# 1784 INDIAN LAW REPORTS ALLAHABAD SERIES Safkatullah Khan v. Food Corporation of India & Ors

- **Citation:** WRIT-A No. 7587 of 2006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** WRIT-A No. 7587 of 2006
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/1784-indian-law-reports-allahabad-series-safkatullah-khan-v-food-corporation-of-46222
- **Pages:** 19

## Headnote

Sri N. Misra, Sri Satya Prakash, S.C.

A. Service - Compassionate appointment -
The terminal benefits given to the family
cannot be taken into consideration while
deciding the status of the family for the
purpose
of
consideration
of
compassionate appointment.
(Para 27 to 30)

B. No man should suffer because of the
fault of the Court or delay in the
procedure. It is evident that the petitioner has
been vigilant in espousing his cause for
compassionate appointment and his rightful
claim was denied by the illegal and arbitrary act
of respondent no. 3. There is no fault of the
petitioner for the delay caused in adjudication of
his claim, therefore, his rightful claim for
compassionate appointment cannot be denied
on the ground of delay. (Para 31 to 34)

C. Cause of action to claim compassionate
appointment accrues on the date of death
of deceased employee, therefore, the rules
or scheme governing the compassionate
appointment prevalent on the date of
death of deceased employee is relevant
for
consideration
of
claim
for
compassionate appointment. In the present
case, the F.C.I. had adopted the Central
Government Circular dated 09.10.1998 by
Circular No.EP-01200109 dated 14.05.2001 prior
to the death of father of the petitioner,
therefore, the Central Government Circular
dated 09.10.1998 adopted by F.C.I. would
govern the consideration of compassionate
appointment of the petitioner. (Para 18, 19)

Writ petition allowed. (E-4)

Precedent followed:

## Text

_Characters 0–39,898 of 51,173. This is a partial read: ask again with offset=39898 for what follows._

3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1783
down that it is the Constitutional obligation
of the State to take necessary steps to stop
such violation and ensuring observation of
the fundamental right by private individuals
who are transgressing the same.

22. The aforesaid decision has been
followed in State of Gujarat v. Hon'ble
High Court of Gujarat, (1998) 7 SCC 392
and where in context with the convicts it
was held that all prisoners doing labour are
entitle to equitable wages.

23. The learned Single Judge while
passing the judgment and order dated
10.03.2010 found that there is no order of
competent authority for withholding the
salary of writ petitioner/ respondent no.1
for the period 01.10.1992 to 03.02.1995.
The District Magistrate, Barabanki is
neither the competent authority nor having
any jurisdiction in the statute to withhold or
stop the salary of respondent no.1/ writ
petitioner rather the competent authorities
were
continuously
directed
to
make
payment of salary to the writ petitioner for
the period in question.

24. Since the date of appointment i.e.
25.06.1987,
the
writ
petitioner
is
continuously working on the post of
Assistant Teacher in the institution of
respondent no.4 and also is getting salary
from the date of initial appointment except
the period in question. It is admitted fact
that the writ petitioner was not having
experience qualification of three years for
the post of Assistant Teacher at the time of
initial appointment then why disciplinary
proceedings or any action provided in the
statute has not been taken against the writ
petitioner by the competent authority rather
the opposite parties allowed the writ
petitioner to work on the said post of
Assistant Teacher since last several years
and also make payment of salary for the
said post continuously except the period in
question. The salary of the period in
question has been withheld by the opposite
parties is not on the ground of qualification
rather the same has been withheld by the
opposite parties on the ground that the
attendance of the writ petitioner for the said
period has not been verified by the
Principal of the Institution whereas it is
admitted fact that the regular principal of
the Institution was placed under suspension
by the Committee of Management at the
relevant time and the writ petitioner being
senior most Teacher of the Institution was
allowed to work as Officiating Principal of
the Institution.

25. From the perusal of the aforesaid
facts and circumstances, it is clear that the
dispute in question i.e. with respect to nonpayment of arrears of salary to the writ
petitioner for the period 01.10.1992 to
03.02.1995 is having no concerned with
respect to the question of qualification or
experience of the writ petitioner at the time
of appointment on the post of Assistant
Teacher in the Institution.

26. In view of above, we do not find
any illegality or irregularity in the order
dated 10.03.2010 passed by the learned
Single Judge in Writ Petition No.1842 (SS)
of 1994. Accordingly, the instant special
appeal is dismissed.
----------
(2020)03-05ILR A1783
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

WRIT-A No. 7587 of 2006
1784 INDIAN LAW REPORTS ALLAHABAD SERIES
Safkatullah Khan ...Petitioner
Versus
Food Corporation of India & Ors.
 ...Opposite Parties

Counsel for the Petitioner:
Sri Rahul Jain

Counsel for the Opposite Parties:
Sri N. Misra, Sri Satya Prakash, S.C.

