Subrata Talukdar, J.
1. 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
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f 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 which were holding the field at the material time of death of the original dealer, the petitioner as the nephew has the right to claim compassionate appointment.8. Per contra, Sri Sushovan Sengupta, Ld. Senior Counsel appearing for the State-respondents submits that the Hon'ble Single Bench by its order dated 17th March, 2015 (supra) left the consideration of the petitioner's application completely in the hands of the DOR by keeping all points open. In such circumstances the DOR committed no error of law or fact by applying the provisions of the 2013 Control Order since, admittedly on 18th September, 2013, that is the date on which the petitioner applied in proper form the 2013 Control Order held the field.9. Sri Sengupta also points out since the petitioner does not qualify to be a family member under the 2013 Control Order, there is no question of appointing him to the dealership. 10. With further regard to the abovenoted discussion this Court notices that compassionate appointment has been held to be an exception to the normal course of recruitment. The object of compassionate appointment is the need to remove immediate penury.11. In Eastern Coalfields Ltd. vs. Anil Badyakar & Ors. Reported in 2009 (13) SCC 112, the Hon'ble Apex Court noticed the clear emphasis through different judicial pronouncements that compassionate appointment cannot be claimed and offered whatever the lapse of time and after the crisis is over. The observations In Re: Eastern Coalfields (supra) are as follows:-"7. So far as the question of nature and object of appointment on compassionate ground, it is relevant to take note of what is stated by this Court in Umesh Kumar Nagpal vs. State of Haryana:"6….the compassionate employment cannot be granted after a lapse of a rea,sonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."8. In Ja,gdish Prasad Vs. State of Bihar it was observed that:"3….The very object of appointment of a dependant of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family." 13. In Punjab National Bank vs. Ashwine Kumar Taneja it was observed by the Court that:"4….It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.""A similar view was taken by the Hon'ble Apex Court in Punjab National Bank vs. Ashwini Kumar Taneja reported in 2004 (7) SCC 265. At Paragraph 4 it was held as follows:-"4. In support of the appeal learned counsel for the appellants submitted that the approach of the High Court is erroneous. When the object of compassionate appointment is kept in view with reference to the amounts received by the heirs of the deceased employee, it was submitted that there was no financial hardship. Learned counsel for the respondent submitted that the amounts like gratuity, provident fund, etc. have no relevance for determining the question whether compassionate appointment is to be made. It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis." 13. In Bhawani Prasad Sarkar vs. Union of India & Ors. reported in 2011 (4) SCC 209, the Hon'ble Supreme Court crystallised the claim to compassionate appointment to the following factors:-"17. In Umesh Kumar Nagpal Vs. State of Haryana & Ors.1, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Class III and IV, this Court had observed that:"The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the 1 (1994) 4 SCC 138 legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned."18. Similarly, in Steel Authority of India Limited Vs. Madhusudan Das & Ors.2, this Court has observed that:"This Court in a large number of decisions has held that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down therefor viz. that the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said rule. It is a concession, not a right." (See also: General Manager, State Bank of India & Ors. Vs. Anju Jain3.)19. In V. Sivamurthy Vs. State of Andhra Pradesh & Ors.4, this Court while observing that although appointment in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution, yet appointments on compassionate grounds are well recognized exception to the general rule, carved out in the interest of justice to meet certain 2 (2008) 15 SCC 560 3 (2008) 8 SCC 475 4 (2008) 13 SCC 730 contingencies, highlighted the following two well-recognised contingencies as exceptions to the general rule :"(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service.(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner."20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.(ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.(iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the bread winner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.(iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee, viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IVposts."14. In the background of the above noted position of law this Court is now required to examine the stand of the State-respondents in the facts of the present case. Sri Sengupta has strenuously argued on the basis of the decision of the Hon'ble Supreme Court in Gajraj Singh & Ors. vs. State Transport Appellate Tribunal & Ors. reported in 1997 (1) SCC 650 that there is a distinction between right acquired or accrued and the privilege, hope or expectation of a right.15. Ld. State Counsel has argued that till the petitioner is able to demonstrate that a right has crystallised in his favour for the compassionate appointment under the replaced law and regulations, such compassionate appointment must be guided by the law and regulations prevailing on the date of consideration. On the above noted premise Sri Sengupta asserts that the competent Authority committed no legal infirmity by rejecting the claim of the petitioner as invalid under the Memo dated 24th July, 2014. 