Vikas Kumar vs Food Corporation Of India
2017 Latest Caselaw 1677 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No.10963/2016 and CM No. 42876/2016

%                                                  30th March, 2017

VIKAS KUMAR                                            ..... Petitioner
                         Through:     Dr. L.S. Chaudhary, Ms. Reema
                                      Bhola     and   Mr.       Viresh
                                      Chowdhary, Advocates
                         versus

FOOD CORPORATION OF INDIA                 ..... Respondent

Through: Mr. Aayush Agarwala for Mr.Ajit Pudussery, Advocate

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? YES

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition under Article 226 of the Constitution

of India, the petitioner seeks compassionate appointment to Group

„C‟/AG-III post with the respondent. The appointment is sought in

terms of compassionate appointment policy which has been issued in

terms of the Government of India‟s letter dated 16.1.2013.

2. It is high time that Court deal with certain frivolous

petitions in a very strict manner. No doubt, seeking compassionate

appointment must ordinarily evoke sympathy, however, that sympathy

has to necessarily vanish when the same litigant unnecessarily

approaches the Court although earlier judicial proceedings on the same

subject are unsuccessful. Unless Courts put an effective stop, there

will be caused blatant waste of judicial time by litigants who do not

deserve either the time from the Court or consideration of the reliefs

claimed. The present case is one such case.

3. The petitioner is the son of Late Shri Surender Pal Singh,

who was working with the respondent/Food Corporation of India

(FCI). The father of the petitioner Late Shri Surender Pal Singh died

way back on 18.11.2001 i.e over 16 years back. The petitioner who

had qualification of XII Class pass had earlier applied to the

respondent under the compassionate appointment policy for Group

„D‟/AG-IV post, and that application for compassionate appointment

was rejected on the ground that vacancies in the Group „D‟- Category

IV posts to be filled in by compassionate appointment within 5%

limits, were already filled in. The petitioner, however, was still

disenchanted in spite of the categorical reply of the respondent denying

compassionate appointment, and the petitioner therefore filed a writ

petition in this Court being W.P. (C) No. 3631/2014. The said writ

petition was dismissed by a judgment dated 27.1.2015 which reads as

under:-

"1. 23.1.2015 was declared a holiday, and by notification no.11/Genl/DHC dated 21.1.2015 cases of 23.1.2015 were to be taken up today. This case is therefore taken up today.

2. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks compassionate appointment with the respondent inasmuch as the petitioner claims that his father Sh. Surender Pal Singh while working with the respondent died in harness on 18.11.2001. The impugned order rejecting the request of the petitioner for compassionate appointment is dated 21/22.5.2013 (Annexure P-10 ) and the same reads as under : "No. E.IX.1/(Misc)/2013/NZ Dated 21/22.05.2013 Sh. Vikash Kumar, S/o Late Sh. Surendra Pal, Gram-Yakubpur, Post-Dhaturi, Thana-Salempur, Bulandsaher (U.P) Sub:- Compassionate Ground Appointment in r/o Sh. Vikash Kumar S/o Late Sh. Surendra Pal-Regarding.

Sir, Please refer to your letter dated 18.04.2013 referred to above on the subject cited.

In this connection, it is intimated that your case was rostered at Sl. No. 867/2003 for cat-IV post. It has been examined on merit for the year 2003 by the Zonal Empowered Committee and was rejected with the approval of the Competent Authority since there was no Vacancy within ceiling limit of 5% of Direct Recruitment Quota as per Govt. of India instructions in vogue and there is no provision to reconsider the case after rejection.

Yours faithfully, Sd/-

Manager (E.IX) For Asst. General Manager (Pers.) Copy to :

1.AGM (ZE), FCI, Hqrs. w.r.t letter No. 32(6)/11/NZ/Misc/ZE-II/468 dated 10.05.13 - for information.

For Asst. General Manager (Pers.)"

3. The relevant para of the Scheme for Compassionate Appointment which does not permit carrying forward of vacancy in future years is para 7(e) of the Scheme and which reads as under :

"7(e) The committee constituted for considering a request for appointment on compassionate grounds should limit its recommendation to appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year in the concerned administrative Ministry/Department/Office, that too with the ceiling of 5% of vacancies falling under DR quota in Group „C‟ posts (O.M. NO. 14014/18/2000- EStt. (D) dated 22.06.2001)" (underlining added)

4. It is also relevant to note that in terms of para 5(a) of the Scheme of Compassionate Appointment, one of the reasons for seeking compassionate appointment is to get immediate assistance and avoiding financial destitution.

