Full Judgment Text
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CASE NO.:
Appeal (civil) 3451 of 2006
PETITIONER:
Food Corporation of India & Another
RESPONDENT:
Ram Kesh Yadav & Another
DATE OF JUDGMENT: 27/02/2007
BENCH:
Tarun Chatterjee & R. V. Raveendran
JUDGMENT:
J U D G M E N T
RAVEENDRAN, J.
This appeal by special leave is filed against the judgment dated
19.9.2005 of the Allahabad High Court in Special Appeal No. 615 of 2005
affirming the judgment dated 29.3.2005 of a learned Single Judge in CMWP
No. 13032 of 2003.
2. The Appellant - Food Corporation of India (for short ’FCI’),
introduced a scheme for granting compassionate appointment to dependants
of departmental workers, who died while in service or who were retired by
FCI on medical grounds, vide Circular dated 2.2.1977. By a subsequent
circular dated 3.7.1996, the said benefit of compassionate appointment was
extended to dependants of departmental workers who sought voluntary
retirement on medical grounds at their own request, subject to the conditions
stipulated in the said circular. The conditions, in brief, are :
a) The worker should seek voluntary retirement on medical grounds
before completing the age of 55 years.
b) Such request should be accompanied by a medical certificate issued
by an Authorised Medical Officer, subject to verification by FCI.
c) The benefit of compassionate appointment shall be given only to a
male dependant, (of the age group between 18 years and 30 years),
that too in the handling labour category, subject to an Authorised
Medical Officer confirming the medical fitness of such dependant
to handle/carry bags of big size.
d) The application for compassionate appointment shall be made in the
prescribed form, within three months from the date of retirement.
e) Compassionate appointment will be given only in deserving cases,
that is, where there is no earning member in the family of the retired
worker, or where it is found that the financial benefits which are
available to the worker on retirement will not be sufficient to meet
the needs for running the family.
The Scheme designated the Senior Regional Manager/Regional Manager as
the competent authority and made it clear that compassionate appointment is
discretionary. The Scheme stated :
"Notwithstanding anything contained in the above, the compassionate
ground appointment is not as a matter of right but purely at the discretion
of the competent authority taking into the account the circumstances and
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conditions of the family of the medically retired workers and also subject
to availability of the vacancy."
3. The Second Respondent was working as a Departmental worker
(Handling Labour) in the Azamgarh Food Storage Depot of the appellant.
The date of birth of second respondent was 6.2.1944. In the usual course, he
would have attained the age of superannuation on 6.2.2004. The second
respondent made a composite application dated 26.4.1999 seeking
compassionate appointment to his son (the first respondent) on his voluntary
retirement on medical grounds, stating thus :
"Sub: Appointment of my son Sri Ram Kesh in consideration of my
retirement on medical ground \005
\005\005..as I am unable to do handling work of loading due to inability of
carrying bags, I desire to go on retirement on medical ground, if my
above-named son would be provided with an employment in my place as
handling labour. Further I am the only earning member of my family and
on my retirement if none of my family is employed, the entire family
would be put to suffer hardship\005. Kindly allow me to go on retirement on
medical ground and provide employment to my above named son in my
place as handling labour\005"
[Emphasis supplied]
As on the date of the said application (26.4.1999), his age was 55 years 2
months and 20 days. In pursuance of the said application, the second
respondent was retired from service as on 31.7.2000, vide office order dated
29.7.2000. Before that date, the Azamgarh Branch of FCI had also forwarded
a proposal dated 26.5.2000 to its Lucknow Regional Office, for appointing
the second respondent’s son (first respondent) on compassionate grounds.
