days for

applying on the ground of compassionate appointment.

8. If one gets into the facts of the case it will appear that there was an

inordinate delay caused by the petitioner in applying for compassionate

appointment. The original dealer Minarul Islam died on 12.10.2013. On

06.12.2013 the petitioner being the mother of the said dealer applied for the

appointment of her surviving son as the dealer. This cannot be treated as

the petitioner's own application. The said other son formally applied only on

10.12.2013. It is true that some time was taken for the authorities to apply

the existing law and deny him dealership on the ground that he did not fall

within the meaning of family member. It was only after the other son's

application was rejected on 23.07.2015 that the petitioner herself applied for

the dealership on 23.09.2015. Even the gap between these two dates is 60

days. Even if, for argumen't sake, the case of condonation of delay in

making application for compassionate appointment is considered, the delay

in the instant case is far too much to condone.

9. In view of the above discussions, I do not find any merit in this

application.

10. Therefore, the same is dismissed. The connected application also

stands disposed of accordingly.

11. However, there shall be no order as to costs.

12. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J.) S.M