Anil Kumar Bana vs Chairman/Md, Food Corporation Of ...
2014 Latest Caselaw 6854 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    W.P.(C) 532/2014

                                    Reserved on : 20.11.2014
                                    Pronounced on : 16.12.2014
IN THE MATTER OF:

ANIL KUMAR BANA                                     ..... Petitioner
                        Through: Mr. Jagat Singh, Advocate with
                        Ms. E.J.Ahuja, Advocate

                        versus


CHAIRMAN/MD, FOOD CORPORATION OF INDIA (HQ) AND ORS
                                             ..... Respondents
                   Through: Mr. Ajit Pudussery, Advocate with
                   Ms. Shruti Sarma Hazarika, Mr. Sujit Kumar
                   Singh and Mr. O.P. Singh, Advocates

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J.

1. The petitioner has filed the present petition praying inter alia

for quashing the order dated 15.09.2011, whereunder his request

for appointment on compassionate grounds upon the demise of his

father, Shri Rajpal Singh was turned down by the respondents/FCI.

2. A perusal of the impugned order dated 15.09.2011 reveals

that the petitioner's candidature for a category IV post in the year

2005 was examined on merits by the Zonal Empowered Committee

and was rejected on the ground that there was no vacancy within

the ceiling limit of 5% of the direct recruitment quota. It was also

recorded therein that the FCI had released a sum of `4,70,185/-,

excluding CPF as the terminal benefits payable to Late Shri Rajpal

Singh, Ex-Senior Electrician and further noted that he owns a

residential premises.

3. In brief, the relevant facts of the case are that Shri Rajpal

Singh was a permanent employee of the respondents/FCI and was

working on the post of a Senior Electrician. He had expired on

08.10.2004, while in harness. Upon the demise of Shri Rajpal

Singh, the respondents/FCI had released a sum of `4,70,185/- in

favour of both his sons, i.e., the petitioner herein and his brother,

Shri Nagender Kumar Bana. The breakup of the figure of

`4,70,185/- released by the respondents/FCI is as below:-

       1. Benevolent Fund                 -     `15,000/-
       2. PLI                             -     `11,600/-
       3. Ex gratia                       -     `1,500/-
       4. Leave Encashment (67 days)      -     `31,585/-
       5. Gratuity                        -     `3,50,000/-
       6. GIS                             -     `60,500/-
                                                ---------------
       Total                              -     `4,70,185/-

4. As per the averments made in the petition, at the time of his

father's demise, the petitioner's elder brother was serving in the

army and both his sisters were already married. All the three

siblings of the petitioner had given a no objection in his favour to

enable him to apply to the respondents/FCI for grant of

appointment on compassionate grounds. Thereafter, the petitioner

had applied to the respondents/FCI on 20.03.2005 for grant of

compassionate appointment alongwith the relevant documents. At

his request, the Tehsildar, Tehsil Hapur, District Ghaziabad, State

of UP had issued a certificate dated 06.10.2004, certifying inter alia

that the petitioner is a permanent resident of village Chitoli and his

financial condition is poor and he deserves to be given a

compassionate appointment, being unemployed. Apart from the

certificate issued by the Tehsildar, the petitioner had also

approached the local District Office of the respondents/FCI with a

request to prepare a report with regard to his pecuniary condition.

Resultantly, a report dated 14.06.2005 was prepared by a

Committee comprising of three officers, who had noted that the

family members of the deceased comprised of two sons and two

married daughters and they owned one small Kacha house in the

village with no other source of income. However, one of the

committee members had mentioned in his report that the deceased

owned 5 Bighas of cultivable land.

5. The aforesaid Committee recommended the petitioner's case

for appointment in the FCI on compassionate grounds. The

petitioner's application for appointment on compassionate grounds

was forwarded by the Regional Manager to the Zonal Manager

under cover of letter dated 26.07.2005. The grievance of the

petitioner is that despite the aforesaid recommendations made by

the Tehsildar and the Three Member Committee constituted by the

Regional Office of the FCI, his request for compassionate

appointment was not considered sympathetically and rejected vide

letter dated 15.09.2011.

