IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12983 of 2007 Surendra Kumar, son of late Bindeshwari Mahto, resident of Deharia Chauk, Laxmi Tola, P.S. Katihar, District Katihar … Petitioner Versus 1. The Food Corporation Of India through the Managing Director, F.C.I., New Delhi 2. Zonal Manager (East), F.C.I. Kolkata 3. Senior Regional Manager, F.C.I., Patna 4. District Manager, F.C.I., Patna 5. District Manager, F.C.I., Purnea 6. Deputy Manager (Personnel), East, F.C.I., Calcutta … Respondents ------- For the petitioner: Mr. Rajeev Kumar Singh, Adv. & Mr. Alok Kr. Singh, Adv. For the F.C.I. : Mr. P.K.Verma, Adv. & Mrs. Jahan Ara, Adv. ------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (05.07.2011) Mihir Kumar Jha,J. Heard counsel for the petitioner and the counsel for Food Corporation of India. Pursuant to the order of this Court dated 8.4.2011 the respondent Food Corporation of India has filed its supplementary counter affidavit wherein it has been indicated that the family of the petitioner was paid a sum of Rs. 2,44,641/- by way of death cum retirement benefit in addition to the monthly pension of Rs. 3450/- per month. It has also been explained 2 that the salary of the father of the petitioner was Rs. 7017/-. The impugned order, which has been passed while rejecting the claim of appointment of the petitioner on compassionate ground, has clearly recorded that the income of the family consisting of wife of the deceased and two dependents taking into consideration all sources into income including terminal benefits paid is not lower than the income year marked for poverty line. Learned counsel for the petitioner while assailing the impugned order would however submit that the standard set out by the Planning Commission as adopted by the Food Corporation of India cannot be a yardstick for judging the condition of the family seeking compassionate appointment. In this context he has laid stress on the fact that the deceased had actually left behind five sons and the widow to be taken care of and for a family of six persons the amount paid either by way of monthly pension to the widow of the deceased or the amount of death cum retirement benefit cannot be held to be 3 sufficient for holding the condition of the family to be not in penury. In the considered opinion of this Court the norms followed by the F.C.I. in judging the financial condition of the family on the basis of the standards laid down by the Planning Commission of India as adopted by the Food Corporation of India in its circular dated 5.6.2000 cannot be held to be wholly irrelevant irrational or arbitrary. The consideration on the basis of poverty line in respect of an ordinary citizen of this country in fact would be only indicative of the fact that a safe and prudent yardstick has been fixed by the Respondents for judging the financial condition of the family of the deceased. It may be true that such amount of poverty line of Rs. 1760.20 paise per person as on 5.6.2000 may not be sufficient for maintaining condition in a well to do person but here in the present case when the widow, mother of the petitioner, after the death of the deceased employee was paid monthly pension of Rs. 3450/- per month in addition to the lump sum payment of Rs. 2,44,641/-, 4 it cannot be said that for maintaining the family of three persons the said amount was insufficient. This Court cannot close its eyes that even the deceased was earning only Rs. 7000/- per month only and therefore, if the family still had an assured income of Rs. 5000/- approximately both by way of family pension and investing amount of Rs. 2.44 lacs in any fixed deposit scheme, the same could still amount to the family being in penurious condition. The death of the deceased having taken place in the year 1997 and the family of three still surviving even after lapse of 14 years with the aforesaid assured income of Rs. 5000 per month would by itself lead to a conclusion that such amount was good enough though not sufficient to survival of family of the deceased. As a matter of fact this writ application as with regard to a cause of action of the year 1997 has been sought to be adjudicated on the basis of assailing the impugned order dated 25.8.2003 by filing this writ application on 1.10.2007. There is no explanation for such a delay of more than 5 ten years in filing of the writ application in respect of a cause of action emanating from the death of the deceased employee in 1997 and consequently all the aforementioned stand of the Respondents in their counter affidavit either individually or collectively would lead to an irresistible conclusion that the appointment of the petitioner on compassionate ground was correctly refused, specially when the law on the subject with regard to condition of the family being in penury stands settled by a long line of cases including of Apex Court in the case of Umesh Kumar Nagpal vs. State of Haryana & ors. reported in (1994) 4 SCC 138 and reiterated in the case of Punjab National Bank Vs. Ashwini Kumar Taneja reported in 2004(7) SCC 265 as also in the case of General Manager (D&PB) and others Vs. Kunti Tiwary and another reported in 2004(7) SCC 271 wherein it was held as follows:- "6.The policy in question was framed by the appellant Bank pursuant to the decision of this Court in Umesh Ku mar Nagpal v. State of Haryana where this Court has said that appointment by way of compassionate appointment is an exception carved out of the general 6 rule for appointment on the basis of open invitation of application and merit. This exception was to be restored to in cases of penury where the dependents of an employee are left without any means of livelihood and that unless some source of livelihood was provided a family would not be able to make both ends meet. 7. In adoption of this Principle, an office memorandum was circulated to all banks on 7.8.1996 emphasising that the observations of this Court would have to be complied with. The Indian Banks' Association also adopted the directive of this Court in Umesh Kumar Nagpal case in the Scheme which was proposed for appointment of heirs of deceased employees. In that proposal it was recommended that in order to determine the financial condition of the family the following amounts would have to be taken into account: (a) Family pension. (b) Gratuity amount receive. (c) Employee's/ employer's contribution to provident fund. (d) Any compensation paid by the bank or its Welfare Fund. (e) Proceeds of LIC policy and other investments of the deceased employee. (f) Income of family from other sources. (g) Employment of other family members. (h) Size of the family and liabilities, if any, etc. 8. This recommendation of the Indian Banks' Association was accepted in the Scheme which was finally formulated on 1.1.1998 where the same criteria for determining the financial condition of the family was laid down. It may be noted that the express language for appointment on compassionate grounds reads as follows: "Appointments in the public 7 services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependants of employees dying in harness and leaving their family in penury and without any means of livelihood." 9. On the basis of the criteria as recommended by the Indian Banks' Association and adopted by the appellant Bank, it could not be said that the family of the late K.N. Tiwary had been left in "penury" or "without any means of livelihood". the particular of their income have been noted in their application and it certainly could not be said on the basis thereof that the respondents were living hand to mouth. The Division bench erred in diluting this criteria of penury to one of "not very well-to-do." That being so, this Court would not find any merit in this application and the same is accordingly dismissed. (Mihir Kumar Jha,J.) Patna High Court Dated the 5th July 2011 A.F.R./Surendra/