IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

(APPELLATE SIDE)

Present:

The Hon’ble Justice Smita Das De

WPA No. 23311 of 2023

CAN 2 of 2025

Kalpana Maji and Ors In Place of Swadesh Ranjan Maji

(Since Deceased)

-Vs-

State of West Bengal & Ors.

Smita Das De, J.:-

1. The instant application CAN 2 of 2025 has been filed by the

applicant, being the wife of the deceased original licensee of a Fair

Price Shop (FPS) distributor, challenging inter alia, the order dated

April 24, 2025 rejecting her application for grant of license on

compassionate appointment. The rejection is premised on the

ground that the writ petition filed by the deceased licensee

challenging the termination of his FPS license is still pending.

2. Apropo the facts of the case is that the original licence holder (since

deceased) had been running a Fair Price Shop Dealership at village

and Post Office – Panna, Police Station-Ghatal, District–Paschim

Medinipur, by virtue of a license under West Bengal Public

Distribution System (Maintenance and Control) Order, 2013(in short

For the Petitioner : Mr. R.A. Agarwal

: Ms. Nibedita Pal

: Mr. Ananda Gopal Mukherjee

Reserved on : 06/05/2026

Judgment on : 20/05/2026

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“2013 Order”) issued by the Sub-Divisional Controller, Food and

Supplies, Ghatal, Paschim Medinipur(hereinafter referred to as

“SCFS”).

3. On February 8, 2023 a show cause notice had been issued to the

original licence holder by the SCFS, alleging certain irregularities

detected during the enquiry and scrutiny of document regarding

issuance of ration cards.

4. On March 24, 2023 an order of termination to the original licence

holder had been issued by the SCFS with effect from March 25,

2023.

5. No steps for substitution have been taken by the legal heirs in the

pending writ petition being WPA 23311 of 2023. Subsequently, the

applicant, being the widow of the deceased, filed an application on

April 21, 2025 before the concerned authority for grant of a Fair

Price Shop dealership licence on compassionate ground under the

applicable policy.

6. The said application has been rejected by an order dated April 24,

2025 solely on the ground that the writ petition filed by the deceased

licensee is pending adjudication, which is the subject matter of

challenge herein.

Contention of the Applicant –

7. Learned counsel appearing on behalf of the applicant submits that

the Writ Petition No. WPA No 23311 of 2023 has been filed originally

by the original license holder, challenging the order dated March 24,

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2023 passed by the Sub-Divisional Controller, Food and Supplies,

Ghatal, terminating his dealership licence, on the allegation of

illegally lifting ration commodities against the spurious digital ration

cards.

8. The First Appellate Authority, being District Controller of Food and

Supplies (DCFS), Paschim Medinipur, by an order dated June 13,

2023 upheld the order of termination of license. The Second

Appellate Authority also dismissed the appeal against the order of

termination of license.

9. Learned counsel for the applicant further submits that during the

pendency of the writ petition, the original license holder died

intestate on January 21, 2025 leaving behind his widow and four

children, who filed an application on February 11, 2025 for

substitution of their names in place of the original licence holder

(since deceased), which has been allowed by this Hon’ble Court by

an order dated February 19, 2025.

10. The applicant applied for grant of license on compassionate

grounds on April 21, 2025 against the dealership of the original

licence holder (since deceased), but the application has not been

processed by the SCFS, Ghatal, allegedly due to the pendency of the

writ petition, as informed to the applicant vide memo dated April 24,

2025.

11. The applicant asserts that the claim for compassionate

appointment is an independent statutory and policy right. It cannot

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be defeated merely because the deceased had challenged the

termination of his licence.

12. There is no provision in the FPS Policy or the relevant scheme that

bars consideration of an application for grant of license on

compassionate grounds merely due to the pendency of a writ

petition filed by the deceased license holder.

13. It is submitted that since no substitution has been sought in the

writ petition filed by the deceased, the same stands abated.