6. Learned counsel for the petitioner contended that his client

had filed an application for seeking compassionate appointment on

20.03.2005 and it took the respondents/FCI a period of six years

and six months to inform him that there was no vacancy in the

compassionate quota by issuing the impugned rejection order dated

15.09.2011. He pointed out that over the years, the petitioner has

turned over age and has no other source of employment and he

was strung along by the respondents/FCI, whose officers kept

assuring him that he would receive the appointment letter any day

as the Three Member Committee constituted by the FCI had

recommended his name for compassionate appointment. It was

further submitted that the quarterly zonal statement for the quarter

ending March, 2013, showing the category/post/cadre-wise

manpower position for the Northern Zone enclosed as Annexure P-

15 to the writ petition would demonstrate that there were

vacancies available but the respondents/FCI did not take any step

to fill up the same and instead rejected the petitioner's claim on the

ground that there was no vacancy available in the years 2005,

2006 and 2007, which is not based on a correct factual position.

Learned counsel also referred to the OM dated 26.07.2012 issued

by the DOPT, wherein it was mentioned that the decision to fix a

time limit of three years for considering cases of compassionate

appointment was withdrawn by virtue of OM dated 05.05.2003 and

he urged that the petitioner's entitlement to compassionate

appointment cannot be defeated on account of passage of time and

further, that the vacancy position had to be examined as on the

date of considering the application for compassionate appointment.

7. Per contra, learned counsel for the respondents/FCI stated

that it is not a fit case for grant of compassionate appointment to

the petitioner. He submitted that while the petitioner's father had

expired in the year 2004, the present petition has been filed after

ten years, and the same ought to be rejected on the ground of

delay and laches alone as it defeats the main objective of granting

appointment on compassionate grounds which is to enable the

family members of the deceased employee to tide over the sudden

financial crisis faced by them on the demise of the sole bread

earner. He urged that in the present case, the said situation no

longer exists because the family members of the deceased have

been able to survive the financial crisis over the years and they are

managing adequately.

8. It was further highlighted that in the respondents/FCI, the

number of vacancies to be filled up for appointment on

compassionate grounds is restricted to 5% of the direct recruitment

quota and in the relevant year, i.e., in the year 2005, there was no

vacancy available for appointing the petitioner on compassionate

grounds. Learned counsel also pointed out that apart from owning a

home and a parcel of land, the petitioner's brother is gainfully

employed and in a position to extend financial help to his family

members. He emphasized that such an appointment cannot be

claimed as a vested or inherited right, the object of making

compassionate appointment being only to help the family members

of the deceased employee to overcome the sudden financial crisis

being faced by them and it ought to not be treated as an

alternative route of recruitment of public employment. To

substantiate the aforesaid submission, learned counsel had relied

on the decision of the Supreme Court in the case of Punjab National

Bank and Ors. vs. Ashwini Kumar Taneja reported as (2004) 7

SCC 265. In support of the decision of the respondents/FCI of

limiting the posts for appointment on compassionate grounds to

5%, reference was made to the decision of the Division Bench

dated 16.08.2010, in LPA No.181/2010 entitled Rajpal Kumar

and Anr. vs. FCI. Learned counsel concluded by submitting that it is

not a fit case where the benefit of compassionate appointment

ought to be extended to the petitioner.

9. On 06.08.2014, when arguments were being advanced in the

present case, learned counsel for the petitioner had sought to meet

the objection of delay and laches raised by the other side by

pointing out that the petitioner had applied to the respondents/FCI

on 20.03.2005 for seeking appointment on compassionate grounds

and the said application had remained pending at the end of the

FCI for a period of six long years and it was finally rejected by the

impugned order dated 15.09.2011, that was intimated to the

petitioner after almost one year from the date when it was passed,

i.e., on 17.08.2012.

10. In view of the aforesaid submission made by learned counsel

for the petitioner, counsel for the respondents/FCI was called upon

to explain the delay in disposing of the petitioner's application and

the delay in communicating the rejection order dated 15.09.2011 to

him after almost one year. Further, the respondents/FCI were

directed to explain the basis on which it was being urged that there

was no vacancy available in the year 2005, when the petitioner had

applied for being considered for appointment on compassionate

grounds, as the averments made in the counter affidavit were quite

ambiguous on that aspect.

11. Pursuant to the aforesaid order, an additional affidavit was

filed by the respondents No.1 and 2/FCI on 27.08.2014 but as the

said affidavit was also found to be deficient, learned counsel for the

respondents/FCI had sought liberty to file an additional affidavit,

which was filed on 22.09.2014. It was stated in the said affidavit

that when the petitioner had submitted the application for

compassionate appointment, his case was covered under OM dated

05.05.2003 issued by the Ministry of Personnel, Public Grievances

and Pensions, which had prescribed a ceiling of 5% quota of the

total number of vacancies available under direct recruitment for

recruitment under the compassionate appointment category and if

there was no current vacancy for such an appointment, such

applications were required to be kept pending to await the

vacancies.

