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2020 Supreme(Cal) 633
IN THE HIGH COURT OF CALCUTTA
Shekhar B Saraf, J.
Rajib Debnath - Appellant
Versus
State Of West Bengal & Ors. - Respondents
W.P.A. No. 18261 of 2017
Decided On : 18-12-2020
Debabrata Saha Roy, Advocate, Pingal Bhattacharya, Advocate, Subhankar Das, Advocate, Neil Basu, Advocate, Amitesh Banerjee, Advocate, Tarak Karan, Advocate
The main legal point established in the judgment is the importance of fair treatment and non-application of mind by the authorities in the context of compassionate appointments.
Headnote:
Compassionate Appointment - Public Distribution System - West Bengal Public Distribution System (Maintenance and Control) Order, 2003, 2013 - The judgment discusses the application of the 2003 and 2013 Orders in the context of compassionate appointment for a fair price shop license and kerosene oil license. The court emphasizes the importance of fair treatment and non-application of mind by the authorities in reaching its decision.
Fact of the Case:
The petitioner's grandmother, a ration dealer, sought to transfer the dealership to the petitioner on medical grounds. Despite recommendations for transfer, the authorities delayed the process. The petitioner filed a fresh application under the 2013 Order, which was rejected based on the definition of 'family members' under the 2013 Order.
Finding of the Court:
The court found that the delay in processing the transfer was due to the negligence of the state respondents. It held that the petitioner's fresh application should be considered as a continuation of the previous representations and should have been evaluated under exception (b) of paragraph 20(vi) of the 2013 Order.
Issues: The main issue was whether the petitioner's fresh application under the 2013 Order could be considered as a continuation of the former representations initially submitted under the 2003 Order.
Ratio Decidendi: The court relied on previous judgments and held that the application dated April 28, 2014 should have been considered under exception (b) of paragraph 20(vi) of the 2013 Order. It emphasized the need for fair treatment and non-application of mind by the authorities.
Final Decision: The court set aside the impugned memo dated June 9, 2017 and directed the authorities to grant the petitioner the appointment on compassionate grounds within two weeks. It also quashed any declaration of vacancy based on the impugned order.
JUDGMENT
Shekhar B. Saraf, J. - Apropos this writ petition no. 18261(W) of 2017, I had the opportunity to extensively hear the matter on February 13 of this year, with the directions that note of arguments be filed by both parties to this lis. In spite of the matter being adjourned for three weeks, a period of lull ensued owing to the disruption caused by the novel coronavirus pandemic and the lockdown that was imposed nationwide on March 24, 2020. When this Court reconvened on December 7, 2020 and the matter was taken up for consideration, the hearing stood concluded in the matter.
2. The facts of this case, in so far as they are material to this writ petition, is circumscribed within a narrow compass and is encapsulated as follows:
a) The late grandmother of the petitioner, Smt. Usharani Debnath was appointed as a ration dealer, being Fair Shop No. 7, by the pertinent authority under the Krishnanagar Sub-Division. The petitioner is the son of the pre-deceased son of the deceased ration dealer as named above.
b) For reasons attributable to old-age and multiple illnesses, the deceased grandmother of the petitioner during her lifetime made a representation dated April 8, 2010 requesting the Sub-Divisional Controller (F&S), Krishnanagar (hereinafter referred to as Respondent No. 5) to transfer the aforesaid dealership (comprising licenses for both the fair price shop as well as kerosene oil) in favour of the petitioner.
c) Based on this representation dated April 8, 2010, the Respondent No. 5 directed the Inspector (F&S) to proceed with an enquiry and submit a report on the same. Based on such enquiry, a report was submitted which favourably recommended such transfer of dealership to the petitioner. Thereafter, the entire case file was forwarded to the District Controller (F&S) (hereinafter referred to as Respondent No. 4) for a favourable recommendation which was in turn transferred to the Director DDP&S (hereinafter referred to as Respondent No. 3). d) Despite the completion of all the requisite formalities by the grandmother of the petitioner, no further action was taken by the respondent authorities. Therefore, the petitioner?s grandmother preferred another representation dated December 31, 2012 which was received by the office of the Respondent No. 5, yet again seeking the transfer of both licenses in favour of the petitioner.
e) However, during the pendency of both these representations, the petitioner?s grandmother passed away on April 22, 2014. Pending consideration of both the representations dated April 8, 2010 and December 31, 2012, the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 (hereafter "2003 Order") was repealed and was superseded by the promulgation of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013 (hereafter "2013 Order").
f) The petitioner made a fresh application under the provisions of the 2013 Order based on instructions received from the Respondent No. 5. While the petitioner?s case did not fall within the purview of the 2013 Order and attracted the 2003 Order, an application in the prescribed format dated April 28, 2014 under the 2013 Order was submitted by the petitioner in continuation of the representations dated April 8, 2010 and December 31, 2012.
g) After the expiry of six years from the date of the original representation that was filed on April 8, 2010 and not to mention the multiple representations which went answered, the Respondent No. 3 issued a memo no. 799(2) FMR/13 L-63/2014 (Part-I) dated February 17, 2016 to the Respondents Nos. 4 and 5, stating that the engagement of the petitioner could not be considered on compassionate grounds as the applicant/petitioner?s degree of relationship with his grandmother did not fall under the purview of "family member" as defined under Clause 2(m) of the 2013 Order.
h) The Respondent No. 5 vide memo no. 305/SCF&S/KGR/16 dated March 30, 2016 explained in detail the reason for the applicant?s