Therefore, there is no subsisting lis which can operate as a bar to

the applicant’s claim, as held by the Hon’ble Apex Court in Civil

Appeal NO. 7028 of 2022 with SLP (C) NO. 36386 of 2014 ( AKS

Rathore (dead) through LRS Vs. Union of India & Anr. ) that no

final order can be passed in the disciplinary proceeding against a

dead person. The disciplinary proceedings have actually abated and

as a consequence, the legal representatives of the original appellant

will be entitled to all the benefits.

14. Learned counsel for the applicant also relies upon another

judgment dated April 10,2014, passed in W.P No 524 of 2009 (Aisha

Khatoon & Ors Vs State of West Bengal & Ors ) wherein a

Coordinate Bench of this Hon’ble Court has been inter alia pleased

to hold that -

“ .. The responsibility of the living representatives of a wrong

doer for an alleged act must die with the wrong doer himself.. his

heirs cannot be deprived of the right to be considered for grant of

license on compassionate ground”.

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The aforesaid judgment has been accepted by the State and the

licence has been granted to the widow of the original licence holder.

15. Learned counsel further places reliance upon a judgment dated

January 30, 2018 passed in W.P. No 19811(W) of 2017 ( Avijit Kar

Modak vs Indian Oil Corporation Limited & Ors ) , wherein a

Coordinate Bench of this Hon’ble Court has been inter alia pleased

to hold that -

“….. of course the authority had the reasonable grievance

against his father against whom, may be for the good or

reasonable reasons, proceedings had to be initiated. But

admittedly, may be for some order of the Court or for otherwise

reasons, said proceedings could not be concluded during lifetime

of the father of the writ petitioner. Under law and also as has

been available from the case of the Co-ordinate Bench as held in

the case of Aisha Khatoon (Supra) that even any crime is

committed by the father of a son and where the son is not

involved in any manner with or with the result of such crime and

there has been no other accused, in that event , there would be

legal death of that criminal case or even the proceedings,

whatever it may be ….”

“But if for otherwise reasons, the impugned order cannot sustain

under law, in that event, a son like the writ petitioner cannot be

punished for any fault or default of his father. If it is so done,

then it may remind us for a renowned story the wolf and the

jackal”

The said judgment dated January 30, 2018 has been carried in an

appeal, being FMA 1716 of 2018 (Indian Oil Corporation Limited

& Ors. Vs. Avijit Kar Modak & Anr. ) Where, the Hon’ble Division

Bench has been inter alia pleased to hold that -

“Be that as it may, no enquiry having been held against the

deceased father of the respondent/writ petitioner during his

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lifetime, everything abated on his death when the oil company

did not proceed to prove the charge/charges. When everything

has abated and the allegation as made has not been proved, no

fault can be found in the application filed by the respondent/writ

petitioner for his appointment/engagement as LPG distributor.

He (respondent/writ petitioner) according to law or moral is not

supposed to inherit the sin of his deceased father”.

Accordingly, we set aside the conclusion reached by Hon’ble

Single Bench and allow this appeal directing the appellants/oil

company to reconsider the application of the petitioner in the

light of clause 3.4 of the 2013 Guidelines…”.

16. It has also been submitted that pursuant to the direction of the

Hon’ble Appeal Court, as stated above, Indian Oil again rejected the

application of the writ petitioner. The rejection order has been

challenged by the writ petitioner by way of a writ petition, being WPA

25731 of 2024, which has been disposed of by a Co-ordinate Bench

of this Hon’ble Court by Judgment dated July 23

,2025, inter alia,

observing that-

“In passing the reasoned order, the respondent authority also

opined that as the previous conduct of the business of the

deceased distributor had polluted the reputation of the IOCL,

thus, the petitioner cannot be allowed to run the business. The

action of the respondent authority remind me a story of

HITOPODESH, where a lion tried to kill a deer with allegation

that predecessor of such deer had polluted the steam. In this

particular case, the respondent authority had illegally denied the

petitioner in a notion which was already deprecated by this

Court in the earlier litigations. Under the above observations, I

am of a view that acts and actions of the respondent authority in

passing impugned reasoned order is arbitrary. The respondent

authority has not properly complied the direction of the Hon’ble

Division Bench. In deciding the prayer of the petitioner for

reconstitution, they also flouted the terms of the guideline for

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reconstitution of LPG distributorship by confusing themselves in

the earlier conduct of the deceased father of the petitioner. Under

the above observation, the instant writ petition appear to be

meritorious. The impugned reasoned order dated September 11,

2024 by the respondent authority is hereby set aside. The

respondent authority is directed to pass an order reconstitution

strictly in terms of the guidelines and to convey their consent

regarding allowing the petitioner to run the distributorship

licence within six weeks from the date of this order. The writ

petition is disposed of”.

