JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri R.C. Shukla, learned counsel for the petitioner. Shri N.P. Singh appears for Food Corporation of India. 2. The petitioner had earlier filed Writ Petition No. 41499 of 2007 with prayer to consider his application for compassionate appointment on the death of his father late Shri Ram Sukh serving as Khalasi in Food Corporation of India. The writ petition was disposed of on 5.9.1997 with directions to the Executive Director, North Zone, Food Corporation of India to consider his application. The application has been rejected by the Executive Director, North Zone, Food Corporation of India, Zonal Office, Noida on 5th October, 2007 giving rise to this writ petition. 3. Briefly stated the facts of the case are that one Shri Ram Sukh serving as ‘Khalasi’ in Food Corporation of India, Naini died-in-harness on 7.4.2004 leaving behind his widow, four sons namely Ram Bhawan aged 38 years, Ram Lal aged 34 years, Ram Chandra aged 31 years and the petitioner Hari Ram aged 28 years and two married daughters. A committee was required to make spot inspections to find out the financial distress faced by the family. The committee visited the residence of the deceased employee at Village Dulhapur, Babripur, Distt. Sultanpur, made local inspections and enquiries from the residents of the village. It was found that all the four sons are unemployed and that Hari Ram, the applicant is the youngest of the four sons with disability in his right leg. The family was living in ‘kachcha’ two room of tiled house and has only one bigha of ‘usari’ (unirrigated) land, which is hardly fertile, and that all the sons are doing farm labour to earn their livelihood. The Committee was of the opinion that the family was living in extreme poverty. Their condition was pitiable and recommended that taking into account the circumstances of the family, living in penury, it is necessary that one of the members of the family should be given compassionate appointment. 4. The application was pending for more than three years on which the petitioner had filed the first writ petition in which directions were issued to decide the petitioner’s representation. 5. 4. The application was pending for more than three years on which the petitioner had filed the first writ petition in which directions were issued to decide the petitioner’s representation. 5. The Executive Director has quoted the policy of the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training vide Memo No. 14014/2002-Estt (D) dated 5.5.2003 as follows : "If compassionate appointment to genuine and deserving cases as per the guidelines is not possible in the first year due to non-availability of regular vacancy the prescribed committee may review such cases to evaluate the financial conditions of the family to arrive at a decision as to whether a particular case warrants extension by one more year, for consideration for compassionate appointment by the Committee subject to availability of clear vacancy within a prescribed 5% quota. If on scrutiny by the Committee, a case is considered to be deserving, the name of such a person can be continued for one more year." 6. The Executive Director has then observed that the maximum time for which a person can be kept under consideration for compassionate appointment is three years. The Prescribed Committee reviewed and certified the penurious condition of the applicant at the end of first and second year and found that after three years compassionate appointment is not possible and closed the case. He thereafter observed that the case of Shri Hari Ram was received in Zonal Office (North) from Regional Office, Lucknow on 21.9.2005 and was rostered at Sl. No. 1308. As per qualifications the petitioner was eligible for Category IV post. Due to non-availability of post his case could not be considered vide Government of India, instructions dated 9.10.1996 restricting appointment on compassionate ground of 5% DR quota. As per instructions all the posts of Category-IV were filled up during the year 2000-01, upto Roaster 513. Thereafter no vacancies were available and no appointment could be made and that since the object of the scheme is to grant appointment to dependent from all the family living in penury without any means of livelihood, and that date of application is 25/28.8.2004, the cases more than three years old could not be considered now as per Government of India instructions dated 5.5.2003. 7. 7. Learned counsel for the petitioner submits that the order rejecting the claim for compassionate appointment is wholly illegal, arbitrary and suffers from legal malafide. A high power committee consisting three officers of FCI had submitted a report on 27.4.2005 to respondent No. 3 and had verified that the family is living in penury with almost no source of income and had strongly recommended for appointment for the survival of the family. The recommendations were not considered by the Executive Director and that claim was rejected mechanically on the technical grounds that since for three years the vacancies were not available in 5% DR quota, and that the petitioner was placed at Roaster Point No. 513, his claim under the policy to compassionate appointment cannot be considered after three years. The counsel for the petitioner would submit that according to Circular No. 5 of 2003 of the Corporation dated 4.3.2003 the respondents are under mandatory obligation to accommodate the persons in the wait list for compassionate appointment in case, where vacancies are available. The object of the scheme is to help the family in financial distress instead of harassing him by adopting dilatory tactics, as in this case, in which the application filed in the year 2005 was decided by the end of the year, 2007. 