- (1.) The petitioner in this proceeding seeks mandatory direction upon the Food & Supplies Department, Government of West Bengal requiring them to appoint him as a dealer of a fair price shop bearing no. 3712 under the Haltu sub-area of this State. The shop in question is guided by the West Bengal Urban Public Distribution System (Maintenance & Control) Order, 2003. The said shop was being run in partnership by the petitioner with one Madhusudan Dey (since deceased). The wife and the son of said Madhusudan Dey have been impleaded as party respondent to these proceedings. Said Madhusudan Dey passed away on 26th November, 2012. On his death, the writ petitioner claims to have had approached the respondent nos. 6 & 7 for joining him as partners for the purpose of running the same business under the existing license in terms of the aforesaid Control Order, but they did not accept such request. The petitioner thereafter had approached the Director of Rationing for his own appointment as licencee in respect of the same shop but the concerned authority has not appointed him as a fair price shop owner. On death of said Madhusudan Dey, the Rationing Officer and the ex Officio Assistant Director, Haltu had delinked all the cards tagged to the said shop and linked them with another dealer upon passing the following order:- " The FPS 3712, being licence no. H/273/04/FPS/3712/Haltu/KS/1958 Date Is a partnership firm consisting of 2(Two) partners namely (1) Madhusudan Dey and (2) Sambhynath Agarwal. It is reported to me on 27/11/2012 by concerned Inspecting staff that one of the partners Madhusudan Dey expired on 26/11/2012. Since it is partnership firm consisting of 2 (two) partners and one of the partner has already expired, therefore the partnership firm stands desolved by operation of law. In view of the above circumstances, all the Ration Cards of APL+BPL+AAY+ANP tagged with FPS 3712 are hereby delinked and relinked with FPS 3835 in the interest of P.D.S."
(2.) The same stand as reflected in the aforesaid delinking order has been taken on behalf of the state-respondents as well as the private respondents. On the aspect of filling up of vacancy on death of a fair price shop owner, there is a departmental guideline, however, for appointing the close family members of a deceased dealer on compassionate ground. This guideline was issued on 3rd July, 1985, under the then prevailing control order and it is stipulated therein:- " In the event of death of an A. R. or resignation tendered by an A. R. on ground of age, infirmity etc, the resultant vacancy need not be notified initially and it may be filled up by appointing the husband/wife/son/daughter of the deceased/resigned A. R. if he or she is otherwise found suitable in all respects. In the absence of any such relation or in the event of such relation not willing to be appointed, the case of next of kin of such deceased/resigned A. R. may also be considered. All other formalities will, however, have to be observed before giving appointment to an A. R. In case no suitable candidate in the above category is available, the vacancy will be filled up in the usual manner after suitable notification therefor."
(3.) It is not in dispute the same principle as contained in the said guideline is still being followed for appointment on compassionate grounds the specified legal heirs of a deceased dealer under the 2003 Control Order. On behalf of the private respondents, however, it has been submitted that the licence in this case was granted in favour of a partnership firm and under the provisions of Section 42 of the Indian Partnership Act, 1932, the firm stood dissolved on death of said Madhusudan Dey. The aforesaid provisions stipulates:- "42. Dissolution of the happening of certain contingencies.- Subject to contract between the partners a firm is dissolved- (a) if constituted for a fixed term, by the expiry of that term; (b) if constituted to carry out one or more adventures or undertakings, by the completion thereof; (c) by the death of a partner; and (d) by the adjudication of a partner as an insolvent." ;