Calcutta High Court (Appellete Side)
Sri Sasanka Biswas vs The State Of West Bengal & Ors on 17 January, 2019
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 13710 (W) of 2017
Sri Sasanka Biswas
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Amales Roy
Mr. Mohan Kumar
Sanyal
Ms. Debarshi Dhar
Mr. Dwaipayan
Sanyal
For the State : Mr. Amitesh
Banerjee, Ld. Sr.St.Counsel,
Mr. Tarak Karan
Hearing concluded on : January 17, 2019
Judgment on : January 17, 2019
DEBANGSU BASAK, J.:-
The petitioner seeks a declaration that the
definition of "family member" given in paragraph
2(m) of the West Bengal Public Distribution
System (Maintenance and Control) Order 2013,
included the brother of the deceased dealer in
case of engagement of Modified Ration Dealer
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(M.R. Dealer) on compassionate ground as
contemplated in paragraph 20(vi) of the Control
Order of 2013.
Learned Advocate appearing on behalf of the
petitioner submits that, the definition of "family
member" as obtaining in paragraph 2(m) of the
Control Order of 2013 is inconsistent with the
general Rules of succession in case of Hindu
males. He refers to Section 8 of the Hindu
Succession Act as well as the Schedule with
regard thereto. He submits that, a father and a
brother are class-II heirs. The definition of "family
member" although includes dependent parents, it
does not include a brother. Therefore, the
exclusion of a brother from the definition of
"family members" as obtaining in paragraph 2(m)
of the Control Order is without any intelligible
differentia. It is discriminatory. A brother ought
to be included in the definition of a "family
member". In support of the contention that, a
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classification needs to be reasonable to satisfy the
test of Article 14 f the Constitution of India, he
relies upon AIR 1952 SC 75 (State of West
Bengal vs. Anwar Ali Sarkar), 1989 Supp 1
SCC 116 (Roop Chand Adlakha & Ors. Vs.
Delhi Development Authority and Ors.) and
(1994) 4 SCC 138 (Umesh Kumar Nagpal vs.
State of Haryana and Ors.). Relying upon
(2001) 7 SCC 708 (State of Andhra Pradesh &
Ors. Vs. Nallamilli Rami Reddi & Ors.), he
submits that, the classification sought to be made
must be just and reasonable and must have
reasonable nexus to the object of the legislation.
Relying upon (1982) 2 SCC 210 (Baldev
Sahai Bangia vs. R.G. Bhasin), learned
Advocate appearing on behalf of the petitioner
submits that, the definition of a family should not
be restrictive in nature. Such a definition should
not be construed restrictively. According to him,
family will include a brother of the person
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concerned. In support of such contention, he
relies upon 1994 Supp. 2 SCC 532 (State of
H.P. vs. Amar Nath Sharma & Ors.). He relies
upon (1994) 1 SCC 243 (Lucknow Development
Authority vs. M.K.Gupta) and submits that, the
words used in the definition should be construed
appropriately. The word 'any' used in the
definition of a "service" under the Consumer
Protection Act, 1986 was found to have
significance. Relying upon 2017 (4) CHN (Cal)
362 (The State of West Bengal & Ors. Vs.
Purnima Das & Ors.), he submits that, a married
daughter will come within the definition of a
family. He relies upon (1977) 1 SCC 486 (Mani
Subrat Jain & Ors. Vs. State of Haryana &
Ors.) and submits that, the writ petition is
maintainable as the petitioner claims legal right
which has been denied by the authorities.
Learned Senior Standing Counsel of the
State appearing on behalf of the respondents
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submits that, a person is entitled to receive compassionate appointment in terms of the scheme obtaining with regard thereto. The claim of the petitioner is to be considered under the provisions of the West Bengal Public Distribution System (Maintenance and Control) Order 2013. Family Members are defined under the Control Order of 2013. The petitioner does not fall within the definition of "family member" as obtaining therein. No appointment can be given de hors the Scheme. In support of the contention that, an appointment on compassionate ground is to be given strictly in accordance with the Scheme and not otherwise, he relies upon (1994) 2 SCC 718 (Life Insurance Corporation of India vs. Asha Ramchhandra Ambekar (Mrs.) & Anr.), (2008) 13 SCC 730 (V. Sivamurthy vs. State of Andhra Pradesh & Ors.) and (2010) 11 SCC 661 (State Bank of India & Anr. vs. Rajkumar).
