DEBASHIS BHATTACHARJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India, inter alia, praying for direction that the definition Clause 2(m) of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013, as amended vide notification date 14/12/2020, was ultra vires Articles 14, 19(1) (g) and 21 of the Constitution of India, to include nephew in the definition and to cancel and withdraw the order dtd. 3/8/2022 issued by the Director of Rationing, West Bengal.

(2.) Mr. Saha Roy, Learned counsel for the petitioner, submitted as follows. The father's brother (uncle) of the petitioner namely, Rama Prasad Bhattacharjee, (since deceased) was a fair price shop dealer. The petitioner's father died long back. Rama Prasad Bhattacharjee was a bachelor and had been residing with the family of the petitioner's father (since deceased) and the entire joint family was fully dependent upon the income of the said dealership business. He died on 17/12/2020. After his death, there was no other source of income of the said joint family. Immediately after death of petitioner's uncle, the petitioner made a representation on 21/12/2020, intimated the death of his uncle and also requested to transfer the said dealership license on compassionate ground in favour of the petitioner. The Rationing Officer, Behala East vide memo dtd. 23/12/2020 de-tagged the entire ration cards and tagged the same with the nearby F.P. shop dealer on temporary basis. The petitioner made application on 14/1/2021 in the prescribed form, enclosing therewith all required documents and legal heir's certificate issued by the Councillor to get the dealership license on compassionate ground and the same was submitted on 15/1/2021. The Rationing Officer, Behala East instructed the Inspector (F & S) concerned to cause enquiry and submit report. After conducting enquiry through Inspectors, F & S, the Rationing Officer, Behala East forwarded the file to the Director of Rationing for obtaining approval. The petitioner, to his utter shock and surprise, received an order dtd. 3/8/2022 whereby the prayer of the petitioner for engagement on compassionate ground in place of his uncle had been rejected by the Director of Rationing since the petitioner being the nephew (brother's son) was not coming under the definition of family members under the Control Order, 2013. The consequences of the death of a bachelor dealer had not been taken note of in the Control Order, 2013, as amended. Such lacuna/silence in the Control Order, 2013 was elaborately dealt with by a Co-ordinate Bench of this Court in WPA 11518 of 2021. It was quite natural that a bachelor brother, residing with his elder brother's family as 'joint family' member had been granted dealership license and the entire 'joint family' maintained their livelihood from the said dealership business as family business. Since the petitioner's father (brother of the deceased bachelor dealer) was entitled to get his bachelor brother's dealership license on compassionate ground, had he been alive, in terms of Government circular dtd. 17/9/2021, the petitioner should also been entitled to get such license on compassionate ground to look after the entire family. All present infrastructure shop-cum-godown as per prescription, bank balance, especially experience to run dealership business that too consumers were costumed with the present dealership. Sec. 8 of the Hindu Succession Act, 1956 in 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 Control Order, 2013 had been amended, including married daughters and brother and sisters as family member of the deceased dealer. So, it could not be said that the Control Order, 2013 was untouchable. Accordingly, in a case like the present one, the writ court has enough power to direct the respondents to consider the case of the petitioner. Reliance was placed on the unreported judgment dtd. 19/9/2019 passed by this Court in WP No. 449 of 2019 (Anjana Modak versus State of West Bengal and Ors.), unreported judgment dtd. 2/9/2021, passed by the this Court in WPA No. 11518 of 2021 (Smt. Durga Das versus State of West Bengal & Ors.) and 2012 (6) SCC, Brijmohan Lal versus Union of India & Ors. "Certain tests were there to decide whether this Court should or not interfere in the policy decision of the State." In the instant case Clause 2 (m) of the Control Order, 2013 was not only contrary to the Hindu Succession Act, 1956, but also ran counter to the philosophy behind these provisions. The submission of the State 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 not tenable. When joint family members maintained their livelihood, from the earnings of a dealer, they could not be deprived of getting 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. There was no confusion about the relation of 'nephew' in the case. As regards the decision reported in 2009 (13) SCC 600, first, the said judgment dealt with service matter. While paragraph 12 of the judgment stated only that compassionate appointment was not a matter of right, para 13 said if any scheme was there the same must be followed. In the said case there was no challenge thrown against the vires of the Scheme. So far as paragraphs 17 and 18 of the judgment reported at 2011 (14) SCC 752 were concerned, there was no mandatory provision to give 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.) Mr. Bandopadhyay, learned counsel representing the learned Advocate General, submitted as follows. The petitioner claimed to be the nephew of one Rama Prasad Bhattacharjee, who was a fair price shop at 57, Basantalal Saha Road, Kolkata "" 700056 under Behala East Sub-Area. The said Rama Prasad Bhattacharjee died on December 17, 2020 and on December 21, 2020, the petitioner intimated the death of his uncle to the Rationing Officer, Behala East and prayed for transfer of the license of the fair price shop. Under the West Bengal Urban 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 Rama Prasad Bhattacharjee was rejected by the respondent authorities as the petitioner claimed to be the nephew of the Late Rama Prasad Bhattacharjee and the word "nephew" did not come within the purview of the "family member (s)" as defined in the West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2013 as well as the West Bengal Kerosene Control Order, 1968. The petitioner had only challenged the vires of amended Clause 2(m) of the 2013 Control Order i.e., the definition