The Regional Office rejected the said request for compassionate appointment
vide letter dated 19/21.12.2001 addressed to the Azamgarh Office on the
ground that second respondent was aged 55 years 2 months and 20 days as on
the date of his application as against the maximum age of 55 years prescribed
under the scheme. As the said rejection was not communicated to the
respondents, they went on approaching the Azamgarh Office for first
Respondent’s appointment. Ultimately, they took up the matter through the
Vice-President of the Employees’ Union on 10.3.2003. Only thereafter, that
is on 21.3.2003, a copy of the said order of rejection dated 19/21.12.2001 was
made available to the Respondents. Immediately, the respondents filed
CMWP No. 13032 of 2003 for quashing the order dated 19/21.12.2001 and
seeking a direction to FCI to appoint the first respondent to the post of
handling labour in place of second respondent who had retired on medical
grounds.
4. The said writ petition was resisted by FCI on the ground that the first
respondent was not entitled to appointment on compassionate grounds, as the
second respondent had already crossed the age limit of 55 years when he
made the application on 26.4.1999.
5. A learned Single Judge accepted the contention of the FCI and held
that the first respondent was not entitled to compassionate appointment, as
the second respondent had already completed the age of 55 years when he
made the application. Consequently, the writ petition was rejected on
29.3.2005. The appeal filed by the respondents against the said order was
allowed by a Division Bench of the High Court by order dated 19.9.2005.
The Division Bench was of the view that once FCI accepted the request of an
employee for retirement on medical grounds under the compassionate
appointment scheme, it was obliged to give appointment to the dependant of
such employee and his request cannot be turned down on any technical
ground. It followed the decision of another Division Bench (Nizamuddin vs.
The District Manager, FCI \026 Special Appeal No. 579/2005 decided on
11.5.2005) which took the view that FCI cannot take an inconsistent stand by
’allowing medical retirement for the father, and disallowing compassionate
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appointment for the son’. The said order is challenged by FCI in this appeal
by special leave.
6. The appellant contends that under the scheme, appointment of a
dependant on compassionate grounds can be sought only where a worker
seeking voluntary retirement on medical grounds, has not crossed the age
limit of 55 years, in addition to fulfilling the other conditions of the scheme.
As the second respondent had exceeded the said age limit of 55 years, by 2
months and 20 days, as on the date of the application for voluntary
retirement, the Appellant had to refuse compassionate appointment to first
Respondent. It is contended that a direction to appoint first respondent on
compassionate grounds, has the effect of requiring the employer to act
contrary to its rules (scheme), which is impermissible. The appellant also
contends that the issue relating to retirement on medical grounds and the
issue relating to compassionate appointment of a dependent, are distinct and
different issues. It is submitted that if the conditions necessary for retirement
on medical grounds are found to exist, the employee will be permitted to
retire on medical grounds. The request for compassionate appointment
would, thereafter, be examined separately and independently to find out
whether the dependant was eligible and the conditions for such appointment
are satisfied. It is pointed out that even if the retired employee and his
dependant fulfilled all the conditions, compassionate appointment could not
be claimed as a matter of right and the competent authority still had the
discretion either to grant or refuse compassionate appointment, taking into
account the circumstance and condition of the family of the retired employee
and the availability of vacancy.
7. There is no doubt that an employer cannot be directed to act contrary to
the terms of its policy governing compassionate appointments. Nor can
compassionate appointment be directed de hors the policy. In Life Insurance
Corporation of India v. Asha Ramchandra Ambedkar [1994 (2) SCC 718],
this Court stressed the need to examine the terms of the Rules/Scheme
governing compassionate appointments and ensure that the claim satisfied the
requirements before directing compassionate appointment. In this case, the
scheme clearly bars compassionate appointment to the dependant of an
employee who seeks voluntary retirement on medical grounds, after attaining
the age of 55 years. There is a logical and valid object in providing that the
benefit of compassionate appointment for a dependant of an employee
voluntarily retiring on medical grounds, will be available only where the
employee seeks such retirement before completing 55 years. But for such a
condition, there will be a tendency on the part of employees nearing the age
of superannuation, to take advantage of the scheme and seek voluntary
retirement at the fag end of their service, on medical grounds, and thereby
virtually creating employment by ’succession’. It is not permissible for the
court to relax the said condition relating to age of the employee. Whenever a
cut off date or age is prescribed, it is bound to cause hardship in marginal
cases, but that is no ground to hold the provision as directory and not
mandatory.