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The brother of the petitioner was an M.R. Dealer. The brother of the petitioner died intestate on October 26, 2016. The petitioner applied for engagement as an M.R. Dealer being the younger brother of the deceased M.R. Dealer on December 22, 2016, on compassionate ground. By a writing dated March 17, 2017, the application of the petitioner was rejected since the petitioner was found not be a family member within the meaning of Clause 2(m) of the Control Order of 2013. Such rejection is under challenge.
The petitioner seeks compassionate appointment. Asha Ramchhandra Ambekar (Mrs.) & Anr.) (supra) deals with grant of compassionate appointment. It is of the view that compassionate appointment has to be considered on the ground whether there exists a Scheme or Regulation governing the field and whether the claim for grant for compassionate appointment comes within the Regulation or the Scheme 7 governing the grant of it. Sympathetic consideration of the claim is not permitted. Grant of compassionate appointment received consideration of the Supreme Court in V. Sivamurthy (supra). It lays down the principles applicable relating to compassionate appointment. It is of the following view:-
"18. The principles relating to compassionate appointments may be summarized thus:
(a) Compassionate appointment based only on descent is impermissible.
Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India.
Though no other mode of appointment is permissible, appointments on compassionate grounds are a well-recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.
(b) Two well-recognised contingencies which are carved out as exceptions to the general rule are:
(i) appointment on compassionate grounds to meet the sudden 8 crisis occurring in a family on account of the death of the breadwinner while in service.
(ii) Appointment on compassionate ground to meet the crisis in a family on account of medial invalidation of the breadwinner.
Another contingency, though less recognised, is where landholders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project-affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation).
(c) Compassionate appointment an neither be claimed, nor be granted, unless the rules governing the service permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.
(d) Compassionate appointment are permissible only in the case of a dependant member of the family of the employee concerned, that is, spouse, so or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted 9 into a boon by seeking employment in Class I or II posts.
Rajkumar (supra) also deals with compassionate appointment. It is of the view that, appointment on compassionate ground is not a source of recruitment. It is an exception to the general rule that, recruitment to Public Services should be on the basis of merit by an open invitation providing equal opportunity to eligible persons to participate in the selection process. It lays down that, a claim for compassionate appointment is traceable only to the Scheme framed by the employer for such appointment and that, there is no right whatsoever outside such Scheme.
There subsists a Scheme for grant of compassionate appointment in the case of a death of a M.R. Dealer. The Control Order of 2013 contemplates grant of compassionate 10 appointment. In this regard, paragraph 20 of the Control Order of 2013 provides as follows:-
"(vi) Engagement on compassionate grounds.- In case of vacancy arising out of death or in case of incapacitation o 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 I with requisite fee is submitted within 60 days from the occurrence of such vacancy."
Paragraph 20(vi) of the Control Order of 2013 contemplates grant of compassionate appointment to any of the family members of the deceased or incapacitated M.R. Dealer. "Family member" is defined in paragraph 2(m) of the Control Order of 2013. It is 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."11
The definition of "Family members" as obtaining in the Control Order of 2013 includes a spouse, dependent parents, dependent sons and daughters for the purpose of considering engagement as Dealers/Distributors on compassionate ground. A brother is excluded from the definition of a "Family member" under the Control Order of 2013. A brother is a class-II heir of a deceased male in terms of the Hindu Succession Act. The petitioner is the younger brother of the deceased M.R. Dealer. The deceased M.R. Dealer and the petitioner are Hindus.
While defining "family members", the Control Order of 2013 makes a classification of the class of a person within the family who are to be considered as eligible for grant of appointment of the compassionate ground. The definition of "family members" in the Control Order of 2013 allows a spouse to apply for grant of 12 compassionate appointment. It allows dependent parents to do so. Significantly, the word 'parent' is qualified by the word 'dependent' in the definition. Therefore, all parents are not eligible to apply for grant of compassionate appointment. Only such parent, who is dependent on the income of the deceased M.R. Dealer, is eligible for an appointment on compassionate ground. Similar provision exists for the son and daughter of the deceased dealer for the purpose of considering grant of appointment on compassionate ground. The son or the daughter of the deceased dealer must be dependent upon the deceased dealer for any of them to qualify to apply for compassionate appointment. It is the contention of the petitioner that, the ouster of all classes of heirs from the definition of "family members" under the Control Order of 2013 is an arbitrary. It does not stand the test of reasonable classification.