Contention of the State Respondent-

17. Per contra, learned counsel appearing for the State respondent

submits that the order of termination is under challenge in WPA No.

23311 of 2023. Unless the said order of termination is set aside, the

applicant cannot claim any right to be appointed in place of the

deceased.

18. The state respondent strenuously argues and submits that where

a license has been terminated or cancelled on account of proven

irregularities, misconduct or violation of the provisions of the control

order, the foundation for invoking compassionate engagement

ceases to exist.

19. The termination under Clause 28 of the 2013 order is punitive in

nature and is imposed as a consequence of established

contraventions. Permitting the legal heirs of a licensee, whose

license has been cancelled by way of penalty, to seek engagement

under Clause 20(vi) defeats the very purpose of the disciplinary

framework under the control order and amounts to indirectly

condoning the misconduct for which the license has been cancelled.

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20. It is further submitted that Compassionate appointment is not a

matter of right but is governed by policy. Permitting the wife to

obtain a fresh licence on compassionate ground would amount to

collateral attack on the order of termination which has been

challenged by the deceased. Allowing a family member to step into

the same licence after its termination effectively results in ‘backdoor

entry’ rendering the penalty imposed by the licencing authority

illusory and nugatory.

21. Learned counsel for the state respondent submits that upon

termination of the license, the continuity or “legacy” of the Fair Price

Shop dealership stands completely extinguished in the eyes of law.

The vacancy that arises is not a “vacancy by death” but a “vacancy

by forfeiture” occasioned by punitive cancellation. Such a vacancy

must be filled only in accordance with the regular procedure

prescribed under the control order, namely through public

notification and selection by an open, transparent, and competitive

process. Any deviation from the procedure by granting

compassionate engagement in such cases violates Articles 14 and 16

of the Constitution of India, which enshrine the principles of

equality, non-arbitrariness and equal opportunity. Compassionate

engagement, being an exception carved out in limited

circumstances, cannot be permitted to override constitutional norms

or dilute the sanctity of statutory penalties imposed for proven

violations.

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22. It has been stated by the respondent that the submissions of the

applicant, to the effect that in view of the order dated April 10, 2014

passed by a Coordinate Bench of this Hon’ble Court in WP 524 of

2009, the applicant, allegedly standing on the same footing, is

automatically entitled to consideration for issuance of license on

compassionate grounds, is wholly misconceived and unsustainable

in law. The contention ignored the settled legal position laid down by

the Hon’ble Supreme Court that compassionate appointment is not

governed by any straitjacket formula applicable uniformly to all

cases. The Apex Court has categorically held that each case must be

examined on its own peculiar facts, keeping in view the underlying

object of compassionate engagement, namely, to alleviate the

immediate financial distress of the family arising out of the death of

the breadwinner.

23. Learned counsel on behalf of the respondent relies upon a

judgment Canara Bank vs Ajith Kumar G.K reported in 2025 SCC

Online SC 290, where the Apex Court has held that-

“There cannot be a straitjacket formula applicable uniformity to

all cases of employees dying–in–harness which would

appointment on compassionate grounds. Each case has its own

peculiar features and is required to be dealt with bearing in

mind the financial condition of the family. It is only in “hand-to-

mouth” cases that a claim for compassionate appointment ought

to be considered and granted, if at all other conditions are

satisfied.”