5. Entitlement to compassionate appointment is not a regular mode of recruitment and the same is an exception to the regular mode of recruitment. Compassionate appointment can therefore be granted only in terms of the

Scheme. In terms of the Scheme for Compassionate Appointment, vacancies were limited to 5% per year and in this case were already exhausted in the relevant year, and therefore, the petitioner cannot get any appointment in terms of the Compassionate Appointment Scheme. Also, by virtue of the said compassionate scheme, the vacancy for the year 2002 or even 2003 cannot be carried forward till the year 2014 when the writ petition has been filed inasmuch as para 5(a) states that eligibility for compassionate appointment is that the family is indigent and deserves immediate assistance for relief from financial destitution, and which immediate position with respect to the death of an employee in the year 2001 cannot be seen as of 2014 when the writ petition was filed.

6. Learned counsel for the petitioner seeks to place reliance upon an order of a learned Single Judge of this Court passed on 24.11.2014 in W.P.(C) 6988/2014 to argue that respondent must consider the case of the petitioner, however, the said order will not apply to the facts of the present case because in the relevant year/concerned year for which the petitioner was entitled to appointment there was a limit of 5% vacancies reserved for compassionate appointment and which limit stood exhausted and whereafter the vacancies cannot be carried forward for the subsequent year.

7. Dismissed."

4. A reading of the aforesaid judgment shows that the

petitioner could not get compassionate appointment because

petitioner‟s claim would only arise if there was a vacancy available

within a year in Group „D‟- Category IV post with 5% vacancy quota,

and since there was no vacancy, the petitioner was hence not entitled to

compassionate appointment in the Group „D‟- Category IV post which

was prayed for.

5. This Court in its judgment dated 27.1.2015 noted that the

object of compassionate appointment as per para 5(a) of the Scheme of

Compassionate Appointment is to get immediate assistance and

avoiding financial destitution on account of the death of an employee

in harness. This Court also noted that compassionate appointment is

not a regular mode of recruitment and the same is an exception to the

regular mode of recruitment.

6. Petitioner was not satisfied with the judgment dated

27.1.2015 and therefore he filed a review petition before this Court

being Review Petition No. 70/2015. The review petition was dismissed

by this Court by order dated 2.3.2015 and which order reads as under:-

"Review Petition No.70/2015

1. There is no ground for review of the judgment dated 27.1.2015, merely because the petitioner has filed a letter dated 27.1.2015 inasmuch as various aspects including of the vacancy not being carried forward and the petitioner not being indigent for being granted compassionate appointment has been considered for dismissing the petition.

2. The judgment dated 27.1.2015 is a detailed judgment, and a review petition cannot be entertained on the ground now urged on the basis of a letter dated 27.1.2015, because the said letter does not in any manner affect the findings and conclusions of the judgment dated 27.1.2015.

3. Dismissed."

7. The petitioner was still not satisfied and the petitioner

approached the appellate Court being the Division Bench of this Court

by filing an LPA No. 416/2015. The said LPA was dismissed by the

Division Bench vide judgment dated 7.7.2015 which reads as under:-

"1. Aggrieved by the orders dated January 27, 2015 and March 02, 2015 dismissing the writ petition being W.P.(C)3631/2014 and the review petition filed by the appellant respectively, the appellant prefers the present appeal.

2. In W.P.(C) 3631/2014 Vikas Kumar the appellant herein claimed that his father Surender Pal Singh while working with Food Corporation of India (in short the FCI) died in harness on November 18, 2001. At the time of his father‟s death Vikas Kumar was a student and after passing out 12th Class from U.P. Board of Education, Allahabad he made a representation to the FCI for appointment on compassionate grounds vide his letter dated August 23, 2002. Though the respondent registered the application of Vikas Kumar for

appointment against Class IV post, however the same could not be considered as no vacancy within the limit of 5% of the direct recruitment for appointment on compassionate grounds was available, hence his request was rejected. On January 15, 2004 and February 21, 2008 Vikas Kumar made further representations for appointment on compassionate grounds. In the representation dated February 21, 2008 he also pointed out that he had in the meantime completed B.A. and thus appointment on compassionate grounds according to his qualification be granted.

3. As per the policy of the respondent a time limit of three years from the date of death of the employee in respect of appointment on compassionate grounds was fixed which limit was withdrawn by the Government of India on August 06, 2012. However, when Vikas Kumar again made a representation on September 17, 2012 he was informed that there was no vacancy.