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Anwar Ali Sarkar (supra), Roop Chand Adalakha (supra), Umesh Kumar Nagpal (supra) and Nallamilli Rami Reddi and Ors. (supra) are of the view that Article 14 of the Constitution prohibits "class legislation". It, however, does not prohibit classification for purpose of legislation. It is of the view that, if the legislature reasonably classifies persons for legislative purposes so as to bring them under a well-defined class, it is not open to challenge on the ground of denial of equal treatment or that, the law does not apply the other persons. It lays down that, the test of permissible classification is twofold. Firstly, the classification must be founded on intelligible differentia, which distinguishes persons grouped together from others who are left out of the group. Secondly, the differentia must have rational connection with the object sought to be achieved. It also notes that Article 14 does not insist upon classification, which is scientifically perfect or logically complete. 14 A classification would be justified unless it is patently arbitrary. If there is quality and uniformity in each group, the law will not become discriminatory, though due to some fortuitous circumstances arising out of peculiar situation some included in a class get an advantage over others so long as they are not singled out for special treatment.
In the present case, the authorities defined the scope and ambit of family members, who are eligible to receive an appointment or engagement as a Dealer/Distributor on compassionate ground. An authority is entitled to do so. It has done so and has specified the persons who are eligible for consideration. All family members are not within the zone of consideration. Essentially, the authorities are permitting such of the family members, who are dependent upon the deceased M.R. dealer to receive engagement on compassionate ground. While considering which 15 of the family members and that too dependent would be considered for grant of such compassionate appointment, the authorities have specified that, the parents, the sons and daughters would be considered if they are dependent and the spouse for grant of compassionate appointment. The consideration is that, the family should not suffer pecuniary difficulties on the sudden death or the medical invalidation of the concerned dealer. From such aspect, the authorities consider the spheres, the dependent parents and dependent son and daughter to be family members.
The word 'family' is wide enough to include in its ambit a brother. Again it is for the authorities to choose which of the persons within the family it proposes to grant compassionate appointment. While choosing the categories of persons who will be considered as family members to come within a zone of consideration for grant of 16 appointment on compassionate ground, the authorities must make a reasonable classification, which has a nexus with the object sought to be achieved. In the wisdom of the authorities, a brother, who may be dependent upon the deceased family dealer, need not come within the definition of a family member. In fact, the Control Order of 2013 does not include a brother of a deceased M.R. Dealer to come within the definition of a Family Member. Such exclusion cannot be said to be arbitrary.
The Succession Act operates so far as the succession to property is concerned. M.R. Dealership is not a property which devolves on succession. Therefore, the analogy that a brother is a class-II heir as that of the father and, therefore, the classification made by the authorities in the Control Order of 2013 is arbitrary, cannot be accepted. Compassionate appointment cannot be granted on descent. It has 17 to abide by a Scheme or a Regulation governing the field.
The definition of a family was considered in the context of the provision of Delhi Rent Control Act, 1958 in Baldev Sahai Bangia (supra). Such a definition of a family cannot be applied for the interpretation of the Control Order of 2013 as, the Delhi Rent Control Act operates in the field of eviction of tenants while the Control Order of 2013, so far as the subject matter is concerned, deals with compassionate appointment. They are separate spheres. Again the word 'family' was considered in Amar Nath Sharma (supra) in the context of Office Memorandum issued by the Government of Himachal Pradesh. The fact scenario in the two cases are different. The meaning of the word 'any' as used in the Consumer Protection Act, 1980 and as interpreted in M.K. Gupta (supra) should not be applied to 18 understand the definition of a "family member"
given in the Control Order of 2013.
In Purnima Das & Ors. (supra), the Special Bench of this Hon'ble Court held that, a married daughter would come within the meaning of a daughter in respect of grant of compassionate appointment. There the scheme for compassionate appointment allowed a daughter to be considered for grant of compassionate appointment. It has held that, marital status of the daughter would not a disqualification. The Court is informed that, a Special Leave Petition preferred against such judgment and order was admitted and that, there is a stay granted by the Hon'ble Supreme Court.
It is not the contention of the respondents that, the writ petition is not maintainable in the sense that, the Court need not consider the claim of the petitioner at all. Rather, it is the contention of the respondents that, the petitioner is not 19 entitled to the relief as prayed for. Therefore, the ratio laid down in Mani Subrat Jain (supra) is not attractive.
No ground exist to interfere with the decision of rejection of grant of compassionate appointment of the petitioner. The petitioner is not entitled to the declaration as sought for.
In such circumstances, W.P. 13710 (W) of 2017 is dismissed without any order as to costs.
Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]