JUDGMENT : 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 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 judgment 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. Food Corporation of India and Others) wherein this Court by judgment 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 here-in-below:- “... 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 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). (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 non-availability 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 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. In paragraph 5 (v), it was further averred that petitioner's name in the roaster register is placed at 923. In 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 judgments 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 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):- Category-IV post (entry) level Post Sanction Strength Men in position Vacancies No. of vacancies advertised No. of vacancies as per Hqrs. Instruction 5% of Vacancies advertised No. of Compassionate Appointment made during the year Mess(Peon) 245 353 -108 0 0 0 Watchman 842 889 -47 0 0 0 Helper 732 0 -209 0 0 0 Labour 3 0 0 0 Sifter 0 0 0 Sweeper/Safai wala 235/359 0 0 0 Mess(depot) 344 0 0 0 Oil Man 7 5 2 0 0 0 Tracer 1 1 0 0 0 0 Caretaker cum cook 1 1 0 0 0 0 Driver Gr.II 43 36 7 0 0 0 Wireman Gr.II 6 7 -1 0 0 0 Beldar 14 18 -4 0 0 0 Gardner 1 1 0 0 0 0 Dresser 2 1 1 0 0 0 TOTAL CAT. IV 1894 2253 -359 0 0 0 J. Year 2004 (31.12.2004):- Category-IV post (entry) level Post Sanction Strength Men in position Vacancies No. of vacancies advertised No. of vacancies as per Hqrs. Instruction 5% of Vacancies advertised No. of Compassionate Appointment made during the year Mess (Peon) 245 328 -83 0 0 0 Watchman 842 556 286 0 0 0 Helper 732 0 -110 0 0 0 Labour 3 199 0 0 0 Sifter -------- 0 0 0 Sweeper/Safai wala 305/ 335 0 0 0 Mess(Depot) 0 0 0 Oil Man 7 4 3 0 0 0 Gardner 1 1 0 0 0 0 Dresser 2 1 1 0 0 0 Beldar 14 16 -2 0 0 0 TOTAL CAT.IV 1843 1748 95 0 0 0 K. Year 2005 (31.12.2005):- Category-IV post (entry) level Post Sanction Strength Men in position Vacancies No. of vacancies advertised No. of vacancies as per Hqrs. Instruction 5% of Vacancies advertised No. of compassionate Appointment made during the year Mess (Peon) 237 312 -75 0 0 0 Watchman 827* 306 521 0 0 0 Helper 698 @ 0 241 0 0 0 Labourer 3     119 0 0 0 Sifter 103 0 0 0 Sweeper/Saf 232 0 0 0 aiwala Mess(Depot) 0 0 0 Oil Man 7 3 4 0 0 0 Beldar 14 14 0 0 0 0 Gardner 1 1 0 0 0 0 Dresser 2 0 2 0 0 0 TOTAL 1786 1093 693 0 0 0 * 15 posts abolished due to VRS @ 34 posts abolished due to VRS L. Year 2006 (31.12.2006):- Category-IV post (entry) level Post Sanction Strength Men position Vacancies No. of vacancies advertised No. of vacancies as per Hqrs. Instruction 5% of Vacancies advertised No. of Compassionate Appointment made during the year Mess(Peon) 237 267 -30 0 0 0 Watchman 716 140 576 0 0 0 Helper 698 0 375 0 0 0 Labour 2 83 0 0 0 Sifter 58 0 0 0 Sweeper/Safai wala 180 0 0 0 Mess(Depot) 0 0 0 Oil Man 7 2 5 0 0 0 Gardner 1 1 0 0 0 0 Dresser 2 0 2 0 0 0 Beldar 14 8 6 0 0 0 TOTAL CAT.IV 1675 741 934 0 0 0 M. Year 2007 (31.12.2007):- Category-IV post (entry) level Post Sanction Strength Men in position Vacancies No. of vacancies advertised No. of vacancies as per Hqrs. Instruction No. of Compassionate Appointment made 5% of Vacancies advertised during the year Mess (Peon) 237 243 -6 0 0 0 Watchman 716 107 609 0 0 0 Helper 698 0 425 0 0 0 Labourer 3 0 0 0 Sifter 0 0 0 Sweeper/Safai wala 0 0 0 Mess(Depot) 0 0 0 Oil Man 7 2 5 0 0 0 Beldar 14 8 6 0 0 0 Gardner 1 0 1 0 0 0 Dresser 2 0 2 0 0 0 TOTAL CAT. IV 1675 633 1042 0 0 0 N. Year 2008 (31.12.2008):- Category-IV post (entry) level Post Sanction Strength Men in position Vacancies No. of vacancies advertised No. of vacancies as per Hqrs. Instruction 5% of Vacancies advertised No. of Compassionate Appointment made during the year Mess (Peon) 237 210 27 0 0 0 Watchman 716 103 613 0 0 0 Helper 698 0 503 0 0 0 Labourer 3 0 0 0 Sifter 40 0 0 0 Sweeper/Safai wala 48 0 0 0 Mess(Depot) 104 0 0 0 Oil Man 7 2 5 0 0 0 Gardner 1 8 6 0 0 0 Dresser 2 0 2 0 0 0 Beldar 14 7 7 0 0 0 TOTAL CAT. IV 1675 517 1158 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 judgment 