4. The writ petition was dismissed vide the impugned order dated January 27, 2015 on the ground that in terms of the scheme for compassionate appointment vacancies were limited to 5% per year and since the same had already been exhausted in the relevant year, Vikas Kumar could not get compassionate appointment. Further the vacancies of the year 2002-2003 could not be carried forward till the year 2014 when the writ petition was filed for the reason that eligibility for compassionate appointment is for the reason that the family is indigent and deserves immediate assistance or relief from financial destitution. The learned Single Judge also noted that in respect of death of an employee in the year 2001 immediate assistance cannot be seen in 2014 when the writ petition was filed. The learned Single Judge considered Clause 7(e) of the Scheme for compassionate appointment which does not permit carrying forward a vacancy in future year as noted under:

"7(e) The committee constituted for considering a request for appointment on compassionate grounds should limit its recommendation to appointment on compassionate grounds only in a really deserving case and only if vacancy meant for appointment on compassionate grounds will be available within a year in the concerned administrative Ministry/Department/Office, that too with the ceiling of 5% of vacancies falling under DR quota in Group „C‟ posts (O.M.No. 14014/18/2000- Estt. (D) dated 22.06.2001)"

5. After the impugned order dated January 27, 2015 was passed Vikas Kumar filed a review petition seeking review of the order dated January 27, 2015 for the reason that he came in possession of the Circular No. EP-01- 2015-01 dated January 27, 2015 which modified the policy of appointments on compassionate grounds in FCI. Clause 2 of the said Circular noted that many vacancies for appointment on compassionate grounds were lying unfilled due to non-availability of eligible candidates. The learned Single Judge dismissed the review petition vide the impugned order dated March 02, 2015 on the ground that the Circular dated January 27, 2015 issued by the FCI does not in any manner affect the findings and conclusion of the judgment under review dated January 27, 2015.

6. Before this Court learned counsel for the appellant urged that in view of the Circular dated January 27, 2015 since many vacancies for appointment on compassionate grounds were unfilled due to non-availability of eligible applicants, he being an eligible candidate is entitled to appointment on compassionate grounds.

7. A perusal of the review petition filed by the appellant would reveal that no plea has been taken that there are vacancies available for appointment on compassionate grounds on the position on which the appellant has sought appointment. The Circular dated January 27, 2015 is general in nature and while reviewing the policy it was noted that the unfilled compassionate vacancies of technical posts (Accounts, Quality control and Hindi) may be filled through direct recruitment and equal number of direct recruitment vacancies of non-technical posts be reduced. However, neither was an increase in the percentage of compassionate vacancies from 5% nor the carry forward of vacancy to future years as provided in Para 7(e) of the Scheme as noted above was changed.

8. It is trite law that compassionate appointment is granted to the legal heirs of the deceased to tide over in harness and is not an alternative to the direct recruitment. Surender Pal Singh, father of Vikas Kumar passed away on November 18, 2001 and Vikas Kumar approached the Court for the first time in the year 2014 and thus he cannot be held to be entitled to appointment on compassionate grounds.

9. In the decision reported as (1994) 4 SCC 138 Umesh Kumar Nagpal Vs. State of Haryana & Ors. the Supreme Court held:

"6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.

7. It is needless to emphasise that the provisions for compassionate employment have necessarily to be made by the rules or by the executive instructions issued by the Government or the public authority concerned. The employment cannot be offered by an individual functionary on an ad hoc basis."

10. Consequently, the appeal is dismissed."

8. Paras 7 and 8 of the judgment dated 7.7.2015 are relevant

inasmuch as in these paras the Division Bench notes that the circular of

the respondent dated 27.1.2015 is general in nature and the same

continues with the existing position as per the existing scheme of

compassionate appointment which required existence of vacancies in

5% posts reserved for compassionate appointment. The Division

Bench also noted that there was neither an increase in the percentage of

vacancies from 5% nor the carry forward of vacancy to future years as

provided in para 7(e) of the scheme. The Division Bench also noted

that the scheme of compassionate appointment is granted to tide over

financial stringency/indigency which is caused when an employee dies

in harness. The Division Bench also observed that issue is of proving

indigence on account of death of an employee in harness.

9. The undisputed facts therefore are that the petitioner had

earlier applied for compassionate appointment to Group „D‟ post.

There was no vacancy available in Group „D‟ post as per vacancies of

5% under the compassionate appointment scheme, and hence, the

petitioner did not get compassionate appointment. The writ petition

filed by the petitioner was dismissed. The review petition was also

dismissed as also the appeal filed before the Division Bench of this

Court.

10. The question is that can the petitioner file a fresh writ

petition seeking compassionate appointment for a different post i.e a

Group „C‟ post instead of the Group „D‟ post which was applied earlier

on the ground that petitioner has later on obtained a qualification which

will entitle him to a higher Group „C‟/AG-III post.

11. On behalf of the petitioner, two grounds are urged for

maintaining the present writ petition. The first ground urged is that the

petitioner now is seeking appointment to the Group „C‟ post because

now the petitioner has acquired eligibility for the higher Group „C‟

post, hence, the petitioner should be considered in view of the

compassionate appointment policy for Group „C‟ post. The second

ground urged is that there is a circular dated 3.7.2016 issued by the

respondent and which shows that persons whose relations expired

between the years 1995 onwards till 2005, had after 2015 got

compassionate appointment and hence the petitioner had to be brought

within this list for grant of compassionate appointment as petitioner‟s

father had expired in 2001 i.e between 1995 to 2005.