A. Service - Compassionate appointment -
The terminal benefits given to the family
cannot be taken into consideration while
deciding the status of the family for the
purpose
of
consideration
of
compassionate appointment.
(Para 27 to 30)

B. No man should suffer because of the
fault of the Court or delay in the
procedure. It is evident that the petitioner has
been vigilant in espousing his cause for
compassionate appointment and his rightful
claim was denied by the illegal and arbitrary act
of respondent no. 3. There is no fault of the
petitioner for the delay caused in adjudication of
his claim, therefore, his rightful claim for
compassionate appointment cannot be denied
on the ground of delay. (Para 31 to 34)

C. Cause of action to claim compassionate
appointment accrues on the date of death
of deceased employee, therefore, the rules
or scheme governing the compassionate
appointment prevalent on the date of
death of deceased employee is relevant
for
consideration
of
claim
for
compassionate appointment. In the present
case, the F.C.I. had adopted the Central
Government Circular dated 09.10.1998 by
Circular No.EP-01200109 dated 14.05.2001 prior
to the death of father of the petitioner,
therefore, the Central Government Circular
dated 09.10.1998 adopted by F.C.I. would
govern the consideration of compassionate
appointment of the petitioner. (Para 18, 19)

Writ petition allowed. (E-4)

Precedent followed:

1. Canara Bank & anr. Vs. A. Mahesh Kumar,
2015 AIR 2411 (Para 12, 18)

2. Adams Paul & anr. Vs. S.B.I. & ors., 2015 33
LCD 2449 (Para 13)

3. Nirdesh Kumar Vs. St. of U.P. & ors., 2013
(2) UPLBEC 1356 (Para 13, 29)

4. Krishna Kumar Vs. FCI & ors., Writ-A No.
31020 of 2002 (Allahabad) (Para 14)

5. Vijay Kumar Vs. Zonal Manager (N) Food
Corporation & ors., Writ-A No. 27326 of 2005
(Para 14)

6. Atma Ram Mittal Vs. Iswhar Singh Punia,
1988 (4) SC 284 (Para 16, 32)

7. Jayantibhai Roojibhai Patel Vs. Municipal
Council, Narkhed & ors., 2019 (9) JT 67 SC
(Para 16, 33)

8. Govind Prakash Verma Vs. L.I.C. & ors., 2005
(10) SCC 289 (Para 28)

Petition assails order dated 09.11.2005,
passed by Senior Regional Manager, Food
Corporation of India, Lucknow.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Rahul Jain, learned
counsel for the petitioner and Sri Satya
Prakash,
learned
counsel
for
the
respondents.

2. The petitioner by means of the
present petition has assailed the order dated
09.11.2005 passed by Senor Regional
Manager, Food Corporation of India,
Lucknow (respondent no.3) rejecting the
claim of the petitioner for compassionate
appointment.

3. The brief facts of the case are that
one H.U. Khan, father of the petitioner, was
3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1785
working as a Technical Assistant (Ist) in
Food Corporation of India (hereinafter
referred to as 'F.C.I.'), who died-in-harness
on 10.03.2002 leaving behind his widow,
five sons including petitioner and four
daughters. Out of four daughters, one is
married. The petitioner is the eldest son of
Late H.U. Khan. The entire responsibility
of the family came on shoulder of
petitioner being eldest son of Late H.U.
Khan. The petitioner has passed Class IX
and fulfills the eligibility criteria for
appointment on Category-IV post under
dying-in-harness scheme.

4. The petitioner submitted an
application to the District Magistrate,
Allahabad,
respondent
no.2,
seeking
appointment on compassionate ground. The
petitioner claimed appointment on the
compassionate ground on the basis of
Circular No.7 of 1997 dated 31.03.1997 of
F.C.I. which provided condition and
eligibility criteria for appointment on
compassionate ground. On submission of
the
said
application,
three
member
committee conducted an enquiry and
submitted report to the respondent no.2
stating therein that no member of the
family of the petitioner is in government
department and members of the family do
not have any source of income. The said
report also stated that the widow of Late
H.U.
Khan
is
burdened
with
the
responsibility of good education and
marriage of three daughters, and sons and
daughters of late H.U. Khan had given
consent for the appointment of the
petitioner on Category-IV post. The said
report recommended for appointment of the
petitioner on the compassionate ground.

5. Pursuant to the aforesaid report,
respondent no.2 directed the respondent
no.3 by letter dated 28/30.10.2003 for
granting compassionate appointment to the
petitioner. When no action was taken on
the letter of respondent no.2, petitioner
approached this Court by means of Writ
Petition No. 42840 of 2005 (Safkatullah
Khan Vs. Food Corporation of India and
Others) wherein this Court by judgement
and order dated 26.05.2005 directed the
respondent no.3 to consider the grievance
of the petitioner and pass orders within a
period of three months.

6. Pursuant to the order of this Court,
respondent no.3 rejected the claim of the
petitioner by order dated 09.11.2005.
Relevant extract of the order dated
09.11.2005 is extracted hereinbelow:-

"...

