RAHIMA BIBI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India praying for a direction upon the respondent authorities to set aside and cancel the impugned order being Memo No. 666/FMR/13L-26/2014 dtd. 28/2/2018 and the impugned Memo No. 470/SCF and S/MTB/18 dtd. 31/8/2018 and to appoint the petitioner as M.R. dealer and S.K. oil dealer on compassionate ground in place of the late Minarul Islam.

(2.) Learned counsel appearing on behalf of the petitioner submitted as follows. In the present writ petition, the petitioner challenged the validity of the impugned order dtd. 28/2/2018, issued by the respondent no. 2 and the order dtd. 1/8/2018, issued by the respondent no. 5 in which the petitioner's application for appointment as dealer on compassionate ground was rejected on the ground that she applied after a long gap of more than 2 years from the death of ex-dealer, the petitioner's son. On 12/10/2013 Minarul Islam, the existing dealer and the son of the petitioner, who was a bachelor, died intestate. On 6/12/2013 Rahima Bibi, the petitioner being the mother applied before the Sub-Divisional Control, Food and Supplies, Mathabhanga for appointment of her surviving son namely, Abdul Wahed Ahmed as the M.R. dealer on compassionate ground. On 10/12/2013 Abdul Wahed Ahmed, the son of the petitioner then applied in the prescribed form along with a forwarding memo which was received by the office of the Sub-Divisional Controller, Food and Supplies, Mathabhanga. The District Controller did not reject the prayer of Abdul Wahed Ahmed instantly on the ground that the brother did not fall within the meaning of family member. On the contrary, the District Controller, after expiry of about 11 months, forwarded the case of Abdul Wahed Ahmed with recommendation for appointment as dealer on compassionate ground to the Joint Director (Licence). On 23/7/2015 the prayer for appointment of Abdul Wahed Ahmed as a FPS dealer on compassionate ground was rejected as the case was beyond the scope of the said Control Order, 2013. On 23/9/2015 the petitioner then applied for FPS dealership on compassionate ground as a dependent mother. On 15/2/2016 the District Controller forwarded the case of the petitioner with regard to approval of appointment of the petitioner as MR dealer on compassionate ground to the Joint Director (License). On 31/8/2018 the prayer of the petitioner for appointment FPS dealer on compassionate ground was rejected since she applied after a long gap of more than two years from the death of ex dealer. There were sufficient grounds for condoning the delay in making an application by the petitioner, the dependent mother for appointment as a dealer on compassionate ground in terms of the said Control Order, 2013. The question as to whether the time limit of sixty days for making the application for appointment as a dealer on compassionate ground was directory and not mandatory was no more res integra in view of the judgment passed by the Hon'ble Division Bench of this Court in Bakul Rani Patra versus the State of West Bengal and Ors. reported in AIR 2021 Cal 5. It was, therefore, submitted that the judgment of the Special Bench in Piali Saha versus State of West Bengal, reported in 2013 (1) CHN (Cal) 18, strongly relied upon by the respondents in the present case, was no longer the ratio.

(3.) Learned counsel appearing on behalf of the respondents submitted as follows. In Umesh Kumar Nagpal versus State of Haryana reported in (1994) 4 SCC 138, it was held that compassionate appointment could not be granted after lapse of a reasonable period which must be specified in the Rules. In another judgment, V Sivamurthy versus State of Andhra Pradesh and Others reported in (2008) 13 SCC 730, the Hon'ble Supreme Court summarized the principles relating to compassionate appointment. Reliance was placed on Bhawani Prasad Sonkar versus Union of India and Others reported in (2011) 4 SCC 209. In Teri Oat Estates versus U.T. Chandigarh and others reported in (2004) 2 SCC 130, the Hon'ble Supreme Court held that sympathy or sentiment by itself could not be a ground for passing an order in relation whereto the appellants miserably failed to establish a legal right. Reliance was placed on State Bank of India and Another versus Somvir Singh reported in (2007) 4 SCC 778. In Piali Saha Versus State of West Bengal, reported in 2013 (1) CHN (CAL) 18, a Larger Bench of the Calcutta High Court discussed compassionate appointments at length and held, inter alia, that the period which had not been contemplated in the Rule intending to create a right could not be extended by the Court and the Court could not have any amending power of the legislation. In Arindam Choudhury versus State of West Bengal reported in 2019 (1) CHN (Cal) 614, a Division Bench of this Court held, inter alia, that it was clear that an applicant for compassionate appointment did not acquire a right of appointment only upon proving the distressed condition of the family members of the employee who had died-in-harness. An aspirant for a post must have other necessary qualifications which, inter alia, would include being of the required age for entry in service, possessing the minimum educational qualifications and bearing good moral character as well as health. Financial crisis would not automatically guarantee an appointment.