12. So far as the first ground urged by the petitioner is

concerned, this Court rejects the same inasmuch as the scheme of

compassionate appointment is not meant for repeated applications

under the scheme. Once one application has been filed for one category

of post and that application has been rejected for that category of post

on account of lack of vacancies in the said category post which was

applied for, then there is no entitlement in a person whose application

for compassionate appointment was rejected to claim that over

subsequent years, the said person has obtained higher educational

qualification, and this makes him entitled to the higher category of

Group „C‟ post, and therefore his application for compassionate

appointment is validly filed. That a person should not be entitled to

apply for a higher category post for which subsequently a qualification

is obtained after his first application is rejected becomes clear from the

fact that as per para 5(a) of the scheme of compassionate appointment,

the object of compassionate appointment is with regard to immediate

indigence which arises where there is death of an employee in harness.

It may be noted that the expression is „immediate indigency‟ and

indigency is not an indigency in itself. Thus indigency itself is not a

ground for compassionate appointment and the object of

compassionate appointment is immediate indigency around the period

of death of the employee in harness and which is caused to the family

on account of sudden death of an employee in harness and thus loosing

of monetary emoluments which were paid to the deceased employee.

For that relevant period when there is death of an employee in harness,

the then consequent indigency claim for compassionate appointment

arises, and indigency of later/subsequent periods cannot be a ground

for seeking compassionate appointment after many years of death of an

employee and more so when an earlier application has been validly

rejected.

13. In the present case, as already noted above, the employee

died in harness (i.e the father of the petitioner expired) over 16 years

back on 18.11.2001 and in which relevant period would the indigency

be relevant and not today in the year 2017. For the relevant period of

death of the employee in harness the petitioner was entitled to

compassionate appointment in Group „D‟/ AG-IV post and for which

post petitioner was rightly denied appointment on account of lack of

requisite vacancy. The petitioner in 2017 cannot seek compassionate

appointment on the ground that he has subsequently obtained

higher/additional qualifications, and is therefore entitled for the higher

category post. A qualification obtained much later than around the

death of the employee in harness will not make an applicant entitled

for being considered for compassionate appointment under the scheme

of compassionate appointment. The first ground is, therefore, rejected.

14. The second ground urged before this Court is that there

are as many as 57 persons mentioned in the list dated 3.7.2016 whose

relations had expired from 1995 till the year 2005, and since these 57

persons have been given recent appointments, hence petitioner seeks

appointment by parity. It is seen that the above mentioned posts in the

list dated 3.7.2016 are essentially the Group „C‟/AG-III posts and not

for the Group „D‟/AG-IV post to which petitioner had earlier applied.

In accordance with the compassionate appointment scheme, if on

account of non-existence of eligible persons in Group „C‟/AG-III cadre

at the relevant time, vacancies in Group „C‟/AG-III cadre are not filled

in, and there is therefore carrying forward of such vacancies for such

Group „C‟/AG-III category posts, and such vacancies in those posts are

now filled in by the respondent, these facts will not entitle the

petitioner to claim compassionate appointment inasmuch as the

petitioner originally was eligible to and had applied under the different

Group „D‟/AG-IV post, but such compassionate appointment was not

granted on account of non-existence of vacancies in Group „D‟/AG-IV

post, with the fact that petitioner‟s earlier judicial proceedings were

unsuccessful as already noted above. Therefore, nothing in Annexure

P-20, which contains list of 57 persons, in any manner furthers the case

of the petitioner for being considered for compassionate appointment

to the Group „C‟/AG-III post, and which post has now been claimed by

the petitioner through the present writ petition.

15. In view of the aforesaid facts, this Court is of the opinion

that the present writ petition is a clear abuse of the judicial process, and

ordinarily this Court should burden the petitioner with heavy costs of

Rs. 50,000/- while dismissing the said writ petition to serve as a

reminder to the litigants who waste judicial time, however, considering

the financial condition of the petitioner, the present writ petition is

dismissed with costs of Rs. 15,000/- and which costs shall be deposited

with Friendicoes, No. 271 & 273, Defence Colony, Flyover Market,

Jangpura Side, New Delhi-110024 within a period of six weeks from

today. It is noted that petitioner has finances to file repeated judicial

proceedings of writ petitions, review petition and an appeal against

judgment dismissing the writ petition.

16. List before the Registrar General to ensure compliance of

the order of deposit of costs on 3.5.2017. In case the costs are not

deposited, the Registrar General shall take necessary action in

accordance with law either to issue contempt notice or execution for

the recovery of the costs against the writ petitioner.

MARCH 30, 2017/sd                             VALMIKI J. MEHTA, J