Shekhar B. Saraf, J. - As far as this writ petition no. 515 (W) of 2020 is concerned, I had the opportunity to extensively hear the matter on February 6, February 27 and March 12 of this year. In spite of the matter being posted for March 19, 2020, 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. In the meanwhile, the State respondents proceeded to take precipitous action against the petitioner, in this case, which compelled the petitioner to file CAN 3809 of 2020 seeking urgent hearing for immediate relief. Having concluded the hearing in the matter on July 9, 2020, I now proceed to dispose of this writ petition together with CAN 3809 of 2020 by this common judgment and order.
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 father of the petitioner was appointed as a ration dealer so being Fair Shop No. 40/BDY by the pertinent authority roughly five decades ago under the then West Bengal Rationing Order, 1964 and the said dealership has been in operation since then, functioning from the premises at 146/148, G.T. Road, Sheoraphuly, Hooghly, (JL- 6, Mouza- Sheoraphuly). After the promulgation of the West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2003 (hereinafter referred to as "2003 Order"), the deceased father had also obtained the requisite license under the self-same 2003 Order, being renewed from time to time.
b) However, the State superseded the 2003 Order by the West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2013 (hereinafter referred to as "2013 Order"), and accordingly, the petitioner's father secured a license thereunder on January 28, 2014 with a validity up until December 31, 2014. The petitioner's father however, passed intestate on August 25, 2014. On the same day, the Rationing Officer, Baidyabati (hereinafter referred to as "Respondent No. 3") was informed of such a demise and another FPS dealer was deputed to serve the rationees in furtherance of continuity of service in the public distribution system.
c) Immediately thereafter, on August 26, 2014, the petitioner made an application before the Respondent No. 3, praying for the grant of compassionate appointment apropos of the ration dealership under the license issued in favour of his deceased father and seeking information on any additional formalities that would be required to be complied with.
d) It is the averment of the petitioner that based upon instructions issued by the Respondent No. 3, the petitioner made an application on October 13, 2014 before the Respondent No. 2, The Director of Rationing, Food and Supplies Department, Government of West Bengal, praying yet again, for the grant of ration dealership under the license issued in favour of his deceased father, solely on compassionate grounds. The petitioner also enclosed the mandated documents coupled with the original T.R. form 7 of INR 1,000/- in furtherance of compliance with the statutory application fees.
e) Eliciting no response from the Respondent No. 2, upon the instructions of Respondent No. 3, the petitioner once again submitted all mandated documents with the additional copy of the license of the petitioner's deceased father on January 13, 2015. Thereafter, the petitioner avers several representations were made to seek information on the fate of his application but was met with the mundane and repetitive assurance that his application was under consideration by the State respondents, and subject to such approval, a new license would be issued in his favour.
f) Despite these assurances, the petitioner received a bolt out of the blue five years later, when to his utter surprise on December 10, 2019, he was served with an order no. 121/DR/SSLC dated September 30, 2019 by the Respondent No. 2, which rejected the petitioner's application stating therein that the petitioner applied to the authorities on October 13, 2014 and therefore there was an inordinate delay of 49 days after the expiry of then licensee, the deceased father of the petitioner.
g) Upon such receipt of order, the petitioner filed a representation on December 11, 2019 stating that the initial application was made on August 26, 2014 and the application dated October 13, 2014 was made in continuation thereafter subject to the instructions of the Respondent No. 3, and therefore, no delay can be attributed in this case.
h) The application bearing CAN 3809 of 2020 goes onto further reveal, amidst the ongoing pandemic, the State respondents have now realized that a declaration of vacancy against the defunct dealership of the petitioner's deceased father ought to be processed.
3. The learned counsel for the petitioner has argued that the ground stated in the impugned order dated September 30, 2019 is patently erroneous for there had been no delay of 49 days in making an application for grant of such license, on the grounds of compassionate appointment as the records reflect that the petitioner had submitted the original application to the Respondent No. 3, well within the mandated period of thirty (30) days on August 26, 2014, a day immediately after the petitioner's father passed away.
4. Per contra, the learned counsel for the State Respondents has sought to argue that the time period stated in such Clause 16 (c) of the 2013 Order is mandatory and not directory in nature and the delay of 49 days ought to be construed as such.
5. I have heard the learned counsels appearing on behalf of the respective parties and perused the materials placed on record.
6. Clause 16 (c) of the 2013 Order, inter alia, provides that the application for compassionate appointment in such cases, as the petitioner's, has to be made within a period of 30 days from the date of the death of the deceased licensee. The relevant part is extracted herein for clarity:
"16. Engagement of Dealer :-
**
(a) **
**
(b)**
(c) Where a vacancy arises due to death or incapacitation on medical ground or any other infirmity of any dealer, any of his/her family members may apply to the Director of Rationing, West Bengal for engagement on compassionate ground provided the family have no other means of subsistence. For such vacancies, no notification shall initially be issued.