As per directions of the Govt of
India vide circular No.14014/6/94 Estt.
(d)dt. 8/9.10.1998. The following provision
has been provided for compassionate
appointment.

a).
Appointment
on
compassionate grounds should be made
only on regular basis and that too only if
regular vacancies meant for that purpose
are available.

b). Compassionate appointments
can be made upto a maximum of 5% of
vacancies falling under direct recruitment
quota in any group 'C' or 'D' post. The
appointing Authority may hold back upto
5% of vacancies in the aforesaid categories
to be filled by direct recruitment through
staff Selection Commission or otherwise so
as to fill such vacancies by appointment on
compassionate grounds. A person selected
for appointment on compassionate grounds
should be adjusted in the recruitment roster
against the appropriate category viz
SC/ST/OBC/Genl. depending upon the
category to which he belongs. For example
if he belongs to SC category he will be
1786 INDIAN LAW REPORTS ALLAHABAD SERIES
adjusted against the SC reservation point
and if he belongs to ST/OBC he will be
adjusted against ST/OBC point and if he
belongs to Genl. category he will be
adjusted against the vacancy point meant
for Genl. Category.

c). While the ceiling of 5% for
making compassionate appointment against
regular
vacancies
should
not
be
circumvented by making appointment of
dependent family member of Govt. servant
on casual case daily wage/adhoc/contract
basis against regular vacancies, there is no
bar
to
considering
him
for
such
appointment if he is eligible as per the
normal
rules/orders
governing
such
appointments.

d). The ceiling of 5% of direct
recruitment
vacancies
for
making
compassionate appointment should not be
exceeded by utilising any other vacancy
e.g. sports quota vacancy.

e). Employment under the scheme
is
not
confined
to
the
Ministry/Department/Office
in
which
deceased/medically
retired
Government
servant had been working. Such an
appointment can be given any where under
the Government of India depending upon
availability of a suitable vacancy meant for
the purpose of compassionate appointment.

f). If sufficient vacancies are not
available in any particular office to
accommodate the persons in the waiting
list for compassionate appointment, it is
open
to
administrative
Ministry/Department/Office to take up the
matter
with
other
Ministries/Department/Offices of the Govt.
of India to provide at an early date
appointment on compassionate grounds to
those in the waiting list.

So keeping in view the aforesaid
provision and ceiling of 5% there exists no
vacancy and hence the claim of the
petitioner at this stage is not tenable and is
hereby rejected. This disposes off the
representation dated 17.9.2005 of the
petitioner.
(Hukam Singh)
Senior Regional Manager"

7. A counter affidavit has been filed
by respondents contending inter alia that
Circular
No.EP-01200109
dated
14.05.2001 of the F.C.I. had adopted the
Central
Government
Circular
dated
09.10.1998 for compassionate appointment,
and such appointments are made as per the
provisions
contained
in
Government
Circular dated 09.10.1998. It was further
stated that F.C.I. had already paid terminal
benefits of the father of the petitioner
amounting to Rs.10,56,980/- (including
GPF, Gratuity and other amounts); hence,
petitioner had sufficient funds to meet
immediate financial exigencies of the
family. It further stated that since 5% posts
of the direct recruitment on Category IV
reserved for compassionate appointment
were filled during the year 2000-01,
therefore, no post was available in
Category-IV and petitioner could not be
considered for appointment due to nonavailability of the post.

8. The F.C.I. further filed first
supplementary
affidavit
wherein
in
paragraph 5(i), it is stated that no vacancy
of Category-IV was available at the time of
issue of order of respondent no.3 dated
9/10.11.2005. In paragraph 5(iv) of the said
affidavit, it is stated that the cases upto
Roaster No.516 were considered for
Category-IV
post
for
compassionate
appointment during 2000-01, and no
appointments were made thereafter as no
vacancy existed. In paragraph 5 (v), it was
further averred that petitioner's name in the
roaster register is placed at 923. In
3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1787
paragraph 5(vii), it was further averred that
case of the petitioner will be considered as
per the prevalent scheme for compassionate
appointment as and when vacancy arises.

9. F.C.I. filed second supplementary
affidavit annexing therewith the letter/order
dated 04.11.2011 by which claim of the
petitioner was again rejected by referring
several judgements of the Apex Court on
the ground that F.C.I. had released terminal
benefits amounting to Rs.10,65,809/-. The
relevant extract of the said order is
extracted hereinbelow:-

"...

Reg:
Compassionate
Ground
Appointment- Shri Shaflat Ula Khan.

Your
candidature
for
compassionate ground appointment vides
your application dated 5.11.2003 placed at
zonal roster No. 923 for category IV post
has been examined on merits for the years
2003 by the Zonal Empowered Committee
and was rejected with the approval of the
competent authority since no vacancy
within ceiling limit of 5% of the DR quota
exist. It may be noted that FCI follows
Government of India instructions (and not
by State Government rules) as contained in
its Oms No. 14014/6/94-Estt (D) dated
9.10.1998 and No. 14014/19/2002-Estt (D)
dated 5.5.2003

2. It has also observed that-

FCI released Rs.10,65,809/- as
retiral benefits.

3. Further it may also be noted
that Hon'ble Supreme Court in its various
judgments has observed that - IN THE
CASE OF UMESH KUMAR NAGPAL
VERSUS HARYANA & OTHERS JT
1994(3)
SC
525.
Compassionate
appointment cannot be granted after lapse
of a reasonable period and it is not a vested
right which can be exercised at any time in
future.

IN THE CASE OF LIC ERSUS
Mrs ASHA RAMCHANDRAN AMBEKAR
& ORS (JT 1994(2) SC 183 DATED
28.2.1995 that the High Court and
Administrative
Tribunals
cannot
give
direction for appointment of a person on
compassionate grounds but can merely
direct consideration of the claim for such
an appointment.

