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2014 DIGILAW 628 (CAL)

Bijoy Krishna Jana v. State of West Bengal

2014-07-14

JOYMALYA BAGCHI

body2014
JUDGMENT Joymalya Bagchi, J. : The petitioner no. 1 is the holder of licence under the West Bengal Public Distribution System (Maintenance & Control) Order, 2003 (hereinafter referred to as the “Control Order of 2003”). Due to incapacitation, petitioner no. 1 made an application in 2008, being Annexure P-3 to the writ petition, for transfer of licence in favour of his daughter, the petitioner no. 2 herein. It is the case of the petitioners that though the said application was made in 2008, but till date no decision has been taken thereon. Accordingly, petitioners pray that direction be given upon the respondent authorities to consider the application and transfer the licence in favour of the petitioner no. 2. Mr. Sengupta, learned counsel appearing for the State-respondents submits that the application for compassionate appointment cannot be considered in the light of the West Bengal Public Distribution System (Maintenance & Control) Order, 2013 (hereinafter referred to as “the Control Order of 2013”) as petitioner no. 2 is a married daughter and, therefore, will not qualify as a “family member” entitled to such compassionate appointment under the Control Order of 2013. In rebuttal, the learned counsel for the petitioners submits that application had been made during the validity of the Control Order of 2003, wherein petitioner no. 2 was entitled to such transfer. Without prejudice to the aforesaid submission, he further submits that petitioner no. 2, though married, is wholly dependent on petitioner no. 1 and hence is entitled to compassionate appointment under the new Control Order. Having considered the submissions of the parties, I am of the considered opinion that right to compassionate appointment due to death or incapacitation is not a right but a privilege extended under the relevant Control Order. Hence, an applicant cannot claim that his application for compassionate appointment be considered in terms of the provisions of the 0ld Control Order which was in vouge at the time of death/incapacitation or at the time of filing of the application. Prayer for compassionate appointment, being not in the nature of a legal right but a privilege extended under the provisions of the Control Order, is to be dealt with in terms of the provisions of the Control Order prevalent at the time of consideration of such application. Prayer for compassionate appointment, being not in the nature of a legal right but a privilege extended under the provisions of the Control Order, is to be dealt with in terms of the provisions of the Control Order prevalent at the time of consideration of such application. More so, when there is no saving clause in the new Control Order providing that pending applications are to be considered in terms of the Old Control Order. Accordingly, I am of the considered view that the pending application of the petitioner for compassionate appointment is to be considered in terms of the new Control Order of 2013. Let me now examine – whether petitioner no. 2 as a married daughter is entitled to compassionate appointment under the Control Order of 2013. Under clause 2 (vi) of the Order of 2013, only family members of an incapacitated/dead licensee is entitled to claim compassionate appointment. The word “family members” has been defined in Section 2(m) of the Control Order of 2013 as follows: “2(m). ‘Family members’ means spouse, dependent parents, dependent sons and daughters for the purpose of considering engagement as Dealers/ Distributors on compassionate ground.” It is therefore clear that dependent sons and daughters of the incapacitated/dead licensee qualify as “family members” and are entitled to claim compassionate appointment. Marital status of a daughter does not per se disentitle her from claiming compassionate appointment provided she is dependent on the licensee. There is nothing in the Control Order that prescribes only ‘unmarried daughters’ can qualify as “family member” entitling her to compassionate appointment. A married daughter, notwithstanding such marital status, may be wholly dependent on her father who is the licensee. Such a daughter may be entitled to compassionate appointment provided she is able to demonstrate that she is wholly dependent on the income of her father, the incapacitated/deceased licensee, in the absence of any source of income of her own or her husband or her major children, as the case may be. Accordingly, I dispose of the writ petition directing the respondent no. 5 to consider the application of the petitioner no. 1 in terms of the Control Order of 2013 in the light of the aforesaid observations and after making due enquiry as to the dependency of petitioner no. 2 on the earnings of the petitioner no. Accordingly, I dispose of the writ petition directing the respondent no. 5 to consider the application of the petitioner no. 1 in terms of the Control Order of 2013 in the light of the aforesaid observations and after making due enquiry as to the dependency of petitioner no. 2 on the earnings of the petitioner no. 1 and come to a reasoned decision thereon within eight weeks from the date of receipt of the certified copy of this order. Decision, so taken, shall be communicated to the petitioners within two weeks thereafter. With the aforesaid directions, the writ petition is disposed of without, however, any order as to costs.