# Shobh Nath and another v. District Manager, Food Corporation of India Varanasi, U.P. and others

- **Citation:** (2004) 1 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-05
- **Case number:** Civil Misc. Writ Petition No. 13034 of 2003
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shobh-nath-and-another-v-district-manager-food-corporation-of-india-varanasi-u-40315
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226-
Appointment on compassionate groundsone of the family member who seeks
voluntary retirement on medical ground
or before attaining the age 55 years-in
view of circular dated 3.7.96 application
filed with in time-delay caused in
forwarding the application can not be a
ground for regretting the application for
appointment.

Held: Para 8

Thus, in my view, the reason for refusing
to give appointment to the petitioner, as
stated in the impugned order dated
14.6.2002 passed by respondent No. 2 is
not tenable. The application of the
petitioner No. 2 had been filed within
time as he had not attained the age of 55
years on 17.3.1998 when he first applied
for voluntary retirement on medical
grounds and as such the impugned order
rejecting the application on the ground
of it being filed beyond the age of 55
years is liable to be quashed. The
petitioner No. 1 is entitled to the benefit
of
the
circular
dated
3.7.1996
for
appointment
as
handling
labour on
compassionate grounds in place of his
father, petitioner No. 2. As such this writ
petition deserves to be allowed.
Case law discussed:
AIR 1997 SC 123
AIR 1996 SC 2226
AIR 1994 SC 2148

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.4.2004

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 13034 of 2003

Shobh Nath and another ...Petitioners
Versus
District Manager, Food Corporation of
India Varanasi, U.P. and others

 ...Respondents

Counsel for the Petitioners:
Sri R.C. Gupta

Counsel for the Respondents:
Sri M.P. Singh
Sri N.P. Singh
Sri V.K. Agarwal

Constitution
of
India,
Article
226-
Appointment on compassionate groundsone of the family member who seeks
voluntary retirement on medical ground
or before attaining the age 55 years-in
view of circular dated 3.7.96 application
filed with in time-delay caused in
forwarding the application can not be a
ground for regretting the application for
appointment.

Held: Para 8

Thus, in my view, the reason for refusing
to give appointment to the petitioner, as
stated in the impugned order dated
14.6.2002 passed by respondent No. 2 is
not tenable. The application of the
petitioner No. 2 had been filed within
time as he had not attained the age of 55
years on 17.3.1998 when he first applied
for voluntary retirement on medical
grounds and as such the impugned order
rejecting the application on the ground
of it being filed beyond the age of 55
years is liable to be quashed. The
petitioner No. 1 is entitled to the benefit
of
the
circular
dated
3.7.1996
for
appointment
as
handling
labour on
compassionate grounds in place of his
father, petitioner No. 2. As such this writ
petition deserves to be allowed.
Case law discussed:
AIR 1997 SC 123
AIR 1996 SC 2226
AIR 1994 SC 2148

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner is aggrieved by the
order dated 14.6.2002 passed by Senior
Regional Manager, Food Corporation of
India,
Lucknow,
Respondent
no.2,
whereby the application of Petitioner no.2
Jai Ram for appointment of his son Shobh
Nath, Petitioner no.1, has been rejected.
The petitioners have thus prayed for
quashing of the aforesaid order dated
14.6.2002 and also for a direction to the
Senior
Regional
Manager,
Food
Corporation
of
India,
Lucknow,
Respondent no.2, to appoint the Petitioner
no.1 on the post of Handling Labour
(Loader) in accordance with the terms of
the Circular dated 3.7.1996 issued by the
Food Corporation of India.

2. Having heard Sri R.C. Gupta,
learned counsel for the petitioners as well
as Sri M.P. Singh, learned counsel
appearing for the respondents and on
careful
perusal
of
the
record
and
considering the facts and circumstances of
this case, in my view, this writ petition
deserves to be allowed.