8. Shri N.P. Singh appearing for the Food Corporation of India submits that the instructions issued by the Government of India are binding on the Corporation under Section 6 of the Food Corporation of India Act, 1964, and Regulation 11 of the Food Corporation of India (Staff) Regulation, 1971. The instructions of the Government of India dated 9.10.1998 provided for 5% of direct recruitment quota for compassionate appointment to a member of the family of the deceased employee, who died-in-harness. The instructions of the Government of India dated 9.10.1998 provided for 5% of direct recruitment quota for compassionate appointment to a member of the family of the deceased employee, who died-in-harness. These instructions have to be read alongwith instructions contained in Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training vide Memo No. 14014 of 2002-Estt (D) dated 1.5.2003, which provides : "If compassionate appointment to genuine and deserving case as per guidelines is not possible in the first year due to non-availability of regular vacancies, the Prescribed Committee may review such case to evaluate the financial condition of the family to arrive at a decision as to whether particular case warrants extension by one more year for consideration for compassionate appointment by the Committee subject to availability of clear vacancy within a prescribed 5% quota. If on scrutiny by the Committee, a case is considered to be deserving, the name of such person can be continued for consideration for one more year. The maximum time a person can be kept under consideration for offering compassionate appointment will be three years. The Prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of first and second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his/her case will be finally closed and will not be considered again." 9. Shri N.P. Singh submits that the case of Hari Ram was received in the Zonal Office (North) from Regional Office, Lucknow on 21.9.2005 and rostered at Sl. No. 1308. As per qualifications the petitioner was eligible for Category IV post. Due to non-availability of post the case could not be considered in 5% DR quota. Under these instructions all the posts of Category-IV were filled up during the year 2000-01 upto Roaster No. 513. Thereafter no vacancies were available and no appointments were made. He would submit that after the year 2000 no such appointments have been made in the office of Corporation in Category IV under the said FCI (Staff) Regulations, 1971. There may have been appointments on departmental worker/labour. The instructions relating to appointment of Departmental Labour/worker are separate. The appointment of Vijay Shanker was in the capacity as labour and that appointment did not fall in the Category-IV. There may have been appointments on departmental worker/labour. The instructions relating to appointment of Departmental Labour/worker are separate. The appointment of Vijay Shanker was in the capacity as labour and that appointment did not fall in the Category-IV. He would submit that committee did find the condition of the family to be penurious but due to non-availability of the post, the petitioner’s case could not be considered and that case being more than three years old could not be considered as per instructions of Government of India and the case was reviewed by speaking order dated 5.10.2007. 10. In Smt. Susma Gosain and others v. Union of India and others, (1989) 4 SCC 468 , the Supreme Court in the matter of appointment of the petitioner as clerk in the office of Director General, Border Road observed that, "purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant." 11. In Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC 138 , the Supreme Court held that while giving appointment in public service on compassionate ground, it is to be remember that the appointment is in relaxation to the general rules. Once such an exception is made in favour of the dependents of the employee dying-in-harness and leaving his family in penury and without any means of livelihood on pure humanitarian consideration, the public authority has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provisions of the employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The Supreme Court further held, "the posts in Class-III and IV are the posts in non-manual and manual categories and hence they alone can be offered on compassionate ground, the object being to relieve the family, of the financial destination and to hold it get over the emergency. The Supreme Court further held, "the posts in Class-III and IV are the posts in non-manual and manual categories and hence they alone can be offered on compassionate ground, the object being to relieve the family, of the financial destination and to hold it get over the emergency. The provisions of employment in such lower posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependent of the deceased employee in such posts has a rational nexus with the object sought to be achieved, viz. Relief against destitution. No other posts are expected or required to be given by the public authorities for the purposes. It must be remembered in this connection that as against destitute family of the deceased, there are millions of other families, which are equally, if not more destitute". The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment, which has suddenly upturned. In para 6 the Supreme Court held that compassionate appointment cannot be granted after a lapse of reasonable period, which must be specified in the rules. The consideration for such employment is not a vested right, which can be exercised at any time in future. 12. In Sanjay Kumar v. State of Bihar, (2000) 7 SCC 192 , the Supreme Court relying upon Director of Education (Secondary) v. Pushpendra Kumar, (1998) 5 SCC 192 , held that the compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner, who has left the family in penury and without any means of livelihood. The applicant was minor, when he made his first application and was not eligible for appointment. There cannot be reservation of a vacancy till such time such petitioner become major, after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to seek that family gets immediate relief. 13. The prescription of 5% quota of the direct recruitment for compassionate appointment falls within the domain of the policy adopted by the Government of India. The very basis of compassionate appointment is to seek that family gets immediate relief. 13. The prescription of 5% quota of the direct recruitment for compassionate appointment falls within the domain of the policy adopted by the Government of India. The Court will not ordinarily interfere with such policy unless it is wholly arbitrary and unreasonable. The policy is reasonable and adopted to balance with the rights of unemployed men and women and is thus not violative of Articles 14 and 16 of the Constitution of India. 