12. Applying the aforesaid OM to the facts of the present case, it

was averred by the respondents/FCI that when the petitioner had

submitted his application, there was no vacancy available under

category IV in the 5% quota for appointment on compassionate

grounds and resultantly, his name was placed in the panel awaiting

arising of vacancies. Though no vacancy had arisen even after the

passage of three years, the petitioner's name and that of some

others had continued to remain in the panel. Subsequently, the

Zonal Empowered Committee was constituted by the

respondents/FCI to review all cases of dependents of deceased

employees rostered between the years 2001 to 2009. The said

Committee had submitted its Report and expressed its views to the

Competent Authority in respect of 830 candidates including the

petitioner herein. Based on the said recommendations, the

petitioner's case was rejected by the Competent Authority vide

letter dated 15.09.2011. It is in this manner that the

respondents/FCI has sought to explain the delay in processing the

petitioner's application for compassionate appointment.

13. The Court has considered the arguments advanced by the

counsels for the parties, perused the pleadings and examined the

records, apart from the decisions cited by them.

14. Recently, in the case entitled Resham Devi vs. Vijaya Bank

and Anr. [W.P.(C) 7417/2013] decided on 08.12.2014, this Court

had the occasion to summarize some of the broad principles

applicable to cases of compassionate appointment as culled out

from a catena of decisions of the Supreme Court and the High

Court over the years.

15. It is well settled by now that compassionate appointment is

given solely on humanitarian grounds with the object of providing

immediate succor to a deceased employee's family to enable them

to overcome the grave and sudden financial crisis faced by them on

the death of the sole breadwinner. However, mere death of an

employee in harness does not entitle his family to compassionate

appointment. It is necessary for the Government/public authority

to examine the financial condition of the family of the deceased and

only upon being satisfied that the family will not be able to meet

the crisis that a job ought to be offered to the eligible member of

such a family. For compassionate appointment, posts in class III

and class IV, being the lowest posts, can be offered, the aim being

to enable the family to overcome financial destitution faced by

them.

16. Further, compassionate appointment is permissible only to

one of the dependents of the deceased/incapacitated employee,

i.e., parents, spouse, son or daughter and not to all relatives. The

favourable treatment given to such a dependent of the deceased

employee in such posts has a rational nexus with the object sought

to be achieved, viz., relief against destitution and the Court is

expected to be mindful of the fact that as against the destitute

family of the deceased, there are several other families that are

equally, and may be more destitute and an exception to the rule

that is made in favour of the family of the deceased employee is

purely in consideration of the services rendered by him and to meet

the legitimate expectations of his legal heirs.

17. The provisions for compassionate appointment are required

to be guided by the rules/executive instructions/scheme/policy

framed by the Government or the concerned public authority that

can withstand the test of Articles 14 and 16 of the Constitution of

India, the object being that an employment of such a nature cannot

be offered by an individual officer or on an ad hoc basis. Such a

rule/scheme/policy/guideline, as framed, is binding on both, the

employer and the employee. Compassionate appointment ought not

to be granted after a lapse of a reasonable period as may be

stipulated in the rules. The family member of the deceased, who

approach the employer for being considered for compassionate

appointment cannot claim a vested right to such an appointment

and nor can such a right be exercised at any time in the future. As

the sole object of such an appointment is to extend a helping hand

to the family of the deceased employee for them to tide over the

immediate financial crisis faced on account of the death of the

breadwinner while in service or on medical invalidation,

compassionate appointment cannot be claimed or offered after the

crisis blows over. Another factor that ought to be examined by the

courts when approached by the family members of the deceased

employee for seeking compassionate appointment, is the extent of

retiral benefits received by the heirs of the deceased employee.

18. The aforesaid legal position has developed over the years

through a number of judicial pronouncements made on the

parameters that the Court ought to adhere to when dealing with a

case of compassionate appointment, including the cases of Umesh

Kumar Nagpal vs. State of Haryana and Ors. reported as (1994) 4

SCC 138; Director of Education (Secondary) and Anr. vs.

Pushpendra Kumar and Ors. reported as AIR 1998 SC 2230;

Punjab National Bank and Ors. vs. Ashwini Kumar Taneja reported

as AIR 2004 SC 4155; State of J&K and Ors. vs. Sajad Ahmed Mir

reported as (2006) 5 SCC 766; V. Sivamurthy vs. State of Andhra

Pradesh and Ors. reported as (2008) 13 SCC 730; Eastern

Coalfields Ltd vs. Anil Badyakar and Ors. reported as (2009) 13

SCC 112 and Bhawani Prasad Sonkar vs. UOI and Ors. reported as

(2011) 4 SCC 209.

