Delhi High Court
Shri Vinod Kumar vs Food Corporation Of India on 20 March, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3416/2008
% 20th March, 2013
SHRI VINOD KUMAR ...... Petitioner
Through: Mr. S.C.Phogat, Advocate.
VERSUS
FOOD CORPORATION OF INDIA ...... Respondent
Through: Ms. Nasreen and Ms. Divya, Adv. for Mr.
R.K.Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by one Sh. Vinod Kumar, son of late Sh.
Samunder Singh for compassionate employment with the respondent-Food
Corporation of India. The claim of compassionate employment is on the ground
that the father of the petitioner late Sh. Samunder Singh died in harness on
19.5.2003. The petitioner places reliance upon a report dated 19.11.2003 of a
committee of the respondent which recommended appointment to a family member
of late Sh. Samunder Singh.
W.P.(C) 3416/2008. Page 1 of 6
2. The respondent has contested the petition. There are two basic
defences which are laid out. The first defence is that compassionate employment
could not be given to the petitioner because at the relevant time, the ceiling limit of
5% of direct recruitment posts through compassionate employment was already
exhausted. Counter-affidavit also states that there is already surplus labour with
the respondent, and schemes are being taken out for voluntary retirement of surplus
labour and therefore, the petitioner cannot be employed by giving compassionate
employment as a labourer. By the second defence in the counter-affidavit it is
contended that the office order with respect to compassionate employment of a
person is that the entitlement is prevalent for three years, and since in the present
case three years have expired and since within that three years there were no
vacancies available in the 5% ceiling limit, petitioner could not have been given
employment.
3. The Supreme Court in the case of State Bank of India and Anr. Vs.
Raj Kumar 2010 (3) Scale 635 has held that compassionate employment is not a
normal recruitment, but the same is an exception to the regular recruitment
process. It has been further held in this judgment that compassionate employment
can only be granted in terms of applicable policy of an organization and that too
when there are adequate vacancies existing. The relevant paras of the judgment of
W.P.(C) 3416/2008. Page 2 of 6
Supreme Court in the case of State Bank of India (supra) are paras 6 to 8 which
read as under:-
"6. It is now well settled that appointment on compassionate
grounds is not a source of recruitment. On the other hand it is an
exception to the general rule that recruitment to public services
should be on the basis of merit, by an open invitation providing
equal opportunity to all eligible persons to participate in the
selection process. The dependants of employees, who die in
harness, do not have any special claim or right to employment,
except by way of the concession that may be extended by the
employer under the rules or by a separate scheme, to enable the
family of the deceased to get over the sudden financial crisis. The
claim for compassionate appointment is therefore traceable only to
the scheme framed by the employer for such employment and there
is no right whatsoever outside such scheme. An appointment under
the scheme can be made only if the scheme is in force and not after
it is abolished/withdrawn. It. follows therefore that when a scheme
is abolished, any pending application seeking appointment under
the scheme will also cease to exist, unless saved. The mere fact that
an application was made when the scheme was in force, will not by
itself create a right in favour of the applicant.
7. Normally, the three basic requirements to claim appointment
under any scheme for compassionate appointment are: (i) an
application by a dependent family member of the deceased
employee; (ii) fulfilment of the eligibility criteria prescribed under
the scheme, for compassionate appointment; and (iii) availability
of posts, for making such appointment. If a scheme provides for
automatic appointment to a specified family member, on the death
of any employee, without any of the aforesaid requirements, it can
be said that the scheme creates a right in favour of the family
member for appointment on the date of death of the employee. In
such an event the Scheme in force at the time of death would
apply. On the other hand, if a scheme provides that on the death of
an employee, a dependent family member is entitled to
appointment merely on making of an application, whether any
W.P.(C) 3416/2008. Page 3 of 6
vacancy exists or not, and without the need to fulfil any eligibility
criteria, then the scheme creates a right in favour of the applicant,
on making the application and the Scheme that was in force at the
time when the application for compassionate appointment was
filed, will apply. But such schemes are rare and in fact, virtually
nil.
8. Normal schemes contemplate compassionate appointment on an
application by a dependent family member, subject to the applicant
fulfilling the prescribed eligibility requirements, and subject to
availability of a vacancy for making the appointment. Under many
schemes, the applicant has only a right to be considered for
appointment against a specified quota, even if he fulfils all the
eligibility criteria; and the selection is made of the most deserving
among the several competing applicants, to the limited quota of
posts available. In all these schemes there is a need to verify the
eligibility and antecedents of the applicant or the financial capacity
of the family. There is also a need for the applicant to wait in a
queue for a vacancy to arise, or for a Selection Committee to
assess the comparative need of a large number of applicants so as
to fill a limited number of earmarked vacancies. Obviously,
therefore, there can be no immediate or automatic appointment
merely on an application. Several circumstances having a bearing
on eligibility, and financial condition, up to the date of
consideration may have to be taken into account. As none of the
applicants under the scheme has a vested right, the scheme that is
in force when the application is actually considered, and not the
scheme that was in force earlier when the application was made,
will be applicable. Further, where the earlier scheme is abolished
and the new scheme which replaces it specifically provides that all
pending applications will be considered only in terms of the new
scheme, then the new scheme alone will apply. As compassionate
appointment is a concession and not a right, the employer may
wind up the scheme or modify the scheme at any time depending
upon its policies, financial capacity and availability of posts."
(underlining added)
W.P.(C) 3416/2008. Page 4 of 6
4. In view of the facts as averred in the counter-affidavit that no
vacancies were available, in fact there is surplus labour employed with the
respondent, thus, applying the ratio of the Supreme Court in the case of State Bank
of India (supra) petitioner cannot be granted compassionate employment.
5. One additional point which was urged on behalf of the petitioner in
the additional affidavit was that two persons namely Sh. Suresh Chand, S/o late Sh.
Veerpal Singh and Mohd. Niyas, S/o late Mohd. Qazim were appointed on the
compassionate ground, and therefore, petitioner should not be discriminated
against by denying compassionate employment. To this aspect, the respondent in
the additional counter-affidavit has stated that both Sh. Veerpal Singh and Sh.
Mohd. Qazim died within the work premises, which led to huge labour unrest and,
therefore, to defuse the situation, appointments were granted to the family
members to these persons which was therefore an administrative exigency. It is
stated on behalf of the respondent that cases of appointment to Sh. Suresh Chand
and Mohd. Niyas cannot be taken as precedent for other compassionate
employments. I agree with this stand of respondent because every employer has to
run its organization, and exceptional cases cannot be allowed to be made a general
rule.
W.P.(C) 3416/2008. Page 5 of 6
6. In view of the above, there is no merit in the petition, which is
accordingly dismissed, leaving the parties to bear their own costs.
MARCH 20, 2013 VALMIKI J. MEHTA, J.
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