IN THE CASE OF HARYANA
STATE
ELECTRICITY
BOARD
VS
KRISHNA EVI 2002 Iij 773 the Apex Court
while reiterating the objective of the
compassionate appointment as laid down in
the earlier cases further observed that the
application made at a belated stage cannot
be entertained for the reason that by lapse
of time, the purpose of making such
appointment stands evaporated.

IN STATE OF MANIPUR Vs
MOHD RAJAODIN 2003 (7) SCC 511 the
Apex Court reiterated that the purpose of
giving compassionate appointment is only
to mitigate hardship caused to the family of
the deceased on account of his unexpected
death in service, only to alleviate the
distress of the family but at a belated stage
as these grounds are no more in existence,
therefore, the employment cannot be
claimed or provided.

IN STATE BANK OF INDIA AND
OTHERS Vs JASPAL KAUR JT 2007 (3)
SC 35 that........Hence a major criterion
while
appointing
a
person
on
compassionate grounds should be the
financial condition of the family the
deceased person left behind. Unless the
financial condition is entirely penury, such
appointments cannot be made."

IN THE CASE OF HARYANA
STATE
ELECTRICITY
BOARD
AND
ANOTHER VS HAKIM SINGH JT 1997 (8)
SC 332 the Apex Court cautioned that the
object
of
providing
compassionate
employment is only to relieve the family
1788 INDIAN LAW REPORTS ALLAHABAD SERIES
from financial hardship. Therefore, an
ameliorating relief should not be taken as
opening of alternative mode of recruitment
to public employment.

Yours Faithfully,
(T P PUNJ)
ASSTT GENL MANAGER (E.IX)
For EXECUTIE DIRECTOR (NORTH)"

10. The F.C.I. also annexed the copy
of
report
dated
14.09.2018
of
the
committee
constituted
by
competent
authority to reassess the vacancy position
from the year 1995 to 2017. For the
purposes of the present case, vacancy
position as noted in the report for the year
2003, 2004, 2005, 2006, 2007 & 2008 is
extracted hereinbelow:-

"I. Year 2003 (31.12.2003):-

Categ
ory-IV
post
(entry)
level
Post
Sa
nct
ion
Str
en
gth
M
e
n
in
p
o
si
ti
o
n
Vaca
ncies
N
o.
of
v
a
c
a
n
ci
e
s
a
d
v
e
rt
is
e
d
No.
of
vaca
ncies
as
per
Hqrs
.
Instr
uctio
n
5%
of
Vaca
ncies
adve
rtise
d
No.
of
Compas
sionate
Appoint
ment
made
during
the year
Mess
(Peon)
24
5
3
5
3
-108
0 0
0
Watch
man
84
2
8
8
9
-47
0 0
0
Helpe
r

73
2

0

3

2
3
5
3
5
9

3
4
4

0 0
0
Labou
r
0 0
0
Sifter
0 0
0
Sweep
er/Saf
aiwala
0 0
0
Mess
(depot
)
0 0
0
Oil
Man
7
5 2
0 0
0
Tracer 1
1 0
0 0
0
Caret
aker
cum
cook
1
1 0
0 0
0
Driver
Gr.II
43 3
6
7
0 0
0
Wirem
an
Gr.II
6
7 -1
0 0
0
Beldar 14 1
8
-4
0 0
0
Gardn
er
1
1 0
0 0
0
Dress
er
2
1 1
0 0
0
TOTA
L
CAT.I
V
18
94
2
2
5
3
-359
0 0
0
3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1789

J. Year 2004 (31.12.2004):-

Categ
ory-IV
post
(entry)
level
Post
Sanc
tion
Stre
ngth
Me
n
in
pos
itio
n
Vaca
ncies
No.
of
vac
an
cie
s
ad
ver
tise
d
No.
of
vaca
ncie
s as
per
Hqrs
.
Instr
uctio
n
5%
of
Vac
anci
es
adve
rtise
d
No.
of
Com
passi
onat
e
App
oint
ment
mad
e
duri
ng
the
year
Mess
(Peon)
245 32
8
-83
0
0
0
Watch
man
842 55
6
286 0
0
0
Helpe
r

732
0
3
19
9

30
5

33
5

-110
0
0
0
Labou
r
0
0
0
Sifter
0
0
0
Sweep
er/Saf
aiwala
0
0
0
Mess
(Depo
t)
0
0
0
Oil
Man
7
4
3
0
0
0
Gardn
er
1
1
0
0
0
0
Dress
er
2
1
1
0
0
0
Beldar 14
16 -2
0
0
0
TOTA
L
CAT.I
V
1843 17
48
95
0
0
0

K. Year 2005 (31.12.2005):-

Categor
y-IV
post
(entry)
level
Post

Sa
nct
ion
Str
en
gth
Men
in
posit
ion
Va
ca
nci
es
No.
of
vaca
ncies
adve
rtise
d
No.
of
vaca
ncie
s as
per
Hqrs
.
Instr
uctio
n
5%
of
Vac
anci
es
adve
rtise
d
No.
of
Co
mp
ass
ion
ate
Ap
poi
nt
me
nt
ma
de
dur
ing
the
yea
r
Mess
(Peon)
23
7
312 -75 0
0
0
Watchm
an
82
7*
306 52
1
0
0
0
Helper