In such cases the prayer of the applicant addressed to the Director of Rationing, West Bengal and accompanied with a formal application in form A1 along with annexure and requisite application fee shall be submitted to the concerned Joint Director/ Deputy Director of Rationing in-charge of the Sub-control within 30 days from death or incapacitation. While applying, the applicant shall have to furnish "No Objection" (as per schedule X) from other family members in the form of an affidavit executed before a 1st Class Magistrate except in the following cases;
(I) If the applicant be the spouse of the deceased licensee.
(II) If the ex-licensee because of his/her being incapacitated/inform has opted for the applicant.
If no such application is received for engagement on compassionate ground within the stipulated time, the vacancy will be treated as a new vacancy and will accordingly be notified in the manner as prescribed in Sub-clause (a) hereinbefore."
Emphasis supplied by me
7. A Division Bench of this Court was seized of a similar matter in Bakul Rani Patra -v- the State of West Bengal, bearing MAT No. 1019 of 2018 and vide its judgment dated June 24, 2020, the Court had observed:
"It is a settled principle of law that a scheme for compassionate appointment has to be applied strictly. To avail of the benefit of the scheme an applicant has to satisfy its requirements. There is no scope of any extra sympathy or compassion than what is provided in the scheme. But every stipulation in the scheme is subject to interpretation. In this case, the scheme is contained in the Control Order which is a piece of delegated legislation. The provision regarding the time limit within which an application for compassionate appointment can be received by the government is also subject to interpretation."
8. Therefore as far as interpreting clause 16 (c) is concerned, it seems apparent that the legislative intent is to ensure that the mandated time limit is primarily to prevent any undue delay in the furnishing of such claims on compassionate ground but also to ensure that such claims are received as expeditiously as possible by the concerned authorities.
9. While it must be borne in mind that a vacancy immediately arises upon the death of any such FPS dealer, the legislative intent showcases that a notification, notifying such vacancy against such dealership, would not be issued initially which leads me to draw the inference that such a scope has been left to enable the family members of the deceased dealer to file their claims for consideration of appointment on compassionate grounds, by the concerned authorities, in accordance with the extant law.
10. The petitioner's father, as the record reflects, passed away on August 25, 2014. As is borne from the records, the petitioner on the very next day, that is, August 26, 2014 made an application before the Respondent No. 3 seeking consideration for his compassionate appointment vis--vis his father's FPS dealership. His application in the appropriate form was submitted on October 13, 2014 in continuation of his original application dated August 26, 2014.
11. If indeed there had been a delay of more than 30 days, that is, the application filed by the petitioner for compassionate appointment was filed beyond September 25, 2014 which is exactly a month post the demise of the petitioner's father, the authorities should have not have accepted his application and proceeded to declare a vacancy against the dealership. But on the other hand, not only did they accept the petitioner's application for grant of license on compassionate ground but did so on two occasions. First instance being recorded on October 13, 2014 and based upon instructions of the Respondent No. 3, again on January13, 2015. Furthermore, realization has dawned on the authorities after the expiry of more than five years since the last application was filed by the petitioner and that too, amidst the ongoing pandemic caused by the novel coronavirus to declare a vacancy against the dealership under question.
12. The impugned order dated September 30, 2019 issued by the Respondent No.2, which rejected the petitioner's case for grant of the dealership on compassionate appointment, to my mind reeks of arbitrariness and clearly displays a nonapplication of mind by the Respondent No. 2. As a result, the petitioner who has been vigilant of his rights from the first day post the demise of his father, has not been accorded a fair consideration.
13. As the House of Lords had set the limits of the exercise of judicial review in Chief Constable of the North Wales Police vs. Evans,1982 2 AllER 141 (HL): (1982) 1 WLR 1155 :
"...the function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law....the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court...
Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made."
"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
(Emphasis supplied)
14. For the reasons stated above and in the interests of justice, I hereby set aside the impugned order dated September 30, 2019 which was issued by the Respondent No. 2.
15. In normal circumstances, the recourse would have been to remit the matter back to the Respondent No. 2 to reconsider the application filed by the petitioner apropos of his appointment on compassionate grounds after granting an opportunity of hearing to him, giving due regard to all the relevant documents submitted by the petitioner for taking a fresh decision uninfluenced by the impugned order dated September 30, 2019. However, one has to keep in mind the fact that in the period of over five years when the authorities subjected the petitioner's application to astounding indecision, much water has flown down the river. Moreover, the respondents have not been able to contradict the stand of the petitioner that an application for compassionate appointment had been made immediately upon the death of his father. In addition, the respondents have provided no other reasons for rejecting the application of the petitioner.
16. Therefore, I hereby direct that the petitioner be granted the appointment on compassionate grounds apropos the fair price shop license issued in favour of his deceased father within 60 days from the date of communication of this order. If in case the authorities have proceeded in declaring a vacancy of the dealership based on the impugned order dated September 30, 2019, such declaration of vacancy also stands quashed.
17. This writ petition along with the connected application stands disposed of. There shall be no order as to costs.
18. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.