24. Learned counsel also relies upon another judgment of the Apex

Court in General Manager, State Bank of India and Others vs

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Anju Jain reported in (2008) 8 SCC 475 in which the Court has

observed that-

“At the same time, however, in certain circumstances,

appointment on compassionate ground of dependants of the

deceased employee is considered inevitable so that the family of

the deceased employee may not starve. The primary object of

such scheme is to save the bereaved family from sudden

financial crisis occurring due to death of the sole bread earner. It

is thus an exception to the general rule of equality and not

another independent and parallel source of employment.

In our opinion, therefore, if disciplinary proceedings have been a

initiated against an employee and the charges leveled against

such employee are proved and he is punished, it is indeed a

relevant consideration for not extending the benefit to a

dependant of such employee on the ground that he was

punished. To us, it cannot be said that it is a case of double

jeopardy or a dual punishment.

Compassionate appointment is really a concession in favour of

dependants of a deceased employee. If during his career, he had

committed illegalities and the misconduct is proved and he is

punished, obviously his dependants cannot claim right to the

employment. With respect, the learned single Judge was wholly

wrong in observing that such an action would be violative of the

principles of natural justice.

…………”

The Applicant Distinguishes Two Judgments Relied Upon By

The Respondent-

25. The judgment reported in Canara Bank Vs. Ajith Kumar G.K .

reported in 2025 SCC Online SC 290 cited by the State is not

applicable to the instant case. In the above judgment, the issue

pertained to refusal of compassionate appointment on the ground

that the family has been in receipt of family pension, and, therefore,

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its financial condition did not warrant compassionate appointment

.In the instant case, the applicant merely seeks consideration of her

application in terms of the statutory provisions of the Control Order,

2024, and appointment subject to fulfillment of the prescribed

eligibility criteria.

26. Secondly, the judgment Somnath Bhattacharya Vs. The Kolkata

Municipal Corporation reported in 2023 SCC OnLine Cal 6734

cited by the State is distinguishable. In that case, the petitioner

sought to make out a new case by way of supplementary affidavit

that too, after commencement of hearing of the writ petition.

However, in the instant case, the supplementary affidavit has been

filed before commencement of hearing and has been taken on record

without objection by the State. Further, no new case has been made

out rather the applicant has prayed for a direction upon the

authority only to consider her application on compassionate

grounds, since the cause in the writ proceeding has abated.

Analysis-

27. The moot question involved herein as to whether the respondent

authority has been justified in rejecting the applicant’s application

for compassionate appointment solely on the ground of pendency of

the writ petition filed by the deceased licencee challenging the

termination of his Fair Price Shop Licence.

28. It is a well settled principle that compassionate appointment is

intended to provide immediate financial protection and continuity of

livelihood to the family members of a deceased licence holder/dealer.

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Once the writ proceedings challenging termination abated on

account of death, there remains no conclusive judicial determination

affirming misconduct. In the absence of adjudication, the stigma

attached to the deceased cannot automatically travel to innocent

legal heirs.

29. The doctrine that penal consequences are personal and do not

ordinarily survive against legal representatives is a settled principle

of law. Abatement signifies cessation of proceedings against the

deceased person because the lis concerning personal rights and

liabilities no longer survives in the same form.

30. It is trite that compassionate appointment is an exception to the

general rule of recruitment. It is intended to provide immediate

succour to the family of the deceased in order to tide over sudden

financial distress. The right to be considered for such appointment

is independent of any challenge to the termination of the deceased’s

licence.

31. In the present case, the deceased licencee had challenged the

termination of his licence. However, on his demise, no substitution

has been sought and the writ petition stands abated. Consequently,

there is no subsisting challenge to the order of termination. The

respondent authority has, therefore, proceeded on a misconceived

premise that a pending lis operates as a bar.

32. Further, the Fair Price Shop policy does not contain any express

provision, disentitling a legal heir from seeking compassionate

appointment merely because the deceased had earlier challenged the

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termination. In absence of such a bar the authority is duty bound to

consider the application on its own merit, including the eligibility

and suitability of the applicant.

33. The rejection order being passed on a non-existent legal

impediment, suffers from non-application of mind and is violative of

Articles 14 of the Constitution. The objective of the compassionate

scheme would be defeated if the authority refuses to even examine

the application.