0
698@
3
241

119

0
0
0
Laboure
r
0
0
0
Sifter
0
0
0
Sweeper
/Safaiw
ala
0
0
0
1790 INDIAN LAW REPORTS ALLAHABAD SERIES
Mess
(Depot)
103

232

7
3
4
0
0
0
Oil Man
0
0
0
Beldar
14 14
0
0
0
0
Gardne
r
1
1
0
0
0
0
Dresser 2
0
2
0
0
0
TOTAL
CAT.IV
17
86
1093 69
3
0
0
0

* 15 posts abolished due to VRS

@ 34 posts abolished due to VRS

L. Year 2006 (31.12.2006):-

Categor
y-IV
post
(entry)
level
Post
Sa
nct
ion
Str
en
gth
Men
in
positio
n
Vacan
cies
No.
of
vac
an
cie
s
ad
ver
tise
d
N
o.
of
va
ca
nc
ie
s
as
pe
r
H
qr
s.
In
str
uc
tio
n
5
%
N
o.
of
C
o
m
pa
ssi
on
at
e
Ap
po
int
m
en
t
m
ad
e
du
of
V
ac
an
ci
es
ad
ve
rti
se
d
ri
ng
th
e
ye
ar
Mess
(Peon)
23
7
267
-30
0
0
0
Watchm
an
71
6
140
576
0
0
0
Helper
 0
698 2
 83
 58
375
 180

7 2
5
0
0
0
Labour
0
0
0
Sifter
0
0
0
Sweepe
r/Safai
wala
0
0
0
Mess
(Depot)
0
0
0
0
Oil Man
0
0
0
Gardne
r
1
1
0
0
0
0
Dresser 2
0
2
0
0
0
Beldar
14 8
6
0
0
0
TOTAL
CAT.IV
16
75
741
934
0
0
0

M. Year 2007 (31.12.2007):-

Categ
ory-IV
post
(entry)
level
Sa
nct
ion
Str
en
Me
n
in
pos
itio
Vaca
ncies
No.
of
vac
an
cie
N
o.
of
v
a
No.
of
Compas
sionate
Appoint
ment
3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1791
Post
gth n
s
ad
ver
tise
d
c
a
n
ci
e
s
a
s
p
e
r
H
q
rs
.
I
n
st
r
u
ct
io
n
5
%

of
V
a
c
a
n
ci
e
s
a
d
v
e
rt
is
e
d
made
during
the year
Mess
23
24
-6
0
0 0
(Peon) 7
3
Watch
man
71
6
10
7
609

425

0
0
0 0
Helpe
r

69
8
0
3
----
----
-
72
----
----
-
48
----
----
-
15
0
0_
__
__
_
0
_
_
_
_
_
_
0_____
_
Labou
rer
0_
__
__
_
0
_
_
_
_
_
_
0_____
_
Sifter
0_
__
__
_
0
_
_
_
_
_
_
0_____
_
Sweep
er/Saf
aiwala
0_
__
__
_
0_
__
__
_
0
_
_
_
_
_
_
0
_
_
_
_
_
_
0_____
_
0_____
_
Mess
(Depo
t)
0_
__
__
_
0
_
_
_
0_____
_
0_____
_
1792 INDIAN LAW REPORTS ALLAHABAD SERIES
0_
__
__
_
_
_
_
0
_
_
_
_
_
_
Oil
Man
7
2
5
0
0 0
Beldar 14 8
6
0
0 0
Gardn
er
1
0
1
0
0 0
Dress
er
2
0
2
0
0 0
TOTA
L
CAT.I
V
16
75
63
3
1042 0
0 0

N. Year 2008 (31.12.2008):-

Categ
ory-IV
post
(entry)
level
Post
S
a
n
ct
io
n
St
r
e
n
gt
h
M
e
n
in
p
o
si
ti
o
n
Va
ca
nci
es
N
o.
of
v
a
c
a
n
ci
e
s
a
d
v
e
rt
is
e
No. of
vacan
cies as
per
Hqrs.
Instru
ction
5% of
Vacan
cies
advert
ised
No.
of
Compassio
nate
Appointme
nt
made
during the
year
d
Mess
(Peon)
2
3
7
2
1
0
27 0 0
0
Watch
man
7
1
6
1
0
3
61
3
0 0
0
Helpe
r

6
9
8
0
_
_
_
_
_
3
_
_
_
_
_
4
0
_
_
_
_

4
8
_
_
_
_

1
0
4
_
_
_

50
3
0
_
_
_
_
_
_
0
_
_
_
_
_
_
0
_
_
_
_
_
_
0
_
_
_
_
_
_
0
_
_
_
_
_
_
0
0____
_
0____
_
0____
_
0____
_
0____
_
0____
_
0_____
0_____
0_____
0_____
0_____
0_____
Labou
rer
Sifter
Sweep
er/Saf
aiwala
Mess
(Depo
t)
3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1793
_
_
_
_
_
_
Oil
Man
7 2 5
0 0
0
Gardn
er
1 8 6
0 0
0
Dress
er
2 0 2
0 0
0
Beldar 1
4
7 7
0 0
0
TOTA
L
CAT.I
V
1
6
7
5
5
1
7
115
8
0 0
0

Prakash Chaurasia Arun Kumar
Kausik Nayak
Manager (Genl.) AGM
(Legal) DGM
(Genl.)"