19. In the instant case, Shri Rajpal Singh, who was working on

the post of Senior Electrician in the respondents/FCI, had expired

on 08.10.2004, while in harness. By the date of his demise, his

wife had predeceased him and he was survived by two sons and

two daughters, i.e., Shri Nagender Kumar Bana (the elder brother

of the petitioner), Shri Anil Kumar Bana (the petitioner), Smt.

Ranjeeta and Smt. Sangeeta (both sisters). On the date of Shri

Rajpal Singh's demise, his elder son was employed in the army and

both his daughters had already got married. In the year 2005, the

petitioner's brother was relieved from the army and he had got

private employment. The petitioner had also got married in the

year 1998, during the lifetime of his father and his own family

comprises of a wife and four children. Apart from a small Kacha

house, Shri Rajpal Singh owned 5 Bighas of agricultural land in his

native village Chitoli, District Hapur. The petitioner is a farmer and

has been cultivating the said agricultural land that had devolved on

him and his brother in equal shares upon the demise of their father.

It is also an admitted position that the petitioner's elder brother has

been foregoing his share in the crop being harvested on the jointly

held agricultural land. The terminal benefits released by the

respondents/FCI in favour of the deceased, totaling to a sum of

`4,70,185/-, have also been divided in equal shares between the

petitioner and his brother.

20. All the aforesaid facts reveal that the condition of the family

members of the deceased employee of the respondents/FCI was

not so penurious that they could not have survived upon his

demise. Nor was Late Shri Rajpal Singh the sole breadwinner of the

family as during his lifetime, the elder son was employed with the

army and the petitioner herein was cultivating the agricultural land

owned by the father. Additionally, upon the demise of the

petitioner's father, the respondents/FCI had released the terminal

benefits to the tune of `4,70,185/- to his legal heirs, which amount

does not include the CPF dues. Even if the petitioner has received

50% of the said amount, it would come to `2,35,093/-, which is a

substantial amount and would have provided enough cushion to the

petitioner and his family members to meet their immediate financial

needs on the sudden demise of Shri Rajpal Singh.

21. Coming to the second aspect, which is with regard to the

explanation for the delay on the part of the respondents/FCI in

communicating the order dated 15.09.2011 to the petitioner, it has

been averred in para 9 of the additional affidavit filed by the FCI

that as per the records, the petitioner had received the said order

on 29.09.2011, which can be verified from a perusal of the RTI

application submitted by him to the FCI on 03.12.2011. Learned

counsel for the respondents/FCI had clarified that the

communication dated 15.09.2011 was routed to the petitioner

through the Zonal Office and served on him on 29.09.2011 and for

a second time, it was served on him through the District Office on

16.08.2012. The petitioner's RTI application dated 3.12.2011

submitted to the respondents/FCI clearly mentions the fact that he

had received the rejection order on 29.09.2011 and it falsifies his

plea that it had taken almost one year for the respondents/FCI to

communicate the rejection order to him.

22. As for the existence of vacancies at the relevant point of

time, the affidavit of the respondents/FCI states that till

26.09.1995, against the sanctioned strength of 7670 employees in

category IV posts, 383 aspirants had been appointed till the year

2000, which was within the ceiling limit of 5% of direct recruitment

quota at the entry level. With the passage of time, the sanctioned

strength of the employees in category IV was reduced to 1772 in

the year 2005 and had further depleted to 1661 from the year 2006

till 2009. As such, the appointed employees had become surplus

with effect from the year 2001 and resultantly, there was no

vacancy available within the ceiling limit of 5%, till the year 2009,

for the respondents/FCI to have accommodated the petitioner. The

respondents/FCI has substantiated the aforesaid submissions by

filing a copy of the OM dated 05.05.2003 issued by the DOPT, a

copy of the extract of the recommendations made by the Zonal

Empowered Committee of the FCI and a chart of the current status

of the vacancies in the FCI.

23. It is also relevant to refer to the office order dated

26.07.2012 issued by the DOPT and highlighted by the counsel for

the petitioner to urge that the time limit of three years that had

been prescribed under the earlier OM dated 05.05.2003 for

considering cases of compassionate appointment, had been re-

examined and withdrawn. As per the compassionate appointment

policy of the FCI, only 5% of the vacancies at the entry level are

reserved to be filled up by direct recruitment on compassionate

grounds. Keeping in view the ceiling limit of 5% set apart for

compassionate appointment and the fact that there was no vacancy

available from the year 2005 onwards till the year 2009, the

petitioner could not have been accommodated.

