SANGBARAN KUNDU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India praying for quashing of the Memo Bearing Number 816/1(4)/FA/IJ/MR- 40/2009 dtd. 10/11/2009 issued by the Director, DDP and S, F and S Department, West Bengal.

(2.) Learned counsel for the petitioner submits as follows. The petitioner's father and uncle, jointly as partners, had been granted M.R. Distributorship license under the name and style of M/S. G.C. Kundu and D.N. Kundu. On 30/9/1991, after death of the petitioner's father and uncle, the petitioner and his cousin brother namely, Pradipta Kundu had jointly been granted M.R. Distributorship license on compassionate ground under the same name and style. In 1999, due to medical ground, the petitioner temporarily retired from the said distributorship business and his cousin brother namely, Pradipta Kundu was granted distributorship license as sole proprietor under the same name and style of M/S. G.C. Kundu and D.N. Kundu. On 6/3/2004 Pradipta Kundu, who was bachelor, died only at the age of 38 years. On 14/5/2005, the brother of late Pradipta Kundu namely, Prasun Kundu on his behalf and on behalf of his sister Smt. Meghna Kundu being the only legal heirs of Late Pradipta Kundu applied for grant of distributorship license in favour of the petitioner, enclosing therein prescribed application, submitted by the petitioner. On 20/5/2008, the Sub-Divisional Controller (F and S), Ranaghat instructed the Area Inspector, Ranaghat, Block - I to enquire and submit report. 20/10/2010 the Area Inspector, Ranaghat, Block - I, after conducting enquiry, submitted report recommending the petitioner's prayer. On 10/11/2008 the Sub-Divisional Controller (F and S), Ranaghat sought police verification report. On 23/12/2008, the Superintendent of Police, D.E.B., Nadia submitted report, saying that nothing could be found against the petitioner. On 30/4/2009, the petitioner submitted reminder. On 27/5/2009, a demand justice submitted. On 4/8/2009, relying on the G.O. dtd. 28/5/1996, this Court passed an order directing the Director, DDP and S to take a decision on the prayer of the petitioner. On 10/11/2009 the Director, DDP and S, rejected the petitioner's prayer, relying on a subsequent G.O. dtd. 18/11/2004. The resultant vacancy notice on the subject location, arose due to death of cousin brother of the petitioner, was notified on 1/9/2022. Since the Hon'ble Court by its order dtd. 4/8/2009, passed in W.P. 764 of 2009, quoting a Government Circular dtd. 28/5/1996, directed the Director, DDP and S to consider the prayer of the petitioner, the Director, DDP and S could not reject the prayer of the petitioner relying on a subsequent circular dtd. 18/11/2004. It was settled principle of law that the law prevailing on the date of occurring vacancy i.e, the date of death of the Distributor/Dealer, shall govern the application for compassionate appointment and since in the instant case petitioner's bachelor cousin brother being the M.R. distributor died on 6/3/2004 and at that material point of time Government Circular dtd. 28/5/1996 was operating/prevailing in the field, which extended the benefit of compassionate appointment to the next kin of the deceased dealer/distributor, the petitioner being the cousin brother of the bachelor distributor with NOC from all the legal heirs of the deceased distributor was very much entitled to get distributorship license on compassionate ground. It was the existing practice and the State policy also that K. Oil license and distributor license shall be given to the same persons for conveniences of the consumers to lift their both the allotted quota of K. Oil and ration articles from the same shop. The Circular/G.O's, which was prevailing on the date of occurring vacancy i.e., date of death of the dealers/distributors, shall only be taken note of at the time of considering application for compassionate appointment. Reliance was placed on 2016 (4) WBLR (Cal) 161, Arvind Gupta Versus State of West Bengal and Ors. This judgment has been upheld by the Hon'ble Division Bench and the said Division Bench judgment has been relied on by another Division Bench in AIR 2016 (Cal) 251, Matadin and Anr. Versus State of West Bengal and Ors. The SLP filed by the State against the Division Bench judgment was dismissed with cost. The decision in 2007(2) SCC 481 supported the case of the writ petitioner. The petitioner's prayer for compassionate appointment shall be considered within the periphery of the law, prevailing on the date of death of his cousin brother i.e, the Circular dtd. 28/5/1996, which extended the benefit of compassionate appointment to the next of kin of the deceased dealer/distributor. The resultant vacancy notice on the subject location, arose due to death of cousin brother of the petitioner, dtd. 1/9/2022, should be quashed and/or set aside.

(3.) Learned counsel for the respondents submitted as follows. No perversity was found in the decision making process of the concerned State respondent. Even if any executive instruction vide Memo No. 418 F and S/5A- 25/93 dtd. 28/5/1995 issued by the then Deputy Director, DDP and S, Food and Supply Department, Government of West Bengal regarding procedure for appointment of MR Distributor/dealer on compassionate ground was at all applicable so far the purported writ petition was concerned, the writ petitioner herein under no circumstances could claim such executive instruction to be applicable in his favour in view of the fact that, first, in the said executive instruction it transpired that the vacancy arising out of death or resignation of the distributor/dealer had to be filled up by appointing the husband/wife/son/daughter or next Kin of the deceased/resigned dealer, if otherwise found suitable and such appointment should be granted after observing all other formalities. But, the order dated November 10, 2009 passed by the then Director, DDP and S, Food and Supply, Government of West Bengal, made it clear that the writ petitioner herein admitted the fact that he was not the legal heir of Late Pradipta Kundu, the erstwhile proprietor of MR Distributorship Firm namely, M/s. Gobinda Chandra Kundu and he was a Government agent of Kerosene Oil at Ranaghat, which itself suggested that he was not dependent upon the said deceased MR Distributor at the time of his death and as such, there was no ground for giving appointment in his favour under the compassionate ground. Secondly, even if assuming but not admitting that the next kin of the deceased/resigned dealer was entitled to get appointment in place of the deceased person i.e. MR Distributor and such wording was there in the said Scheme i.e., 28/5/1996 then such scheme was to be held as arbitrary and contrary to the Article 14 and Article 16 of the Constitution of India because next kin had a wide connotation so as to establish perpetuity in the case of appointment under the compassionate ground and the Hon'ble Apex Court in 2007(2) SCC 481 held that such wording led to perpetuity in the case of appointment under compassionate ground and the same was contrary to the Article 14 and Article 16 of the Constitution of India and as such, order dated November 10, 2009 issued by the then Director, DDP and S, Food and Supply Department, Government of West Bengal was not a valid one.