IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1266 of 2006 CHANDRIKA NARAYAN SINGH & ORS Versus THE FOOD CORPORATION OF INDIA & ORS ----------- 7 17.09.2008 Heard learned counsel for the petitioners and learned counsel for the Food Corporation of India. There are three petitioners in the present writ application who are former employees of the Food Corporation of India and had opted for voluntary retirement on medical ground. In lieu of appointment to their wards. They plead discrimination in matter of appointment on compassionate ground by the respondents so the present writ application has come to be filed. Though from the records it is evident that applications for retirement on medical ground was made by the petitioners in this regard some time in the year 2002, but the actual date when these petitioners were retired on the medical ground was either 31.03.2003 which is with regard to petitioner no. 1 and 3 and 31.01.2003 with regard to petitioner no.2. It seems the application for appointment under the compassionate head came to be processed thereafter. While processing the application, the applications of Sri Gauri Mahto and Sri Ram Ayodhya Rai were found to be in order but the case of Dilip Kumar who is son of Sajjan Mahto, petitioner no. 2, there were many infirmities in the documents attached and the statements made in the application. - 2 - Before the final decision could be taken by the respondents a new circular fixing a quota of 5% for appointment under the compassionate head came to be issued on 04.03.2003. The circular came to be circulated and the various offices or F.C.I. were told to implement the same. The circular has become an impediment in the way of appointment of the wards of these petitioners. Learned counsel appearing on behalf of the petitioners submits that since the petitioners had made an application with the respondents way back in the year 2002 itself, opting to retire on medical ground, in lieu of employment, the application ought to have been processed and decision taken in their favour much earlier. If the respondents have failed to show due haste in the matter the subsequent change in policy and the rules will not come in the way of such appointments and in this regard he relies on a decision rendered in the case of Food Corporation of India and others Vs. Ram Kesh Yadav and another, AIR 2007 SC 1421; emphasis is placed specially on paragraph no. 12 of the decision, where the court had opined that when an employee opts out of the service with the hope and expectation that his ward would be appointed to a post on compassion then the application ought to be either rejected at the threshold or the hope meted out should be honoured. Respondents on the other hand have filed a counter affidavit as well as supplementary counter affidavit as directed - 3 - by the Court. This was done with the object of finding out whether there was any deliberate mischief or delay caused by the respondents in processing the application of the petitioners. In the counter affidavit as well as supplementary counter affidavit, a categorical denial of any wrong doing has been made. They have explained that in light of the dates of retirement of these petitioners and the date when the circular dated 04.03.2003 came into effect, there was no occasion to expand the ambit of appointment under compassionate head beyond 5% quota. It is not that the case of the petitioners that their claim were not processed. They are aggrieved because they have been put on the waiting list, and will only get opportunity of actual appointment provided the necessary vacancies are available within 5% quota. Learned counsel for the respondents further has drawn my attention to the fact that two learned Single Judges of Allahabad as well as Delhi High Court had rendered an opinion with regard to the circular dated 04.03.2003 and had allowed relief to those petitioners. In so far the Allahabad High Court decision is concerned that was based on a decision of the Learned Single Judge of Delhi High Court. The judgment of the learned Single Judge of Delhi High Court was carried in appeal which was L.P.A. No. 1672 of 2005. A Division Bench of the then Chief Justice examined the correctness of the decision dated 28.04.2005 rendered by - 4 - the learned Single Judge and categorically held that an application received prior to 04.03.2003 or after 04.03.2003 will make no difference because the ceiling limit of 5% has to be applied on the date of the decision. The respondents states that based on the Division Bench decision of the Delhi High Court all the branches have uniformly taken decisions with regard to claim of employees seeking compassionate appointment. The Court seems to be in agreement with the decision and the ratio of the Division Bench decision of Delhi High Court, which is L.P.A. No. 1672 of 2005 decided on 30th January 2006, in the case of Food Corporation of India and another Versus the Food Corporation of India Work; which is on record as Annexure B/I. Reverting back to the decision of the Hon’ble Supreme Court which has been cited by learned counsel for the petitioner, the court with due respect, records that the issue for consideration before the Hon’ble Supreme Court was the circular in existence after 03.07.1996 and the issue of compassionate appointment related to the period 2000. The new circular fixing a quota of 5% was not under consideration of the Hon’ble Supreme Court. To that extent Ram Kesh Yadav’s case (Supra) has no application to the present issue. The circular fixing 5% now occupies the field and the same has not been found to be illegal or arbitrary. In fact the validity of the same has been upheld by a Division Bench of - 5 - Delhi High Court. The case of the petitioner will have to be considered within the ambit of circular as in vogue on the date. Right to compassionate appointment does not flow from the provisions of the Constitution under Article 14 and 16 but is based on either circulars, rules or policy in this regard prevalent in the institution where such appointments have to be made. For the reasons indicated above, this Court comes to a conclusion that the ambit and scope for appointment on the post of compassionate appointment cannot be expanded beyond 5% quota and if the petitioners get a chance to be appointed then the right can accrue but the Court will not expand the area and zone of consideration beyond the quota which has already held to be valid. The writ application stands dismissed, accordingly. Rajeev/ (Ajay Kumar Tripathi, J.)