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 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 judgment 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. In support of the said contention, he placed reliance upon the judgment 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 judgment 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 judgment of Apex Court in the case of Atma Ram Mittal Vs. Iswhar Singh Punia 1988 (4) SC 284 and another judgment of Apex Court in the case of Jayantibhai Raojibhai Patel Vs. Municipal Council, Narkhed & Others 2019 (9) JT 67 SC. 17. In support of his contention, he has placed reliance upon the judgment of Apex Court in the case of Atma Ram Mittal Vs. Iswhar Singh Punia 1988 (4) SC 284 and another judgment 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 judgment of Apex Court in the case of Canara Bank and Another (supra) which is being extracted here-in-below:- “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. 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 dependent family member of Government servant on casual/daily wage/ad-hoc/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. (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. 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 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. 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 of the said judgment is being extracted hereinbelow:- “6. 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 of the said judgment 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. The terminal benefits received by the widow and the family pension could not be taken into account.” 29. 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. The terminal benefits received by the widow and the family pension could not be taken into account.” 29. It would be apposite to refer judgment of this Court in the case of Nirdesh Kumar (supra) wherein this Court has held that if the compassionate appointment is denied on the ground that family has received terminal benefits that would frustrate the object of dying-in- harness rules. Para 9 and 10 of the judgment is extracted here-in-below:- “9. Rule-5 provides that in case, the spouse of the deceased employee is not in government service then one member of his family who is not under the service of Government or Government Corporation be given suitable employment. Thus employment of any other member of family, except spouse, is irrelevant. The legislature was cautious of the fact that employed children of the deceased may not take responsibility of other unemployed children in the present atmosphere of the society. Rule-6 prescribes the content of the application for compassionate appointment. Under Rule-6 (d) details of financial condition of the family is required to be disclosed. As the very object of compassionate appointment is to provide employment to the one member of the family of the deceased employee which use to come to the stage of penury due to sudden death of bread earner as such financial condition of the family is a relevant consideration. This Court in the cases of State Bank of India and others Vs. Ram Piyare and others, 2001 (2) U.P.L.B.E.C. 1597; Sharda Devi (Smt.) Vs. District Magistrate/Collector, Ghaziabad and Others, 2003 (2) U.P.L.B.E.C. 1134 ; Pramod Kumar Rajak Vs. Registrar General High Court Allahabad, 2011(4) U.P.L.B.E.C. 2692 and Writ -A No. 64494 of 2009 Surem Devi vs. State of U.P. & Others, decided on 30.04.2012 and Supreme Court in Govind Prakash Verma v. LIC of India, (2005) 10 SCC 289 have held that while deciding the financial status of the family for the purposes of compassionate appointment, the terminal benefits received on the death of the employee or the pension granted to the widow are required to be ignored. Relevant portion of the judgment of Govind Prakash Verma (supra) is quoted below: "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." 