IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3669 of 2004 DEEPAK KUMAR SINHA, SON OF LATE AWADHESH KUMAR, RESIDENT OF VILLAGE- AKBARPUR, P.S.- NAUBATPUR, DISTRICT- PATNA, AT PRESENT RESIDING AT CHUNAUTIKUAN, ISHOPUR ROAD, P.S. PHULWARISHARIF, DISTRICT- PATNA Versus 1. THE FOOD CORPORATION OF INDIA THROUGH THE MANAGING DIRECTOR, F.C.I., NEW DELHI. 2. ZONAL MANAGER (EAST), FOOD CORPORATION OF INDIA, ZONAL OFFICE, CALCUTTA. 3. SENIOR REGIONAL MANAGER, FOOD CORPORATION OF INDIA, PATNA. 4. DISTRICT MANAGER, FOOD CORPORATION OF INDIA, PATNA ----------- 9. 02.07.2010. This matter was taken up yesterday i.e. 01.07.2010 when the submissions in reply could not be completed on account of paucity of time. Today, prayer is made to pass over the case which was allowed for few cases. Learned counsel for the petitioner, however, appeared at about 12.30 P.M. and submitted that the case be passed over for the day which was declined as the case was heard in part yesterday and filed on 23.3.2004, whereafter the same was dismissed for non- prosecution on 10.5.2004 and restored later but adjourned on several occasions i.e. 26.4.2007, 24.5.2007, 5.8.2009, 13.10.2009 and 28.6.2010. On 28.6.2010 this Court was informed that the learned counsel for the petitioner has received some message from his home and is not available whereafter the matter was passed over on 28.6.2010 with observation that if none appears tomorrow to press this application, the case shall be dismissed for default. 2. Petitioner is the son of Late Awadhesh Kumar who died on 25.9.1995 while serving the Food Corporation of India (hereinafter referred to as “F.C.I.”) as Assistant Grade-I. He has filed this writ application questioning the correctness and validity of the order dated 9.2.2004 passed by the Zonal Manager (East) (Annexure-10), whereunder the request of the petitioner for appointment on compassionate ground has been directed to be considered as and when vacancy is available in - 2 - the light of the instructions contained in circular letter dated 14.05.2001 which inter alia provides that compassionate appointment shall be made only to the extent of 5 per cent of the vacancy available for direct recruitment. Petitioner assailed the aforesaid order on the ground that the authorities have refused to appoint the petitioner on compassionate ground on the ground that the circular letter dated 14.5.2001, whereunder the F.C.I has made provision for appointment on compassionate ground to the extent of 5 per cent of the vacancies falling under the direct recruit quota should not apply to the case of the petitioner as father of the petitioner died on 25.9.1995 on which date there was no ceiling to consider compassionate appointment only against 5 per cent vacancies. It is also submitted that the Circular Letter dated 14.5.2001 is an executive instruction which cannot have retrospective operation and the authorities be directed to consider the case of the petitioner for compassionate appointment bereft of the Circular Letter dated 14.5.2001. Before filing this writ petition petitioner had approached this Court in C.W.J.C.No. 764 of 2003 for a direction to the F.C.I. to consider his case for appointment on compassionate ground which was disposed of under orders dated 20.1.2003, Annexure-6 directing the Corporation to take decision on the prayer made by the petitioner for appointment on compassionate ground, if already not considered. In compliance of the aforesaid direction of this Court dated 20.1.2003, Annexure-6 the F.C.I. considered the case of the petitioner for appointment on compassionate ground under their order dated 10.4.2003, Annexure-7 and observed that petitioner being a non-graduate at the time of the death of his father was offered Category-IV post through Senior Regional Manager, F.C.I., Patna on 21.11.1997. Having made such statement in the order dated 10.4.2003, Annexure-7 the request of the petitioner for grant of appointment on compassionate - 3 - ground was directed to be kept in a separate register awaiting further instruction from the headquarter. Aforesaid order dated 10th April, 2003, Annexure-7 was challenged by the petitioner by filing C.W.J.C.No. 6154 of 2003 which was disposed of under orders dated 17.12.2003, Annexure-8 and the Court having considered the order dated 10.4.2003 observed that the said order is no order in the eye of law and directed the authorities to pass a fresh speaking order considering the entitlement of the petitioner for appointment on compassionate ground. In compliance of the order dated 17.12.2003, Annexure-8 the impugned order dated 9.2.2004, Annexure-10 has been passed. Yesterday i.e. 01.07.2010 while the writ petition was being argued learned counsel for the petitioner submitted that while passing the speaking order dated 9.2.2004, Annexure-10 the authorities could not have considered the case of the petitioner in the light of the subsequent circular letter dated 14.5.2001 as on the date of death of the father of the petitioner i.e. 25.9.1995 the circular dated 14.5.2001 being not in existence could not have been applied to ask the petitioner to wait until vacancies are available for appointment under quota meant for compassionate appointment. Learned counsel for the petitioner pointed out that the Circular letter dated 14.5.2001 being an executive instruction could not have been applied with retrospective effect and as the father of the petitioner died on 25.9.1995 the 2001 circular has no application to his case. 3. Counsel for the F.C.I. opposed the submission. He submitted that the father of the petitioner died on 25.09.1995 and the 1st writ petition (C.W.J.C.No. 764 of 2003) was filed in this Court in 2003 after petitioner refused to accept the offer given to him for appointment on Class-IV post through the Regional Manager, F.C.I., Patna on 27.11.1997 and the point that the case of the petitioner is not to be considered in the light of the circular letter dated 14.5.2001 was never raised before - 4 - this Court either when order dated 20.1.2003 was passed or when the subsequent order dated 17.12.2003 was passed. As such, after more than 10 years of the death of the service- holder the submission that circular letter dated 14.5.2001 will not govern the case of the petitioner for compassionate appointment should not be allowed to be raised. 4. I see substance in the submission of the counsel for the F.C.I. Father of the petitioner having died on 25.9.1995 the submission that his case is not covered by the circular letter dated 14.5.2001 should have been raised while the Court was disposing of the earlier writ petition under orders dated 20.1.2003 or the second writ petition under orders dated 17.12.2003, Annexure-8 and if the said submission was not raised on the earlier two occasions then at this belated stage I am not inclined to consider the submission that the case of the petitioner is not to be considered in the light of circular letter dated 14.5.2001. Accordingly, claim of the petitioner for compassionate appointment bereft of the circular letter dated 14.5.2001 cannot be considered and the prayer made in this writ application is wholly misconceived. The writ application is, accordingly, dismissed. P.K.P. (V.N.Sinha,J.)