24. In the very same OM dated 26.07.2012 that the petitioner

has relied upon, the opening para emphasizes the primary objective

of the scheme for compassionate appointment, which is to provide

immediate assistance to relieve the dependent family of the

deceased or medically retired Government servant from financial

destitution. Reference has also been made therein to the judgment

dated 05.04.2011 in Civil Appeal No.2206/2006 entitled Local

Administration Department vs. M. Selvanayagam @ Kumaravelu

reported as (2011) 13 SCC 42, wherein the Supreme Court had

observed that an appointment made many years after the death of

the employee or without due consideration of the financial

resources available to his/her dependents and the financial

deprivation caused to the dependent as a result of his death, simply

because the claimant happened to be one of the dependents of the

deceased employee would be in direct conflict with Articles 14 and

16 of the Constitution of India.

25. The aforesaid OM dated 26.07.2012 also refers to an earlier

OM dated 09.10.1998 that had permitted the

Ministries/Departments to consider the requests for compassionate

appointment even where the death/retirement on medical grounds

of the Government servants had taken place 5/6 years ago but with

a condition that while considering such a belated request, the

Department must not lose sight of the fact that the concept of

compassionate appointment is largely related to the need for

immediate assistance to the family of the Government servant in

order to relieve their economic distress and if such a family was

able to manage somehow in all these years, it should be taken as

adequate proof that they have dependable means of subsistence.

26. Tested on the anvil of the aforesaid circulars/guidelines that

were in vogue at the time when the petitioner had submitted his

application for compassionate appointment, the respondents/FCI

cannot be faulted for rejecting his application on the ground that

filling up of a post on compassionate basis is restricted to 5% quota

set apart for compassionate appointment and there was no vacancy

in the said quota at the given point in time. Moreover, though there

were no vacancies available in the 5% quota for three years, the

respondents/FCI retained the petitioner's name in the wait list and

the Zonal Empowered Committee of the FCI had reviewed all the

cases of the dependants of the deceased employees rostered

between the years 2001 and 2009.

27. Further, in the letter dated 15.09.2011, the respondents/FCI

had stated that a sum of `4,70,185/- excluding CPF had been

released in favour of the family members of late Shri Rajpal Singh

and it had also taken note of the fact that the petitioner and his

family own a residential house. Later on it has emerged from the

report submitted by one of the members of the Three Members

Committee appointed by the respondents/FCI to examine the

petitioner's request for compassionate appointment that the

deceased was the owner of 5 Bighas of agricultural land, which was

being cultivated by the petitioner. Given the above facts, the

impugned rejection order was justified in rejecting the petitioner's

application on the twin grounds of absence of vacancy in the ceiling

limit of 5% of the direct recruitment quota set apart for

compassionate appointment in terms of the Government of India

instructions contained in OM's dated 09.10.1998 and 05.05.2003

and the fact that a substantial amount had been released in favour

of the family members towards the terminal dues of the deceased.

28. This Court must also be cognizant of the fact that aggrieved

by the rejection order dated 15.09.2011 passed by the

respondents/FCI, the petitioner has elected to approach this Court

for relief in January, 2014, i.e., after the passage of almost three

years. The explanation offered for the delay in seeking legal

recourse is that the said order had reached the petitioner only in

August, 2012. But the said assertion has turned out to be false as it

has now been established from the RTI application dated

03.12.2011 submitted by the petitioner to the FCI that the rejection

order was received by him on 29.09.2011. This also reinforces the

submission made by the counsel for the respondents/FCI that the

application for compassionate appointment made at a belated stage

ought not to be entertained for the reason that over the passage of

time, the very object of making such an appointment does not

survive and it has to be inferred that the petitioner and his family

members have dependable means of subsistence.

29. Keeping in mind all the above factors, the inevitable

conclusion is that the financial condition of the petitioner and his

family members was not as penurious as claimed by him. In all

these years, the family members of the deceased employee have

been able to adequately overcome the sudden distress on account

of stoppage of his income. Resultantly, the relief of compassionate

appointment prayed for by the petitioner is turned down.

30. The present petition is dismissed and the parties are left to

bear their own costs.

                                                   (HIMA KOHLI)
DECEMBER 16, 2014                                     JUDGE
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