10. The condition of the family of the petitioner is that the two elder brothers are married and have their own family and are living separately. The burden of marriage of unmarried daughter of the deceased is still on the widow of the deceased. The pension received by the deceased will continue during the life of the widow only. Thus the terminal benefits as well as the pension received by the widow mother is not relevant consideration for deciding the application for compassionate appointment. In case, compassionate appointment is denied on account of terminal benefits and pension granted to the widow, then the object of the Rule, 1974 will be frustrated, as in most of the cases, these benefits are provided on the death of the employees”. 30. Thus, in view of settled position of law that the claim of compassionate appointment cannot be rejected on the ground of payment of terminal dues to the bereaved family, the rejection of claim of the petitioner by respondent no.3 on the ground that terminal benefits have been given to the widow of the deceased is not sustainable for the reasons given above. 31. 31. So far as the submission of learned counsel for the respondents that sufficient time has elapsed and as urgent need to provide financial succor to the family has lost its purpose on account of the delay, therefore, no relief can be granted to the petitioner at this stage, it would be worth to point out that the two judgments relied upon by the learned counsel for the respondents have not considered the settled principle of law that no person should suffer for the fault of the court. 32. It would be worth mentioning paragraph 8 of the judgment of the Apex Court in the case of Atma Ram Mittal (supra) wherein the Apex Court has held that no one should suffer for the fault of the court. Paragraph 8 of the judgment is extracted hereinbelow:- “8 It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curiam neminem gravabit"-an act of Court shall prejudice no, man. Therefore, having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holidays from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else” 33. It is also relevant to refer paragraph 38.6 of the judgment of Apex Court in the case of Deepali Surwase quoted in paragraph 11 of the Apex Court judgment in the case of Jayantibhai Raojibhai Patel (supra), which is being extracted hereinbelow:- “11. In Deepali Surwase, the appellant had been employed as a teacher in a primary school run by a trust. The services of the appellant had been terminated by the management of the school pursuant to an ex-parte inquiry proceeding. In Deepali Surwase, the appellant had been employed as a teacher in a primary school run by a trust. The services of the appellant had been terminated by the management of the school pursuant to an ex-parte inquiry proceeding. The School Tribunal quashed the termination of the appellant’s services and issued a direction for the grant of full back wages. In appeal, the High Court affirmed the view of the Tribunal that the termination was illegal, but set aside the direction for grant of back wages. In appeal, a two-judge Bench of this Court laid down the following principles: "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money...The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emolument." (Emphasis supplied) The Court laid down the following principles to govern the payment of back wages: "38.1.... 38.2. ... 38.3.... 38.4... 38.5... 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L & S) 53]“ 34. From the facts narrated above, it is evident that the petitioner has been vigilant in espousing his cause for compassionate appointment and his rightful claim for compassionate appointment was denied by the illegal and arbitrary act of the respondent no.3. Further, there is no fault of the petitioner for the delay caused in adjudication of the claim of the petitioner for compassionate appointment, therefore, the rightful claim of the petitioner for compassionate appointment cannot be denied on the ground of delay in view of the settled principle of law that no one should suffer for the fault of the court. 35. Thus, for the reasons given above, the impugned order dated 09.11.2005 and communication letter dated 04.11.2011 (Annexure no.1 to the second supplementary affidavit) are not sustainable in law and are set aside. The writ petition is allowed and the competent authority is directed to reconsider the claim of the petitioner in the light of observations made above and pass appropriate order within a period of two months from the date of production of certified copy of this order.