11. In the rejoinder affidavit to the
supplementary affidavit, petitioner stated
that terminal benefits paid to the mother of
the petitioner cannot be a ground to deny
the compassionate appointment to the
petitioner. The petitioner further pleaded
that no opportunity of hearing was afforded
to him before passing the impugned order.
It has also been averred that even as per the
report of respondents, right from the year
2005 vacant posts under 5% ceiling were
available in the F.C.I., therefore, the claim
of the petitioner has been wrongly rejected
by respondent no.3.

12. Learned counsel for the petitioner
has submitted that the order impugned in
the writ petition rejecting the claim of the
petitioner is non-speaking and without
application of mind inasmuch as the said
order did not consider the report of the
committee constituted to enquire about the
financial condition of the family as well as
the size of family of the petitioner and
liability of the family. He submits that the
said report clearly states that widow has the
liability to look after her three unmarried
daughters. He further submits that the only
reason on which claim of the petitioner was
rejected by respondent no.3 is that no
vacancy
under
5%
quota
of
direct
recruitment reserved for compassionate
appointment
was
available
which
is
contrary to record inasmuch as, as per the
vacancy position shown in the report dated
14.09.2018, the vacancy in category-IV
post was available. He further submits that
in the first supplementary affidavit of F.C.I.
in paragraph 5(i), it is averred that no
vacancy was available at the time of
passing
of
order
dated
9/10.11.2005
whereas as per the report dated 14.09.2018,
there were vacancies in category-IV from
2004 onwards and as such, the reason
assigned
for
rejecting
the
claim
of
petitioner is not sustainable. He further
submits that claim of the petitioner has to
be considered as per the scheme of
compassionate appointment applicable on
the date of cause of action for appointment
under dying-in-harness scheme. In support
of the said contention, he has placed
reliance upon the judgement of Apex Court
in the case of Canara Bank and Another
Vs. A. Mahesh Kumar 2015 AIR 2411.

13. It is further urged by the learned
counsel for the petitioner that the claim of
the petitioner is to be considered in the
light
of
scheme
applicable
for
compassionate appointment, and in the
present case, the scheme does not envisage
1794 INDIAN LAW REPORTS ALLAHABAD SERIES
the rejection of claim of petitioner on the
ground of financial condition of family of
deceased person. He submits that terminal
benefits cannot be taken into account in
considering the financial condition of the
family. Accordingly, he submits that the
rejection of claim of the petitioner for
compassionate appointment on the ground
of payment of terminal benefits of the
father of the petitioner which is sufficient
to meet the financial exigencies as stated in
the
letter
of
communication
dated
04.11.2011 annexed with the second
supplementary affidavit is not sustainable
in law. In support of the said contention, he
placed reliance upon the judgement of this
Court in the case of Adams Paul &
Another Vs. State Bank of India and
Others 2015 33 LCD 2449 and Nirdesh
Kumar Vs. State of U.P. & Others 2013
(2) UPLBEC 1356.

14. Per contra, learned counsel for the
respondents
submits
that
father
of
petitioner had died in the year 2002, and
more than 18 years have elapsed and family
of petitioner has survived, therefore, family
is not in any financial stress. Hence, he
submits that the present is not a case where
compassionate appointment is to be given
to the petitioner in order to tide over the
financial stress of the family. In support of
his aforesaid contention, he has placed
reliance upon the judgement of this Court
in the cases of Writ-A No.31020 of 2002
(Krishna Kumar Vs. Food Corporation of
India and Others) and Writ A No.27326 of
2005 (Vijay Kumar Vs. Zonal Manager
(N) Food Corporation and Others).

15. He further contends that terminal
benefits of the father of the petitioner had
been released, therefore, family of the
petitioner is not in any financial stress and
further, as there is no vacancy available
with the F.C.I. in Category-IV, therefore,
claim of the petitioner has rightly been
rejected by respondent no.3. He further
submits that Circular No.7 of 1997 dated
31.03.1997 of F.C.I. is not applicable in the
present case.

16. To the aforesaid submission,
learned counsel for the petitioner has
submitted that petitioner is espousing his
cause
for
compassionate
appointment
immediately after the death of his father,
and the rightful claim of the petitioner for
compassionate appointment was denied
illegally and arbitrarily by the respondent
no.3. Thus, the submission is that it is
settled in law that no one should suffer for
the fault of the court, and as there was no
delay on the part of the petitioner in
espousing his cause, the claim of the
petitioner cannot be defeated on the ground
of delay. In support of his contention, he
has placed reliance upon the judgement of
Apex Court in the case of Atma Ram
Mittal Vs. Iswhar Singh Punia 1988 (4)
SC 284 and another judgement of Apex
Court in the case of Jayantibhai Raojibhai
Patel Vs. Municipal Council, Narkhed &
Others 2019 (9) JT 67 SC.

