22.1. 2025 item No.4 n.b. ct. no. 24 WPA 29683 of 2024 Sudipta Bhowmik Vs. State of West Bengal & Ors. Mr. Debabrata Saha Roy, Mr. Sujit Kumar Rath, Mr. Subir Hazra, Mr. Sukumar Sarkar, Mr. Anirban Saha, ….. for the petitioner. Mr. Suman Sengupta, Ms. Amrita Panja Moulick,, …… for the State. The present petitioner is a retired Military personnel, who is receiving pension from the Central Government. His mother Sabitri Bhowmik was a MR dealer, who expired. After her expiry, the petitioner, being the son of the erstwhile MR dealer, applied for the license on compassionate ground. He filed the application form according to the provisions of West Bengal Public Distribution System (Maintenance and Control) Order, 2013 (herein after referred to as the Control Order) wherein the petitioner mentioned that his family monthly income other than the FPS dealership to be Rs.22,500/-. No objection affidavit of other legal heirs of late Sabitri Bhowmik was also appended with the application. The concerned authority after considering the proposal for engagement of the petitioner as FPS dealer on compassionate ground, has turned down the prayer on the ground that that the petitioner is received regular pension from the Government and he did not solely dependent on the deceased FPS dealer. Challenging the said memo of rejection, the petitioner approaches this Court. Mr. Debabrata Saha Roy, learned Senior Counsel appearing on behalf of the petitioner submits that the petitioner has applied for license according to the provision of Control Order maintaining all the formalities including NOC of other legal heirs of the deceased employee. He also demonstrates the fact that his son was suffering a decease since his birth and for which monthly Rs.20,000/- is monthly expended regularly. It is the submission of Mr. Saha Roy that the rule for compassionate appointment in Control Order was not truly considered/followed by the authority, thus, the order passed by the authority liable to be set aside. He submits that the alleged income from pension of the retired Military personnel i.e. petitioner, cannot be considered to be regular means of income as envisaged under the provisions of Rule 20 Sub-Rule 6 of the said order. He submits that ‘regular means of income’ as means and includes sufficient to maintain livelihood of the family. The income of the petitioner from his Military Pension i.e. Rs.22,500/- is not sufficient to maintain the family. Moreover, huge amount of money is regularly expended towards the treatment of his son. 2 He submits that a Co-ordinate Bench of this Court as well as Division Bench of this Court has decided the issue. He placed the decision of the Co-ordinate Bench of this Court passed in Biswajit Sen Vs. State of West Bengal & Ors. as well as decision of Division Bench of this Court passed in Tapan Kumar Barman Vs. State of West Bengal & Ors. reported in 2019(1) CHN 23. Mr. Suman Sengupta, learned counsel appearing on behalf of the State authority submits that the compassionate appointment of the family member of a deceased MR dealer is the scheme adopted by the State of West Bengal only to support the family of the deceased MR dealer to mitigate the immediate hardship of the family. He further submits that the term of the statute i.e. “having no regular means of income” itself carries at interpretation that one dependent depended legal heirs of deceased having no regular means of income may be entitled to get an appointment on compassionate ground. In this case, the petitioner himself declared before the authority that he is having regular means of income from his pension of Central Government. He further submits that the scheme of pension as received by the present petitioner is income tax free. So, if the present petitioner is again allowed to continue the dealership license, the other persons, who did not have any regular income, would be deprived. He further argued that if the provisions of law are 3 interpreted according to the version of the learned counsel for the petitioner, the purpose of the statute would be frustrated. In support of contention he cited a decision of Hon’ble Supreme Court passed in (2019) 3 SCC 653. “18. While considering the revival submission, it is necessary to bear in mind that compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the policy on compassionate appointment. The basis of the policy is that it recognizes that a family of a deceased employee may be placed in a position of financial hardship upon the untimely death of the employee while in service. It is the immediacy of the need which furnishes the bias for the State to allow the benefit of compassionate appointment. Where the authority finds that the financial and other circumstances of the family are such that in the absence of immediate assistance, it would be reduced to being indigent, an application from a