3. The brief facts relevant for the
decision of this case are that Petitioner
no.2 Jai Ram was working as Handling
Labour (Loader) with Food Corporation
of India. On 17.3.1998, before attaining
the age of 55 years, he filed an application
for appointment of his son Shobh Nath,
Petitioner no.1, in his place on the basis of
http://www.allahabadhighcourt.nic.in
1 All] Shobh Nath and another V. The District Manager, F.C.I., Varanasi and other 175
the Circular dated 3.7.1996 issued by the
Respondent-Corporation. The right leg of
the petitioner no.2 had been fractured and
was shortened by 4 cm. and thus he was
unable to carry on the work of loading
and
unloading.
The
Circular
dated
3.7.1996
provides
for
benefit
of
appointment on compassionate grounds,
only to the employees in handling and
labour category, to a family member of
the
worker
who
seeks
voluntary
retirement on medical ground before
attaining
the
age
of
55
years.
Accordingly, on 17.3.1998 the petitioner
no.2 filed an application for appointment
of his son in his place, a copy of which
has been filed as Annexure-C.A.2 to the
counter affidavit filed by the RespondentCorporation.
Along
with
the
said
application a medical certificate dated
1.2.1998 issued by the Superintendent of
Upgraded
Govt.
Hospital,
Shivpur,
Varanasi was also enclosed. Undisputedly
on the basis of the said medical certificate
the petitioner was allowed to voluntarily
retire on medical grounds before attaining
the age of 55 years. On 27.3.1998 the
Assistant
Manager
of
the
Food
Corporation of India had forwarded the
application of the petitioner No. 2 to the
District Manager for consideration. On
22.1.2000 the District Manager forwarded
the details wherein it had been stated that
the medical fitness certificate of the
petitioner was enclosed and the petitioner
No. 1, who is the son of petitioner No. 2,
was found fit in the performance test
report of the committee for appointment
on the post of handling labour. It was
stated therein that an affidavit of no
objection from all major family members
of petitioner No. 2 had also been
procured. It was admitted that the date of
receipt of the application was 17.3.1998.
While stating that there was no demerit
reported for appointment being given to
the petitioner No. 1, the District Manager
forwarded the application of the petitioner
with the comment that vacancy on the
said post existed against the post of
petitioner No. 2, Jai Ram.

4. By the impugned order dated
14.6.2002, respondent No. 2 has rejected
the application of the petitioner only on
the ground that the said Jai Ram, exhandling labour had obtained medical
unfitness certificate on 10.3.2000 from
the
Chief
Medical
Officer/Medical
Superintendent of Government Upgraded
Hospital, Varanasi by which time he had
crossed the age limit of 55 years by 1 year
and 10 months and hence the application
for appointment of his son Shobh Nath on
compassionate grounds could not be
considered.

5. The petitioner No. 2 was born on
10.5.1943. He attained the age of 55 years
on 10.5.1998. In the impugned order also
it is mentioned that the said Jai Ram had
applied for appointment of his son on
compassionate grounds on 17.3.1998,
which was well before he attained the age
of 55 years. Alongwith the said
application
the
medical
unfitness
certificate was also enclosed, which was
dated 1.2.1998. The said certificate
clearly shows that due to fracture there
was shortening of his right leg by 4 cm.
and he was unable to do the work of
handling labour. Admittedly on the basis
of the same, the petitioner has already
been retired, and as such the respondents
cannot now turn around and claim that the
said certificate was not valid for granting
appointment on compassionate grounds,
although it was found to be valid for
retiring him on medical grounds. The
delay in forwarding and deciding the
http://www.allahabadhighcourt.nic.in
176 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
application of petitioner No. 2 for
appointment of his son on compassionate
grounds cannot be attributed to the
petitioner. When the initial application
had been filed on 17.3.1998, he was well
under 55 years of age and the same could
not have been rejected merely on
technical grounds. If any second medical
certificate
had
been
obtained
on
10.3.2000, it cannot be said that the
petitioner would not be given the benefit
of the circular dated 3.7.1996 merely
because
the
said
certificate
dated
10.3.2000 had been obtained 1 years 10
months after the petitioner No. 2 had
crossed the age limit of 55 years, when
the earlier medical certificate dated
1.2.1998 was already on record and had
also
been
acted
upon.
Once
the
application of the petitioner No. 2 had
already been filed and accepted before he
attained the age of 55 years, on the basis
of which petitioner No. 2 had also been
retired, the respondents cannot deny the
petitioners the benefit of their own
circular dated 3.7.1996, which provides
for
appointment
on
compassionate
grounds to a family member of the
handling labour who retires voluntarily on
medical grounds before attaining the age
of 55 years.