17. I have considered the rival
submissions of the parties and perused the
record.

18. As per petitioner, his claim for
compassionate
appointment
is
to
be
considered as per Circular No.7 of 1997
whereas according to the respondent the
claim of the petitioner is to be considered
as per Central Government Circular dated
09.10.1998 adopted by F.C.I. by Circular
No.EP-01200109 dated 14.05.2001. To
consider the said issue , it would be apt to
refer paragraph 13 of the judgement of
Apex Court in the case of Canara Bank
3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1795
and Another (supra) which is being
extracted hereinbelow:-

"13. Applying these principles to
the case in hand, as discussed earlier,
respondent's father died on 10.10.1998
while he was serving as a clerk in the
appellant-bank and the respondent applied
timely for compassionate appointment as
per the scheme ''Dying in Harness Scheme'
dated 8.05.1993 which was in force at that
time. The appellant-bank rejected the
respondent's
claim
on
30.06.1999
recording that there are no indigent
circumstances for providing employment to
the respondent. Again on 7.11.2001, the
appellant-bank sought for particulars in
connection with the issue of respondent's
employment. In the light of the principles
laid down in the above decisions, the cause
of
action
to
be
considered
for
compassionate appointment arose when the
Circular No.154/1993 dated 8.05.1993 was
in force. Thus, as per the judgment referred
in Jaspal Kaur's case, the claim cannot be
decided as per 2005 Scheme providing for
ex-gratia payment. The Circular dated
14.2.2005 being an administrative or
executive order cannot have retrospective
effect so as to take away the right accrued
to the respondent as per circular of 1993."

19. The Apex Court in the aforesaid
case has held that cause of action to claim
compassionate appointment accrues on the
date of death of deceased employee,
therefore, the rules or scheme governing
the compassionate appointment prevalent
on the date of death of deceased employee
is relevant for consideration of claim for
compassionate appointment. In the present
case, the F.C.I. had adopted the Central
Government Circular dated 09.10.1998 by
Circular
No.EP-01200109
dated
14.05.2001 prior to the death of father of
the
petitioner,
therefore,
the
Central
Government Circular dated 09.10.1998
adopted by F.C.I. would govern the
consideration
of
compassionate
appointment of the petitioner.

20. Paragraph 7 of the Central
Government Circular dated 09.10.1998
provides for Determination/Availability of
vacancies which is being reproduced
hereinbelow:-

"7.
DETERMINATION/AVAILABILITY
OF
VACANCIES.

(a).
Appointment
on
compassionate grounds should be made
only on regular basis and that too only if
regular vacancies meant for that purpose
are available.

(b). Compassionate appointments
can be made upto a maximum of 5% of
vacancies falling under direct recruitment
quota in any Group 'C' or 'D' post. The
appointing authority may hold back upto
5% of vacancies in the aforesaid categories
to be filled by direct recruitment through
Staff Selection Commission or otherwise so
as to fill such vacancies by appointment on
compassionate grounds. A person selected
for appointment on compassionate grounds
should be adjusted in the recruitment roster
against the appropriate category viz
SC/ST/OBC/General depending upon the
category to which he belongs. For example,
if he belongs to SC category he will be
adjusted against the SC reservation point,
if he is ST/OBC he will be adjusted against
ST/OBC point and if he belongs to General
category he will be adjusted against the
vacancy point meant for General category.

(c). While the ceiling of 5% for
making compassionate appointment against
regular
vacancies
should
not
be
circumvented by making appointment of
1796 INDIAN LAW REPORTS ALLAHABAD SERIES
dependent family member of Government
servant
on
casual/daily
wage/adhoc/contract
basis
against
regular
vacancies, there is no bar to considering
him for such appointment if he is eligible as
per the normal rules/orders governing such
appointments.

(d). The ceiling of 5% of direct
recruitment
vacancies
for
making
compassionate appointment should not be
exceeded by utilizing any other vacancy
e.g. sports quota vacancy.

(e).
Employment
under
the
scheme
is
not
confined
to
the
Ministry/Department/Office
in
which
deceased/medically
retired
Government
servant had been working. Such an
appointment can be given anywhere under
the Government of India depending upon
availability of a suitable vacancy meant for
the purpose of compassionate appointment.

(f). If sufficient vacancies are not
available in any particular office to
accommodate the persons in the waiting
list for compassionate appointment, it is
open
to
the
administrative
Ministry/Department/Offices to take up the
matter
with
other
Ministries/Department/Offices
of
the
Government of India to provide at an early
date
appointment
on
compassionate
grounds to those in the waiting list."

21. Now, the court proceeds to
consider as to whether the respondent no. 3
has rightly rejected the claim of the
petitioner for compassionate appointment.
The father of the petitioner died on
10.03.2002. On the application of the
petitioner, there was a report of three
members committee which recommended
that the petitioner be given compassionate
appointment
under
dying-in-harness
scheme
considering the liability and
financial exigencies of the family. The said
report clearly stated that the widow had
responsibility of three daughters whom she
had to look after and the burden of their
marriage is also on her. The respondent
no.2 by letter dated 28/30.10.2003 directed
the respondent no.3 to appoint petitioner on
compassionate
ground.
When
the
respondent no.3 did not comply with the
direction of respondent no.2, the petitioner
filed Writ Petition No. 42840 of 2005
which was disposed off by this court by
order dated 26.05.2005 directing the
respondent no.3 to consider the claim of the
petitioner. Pursuant to the direction of this
court , the respondent no.3 passed order
dated 09.11.2005 rejecting the claim of the
petitioner on the ground that no vacancy
under 5% quota for direct recruitment is
available.

