Calcutta High Court (Appellete Side)
Chandra Prova Puglia vs The State Of West Bengal & Ors on 6 April, 2023
Author: Jay Sengupta
Bench: Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
W.P. No. 21220 of 2022
Chandra Prova Puglia
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Debabrata Saha Roy
Mr. Pingal Bhattacharyya
Mr. Subhankar Das
.....Advocates
For the State : Mr. T.M. Siddiqui
Ms. Adreeka Pandey
.....Advocates
Heard lastly on : 16.01.2023
Judgment on : 06.04.2023
Jay Sengupta, J.:
1. This is an application under Article 226 of the Constitution of India, thereby directing the respondent authorities to quash, set aside and withdraw the vacancy notification vide Memo No. 2876-FMR/13L-36/14 (pt-
v) dated 01.09.2022 issued by the Director, DDP & S, Food and Supplies Department, Government of West Bengal.
2
2. Learned counsel for the petitioner submitted as follows. The petitioner's father, namely Mal Chand Chhjer (since deceased) had been engaged as M.R. Distributor under Sainthia Municipality in the District of Birbhum. In the last few years the petitioner had assisted her ailing, aged father to run the said distributorship business. The petitioner made an application for transferring his father's Distributorship License in her favour on medical ground, enclosing therewith NOC from the other legal heirs and a representation of his father expressing his willingness to transfer the licence. After enquiry and on completion of formalities, the entire file had been forwarded to the Directorate, DDP & S by the District Authorities with strong recommendation. But, the application was kept pending for about 5 years by the Directorate. As per direction of the Director, DDP & S, the Joint Director (License), DDP & S returned back the file with the instruction to the D.C., F & S, Birbhum to re-submit the file following the Control Order, 2013. The communication dated 23.04.2014 had not been furnished to the petitioner and at a later stage, the petitioner could manage to collect a copy of the same. The petitioner's father died on 21.07.2014. On his death, the entire tagged dealers were temporarily tagged with the nearby Distributor. Thereafter, the petitioner's mother was granted Distributorship License on compassionate ground. The dealers were re-tagged. But, the petitioner's mother died on 25.10.2016. Within 27 days from the date of death of the mother, the petitioner submitted application for Distributorship License in place of her deceased mother with a request to the D.C., F&S, Birbhum to guide her for making a proper application and issue challan for depositing 3 application fee. On the death of the mother, all dealers were temporarily tagged with the nearby Distributor. Since the date of making application on 21.11.2016, the D.C., F&S, Birbhum neither supplied necessary challan for depositing the application fee nor intimated anything to the petitioner, guiding her to make a proper application. Notification no. 625-FS dated 06.03.2017 was published in the Official Gazette, amending the definition of 'family member', excluding married daughter. On receiving challan, the petitioner submitted a duly filled in application, enclosing therewith all required documents including application fees, etc on 23.08.2018. In W.P. 449 of 2019, this Court quashed the notification dated 07.03.2017. The Government included 'married daughter' within the definition of 'family member'. In continuation to her previous applications dated 21.11.2017 and 23.08.2018, the petitioner made further application for grant of Distributorship License on compassionate ground, enclosing therewith duly filled in prescribed application and all required documents. The D.C. (F&S), Birbhum forwarded the entire file to the Deputy Director (License), DDP&S to take the next course of action. But, without considering the petitioner's prayer, a vacancy was notified by the Director, DDP & S. The petitioner's first prayer dated 21.08.2009, when a married daughter was entitled to get Distributorship License on medical ground, was kept pending by the Directorate for near about 5 years and only after coming into force of the 2013 Control Order, the petitioner was instructed to submit fresh application. Had the application of the petitioner dated 21.08.2009 been considered within a reasonable time, the petitioner would have been granted 4 the license of her ailing father (since deceased) on medical ground. After the death of the mother (on 25.10.2016), who had been granted Distributorship License on the death of her husband, within 27 days from the date of death, the petitioner made application for grant of Distributorship License on compassionate ground, requesting the D.C. (F&S), Birbhum to guide her for making proper application and issue challan for deposition of application fee. However, the District Controller (F & S), Birbhum neither issued challan permitting the petitioner to deposit application fee nor intimated anything. By not issuing challan, the petitioner's right to get appointment on compassionate ground was taken away with utter violation of Articles 14, 19(I) (g) and 21 of the Constitution of India. On receiving challan and procuring format of prescribed application, the petitioner again applied for on 23.08.2018 in duly filed in prescribed application along with application fee and all required documents. Without considering the prayer of the petitioner for compassionate appointment as forwarded by the DCF&S, Birbhum on 06.07.2021, declaration of resultant vacancy was not only unreasonable, unfair and unjust, but also whimsical and demonstrated a total non-application of mind. It was settled law that the time limit framed for submission of application for compassionate appointment was not mandatory one and the same was directory. On this, reliance was placed on an unreported judgment dated 16.09.2015 passed in W.P. No. 963 of 2015 (Sefali Saha versus State of West Bengal & Ors.). Reliance was also placed on an unreported judgment of the Hon'ble Division Bench dated 24.06.2020, passed in MAT No. 1019 of 2018 (Bakul Rani Patra versus State of West 5 Bengal & Ors.). Vacancy arose on the date of death of the Dealer. Accordingly, the law prevailing on that day should govern the consideration of application for compassionate appointment, not any subsequent law. Reliance was placed on (a) 2016 (4) WBLR (Cal) 161 (Arbind Gupta versus State of West Bengal & Ors.), (b) MAT 756 of 2016 (State of West Bengal & Ors. Versus Arbind Gupta); (c) AIR 2016 CAL 251 (Matadin & Anr. Versus State of West Bengal & Ors.), and (d) 2015 (7) SCC 412 (Canara Bank & Anr. Versus M. Mahesh Kumar). So far the judgment, reported in AIR 1936 PC 253 (Nazir Ahmed versus The King Emperor) was concerned, it was also the petitioners' case that the law prevailing on the date of death of the deceased Distributor should be considered in its full spirit and without any little deviation and departure.