dependent member of the family could be considered. The terms on which such applications would be considered are subject to the policy which 4 is framed by the State and must fulfil the terms of the policy. In that sense, it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependent member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State.” Mr. Sengupta argued that the Hon’ble Supreme Court has specifically framed a guideline when a compassionate appointment can be considered and when it cannot be. Mr. Sengupta further argued that there is no instance that any person getting pension was also allowed by the competent authority to continue the license under the compassionate appointment. Thus, the observation of the co-ordinate Bench of this Court cannot be applicable in this case. He further argued that the concerned authority has acted upon the direction of the statute and there is not ambiguity to interpret the statute. The plain meaning of the statute has to be interpreted to its logical meaning, which only indicates a person having income cannot be allowed to continue the dealership 5 license on compassionate appointment. So, he prayed for turned down the prayer of the petitioner. Mr. Sengupta also contradicts the judgment of the Hon’ble Division Bench of this Court in the case of Tapan Kumar Barman (Supra) which it is factually different. Having heard the learned counsel for the parties and also considering the matter placed before this Court, it appears that the question as to whether the concerned authority is justified by rejecting the prayer of the petitioner, who applied for FPS license on compassionate ground that he is receiving regular pension from the government and was not solely dependant upon his deceased MR dealer. To decide the issue in hand, it is necessary to set out the provision of Clause 20 and sub-clause 6 of the Control Order 2013. “Clause 20 (VI). Engagement on Compassionate grounds: (a) In case of death or in case of incepcitation on medical ground subject to satisfaction of the authority, of any existing dealer, prayer of any of the family members of the deceased/incapacitated dealer having no regular means of income, maybe considered on compassionate ground if such prayer along with formal application in Form C2 alongwith Anexure-I with requisite fee as prescribed in Schedule A, corroborative docments as per checklist and “No Objection” from other family member in the for of an Affidavit to be sworn before Magistrate in Annexure in Annexure-II is submitted:” Only moot question in the writ petition is that the term appearing in the clause, that is, “ having no regular means of income”. Whether it can be construed to be 6 the income of the petitioner. It is an admitted fact that that the petitioner is having regular pension from the Central Government. Observation of the co-ordinate Bench regarding Army pension scheme in Biswajit Sen(Supra), is required to be set out as follows: “The Court can take judicial notice of the fact that in respect of Army personnel, pension is granted under the scheme of the National Pension System (NPS). The National Pension System is a defined contribution of pension system administered and regulated by the Pension Fund Regulatory and Development Authority (PFRDA), created by the Act of the Parliament of India. NPS envisages a provision similar like contributory pension. The employee is required to contribute in the pension scheme. The employer is also under obligation to contribute a major share in the contributory pension fund and on the basis of share of the employee and employer, the pension is fixed. Thus, under the NPS, pension is not an accrued income of an employee. On the other hand, it is the contribution of the employee and employer, which the employee gets after his retirement throughout the life.” Mr. Saha Roy, has demonstrated the definition of “means” in the Black’s Law Dictionary which read as follows: “Resources; available property; money or property, as an available instrumentality for effecting a purpose, furnishing a livelihood, paying a debt, or the like”. In Tapan Kumar Barman(Supra) the Division Bench of this Court has decided the issue whether the State Government was justified for not granting compassionate appointment to a person of the family member of deceased employee, who are getting family 7 pension and also received lumpsum amount as death benefit of the employee: “8. The question is as to whether the receipt of Rs. 3,45,620/- on account of death benefit and Rs. 4,000/- as family pension per month stands in the way of granting employment on compassionate ground or not. 9. The Director has not set out any provision of law as to how on receipt of the aforesaid amount, the applicant is debarred from getting any appointment. The paymnet which had been received is an earned and assured amount which includes Provident Fund and Gratuity and Provident Fund and Gratuity is the amount earned by the decesed employees and as far as the family peension cfoncerned, this is also one kind of deferred and earned by the deceased. In our view, compassionate appointment is given with an idea to compensate the family for the losws of income because of sudden death of the employee who would have earned in future. The money which has been received was earned by the employee, which he might have received had he been alive. 