IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10033 of 2007 SURESH KUMAR PANDEY, son of late Janardan Pandey, resident of Purani Chauk, P.S. + District Gopalganj … Petitioner Versus 1. THE FOOD CORPORATION OF INDIA, through the Managing Director (Headquarter), 16-20, Barkhambha Lane, New Delhi 2. The Managing Director (Headquarter), Food Corporation of India, 16-20 Barkhambha Lane, New Delhi 3. The Zonal Manager (East) Food Corporation of India, Zonal Office, 10A, Middleton Row, Kolkata-71 4. The Deputy General Manager (Personal), Food Corporation of India, Zonal Office, 10A, Middleton Row, Kolkata-71 5. The Senior Regional Manager, Regional Office, Food Corporation of India, Arunachal Bhawan, 4th Floor, Exhibition Road, Patna 6. The District Manager, District Office, Food Corporation of India, Road No.4, Juran Chhapra, Muzaffarpur (Bihar) … Respondents ----------- 2. 8.4.2011 Heard counsel for the petitioner and the counsel for the respondent Food Corporation of India. The prayer of the petitioner to quash the impugned order dated 29.6.2005, contained in Annexure 7, is based on an assumption that since the father of the petitioner had died on 1.8.1997 and the petitioner had filed his application for appointment on compassionate ground on 27.2.1998, any circular limiting number of vacancies only upto 5% of the total number of post for the purpose of compassionate 2 appointment issued in the year 1999 or thereafter could not have governed the case of the petitioner. In the considered opinion of this Court the scheme of compassionate appointment is based on relaxation of normal rule of recruitment requiring the observance of principles under Articles 14 and 16 of the Constitution of India. Therefore, if the Corporation has taken a decision to keep only 5% of post for compassionate appointment and the application of the petitioner was pending on the said date, the same will also be applicable to the case of the petitioner. Recently the Apex Court in the case of a Bank employees had the occasion to consider it wherein the issue of compassionate appointment vis-à-vis exgratia payment in lieu of compassionate appointment had become the bone of contention. The Apex Court in that context in the case of State Bank of India & anor. vs. Raj Kumar, reported in 2010(2) BBCJ 353(S.C.), has laid down that if the application was pending during the change of policy, such application has to be considered as per 3 changed policy. As a matter of fact the Apex Court in fact went to deny the compassionate appointment altogether on the basis of change of policy. Here in this case only the respondents have curtailed the number of vacancies by confining it to 5% and therefore, if the application of the petitioner was pending in the year 1999 when the said circular had come into force, there was no difficulty in treating the case of the petitioner on the same parameter as was done in the cases of others. In fact the respondents had initially not rejected the case of the petitioner but had only placed him for being considered against those 5% of post alongwith similarly situated persons by placing him at serial no. 97. If 96 persons were earlier found to be eligible they could not have been left out for giving the petitioner the benefit of compassionate appointment only because his father had died in the year 1998. The next submission of the learned counsel for the petitioner that consideration also as made in the impugned order dated 29.6.2005 is bad inasmuch as 4 after completion of period of three years the name of the petitioner has been struck off is again a matter of policy. It is the policy of the Food Corporation of India to maintain a list of eligible persons for appointment on compassionate ground only for a period of three years and to make such appointment from such list against 5% of vacancies. If, therefore, the name of 321 persons including that of the petitioner were struck off as per the policy, the petitioner cannot have any grievance even on this score. The existence of vacancy is a sine qua non for appointment on compassionate ground and if there is no vacancy and the petitioner could not be appointed against 5% of vacancies reserved for compassionate appointment nothing much can be done by this Court in this regard. Compassionate appointment also has its limitations. The next submission of the learned counsel for the petitioner is that the counter affidavit filed by the respondents is vague, inasmuch as when they have disclosed the figure of 321 persons whose 5 name have been struck off for three years, they were also required to give the number of persons who were appointed in the period of three years on compassionate ground. In the considered opinion of this Court there would be no need for such pleading, inasmuch as it is not the case of the petitioner that anyone placed below Sl.No. 97 in the list has been appointed. A counter affidavit is not required to deal with even such issues which are not raised in the writ application. That being so, this Court would not find any merit in this application and the same is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/