B. K. Narayana, J.
Heard learned counsel for the petitioner and Sri Ashutosh Kumar Singh, learned counsel for the opposite parties and perused the record.
Counter and rejoinder affidavits have been exchanged and with the consent of the learned counsel for the parties, the writ petition is being finally decided at the admission stage.
Brief facts of the case are that the father of the petitioner Late Suresh Kumar Saxena, who was employed as Assistant GradeI (D) in the Food Corporation of India, died in harness on 22.12.2005.
After the death of his father, the petitioner filed an application on 19.02.2006 before the opposite party no.4 through his mother in the prescribed format alongwith the affidavit of his mother for being provided appointment on compassionate ground against any suitable post in the Corporation.
The application submitted by the petitioner was forwarded by the Area Manager, Agra to the Assistant General Manager (Personnel), FCI, Regional Office, Lucknow alongwith the letter/recommendation dated 07.04.2006.
By letter dated 16.10.2006, issued under the signature of Assistant General Manager (E II), FCI, Noida, the petitioner''s mother was informed that the petitioner is eligible for the post of categoryIII as per his qualification and his name has been rostered at serial no.1406 but due to nonavailability of post in categoryIII for compassionate appointment, the petitioner''s case cannot be considered, however, as and when the vacancies will arise, the petitioner''s case shall be considered. A copy of the letter dated 16.10.2006 has been brought on record as Annexure No.5 to the writ petition.
The instant writ petition has been filed by the petitioner for issuing a writ, order or direction in the nature of mandamus commanding the opposite party no.2 to consider and appoint the petitioner in categoryIII post on compassionate ground in the Corporation.
The contention of the learned counsel for the petitioner is that the statement of fact contained in the letter dated 16.10.2006 to the effect that due to nonavailability of post in categoryIII for compassionate appointment the petitioner''s case could not be considered although the petitioner was eligible for being appointed on the post of categoryIII as per his qualification, is totally incorrect. According to the petitioner''s counsel, in the Agra Unit of the Food Corporation of India alone there are at least 10 vacant sanctioned posts of Assistant GradeIII (D) and the opposite parties could have easily appointed the petitioner on any one of the aforesaid vacant posts. Learned counsel for the petitioner further submits that in the North Zone of the Food Corporation of India, which comprises of eight States, namely, Uttar Pradesh, Uttarakhand, Himanchal Pradesh, Jammu and Kashmir, Punjab, Haryana, Rajasthan and Delhi, several posts of categoryIII are lying vacant and the petitioner could have been conveniently accommodated by the opposite parties on any one of such posts.
Learned counsel for the opposite parties has submitted that the contention of the learned counsel for the petitioner is wholly misconceived. Ten posts of categoryIII in the Agra Unit of Food Corporation of India, which according to the petitioner, are lying vacant are not substantive vacancies and are merely short term vacancies resulting due to transfer, posting, leave, suspension etc. of the employees concerned. It has further been submitted by the learned counsel for the opposite parties that only 5% of the total sanctioned posts of categoryIII in the Food Corporation of India are available for being filled up by the dependants of such employees of the Corporation who die in harness.
Learned counsel for the opposite parties has lastly submitted that the factual controversy whether there are vacant posts available in categoryIII or not is a question of fact depending upon evidence, which cannot be decided in the instant writ proceedings.
It is not in dispute that the petitioner has been found eligible for being appointed on compassionate ground on the post of categoryIII as per his qualification and the only reason for his claim has not been considered is nonavailability of vacant posts in categoryIII.
In paragraph12 of the writ petition a categorical assertion has been made by the petitioner that in the Agra Unit of Food Corporation of India, there are 36 sanctioned posts of Assistant GradeIII (D) against which only 26 employees are working and as such, at least 10 posts in Assistant GradeIII (D) are lying vacant in Food Corporation of India, Agra. It has further been stated in the same paragraph that North Zone of Food Corporation of India comprises of eight States, namely, Uttar Pradesh, Uttarakhand, Himanchal Pradesh, Jammu and Kashmir, Punjab, Haryana, Rajasthan and Delhi in which several posts of categoryIII may be lying vacant on which the petitioner could have been easily accommodated.
The contents of paragraph 12 of the writ petition have been replied to in subparagraph of paragraph7 of the counter affidavit filed on behalf of the opposite parties. A perusal of paragraph7 of the counter affidavit shows that the averments made by the petitioner in paragraph12 of the writ petition have not been categorically denied.
In may opinion, the question whether vacant posts of categoryIII are available in the Food Corporation of India, Agra or in other States of the North Zone of Food Corporation of India or not can be best decided by the opposite party no.2 after obtaining necessary particulars regarding existing vacancies in the Assistant GradeIII (D) posts in the North Zone of the Food Corporation of India from the concerned officers.
In view of the aforesaid, the writ petition is finally disposed of with a direction to the petitioner to file a representation before the opposite party no.2 ventilating his grievances annexing therewith all the documents upon which he proposes to rely alongwith the certified copy of this order within a week from today and in case, any such representation is preferred by the petitioner before the opposite party no.2, the same shall be considered and decided by him strictly in accordance with law by a reasoned and speaking order in the light of the observation made in this order as expeditiously as possible preferably within a further period of two moths.