6. Sri N.P. Singh, learned counsel
appearing for the respondents has stated
that since there is no vacancy on the post
of handling labour with the respondentCorporation, thus a direction to appoint
the petitioner No. 1 on such post on
compassionate grounds could not be
granted. In support of his contention he
has placed reliance on two decisions of
the Apex Court rendered in Hindustan
Aeronautics Ltd. Vs. Smt. A.Radhika
Thirumalai AIR 1997 S.C. 123 and
Himachal Road Transport Corporation
Vs. Dinesh Kumar AIR 1996 S.C. 2226.
In my view the ratio of the said decisions
would not apply to the facts of the present
case as the respondents have themselves,
while forwarding the application of the
petitioner, accepted that the vacancy
existed on the post on which the petitioner
No.2 Jai Ram was working. As such in
the present case it cannot be said that
there was no vacancy. Learned counsel
for the respondent has also relied upon a
decision of the Supreme Court in the case
of Life Insurance Corporation of India
Vs. Mrs. Asha Ramchandra Ambekar
AIR 1994 S.C. 2148 which, in my
opinion,
also
does
not
help
the
respondents.
In
the
said
case
the
appointment on compassionate grounds
was denied on the ground that one
member of the deceased family was
gainfully employed whereas in the present
case there is no such averment that any
member of the family of the petitioners
was gainfully employed nor is there any
such condition in the Circular dated
3.7.1996.

7.

Learned
counsel
for
the
petitioners has placed reliance on a
decision of this Court, in Writ Petition
No. 43714 of 2001 Raj Nath Yadav and
another
Versus
Senior
Regional
Officer, Food Corporation of India and
another decided on 2.8.2002, wherein, in
a similar situation, the Corporation was
directed to given appointment, which
order has also been affirmed in Special
Appeal No. 1029 of 2002.

8. Thus, in my view, the reason for
refusing to give appointment to the
petitioner, as stated in the impugned order
dated 14.6.2002 passed by respondent No.
2 is not tenable. The application of the
petitioner No. 2 had been filed within
http://www.allahabadhighcourt.nic.in
1 All] Ashok Kumar V. State of U.P. and others 177
time as he had not attained the age of 55
years on 17.3.1998 when he first applied
for voluntary retirement on medical
grounds and as such the impugned order
rejecting the application on the ground of
it being filed beyond the age of 55 years
is liable to be quashed. The petitioner No.
1 is entitled to the benefit of the circular
dated
3.7.1996
for
appointment
as
handling
labour
on
compassionate
grounds in place of his father, petitioner
No. 2. As such this writ petition deserves
to be allowed.

9. Accordingly, the impugned order
dated 14.6.2002 passed by respondent No.
2 is quashed and the respondents are
directed to give appointment to petitioner
No. 1 Shobh Nath, son of Jai Ram as
Loader, forthwith without any delay. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2004

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 40501 of 1998

Ashok Kumar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.P. Sahi
Sri G.K. Singh

Counsel for the Respondents:
Sri R.P. Goyal
Sri Manish Goyal
S.C.

Constitution
of
India
Article
226Principle of Natural justice-Black listing
the petitioner from approved list of
contractor-without show cause noticewithout opportunity of hearing-heldPrinciple of Natural justice violatived
order can not sustained.

Held: Para 5

A show cause notice was required to be
given to the person against whom the
order for blacklisting is to be passed and
in absence of such notice the order of
blacklisting would be illegal and in
violation of principles of natural justice.
Admittedly no notice or opportunity of
hearing was given to the petitioner
before passing the impugned orders. The
argument of learned counsel for the
respondents that the respondent would
give post decisional hearing to the
petitioner cannot be accepted in view of
the law laid down by the apex court.
Case law discussed:
AIR 1989 SC 620
AIR 1975 SC 266
2001 (8) SCC 620

(Delivered by Hon'ble V.M. Sahai, J.)

1. The petitioner is a registered
contractor with Nagar Nigam, Aligarh. He
took contract for construction of shops in
the year 1981. After completion of
constructions final payment was made to
him in 1987. The State Government got
vigilance enquiry conducted against the
officers of Nagar Nigam, Aligarh and on
the basis of ex-parte enquiry report
directed
Nagar
Nigam,
Aligarh
on
5.9.1998 to blacklist the petitioner. In
pursuance of this direction of the State
Government, the Nagar Nigam passed an
order on 6.10.1998 blacklisting the
petitioner. Both the orders had been
challenged in the instant writ petition.

2. We have heard Sri A.P. Sahi
learned counsel for the petitioner, learned
standing counsel appearing for respondent
http://www.allahabadhighcourt.nic.in