The right of eligible family members to seek engagement on compassionate grounds accrues only upon the death of the licensee, and the vacancy for the license arises at that point.

JUDGMENT

Amrita Sinha, J. - The father of the petitioner was a fair price shop (FPS) dealer. During his lifetime he affirmed an affidavit on 2nd February, 2019 expressing his intention to transfer his dealership license in favour of the petitioner. A representation to the above effect was made by the father of the petitioner before the Sub-Divisional Controller on 5th February, 2019. Prior to any decision being taken in response to the application filed by the father of the petitioner, he died on 8th October, 2019.

2. After the death of his father, the petitioner applied before the Sub-Divisional Controller praying for grant of FPS dealership license in his favour in accordance with the desire expressed by his deceased father. An enquiry was conducted by the Chief Inspector (F & S) on 1st June, 2021 and a report was submitted by him on 3rd June, 2021. The petitioner was directed to attend a hearing on 25th June, 2021.

3. The Sub-Divisional Controller by a communication dated 6th January, 2022 intimated the petitioner that his prayer for engagement on compassionate ground has been rejected by the government in terms of memo dated 8th November, 2021, of the Deputy Director (License) since one of his family members did not give the required 'no objection' in his favour.

4. The petitioner is aggrieved by the said rejection and challenges the same in the present writ petition.

5. It is the specific submission of the petitioner that during the lifetime of his father, application was made by his father before the respondent authority, expressing intention to opt for the petitioner for grant of license. The respondents intentionally and deliberately did not take any positive steps in response to the request made by the licensee.

6. As in accordance with the provisions of Clause 20 (vi) of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013 [hereinafter referred to as the Control Order, 2013] there is no requirement of obtaining 'no objection' from the other eligible members of the family if the licensee opts in favour of any of the family members accordingly, the respondents ought to have issued the license in favour of the petitioner long back. Instead of issuing the license, the respondents maintained a stoic silence. In the meantime, the father of the petitioner, that is, the recorded licensee expired leaving behind other heirs apart from the petitioner herein.

7. The petitioner submits that the respondent authority ought to have proceeded immediately on receipt of the option that was filed by the licensee, and in accordance with the intention expressed by the licensee, ought to have transferred and issued the license in favour of the petitioner herein.

8. It has been strongly contended that had the authority taken steps in proper time, then the license could have been issued in favour of the petitioner during the lifetime of the licensee and there would not have been any requirement for obtaining no objection from the other eligible family members.

9. The petitioner contends that the respondent authority, being the wrong doer, cannot take advantage of the inaction/non-action on its part and reject the claim of the petitioner.

10. In support of his stand for issuance of license in favour of the optee in accordance with the option exercised by the recorded licensee, the petitioner relies upon the judgment delivered by a co-ordinate bench of this Court on 19th February, 2014 in WP 34215 (W) of 2013 (Samar Das vs. The State of West Bengal and Ors.).

11. The petitioner also relies upon the judgment dated 18th December, 2020 passed by a co-ordinate bench of this Court in WPA 18261 of 2017 in the matter of Rajib Debnath vs. The State of West Bengal and Ors.

12. In support of the contention that a wrong doer cannot take advantage of his own wrong, the petitioner relies upon the judgment delivered by the Hon'ble Supreme Court in the matter of Kusheshwar Prasad Singh vs. State of Bihar and Ors. reported in (2007) 11 SCC 447