3. Learned counsel for the respondents submitted as follows. The core issue in the lis was whether, the purported application dated 21st October, 2016, which was merely a single page letter with no annexed documentation and not at all in the format of the Control Order, 2013, could be considered as an application at all and the following applications, dated 23rd August, 2018 and/or 22nd February, 2021 could be considered in continuation thereof. It was submitted that the department did, in fact, comply with the condition described in paragraph 6(i) above and did not initially notify a vacancy. However, since the petitioner failed to submit a application form in the prescribed format, the District Controller (F & S) was unable to conduct an enquiry and/or form an opinion. Without submission of the form, with complete details of the petitioner's eligibility, the District Controller (F&S) 6 had nothing to scrutinize and would not be able to satisfy himself as to whether the petitioner had any regular means of subsistence or was capable to run the Distributorship or not. At a belated stage, the point of the enquiry as mandated by Clause 26 (vi) would be lost and be rendered pointless. There was no way to ascertain at this belated stage whether the petitioner satisfied the criteria specified by statute for appointment on compassionate grounds. It was further to be noted that the opinion of the District Controller (F & S) was discretionary in nature and depended on the factors named hereinbefore, such as capability, means of subsistence, etc. It was not a matter of vested right that the petitioner could claim at her will. The Hon'ble Supreme Court repeatedly held that there must be strict compliance in matters of compassionate appointment. A compassionate appointment was made to tide over an immediate crisis and was not a heritable possession that a family member of a deceased distributor could claim. An appointment on compassionate ground was an exception to fundamental rights, especifically Articles 14 and 16 of the Constitution. The petitioner relied upon an unreported judgment of a Co-ordinate Bench of this Hon'ble Court, dated 16th September, 2015, in Sefali Saha versus the State of West Bengal & Ors. In this judgment, the application for appointment on compassionate ground was rejected by the department on the ground that such application was filed beyond the period of limitation prescribed under the Control Order, 2013. The facts of this case showed that the petitioner therein had intimated the department on the very next day of her husband's death, who had died- in-harness. Thereafter, she applied after approximately one month for 7 appointment on compassionate ground, although the same was not in the prescribed form. She then applied in the correct form after about three months. The Court held that since the first intimation was given a day after the death of original licensee and the first application filed three months thereafter was taken to be a continuation of the first application filed within the prescribed period of thirty days. Comparatively, the time period intervening the intimation and first application in the present case, is approximately 1 year and 9 months. The above mentioned unreported judgment had been dealt with in a judgment dated August 17, 2018 of another Co-ordinate Bench of this Hon'ble Court in Binod Kumar Shaw versus the State of West Bengal & Ors., reported at 2018 SCC Online Cal 12082. Clause 26 (vi) dealing with distributorship license also be referred to a larger bench to resolve the issues once and for all. However, it was to be noted that the abovementioned judgments dealt with dealership licenses and not distributor licenses, although the language of both clauses were in pari materia. The petitioner also relied on an unreported judgment dated 24th June, 2020 of a Division Bench of this Hon'ble Court being Bakul Rani Patra versus the State of West Bengal and Ors. This was also a case regarding dealership license and not a distributorship license. This judgment was entirely distinguishable on facts and circumstances of the instant case, since the writ petitioner, before the Hon'ble Division Bench, had filed a proper application in the prescribed form, although with TR Form 7 and all requisite documents and annexures, were filed belatedly i.e. approximately 7-8 months after the death of the license holder. Whereas, in 8 the instant writ petition, the so-called application made one month after the license holder's death was merely a sheet of paper, with two sentences and no annexed relevant documents, let alone deposition of prescribed form or fee, even at a much later date (approximately 1 year and 9 months after death of license holder) the purported second application as annexed in the supplementary affidavit appeared to be incomplete, and relevant annexures and attachments had not been brought on record. As such there was no proper application till 22nd February, 2021 (approximately 4 years and 3 months after death of license holder) and it was submitted that the same was filed to set up a ground for the instant writ petition. Reliance was placed on a judgment dated 5th August, 2022 of the Hon'ble Division Bench of this Hon'ble Court reported in AIR 2022 Cal 331 wherein it had been observed in paragraph 16 that "the outer limit of sixty days provided in clause (vi) is mandatory inasmuch as compassionate engagement is of urgent nature and vacancy is not to be notified in view of provision contained in Clause 20 (vi) of 2013 Control Order but this limitation is mandatory in case of death only." Considering the fact that the legislature had made its intention entirely clear by providing a time limit of sixty days for making an application on compassionate grounds for distributorship, there could be no doubt that it was a mandatory requirement and the provision had to be construed strictly. Reliance was placed on a decision of the Hon'ble Supreme Court in the case of Umesh Kumar Nagpal versus State of Haryana & Ors. Reported in (1994) 4 SCC 138 for the proposition that engagement on compassionate ground was granted to tide over the 9 immediate crisis of losing the sole earner of the family. Reliance was also placed on a decision of the Hon'ble Privy Council in the case of Nazir Ahmed versus the King-Emperor reported in AIR 1936 PC 253 for the proposition that where a power were given to do a certain thing in a certain way the thing must be done in that way, to the exclusion of all other methods of performance, or not at all.
