- (1.) WE have heard Shri Satya Prakash learned counsel appearing for the respondent-appellant. Shri R.C. Gupta appears for Shri Suddhu son of Shri Gulab and Shri Gulab, son of late Feku- the petitioners-respondents.
(2.) IN pursuance to the circular letter dated 3.7.1996, Shri Gulab serving as Handling Labour in the Corporation applied for voluntary retirement on medical grounds when he was about 53 years' old. His application was accepted on 13.6.2002, and he was made to retire w.e.f. 30.6.2002. Under the scheme he nominated his son for compassionate appointment. The application was processed, by a Committee of three officers of the Corporation. He was found fit. The requisite check list was prepared for his appointment and was forwarded in October, 2002. Since no further action was taken, he filed the writ petition No. 25655 of 2006, which was allowed on 18.12.2006, giving rise to this Special Appeal. Shri Satya Prakash appearing for the Corporation states that before the appointment could be given to Shri Suddhu, on the ground that his father had voluntarily retired on medical grounds under the scheme dated 3.7.1996, the policy was revised by a fresh circular issued on 5.5.2003 providing for implementation of the 5% ceiling limit fixed for compassionate appointment to the next of kins of workers taking voluntary retirement on medical grounds and death in harness cases. The revised policy was issued for appointment in respect of dying in harness cases on 4.3.2003. Shri Satya Prakash submits that the Delhi High Court, in LPA No. 1672/2005, Food Corporation and another v. Food Corporation of India Work by its judgment dated January 30,2006, decided by Hon'ble Markandey Katju, CJ (as he then was) and Hon'ble Madan B. Lokur, J, had found that 5% ceiling was valid and will be applicable to pending cases. It was stated in para-8 of the judgment as follows: "8. A perusal of the above clearly shows that after the circular dated 4.3.2003 was issued all compassionate appointments whether made in pursuance of applications received prior to 4.3.2003 or after 4.3.2003 will be subject to the ceiling limit of 5%." The judgment was challenged in Special Leave to Appeal (C) No. 6877/2006 and while dismissing the Special Leave Petition, the Supreme Court held as follows: "We find no reason to interfere with the impugned order of the High Court. We, however, make it clear that the decision of the High Court will not come in the way of the National Industrial Tribunal deciding the dispute which is said to be pending before it, in regard to the question whether there could be a ceiling of 5% of the vacancies for appointment on compassionate grounds in the respondent-Corporation under Circular No. 4 of 2003 dated 4.3.2003 and similar circular. The Special Leave Petition is dismissed accordingly."
(3.) SHRI Satya Prakash would submit that our High Court has also, in Special Appeal No. 481 of 2008: The District Manager (Now Area Manager) Food Corporation of India and others v. Smt. kamla Devi, decided on 29.4.2008, referred to the judgment of the Supreme Court, and taken the same view that 5% ceiling limit will apply to pending applications also. In the present case, we are concerned with the policy vide circular of the Corporation dated 3.7.1996 for appointment of next of kin of the departmental worker, who seeks retirement on medical grounds, on their own request in relaxation of the procedure of getting sponsored from employment exchange. This is a different policy, than the policy of giving appointment to the dependents of the employee dying in harness. In the policy of retirement on medical grounds, the applicant workman virtually surrenders his remaining service in lieu of the appointment of his next of kin. The policy is subject to acceptance of the application by the Corporation and is further subject to general condition (given in the policy dated 3.7.1996) that the compassionate appointment in such case is not a matter of right but purely at the discretion of the competent authority taking into account all the circumstances and the conditions of the family of the medically retired workers and also subject to availability of the vacancies.;