SANJIB SINHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) W.P.A 25434 of 2022 is an application under Article 226 of the Constitution of India, inter alia, praying for a declaration that the definition clause 2 (m) of the West Bengal Public Distribution System (Maintenance and control) Order 2013, as amended vide notification dtd. 14/12/2020, was ultra vires Articles 14, 19 (1) (g) and 21 of the Constitution of India, to include nephew in this definition of clause 2 (m) of the said Control Order and to cancel and withdraw the memo bearing e-File No: DDDPS - 32013 (II)/298/2022-MBD SEC-DDPS issued by the Director, DDP and S and the memo bearing No: 1209/1(2)/FMR/13L-35/M PART dtd. 6/4/2022 issued by the Deputy director (License), Directorate of DDP and S . Whereas, W.P.A 5352 of 2022 was filed earlier by the petitioner seeking appropriate reliefs. But, during pendency of it, the respondent authorities rejected the prayer of the petitioner vide memo dtd. 6/4/2022. The two applications were, therefore, taken up for hearing together. A decision in W.P.A 25434 of 2022 would finally govern the earlier W.P.A 5352 of 2022.

(2.) Learned counsel for the State submitted as follows. The father's brother (uncle) of the petitioner Aloke Kumar Sinha, since deceased, was a fair price shop-cum-K. Oil Dealer. The petitioner's father died long back. Aloke Kumar Sinha was altogether a bachelor and he had been residing with the family of petitioner's father, since deceased, and the entire joint family was fully dependent upon the income of the said Dealership business and after death of Aloke Kumar Sinha there was no other source of income of the said joint family. Due to old age and had been suffering from various diseases, Late Aloke Kumar Sinha executed a Will on 24/4/2021, stating therein that after his death his F.P. Shop-cum-K. Oil Dealership license shall be borne by the petitioner. For last 6/7 years the petitioner had been running the said dealership business under the guidance and assistance of his ailing uncle, since deceased, as joint family business. The petitioner submitted application in the prescribed form, enclosing therewith all required documents and NOCs from other legal heirs of Late Aloke Kumar Sinha (all were nephew and nieces, since there was no other legal heirs) to get the dealership licenses on compassionate ground. On 27/10/2021, SDC (F&S), Kandhi after conducting enquiry through Inspectors, F and S, forwarded the file to the District Controller (F and S), Murshidabad with his recommendation. Since no further step was taken, petitioner filed WPA 5352 of 2021 on 24/3/2022. During pendency of the said writ petition, prayer of the writ petitioner was rejected by the Dy. Director (License), DDP and S on 6/4/2022 on the ground father's brother did not come within the purview of the family member. The petitioner filed supplementary affidavit in WPA 5352 of 2022, enclosing rejection order dtd. 6/4/2022. Amrita Sinha, J passed interim order in WPA 5352 of 2022, restraining respondents from filling up the vacancy. The interim order has been extended time to time and the same still existed. 2013 Control Order had been amended on 14/12/2020. In Clause 2(d) (xa) (iii) brother's son had been defined as 'relative', who were not entitled to make application for dealership. Brother's son had not been included as 'family member' to get dealership license on compassionate ground. A married daughter was also not included in the definition of 'family member'. Sekhar B. Saraf (J) by passing an order on 2/9/2021 in WP 449 of 2019 (Anjana Modak versus State of West Bengal and Ors.), directed the State to included married daughter withing the definition of 'family member'. Following such order, the State Government issued notification on 15/1/2020, including married daughters within the definition of 'family member'. By delivering a judgment on 2/9/2021, Amrita Sinha, J directed the State to consider the cases of brother and sisters as 'family member' in the light of the observation made in the said judgment. Following such judgment dtd. 2/9/2021, State Government issued a notification on 17/9/2021 including brother and sister of a bachelor Dealer as 'family members'. Since in the previous writ petition being WPA 5352 of 2021, order of cancellation of petitioner's prayer was not under challenge, present writ petition had been filed challenging the order of cancellation dtd. 6/4/2022. All present infrastructure including shop- cum-godown as per prescription, bank balance, especially experience to run dealership business that too consumers were costumed with the present dealership, so granting dealership to the petitioner shall also be convenient to the consumers. Sec. 8 of the Hindu Succession Act, 1956 with no uncertain term suggested that if there was no first class legal heir then class ii legal heirs (brother's son) should be entitled to get benefit of the deceased. In the present case there were no class i legal heir of the deceased dealer and all remaining other class-ii legal heirs of the deceased dealer had given 'NOC' in favour of the petitioner. At least on two occasions, 'Definition' clause of the Control Order, 2013 had been amended, including married daughters and brother and sisters as family member of the deceased dealer in terms of the judgment of this Court, so it could not be said that the Control Order, 2013 is untouchable. Submission of the State was that Clause 2(xa) of the amended provisions of the Control Order, 2013 was not under challenge in the writ petition and only Clause 2(m) of the Control Order, 2013 was under challenge in the writ petition. The petitioner's submission was that the brother's son of a bachelor dealer, from whose earning, joint family members maintained their livelihood, could not be deprived to get the dealership license on the death of such bachelor dealer and clause 2 (m) of the Control Order, 2013 was required to be amended accordingly. The State relied on paragraph 12 and 13 of a decision, reported in (2009) 13 SCC 600. First of all, said judgment dealt with the service matter. Paragraph 12 of the judgment said only that compassionate appointment was not a matter of right, but para 13 stated that if any scheme was there the same must be followed. So far paragraphs 17 and 18 of the judgment reported in 2011 (14) SCC 752 were concerned, there was no mandatory provision to provide employment to the family member of the deceased employee, but in the regular selection process, relative of the deceased employee might be given some priority.

(3.) Learned counsel appearing on behalf of the respondents No. 1 to 5 submitted as follows. The petitioner claimed to be the nephew of one Aloke Kumar Sinha, who was a Fair Price Shop cum Kerosene Oil Dealer at Raghunathpur under the Kandi Sub-Division in the District of Murshidabad. The said Aloke Kumar Sinha died on 7/5/2021 and the petitioner on 5/7/2021 made an application for a grant of both Fair Price Shop Dealership License and Kerosene Oil Dealership License on compassionate grounds in place of the deceased Aloke Kumar Sinha. Under the West Bengal Public Distribution System (Maintenance and Control) Order, 2013 as well as the West Bengal Kerosene Control Order, 1968, only a family member of the deceased/incapacitated dealer, who did not have any regular means of income, might be considered for the dealership on the compassionate ground if he/she made his/her application in a proper format. The petitioner's application for compassionate appointment in place of his deceased uncle Aloke Kumar Sinha was rejected by the respondent authorities as the petitioner claimed to be the nephew of the late Aloke Kumar Sinha and 'nephew' did not come within the purview of the 'family member (s)' as defined in the West Bengal Public Distribution System (Maintenance and Control) Order, 2013 as well as the West Bengal Kerosene Control Order, 1968. As per Clause 2(m) of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013, the word "family member (s)" meant -