4. I heard the learned counsels and perused the writ petition, the supplementary affidavit and the written notes of arguments.
5. The facts necessary for a proper adjudication of the present lis may briefly be enumerated as follows. The petitioner's father was engaged as an MR Distributor under the Sainthia Municipality in the District of Birbhum as far back in 1966. Due to his ill health, the petitioner made an application for transferring her father's Distributorship licence in her favour on 21.08.2009. But, the matter was kept pending for five years. The petitioner's father died on 21.07.2014. Her mother was granted Distributorship on compassionate ground in 2016. She too passed away, on 25.10.2016. Within 27 days of her death, on 21.11.2016 the petitioner made an application for Distributorship licence on compassionate ground and asked the authorities to guide her to make a proper application. But, the application was only a piece of paper and without relevant annexure. However, she was neither supplied any challan nor given any guidance. On 07.03.2017 a notification was published that excluded married daughter from the ambit of family member. On 23.08.2018 the petitioner could file a proper application with all documents. On 19.09.2019, this Court in WP 449 10 of 2019 quashed the notification of 2017. On 15.01.2020 the Government included a 'married daughter' within the definition of family member. Thereafter, the petitioner made a further application on 22.02.2021 in continuation of her previous applications. However, a vacancy was declared by the Director of DDP & S on 01.09.2021. The petitioner's contention is that once some kind of an application is made for compassionate appointment with the prayer for guidance to file a proper application and subsequently, a formal application is filed, there is a substantial compliance of the requirement to file such an application in time. Had the petitioner's application for transfer of licence made in 2009 not been kept pending for five years, she would have herself become a Distributor even during the lifetime of her father. The respondent authorities were responsible for serious latches and therefore, the petitioner's prayer ought to be allowed. On the other hand, the respondent authorities urged that there is a difference between dealership and distributorship and the judgments relied on by the petitioner are distinguished on that score alone. Compassionate appointment is an exception and therefore, can be granted only on strict compliance of the norms set out for such grant.
6. First, it is a settled position of law that the law prevailing on the day should govern the consideration of application for compassionate appointment. A subsequent change in law would not affect such right.
7. However, the fact that the respondent authorities had kept the application made by the petitioner for transfer of Distributorship licence pending for five years cannot be a determining factor in the instant case. 11 Because, after that the petitioners' father died and thereafter, the petitioners' mother was given compassionate appointment in his place.
8. Compassionate appointment is an exception to the fundamental rights enshrined in Articles 14 and 16 of the Constitution of India. It is made to tide over an immediate crisis and is clearly not a heritable possession that a family member of a deceased could claim. That is why the Hon'ble Apex Court repeatedly held that there must be strict compliance in matters of compassionate appointment.
9. The more there is a delay, the more it becomes difficult for the respondent authorities to assess whether the candidate fulfilled the other requirements as on such date when he or she was supposed to file a proper application. In the present case, as pointed out by the State, the first communication could hardly be called an application as could be subsequently supplemented by further applications.
10. Running a fair price shop under the Public Distribution System is no mean thing. But, Distributorship is in a different league. It requires better finances and infrastructure and a higher expertise to manage. Although one may fairly treat a request to guide in filling up an application for compassionate appointment in case of dealership of a fair price shop with a great deal of empathy, one would have to look at a similar prayer in case of an application for Distributorship licence with a bit of anxiety.
11. Here, the application made by the petitioner was far from sufficient. When her request for guidance was not fulfilled, she ought to have been more proactive in either making further request or herself arranging to fill 12 up a proper application form at the earliest. But, she did not do so and waited for an inordinately long time of about 1 year and 9 months. Thus, there is a long and unexplained delay in making a proper application. Even if one accepts the contention of the petitioner that the time limit prescribed is not mandatory, the delay in the instant case is far too much to condone.
12. In the meantime and after the passage of a considerable time, the respondents were constrained to initiate the normal process of declaration of vacancy and that has purportedly reached a certain degree of maturity.
13. In view of the above discussions, this Court does not find any merit in the writ petition.
14. Accordingly, the same is dismissed. However, there shall be no order as to costs.
15. 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