22. Perusal of order dated 09.11.2005,
extracted
above,
clearly
reveals
that
respondent noted the relevant provisions of
Circular
dated
8/9.10.1998
providing
procedure for compassionate appointment
and rejected the claim of the petitioner by
cryptic finding that as no vacancy under
5% quota reserved for compassionate
appointment is available with F.C.I.,
therefore, petitioner cannot be appointed.

23. In the first supplementary
affidavit of F.C.I, it is stated that no
vacancy on the date of passing of order
dated 9/10.11.2005 was available under 5%
quota. The said averment as well as reason
assigned in the impugned order are
contrary to record inasmuch as report dated
14.09.2018 containing the vacancy position
from 1995 to 2018 reveals that there were
vacancies in Category-IV post from the
year 2004 onwards. The said report gives
the actual vacancy position as on 31st
December of the relevant year, but it does
not give the vacancy position quota wise. It
3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1797
is evident from the report that, there were
95 vacancies in Category-IV on 31st
December 2004, 695 vacancies on 31st
December 2005, 934 vacancies on 31st
December 2006, 1042 vacancies on 31st
December 2007 and so on. Thus, it is
evident that sufficient number of vacancy
were available with the F.C.I. from the year
2004 onwards.

24. At this juncture, it would be
relevant to refer the order passed by this
Court on 17.07.2019 whereby this Court
directed the F.C.I. to file an affidavit giving
total number of Category-IV posts as also
5% quota. The order of this Court dated
17.07.02019 is extracted hereinbelow:-

" A supplementary affidavit on
behalf of respondents is stated to have been
filed on 6.8.2009, which is not on record.

Office may trace it out and placed
it on record.

Learned
counsel
for
the
respondents will also obtain instructions as
to whether any vacancy has since been
caused in the organization against which
petitioner's
compassionate
appointment
can be considered. The total number of
class IV posts as also the 5% quota shall
also be disclosed.

List on 31st July, 2019".

25. But despite the specific direction
of this Court to provide details of 5%
quota, the F.C.I. filed a report with the
Second Supplementary Affidavit giving
total number of vacancies, but nothing has
been averred in the affidavit as to how no
vacancy under 5% quota is available
despite there is large number of vacancies
in Category-IV.

26. It is further relevant to mention
that the compassionate appointment is
entirely different from an appointment by
direct recruitment. The object and purpose
of the compassionate appointment is to
provide immediate succor to the family of
deceased to tide over the financial crunch
which had been caused due to the death of
the bred earner of the family. The averment
made in paragraph 5(1) of the first
supplementary affidavit of F.C.I. that no
vacancy under 5% quota exist is contrary to
the report dated 14.09.2018 which gives
year wise vacancy position of Category IV
post. In this view of the fact, the reasons
assigned in the impugned order that no
vacancy under 5% quota is available with
F.C.I. is contrary to record and not
sustainable.

27. So far as the denial of claim of
petitioner communicated by letter dated
04.11.2011 on the ground that terminal
benefit to the family of petitioner had been
released, therefore, family is not in any
financial crunch is misconceived and not
sustainable for the reasons that there is
report of three members committee which
recommended for appointment of petitioner
on compassionate ground considering the
hardship and liability of the family. The
report clearly stated that the widow is
burdened with the responsibility of three
daughters whom she has to feed, provide
good education and also perform their
marriage.

28. At this stage, it would be pertinent
to refer judgment of the Apex Court in the
case of Govind Prakash Verma Vs. Life
Insurance Corporation of India and
Others 2005 (10) SCC 289 wherein the
Apex Court has held that terminal benefits
given to the family cannot be taken into
consideration while deciding the status of
the family for the purpose of consideration
of compassionate appointment. Paragraph 6
1798 INDIAN LAW REPORTS ALLAHABAD SERIES
of the said judgement is being extracted
hereinbelow:-

"6. In our view, it was wholly
irrelevant for the departmental authorities
and the learned Single Judge to take into
consideration the amount which was being
paid as family pension to the widow of the
deceased (which amount, according to the
appellant, has now been reduced to half)
and other amounts paid on account of
terminal benefits under the Rules. The
scheme of compassionate appointment is
over and above whatever is admissible to
the legal representatives of the deceased
employee as benefits of service which one
gets on the death of the employee.
Therefore,
compassionate
appointment
cannot be refused on the ground that any
member of the family received the amounts
admissible under the Rules. So far as the
question of gainful employment of the elder
brother is concerned, we find that it had
been given out that he has been engaged in
cultivation. We hardly find that it could be
considered as gainful employment if the
family owns a piece of land and one of the
members of the family cultivates the field.
This statement is said to have been
contradicted when it is said that the elder
brother had stated that he works as a
painter. This would not necessarily be a
contradiction much less leading to the
inference drawn that he was gainfully
employed somewhere as a painter. He
might be working in his field and might
casually be getting work as a painter also.
Nothing has been indicated in the enquiry
report as to where he was employed as a
regular painter. The other aspects, on
which the officer was required to make
enquiries, have been conveniently omitted
and not a whisper is found in the report
submitted by the officer. In the above
circumstances, in our view, the orders
passed by the High Court are not
sustainable. The respondents have wrongly
refused compassionate appointment to the
appellant.
The
inference
of
gainful
employment of the elder brother could not
be acted upon.