1 IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.195 of 2009 1. CHANDRIKA NARAYAN SINGH son of late Bisheshwar Singh, resident of village Kanhaipur, P.S. Mokama,District Patna. 2. Sajjan Mahto son of late Budhu Mahto, resident of village Madhav Tola, P.S.Mokama,District Patna 3. Jago Yadav son of late Munsi Yadav, resident of village Gurdeo Tola, P.S. Mokama, District Patna … … Appellants Versus 1. FOOD CORPORATION OF INDIA through its Managing Director, F.C.I., New Delhi 2. Zonal Manager, Food Corporation of India, Kolkata 3. Senior Regional Manager, Food Corporation of India, Regional Offie, Arunachal Building, Exhibition Road, Patna 4. District Manager, F.C.I., Patna, Firdaus Building, Patna 5. Chief Labour Inspector, Food Corporation of India, Arunachal Building, Exhibition Road., Patna … … Respondents For the appellants: Mr. Banwari sharma Mr. Shiv Kumar For the respondents: Mr. P.K. Verma Mr. S.R. Sharan - - - - 3. 27.2.2009 The petitioners-appellants aggrieved by the order dated 17.9.2008 passed by the learned Single Judge in C.W.J.C. No. 1266 of 2006 dismissing the writ application have preferred this appeal under Clause 10 of the Letters Patent. Short facts giving rise to the present appeal are that the writ petitioners- appellants were the employees of the Food 2 Corporation of India(F.C.I.) and sought their retirement on medical ground. They requested the F.C.I. for appointing their wards on compassionate ground. However, before any decision could be taken, a quota of 5 per cent for appointment under the compassionate head came to be issued on 4th of March, 2003. The plea of the petitioners was that as they submitted the applications prior to the said date, the limit of quota of 5 per cent for appointment under compassionate head would not stand in their way. The learned Single Judge negated this contention and while doing so observed as follows:- “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 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.” Mr, Banwari Sharma, learned counsel appearing for the appellants submits that rights of the petitioners-appellants shall be determined according to the law as prevalent 3 on the date they had submitted the applications and the appointment on compassionate ground ought not to have been denied in the light of the decision taken later, on 4.3.2003. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Food Corporation of India & Anr. V. Ram Kesh Yadav & Anr: A.I.R. 2007 S.C. 1421. Our attention has been drawn to paragraph 12 of the judgment which reads as follows:- “The appellant next contended that when the employee stated in his application that he was medically unfit to continue his work as a handling labour and also produced a medical certificate from the concerned authority declaring that he was medically unfit for the work, obviously he could not be continued up to the age of superannuation and therefore, acceptance of his request for retirement of the second respondent by order dated 29.7.2000 could not in any event be faulted. This contention would have merited acceptance. if the employee’s offer to voluntarily retire was unconditional. An employee is entitled to continue in service till the age of superannuation. Even if he is having some medical ailment, due to economic reasons, he may choose to continue up to 60 years. If the employer found that the employee was physically unfit to carry on his work, the employer was at liberty to refer his case to a Medical Board and on the basis of its opinion, compulsorily retire the employee on medical grounds. A compulsory retirement by the employer on medical grounds is different from a voluntary retirement by the employee on medical grounds. In fact the scheme earlier provided for compassionate appointment of a dependant, only when an 4 employee was(compulsorily) retired by the employer, on medical grounds. The scheme was expanded on 3.7.1996 to provide for compassionate appointment for a dependant when an employee voluntarily retired on medical grounds.” We find no substance in the submission of Mr.Sharma and the decision relied on is clearly distinguishable. Undisputedly, the prayers made by the petitioners for compassionate appointment were not considered prior to 4.3.2003 and thereafter ceiling of 5 per cent was fixed for appointment on compassionate ground. In our opinion, after 4.3.2003 the appointment has to be made on 5 per cent vacancies and the petitioners’ claims were fit to be considered on those vacancies, notwithstanding the fact that their applications were pending from before. As regards the decision of the Supreme Court in the Case of Food Corporation of India(Supra) the same has no bearing in the facts of the present case. In the said case, the employee sought voluntarily retirement on medical ground on the condition that his son is provided employment. In the back ground of the aforesaid fact, the 5 Supreme Court observed that when the voluntarily retirement of the employee was accepted, the condition thereof has to be adhered to. In this connection reference may be made to paragraph 14 of the judgment which reads as follows- “The question in this case is not whether the request of the respondents was contrary to the scheme. Nor is it the question, whether the scheme would be violated if the first respondent is appointed on compassionate grounds. The limited question is whether FCI, having accepted the offer and accepted performance of the offer by the second Respondent, can refuse to perform or comply with the condition subject to which such offer was made. The answer is obviously in the negative. Having accepted the offer, FCI cannot avoid performance of the condition subject to which the offer was made. As noticed earlier, nothing prevented FCI from rejecting the application of the employee outright, or inform the employee before accepting the offer of voluntary retirement that it could not accept the condition, so that the employee would have had the option to withdraw the offer itself.” It has also been pointed out that two persons have been appointed after the issuance of the circular dated 4.3.2003. This, in our opinion, shall not make any difference in calculation of the vacancies after the percentage was fixed. We are of the opinion that the learned Single Judge did not commit any error 6 while passing the impugned order. We find no merit in the appeal and accordingly the same stands dismissed. ( C.K.Prasad,A.C.J.) ( Dharnidhar Jha, J.) Kanth