CHANDRA PROVA PUGLIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(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) dtd. 1/9/2022 issued by the Director, DDP and S, Food and Supplies Department, Government of West Bengal.

(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 and 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 and S, the Joint Director (License), DDP and S returned back the file with the instruction to the D.C., F and S, Birbhum to re-submit the file following the Control Order, 2013. The communication dtd. 23/4/2014 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 21/7/2014. 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 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 dtd. 6/3/2017 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 23/8/2018. In W.P. 449 of 2019, this Court quashed the notification dtd. 7/3/2017. The Government included 'married daughter' within the definition of 'family member'. In continuation to her previous applications dtd. 21/11/2017 and 23/8/2018, 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 dtd. 21/8/2009, 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 dtd. 21/8/2009 been considered within a reasonable time, the petitioner would have been granted 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 23/8/2018 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 6/7/2021, 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 dtd. 16/9/2015 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 dtd. 24/6/2020, passed in MAT No. 1019 of 2018 (Bakul Rani Patra versus State of West 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 dtd. 21/10/2016, 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, dtd. 23/8/2018 and/or 22/2/2021 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 and 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) 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 and 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, dtd. 16/9/2015, in Sefali Saha versus the State of West Bengal and 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 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 and 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 dtd. 24/6/2020 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 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 22/2/2021 (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 dtd. 5/8/2022 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 and Ors. Reported in (1994) 4 SCC 138 for the proposition that engagement on compassionate ground was granted to tide over the 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.