14. The maximum limit of three years, however, does not appear to be reasonable to the object of providing the compassionate appointment. The Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India by its Office Memorandum dated 5th May, 2003, decided that with one year limit prescribed for grant of compassionate appointment often results in depriving genuine cases seeking compassionate appointment, on account of regular vacancies not being available, within the prescribed period of one year and within the prescribed limit of ceiling of 5% DR quota, and it was, therefore, decided that if compassionate appointment to genuine and deserving case as per guidelines contained in the Office Memorandum dated December 3rd, 1999 is not possible in the first year, due to non-availability of regular vacancy, the Prescribed Committee may review such case, to evaluate the financial condition of the family to arrive at a decision as to whether a particular case warrants extension by one more year for consideration for compassionate appointment by the Committee, subject to availability of clear vacancy within the prescribed 5% quota. The Office Memorandum provides that if on scrutiny by the Committee a case is considered to be deserving, the name of such a person can be continued for consideration for one more year and that maximum time in para 3, for persons’ name can be kept under consideration for offering compassionate appointment will be three years, subject to the condition that Prescribed Committee has reviewed and certified the penurious condition of the applicant at the end of the first and second year. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed and will not be considered again. 15. After three years, if compassionate appointment is not possible to be offered to the applicant, his case will be finally closed and will not be considered again. 15. It does not appear to be reasonable that if a case of a person is certified by the Prescribed Committee, after a review, in which the Committee finds that the condition of the applicant’s family continues to be penurious, the case should be closed on the expiry of three years. It may not only be arbitrary but will also cause injustice to the person, who has been certified to deserve compassionate appointment. 16. It is always possible as in the present case that the family of the dependent is found to be living in a financial distress and that family needs compassionate appointment, the person may not fall within 5% DR quota for three continuous years. It will be extremely unjust and harsh to deny compassionate appointment in such case. The restriction of number of vacancies to be made available in 5% DR and then confining it to three years, makes the entire exercise of offering compassionate appointment, a matter of chance and thereby in ignorance of the object for which such appointment is offered and makes the whole policy irrational. 17. Rationality is a term related to the idea of reason. It has dual aspects. One of the aspect associates it with apprehension, intelligence or inference. The other aspect associates the rationality with explanation, understanding and justification. A logical reason is rational, if it is logically valid. Rationality is, however, broader term than logic. It also includes "uncertain but sensible" argument based on probability, expectation and personal experience. The logic on the other hand deals with provable facts and demonstrably valid relations between them. There are many theories of rationality. German Sociologist Max Weber distinguished between four types of rationality; (a) purposive or instrumental rationality, which includes expectation to the behaviour of other human being or objects in the firmament, (b) valuable/belief oriented rationality, which means action for one might call reasons intrinsic to the others, some ethical, aesthetic religious or other motive, (c) effectual where the action determined by actors specific effect, feeling or emotions, which are meaningfully oriented and (d) traditional means determined by ingrained habituation. It is very unusual to find anyone of these orientation compassion are norm. 18. It is very unusual to find anyone of these orientation compassion are norm. 18. In this case the placement in the waiting list for 5% DR quota has not been shown to be based on the penurious condition of the family of the deceased employee. His first and second review by the Prescribed Committee confirms that the application still needs and falls within the category of the family, which are in financial distress. Inspite of such verification, the prescription of maximum period of three years for compassionate appointment may result into grant of appointment after long delay, but has no object to be achieved except by permitting the family to continue to live under poverty, whereas new cases may be considered on their own merits in the first, second and third year. 19. In my opinion the prescription of maximum period of three years after verification by the Prescribed Committee of the penurious condition of the dependents of the deceased is highly irrational and unreasonable. The compassionate appointment should not be kept in the realm of a chance and to become a gaming exercise subject to the availability of vacancies and the maximum number of years. It should be based on human and sympathetic consideration to the family of the deceased employee. Each case should be reviewed on its own merit and consideration should not be allowed to any number of years. If the family continues to be under financial distress, there should be no limit of maximum number of years for which an application may be considered. 20. The writ petition is allowed. The instructions contained in the Office Memorandum dated 5th May, 2003 of the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, Government of India fixing time limit of three years for offering compassionate appointment is declared to be irrational, arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India. The order of the Executive Director, North Zone, Food Corporation of India dated 5.10.2007 is quashed. The respondents are directed to consider the petitioner’s case for appointment afresh without considering the maximum limit of the number of years for which consideration may be made, taking into account the extreme poverty in which the family is living and also give special consideration for the disability of the petitioner in seeking employment to save his family. The respondents are directed to consider the petitioner’s case for appointment afresh without considering the maximum limit of the number of years for which consideration may be made, taking into account the extreme poverty in which the family is living and also give special consideration for the disability of the petitioner in seeking employment to save his family. The respondents shall consider the matter afresh within a period of one month from the date a certified copy of this order is produced before them. ————