of a family member. The petitioner did not challenge the vires of amended Clause 2(xa) of the 2013 Control Order which defined the term relative and hence, the scope of this petition should only be limited to ascertaining the validity of amended Clause 2(m) of the 2013 Control Order which defined family member. Be that as it may, the contention of the petitioner at paragraphs 13, 17, 19, 23 and 25 of the petition were not true. The West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2013 debarred any person whose relative already was a dealer or distributor or wholesaler license. However, it did not create any bar on the petitioner for applying in respect of any of the vacancies for the fair price shop as none of the relatives of the petitioner was an existing dealer or distributor or wholesaler license. The petitioner's apprehension that he would be debarred from participating in respect of any of the vacancies was ill-founded as the FPS and B. Bhattacharjee & Co. Dealership license of the Late Rama Prasad Bhattacharjee ceased to exist after his demise. The Hon'ble Supreme Court in the decision rendered in the case of State of Chattisgarh versus Dhirjo Kumer Sengar reported in (2009) 13 SCC 600 had, inter alia, held that appointment on compassionate ground should not be granted as a matter of course. The Hon'ble Apex Court in this case held the nephew of the deceased employee, was ineligible for the grant of compassionate appointment. Furthermore, the Hon'ble Supreme Court once again in Kandarpa Sarma versus Rajeswar Das, reported at (2011) 14 SCC 752A, held that a joint family could be considered to be a family only when they were sharing a common residence and common mess. To give an extended meaning to mean any "nephew" would also be inappropriate for the word "nephew" is a very vague expression for it could include not only nephew being the son from the own brother, but it could also be nephew being the son not only from the sister but being the son of even from the cousin brothers or sisters. If the vague term nephew or if the term "brother's son" was included in the amended Clause 2 (m) as per the prayer of the writ petitioner, then it would also pave way for the inclusion of the term "niece" or "brother's daughter" as both the relations stood on a similar footing. Inclusion of the vague terms nephew or niece in the definition of a family member would thereafter seriously jeopardise the genuine cases of compassionate appointment in future under the 2013 Control Order. The applicant in addition to his/her application for compassionate appointment in the proper format was also required to submit the "No Objection" form all the other family members in the form of an affidavit to be sworn before a Magistrate. Thus, extending the definition of "family member" to include "nephew" and "niece" would make the entire process cumbersome as the applicant would have to run from pillar to post for getting the "no objection" of all his/her distant relatives. Thus, allowing the prayers in the writ petition and including the word "nephew" or "niece" in the amended clause 2(m) would make the entire process of compassionate appointment highly impractical. Decisions rendered in WOP No. 449 of 2019 (Anjana Modak v. State of West Bengal and Others) and in WPA 11518 of 2021 (Smt. Durga Das versus The State of West Bengal and Others) did not favour the case of the petitioner herein as in those cases the question of including "nephew" in the definition of "family member" did not arise. In WPO No. 449 of 2019 it was held that all daughters should be considered for compassionate appointment irrespective of their marital status. In WPA 11518 of 2021 siblings of a bachelor and/or spinster dealer were directed to be considered for compassionate appointment. Though in paragraph 24 of the writ petition the petitioner canvassed the point that as per the provisions of the Hindu Succession Act, 1956, the brother's son is a Class-II heir, but in the second paragraph at page 11 of the judgment rendered in WPA 11518 of 2021, this Hon'ble Court consciously specified that the Court was not ad-idem with the submission of the petitioner that all Class II heirs were to be considered for compassionate engagement and only the case of full-blooded relationship was required to be taken into consideration for a compassionate appointment if otherwise eligible. Therefore, as per the observation made by the Hon'ble Court in WPA 11518 the case of the petitioner who claimed to be the nephew of the deceased dealer and was thus a Class-II heir was not required to be considered for compassionate appointment. Also, as per the observations contained in the second paragraph at page 11 of the judgment rendered in WPA 11518 of 2021 the impugned provisions being Clause 2 (m) of the 2013 Control Order also stood the test of vires on the touchstone of constitutionality. Being a Class II legal heir of the deceased dealer whose none of the Class I legal heirs were surviving, the only benefit which the petitioner could derive was that he could obtain a Succession Certificate with respect to his properties. A conjoint reading of Paragraphs 13, 22 and 23 of decision rendered in State of Chattisgarh versus Dhirjo Kumar Sengar reported in (2009) 13 SCC 600 would clarify the mandate of the Hon'ble Apex Court which had categorically stated that a Succession Certificate did not confer any right on the certificate holder. The certificate holder only became a trustee entitled to distribute the amounts, payable to the deceased, to his heirs and legal representatives. On the death of a dealer, a person could not seek engagement on compassionate grounds by dint of being a Class II legal heir of the deceased dealer. The petitioner had stated that his case should be considered for compassionate appointment as no Class I legal heir of the deceased dealer was surviving. Therefore, it appeared that the petitioner was claiming the engagement on compassionate grounds as a matter of inheritance, which was not permissible in law. Unless it was proved that the amended Clause 2 (m) of the 2013 Control Order harboured an extreme vice of arbitrariness or irrationality, it must be presumed to be constitutional. Unless one reached far beyond unwisdom to absurdity, irrationality, colourability and the like, the Court must keep its hands off from declaring any provision ultra vires of the Constitution of India.