The right to compassionate appointment arises on the death of the original licensee and crystallizes at the moment of such death. The claim to compassionate appointment must be considered under the law and regulations existing at the moment of death.

Subrata Talukdar, J.

The short question which this Court is required to answer in this writ petition is the validity of the order impugned dated 20th April, 2015 passed by the Director of Rationing, Government of West Bengal (for short DOR) rejecting the prayer of the petitioner for appointment to the Fair Price Shop (for short FPS) dealership of his late aunt, one Smt. Saraswati Gupta. The DOR came to the conclusion that under the relevant provisions of the West Bengal Public Distribution System (Maintenance and Control Order), 2013 (for short the 2013 Control Order), the petitioner, being a nephew is not a family member of his late aunt since, under Clause 2(n) of the 2013 Control Order a family member means a spouse, dependant sons and daughters.

2. The DOR therefore proceeded to process the claim of the writ petitioner under the 2013 Control Order and found that the petitioner does not have a vested right to claim compassionate appointment more so, when the first representation of the petitioner immediately on the death of his aunt on 21st June, 2013 was not a representation to claim the appointment but, was only an intimation of the death of the original dealer.

3. Sri Debabrata Saha Roy, Ld. Counsel appearing for the writ petitioner strongly argues that on the death of the original dealer, Saraswati Gupta the petitioner on the very same date, i.e. 21st June, 2013 intimated the Rationing Officer, Chitpur of such death and requested the latter to take necessary steps under the rationing rules and in the interests of the Public Distribution System (for short PDS). Thereafter, the petitioner was asked to submit a second representation by the Authority on 18th September, 2013, which he did. Sri Saha Roy argues that the second representation is in effect a continuation of the first representation dated 21st June, 2013.

4. Sri Saha Roy further argues that since the writ petitioner was the only legal heir of his late aunt who had no son or daughter and, had also left a registered will dated 2nd of January, 2009 in favour of the petitioner bequeathing her entire property, including the ration shop, in favour of the petitioner, the petitioner accrued a right of compassionate appointment to the FPS dealership of his late aunt as her sole legal heir. The case of the petitioner was also recommended by the Authority on 20th November, 2014.

5. Sri Saha Roy further points out that by an order dated 21st January, 2015 the DOR rejected the case of the petitioner by applying the 2013 Control Order thereby compelling the petitioner to approach this Hon’ble Court by way of a writ petition. By order dated 17th March, 2015 in WP 4072(W) of 2015 a Hon’ble Single Bench remanded the matter to the DOR for a fresh consideration keeping all points open. Pursuant to such remand the second and impugned order of rejection dated 20th April, 2015 has been passed.

6. Sri Saha Roy also submits that since the death of the original dealer, Saraswati Gupta took place on 21st June, 2013 that is, prior to coming into force of the 2013 Control Order the claim to appointment on compassionate grounds cannot be guided by the 2013 Control Order. In support of his above noted argument Sri Saha Roy draws the attention of this Court to the Memo dated 3rd July, 1985 issued by the DOR which, inter alia, provides that in cases of compassionate appointment to a vacancy arising out of the death, resignation of a dealer such vacancy need not to be initially notified and may be filled up by appointing the husband/wife/son/daughter of the deceased/resigned dealer, if found suitable in all respects. In the absence of any of the family members as noted above, the next of kin of the deceased/resigned dealer may be considered for appointment. Even thereafter if no suitable candidate is found, then the vacancy will be notified for filling up as per due process.

7. Therefore, Sri Saha Roy points out that by applying the memo dated 3rd July, 1985 read with the 2003 Control Order