10. Besides, the amount of Rs.4,000/- being the family pension, is conterminous with the life of widow and the amoment the widow dies, this benefit stands withdrawn. The sons are unemployed, the daughers are unmarried. Therefore, it is not for the Director to assess the financial need of the family and it si for the family who can feel their own need. Had the son been appointed, he would not have e=arned the same amount which his father would have earned during his service, however, his earning would have been some amount of financial replenishment. Therefore, the payment of terminal benfit on account of death cannot be equated with the scheme of compassionate appointment and this concept has been laid down by the Supreme Court in a decision rendered in the case of Balbir Kaur & Anr. Vs. Steel Authority of India Ltd. & Anr., reported in 2000(6) SCC 493.” Hon’ble Supreme Court in (2019) 3 SCC 653 has decided the issue that the compassionabe appointment is exception to the general rule, which only debarred the rightful presons to get appointment. However, in paragraph 18 the Hon’ble Supreme Court has specifically mentioned if there is a scheme for 8 compassionatae appointemnt, the scheme should be followed it its true letter and spirit. In considering the entire facts and circumstnaces of the case, it appears to me that the present petitioner is receving the pension from the Central Government. It is true that Central Govenrment has allowed the retired Military personnel for ther absorption in different Govenrment sectors. The Notification of the Central Govenrment, which allowed the pensionar to get as appointment in diffirent categories for the State Govenrment organisations, is not allowing them to provide a licnece of the State Governemnt in favour of the ex-service man. The present Contorl Order 2013 also not allowed any reservation regarding the appointment under the category of ex-serviceman. The “regular menas of income” as termed in Clause 20 of sub-clause 6 of the Control Order 2013 means and includeds the income of a family, which is sufficient to maintain the daily livelihood of the family. Only earning in-sufficient amount regularly from other sources, cannot deber any person to get appointment under compassionate ground. I admit the sumbission of Mr. Sengupta that rule of appointment of compassionate ground is a Scheme, which cut off right of the regular applicants, who have no regular menas of income; but a statute, which provides an opportunity for compassionate appointment, means that the legislature 9 has framed the provisions only to provide the facilities to the family members of the deceased FPS dealer, who are suffering due to sudden death of their sole bread earner. The statute itself made a provision for compassionate appointment. Thus, it it not a reasonable submission that, provisions for compassionate appointment should not be given more preference than regular appointment. Rather, Control Order, 2013provides a resultant vacancy can only be declared if there are no fit person for getting appointment on compassionate ground. After hearing the parties, I am of view that the income of the present petitioner, which was disclosed in his application is an earning from the pension, which though, he is receiving regularly from the Central Government cannot be termed as “income”. Following the observation in Biswajit Sen(Supra), it is true, that the the pension of the petitioner is his contribution during his service , thus, in no way it can be considsered to be an income. Moremover, finding of authority, regarding non-dependency of petitioner upon deceased MR dealer, is unreasonable and without basis. Under the above observation, I am of the view that the impouned memo for rejection of the petitioner’s prayer by the concenred authority dated September 10, 2024 and November 18, 2024 is hereby set asise and quashed. 10 The respondnet authority is directed to issue an oder of appointment of MR dealer license in favour of the petitioner on compassionate ground within six weeks from receiving of the copy of this order, if he found to be otherwise eligible according to law. Consequently, the impugned subsequent vacancy notification, passed by the concenred authority is also quashed. Thus, the writ petition is disposed of. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. ( Subhendu Samanta, J.) 11