34. In Uday Shankar Triyar vs Ram Kalewar Prasad Singh & Anr on

10 November, 2005 reported in 2006 (1) SCC 75 it has been held

by the Hon’ble Supreme Court that Procedural defects and

irregularities which are curable should not be allowed to defeat

substantive rights or to cause injustice. The same principle applies

herein, where the respondents have attempted to rely upon

procedural abatement while ignoring the applicant’s substantive

claim for compassionate consideration.

35. In Canara Bank v. M. Mahesh Kumar reported in (2015) 7 SCC

412 and Balbir Kaur v. SAIL reported in (2000) 6 SCC 493 the

Hon’ble Supreme Court emphasized that compassionate and

beneficial schemes intended for rehabilitation of dependents must

receive a purposive and liberal interpretation and should not be

defeated through hyper-technical approaches.

36. In the present case, this Court does not find any material

demonstrating that the governing scheme specifically disqualifies a

dependent merely because proceedings remained pending against

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the deceased licence holder without culminating into a finding of

guilt. In the absence of any concluded determination against the

deceased, the respondents have not been justified in treating the

applicant as disentitled solely on the basis of pendency of

proceedings.

37. So far as the issue of abatement of the writ proceedings is

concerned, this Court is unable to accept the contention that the

present proceedings automatically came to an end upon the death of

the original licence holder. Though the personal proceedings against

the deceased may have abated, the grievance relating to

consideration of compassionate appointment survives in favour of

the dependent legal heirs who possess an independent and

subsisting cause of action arising from the death of the breadwinner

and the consequential denial of benefits claimed under the

applicable policy.

38. The right asserted by the petitioner is not for continuation of

disciplinary proceedings against the deceased but for lawful

consideration under the compassionate appointment scheme. Such

right, in the opinion of this Court, survives and is capable of

adjudication notwithstanding the death of the original licence

holder.

39. Having heard the parties at length and considering the materials

available on records, this Court finds that disciplinary or punitive

proceedings against a person ordinarily stand abated upon his

death, since no punitive consequence can thereafter be imposed

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upon a deceased individual. The legal effect of such abatement is

that the allegations remain untested and inconclusive in the eye of

law. Mere pendency of proceedings cannot ipso facto be equated

with proof of wrongdoing unless the same culminates in a final

finding upon due adjudication.

40. The respondents cannot proceed on a mere presumption of guilt to

deprive the dependent legal heir of consideration under a beneficial

scheme such as compassionate appointment. To permit the

authorities to deny consideration solely on the basis of pending and

unadjudicated allegations would amount to attaching stigma and

adverse civil consequences to the family members of the deceased

without any lawful determination of misconduct.

41. For the reasons stated above the CAN application is allowed holding

inter alia, that mere pendency of proceedings against the deceased

original licence holder, in the absence of any final adjudication

establishing misconduct, cannot constitute an absolute bar to

consideration of the applicant’s claim for compassionate

appointment.

42. The respondents are, therefore, directed to reconsider the

applicant’s application for compassionate appointment strictly in

accordance with the applicable policy within eight weeks from the

date of the communication of this order without being influenced

solely by the pendency of the proceedings which stood abated upon

the death of the original licence holder.

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43. In the event the applicant is found otherwise eligible and fulfilling

all the criteria as prescribed under the applicable policy, the

respondent authority shall grant licence on the ground of

compassionate appointment of the dealership in favour of the

applicant and complete all consequential formalities within a further

period of four weeks from the date of such decision.

44. Accordingly, the impugned order rejecting the application for

compassionate appointment is hereby quashed and set aside.

45. With the above observations and direction CAN 2 of 2025 is

allowed and disposed of. Since the writ petition has not been

pressed by the petitioners, accordingly the same is dismissed. CAN 1

is allowed and disposed of on 19.1.2025. No order as to costs.

46. Urgent Photostat certified copy of this order if applied for be

supplied to the parties on priority basis upon compliance of all

requisite formalities.

(Smita Das De, J.)