Rajpal Kumar & Anr v. Food Corporation of India

MANMOHAN, J. AUGUST 16, 2010 vk

* HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 09th August, 2010 % Judgment Pronounced on: 16th August, 2010 + LPA 181/2010 RAJPAL KUMAR & ANR. ..... Appellants Through: Dr. Manmohan Sharma, Adv. versus FOOD CORPORATION OF INDIA ..... Respondent Through: Ms. Neelam Singh, Adv. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ The present intra court appeal preferred under Clause 10 of the Letters Patent is directed against the order dated 20th January, 2010 passed by the learned Single Judge in WP(C) No.7284/2008. 2. The writ petitioners (hereinafter referred to as the "appellants") are the sons of ex-employees of the Food Corporation of India (for short " the FCI"). Their respective fathers sought voluntary retirement inspired by the circular of the FCI dated 3rd July, 1996. It is not in dispute that the fathers had sought voluntary retirement on medical grounds as a promise was held out to them that consequent upon their such retirement, their dependents would be given compassionate appointments in their place. In their letters, they had requested that their sons should be provided jobs in their place. They were sent for medical check-up and eventually, their request for retirement on medical grounds was accepted and they were relieved from their posts on 3rd July, 2003, 12th March, 2003 and 5th June, 2003 respectively but the request to provide employment to their sons was not accepted. Because of such denial, the appellants invoked the extraordinary jurisdiction of this Court for issuing a command to the respondent to give them the benefit of compassionate appointment. 3. The respondent-FCI resisted the stand put forth in the writ petition and contended, inter alia, that though the fathers of the appellants had sought retirement on medical grounds, yet they were not entitled to compassionate employment as certain conditions had to be satisfied and there were no vacancies. It was also highlighted that after the fathers of the appellants sent their letters seeking voluntary retirement and before the same were accepted, another circular bearing No. 5/2003 dated 4th March, 2003 had come into force which had laid down that only 5% of the vacancies at the entry level would be filled up by direct recruitment on compassionate ground. Regard being had to the consequent circular and keeping in view the 5% quota which was set apart for compassionate appointment, the cases of the appellants could not be considered as the vacancies were filled up. Before the learned Single Judge, it was not disputed that the basic circular was dated 3rd July, 1996 which stipulated certain conditions and, most importantly, the availability of vacancies. It had also laid a postulate that employment on compassionate ground is not a matter of right but purely at the discretion of the competent authority. The subsequent circular dated 4th March, 2003 fixed a ceiling of 5% at the entry level and there was no vacancy in the said category against which the appellants could be appointed. 4. The learned Single Judge posed a question to the effect whether the ceiling of 5% for compassionate appointment as laid down by the circular dated 4th March, 2003 could also apply to those applicants who had sent their papers for voluntary retirement prior to coming into force of the said circular. While answering the said issue, the learned Single Judge referred to the decision in Food Corporation of India and another v. Food Corporation of India Workers Union (LPA No.1672/2005 decided on 30th January, 2006) wherein it has been held that the application for compassionate appointment made whether before or after 4th March, 2003 would be subject to the ceiling limit of 5%. 5. It is worth noting that before the learned Single Judge, reliance was placed on th