16. Noticing Sri Sengupta's submissions (supra) this Court is required to place such submissions in the context of the pronouncements of the Hon'ble Apex Court through its several judgments (supra) regarding the inherent nature of compassionate appointment. To the mind of this Court the Hon'ble Apex Court has been clear in pronouncing that the compassionate appointment must relate to the need of the claimant being a dependant family member of the deceased to avert an immediate financial crisis. Second, such compassionate appointment is an exception to the normal recruitment process and, almost amounts to a concession.17. Having regard to the clear exposition of the legal principles attached to compassionate appointment laid down by the Hon'ble Apex Court (supra), this Court is of the considered view that since the immediate financial crisis of the claimant arises on the death of the original licensee, the claim to such compassionate appointment must be considered to have arisen at the time of such death. In other words the right of the claimant must be considered to have crystallised at the moment of the death of the original licensee.18. In the above view of the matter the claim of the appointee/claimant cannot be merely discarded on the ground that such claim was considered by the competent State Authority at a distance of time when the law and regulations prevailing at the moment of death stood substituted by a new law and regulation. To the further mind of this Court a consideration by the competent State Authority at a distance of time on the platform of a new law and regulations which did not exist at the moment of death, is an exercise which frustrates the essence of compassionate appointment which is to help tide over an immediate financial crisis by way of an exception to the normal recruitment process.19. Therefore, this Court is of the further considered view that the competent State Authority must address itself to a bona fide claim submitted by the claimant within due time under the law and regulations existing at the moment of death. The competent State Authority is then required to arrive at a just conclusion on the need of the claimant to such compassionate appointment on fulfilment of the necessary parameters as applicable to him under the law and regulations as prevalent at the moment of death.20. Having heard the parties and considering the materials on record this Court finds that by the order dated 17th March, 2015 the Hon'ble Single Bench clearly expressed its mind by directing consideration of the petitioner's application under the Control Order which was in vogue (emphasis supplied) at the time of expiry of the licencee. Admittedly the original licencee, the late Smt. Saraswati Gupta died on 21st June, 2013 and, at the time of her death, the 2013 Control Order was not in vogue. Therefore, the clear intention of the Hon'ble Single Bench vide its order dated 17th March, 2015 (supra), to the mind of this Court, was to direct application of the Control Order in vogue at the time of expiry of the original licensee, which is the 2003 Control Order.21. This Court is of the further considered view that on 21st June, 2013 when the writ petitioner apprised the Rationing Officer, Chitpur of the death of his aunt, by the same letter he requested that necessary action be taken by the Authority in the interests of PDS and under the Rationing Rules prevailing. Therefore, to the further mind of this Court there is no ambiguity in interpreting the intention of the petitioner to claim consideration for compassionate appointment under the 2003 Control Order read with its supporting memos, such as the Memo dated 3rd July, 1985.22. This Court is also persuaded to hold that the second representation of the petitioner dated 18th September, 2013 at the instance of the Authority must be construed to be a continuation of his first representation dated 21st June, 2013. As on 21st June, 2013, in the view of this Court, the 2003 Control Order was in vogue read with the Memo dated 3rd July, 1985 which deserves to be applied. It is obvious that under the Memo dated 3rd July, 1985 the DOR is required to examine the claim of the writ petitioner as the next of kin of the deceased licensee, Saraswati Gupta more so when the deceased licensee, in the absence of any son or daughter, had bequeathed her property, including the ration shop, in favour of the writ petitioner. 23. This Court is also of the view that under the Hindu Succession Act, 1956 (for short the 1956 Act) under Section 8 thereof the petitioner as the nephew is a Class- II legal heir of a deceased Hindu male. Under Section 15 of the 1956 Act governing succession in the case of female Hindus dying intestate the petitioner, as a nephew also falls within the second class of heirs vide Section 15(1)(b) thereof being the heir of the husband. Therefore, in the view of this Court, the petitioner qualifies to be the next of kin who can be considered for appointment on compassionate grounds under the terms of the Memo dated 3rd July, 1985 (supra).24. For the above reasons and, having regard to the facts of this case, the order impugned dated 20th April, 2015 is set aside. The matter is remanded to the DOR for taking a fresh decision in the light of the observations made above in this order. Such decision shall be taken by the DOR within a period of four weeks from the date of communication of this order and, if necessary, the DOR shall grant an opportunity of hearing to the petitioner and to any other person considered necessary by the DOR to clarify any factual issue that may require clarification. The DOR shall communicate his reasoned decision to the petitioner and to any other person heard within a further period of one week thereafter. 25. WP 11216(W) of 2015 stands accordingly allowed.26. There will be, however, no order as to costs.Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
"2016 (3) CalLJ 138" == "2016 (4) WBLR 161,"