8. As rightly contended by FCI, the issue of voluntary retirement of an
employee on medical grounds and the issue of compassionate appointment to
a dependent of such retired employee are independent and distinct issues. An
application for voluntary retirement has to be made first. Only when it is
accepted and the employee is retired, an application for appointment of a
dependant on compassionate grounds can be made. Compassionate
appointment of a dependant is not an automatic consequence of acceptance of
voluntary retirement. Firstly, all the conditions prescribed in the Scheme
dated 3.7.1996 should be fulfilled. Even if all conditions as per guidelines are
fulfilled, there is no ’right’ to appointment. It is still a matter of discretion of
the competent authority, who may reject the request if there is no vacancy or
if the circumstances and conditions of the family of the medically retired
worker do not warrant grant of compassionate appointment to a dependant.
Therefore, the observation of the High Court in Nizamuddin (supra) that
allowing the request of the employee for voluntary retirement on medical
grounds and rejecting the application of the dependant for compassionate
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appointment on the ground of non-fulfilment of conditions of scheme would
amount to taking inconsistent stands, is clearly erroneous.
9. But on facts, this case is different. The second respondent’s application
dated 26.4.1999 was a composite application for conditional voluntary
retirement on medical grounds, subject to appointment of his son in his place.
The application specifically stated that he desired to go on retirement on
medical grounds if his son was provided with employment in his place. The
second Respondent had thus clearly indicated that if employment on
compassionate ground was not provided to his son, he was not interested in
pursuing his request for retirement on medical grounds. FCI ought to have
informed the employee that he could not make such a conditional offer of
retirement contrary to the scheme. But for reasons best known to itself, FCI
did not choose to reject the conditional offer, but unconditionally accepted
the conditional offer. There lies the catch.
10. When an offer is conditional, the offeree has the choice of either
accepting the conditional offer, or rejecting the conditional offer, or making a
counter offer. But what the offeree cannot do, when an offer is conditional, is
to accept a part of the offer which results in performance by the offeror and
then reject the condition subject to which the offer is made.
11. In the context of second Respondent’s conditional offer of voluntary
retirement contained in the letter dated 26.4.1999, FCI had, therefore, the
following options :
(a) Reject the request for voluntary retirement on the ground that a
conditional offer was contrary to the Scheme and it was not willing to
consider any conditional offer.
(b) Reject the request for compassionate appointment on the ground that
the employee was more than 55 years of age or on the ground that it
was not a deserving case or because there was no vacancy, and then
refer the employee to a Medical Board for compulsory retirement on
medical grounds.
(c) Require the employee to make separate applications for voluntary
retirement on medical grounds and for compassionate appointment
strictly as per rules and the scheme.
(d) Accept the request of the employee for voluntary retirement on medical
grounds subject to the condition stipulated by the employee and
provide appointment to his son on compassionate grounds;
When FCI accepted the offer unconditionally and retired the second
respondent from service by office order dated 29.7.2000, it was implied that
it accepted the conditional offer in entirety, that is the offer made (voluntary
retirement) as also the condition subject to which the offer was made
(appointment of his dependant son on compassionate grounds). In his
application, the second respondent made it clear that he desired to retire
voluntarily on medical grounds only if his son (first respondent herein) was
provided with employment. If FCI felt that such a conditional application
was contrary to the Scheme or not warranted, it ought to have rejected the
application. Alternatively, it ought have informed the employee that the
compassionate appointment could not be given to his son because he (the
employee) had already completed 55 years of age and that it will consider his
request for retirement on medical grounds delinking the said issue of
retirement, from the request for compassionate appointment. In that event, the
employee would have had the option to withdraw his offer itself. Having
denied him the opportunity to withdraw the offer, and having retired him by
accepting the conditional offer, FCI cannot refuse to comply with the
condition subject to which the offer was made.
12. The appellant next contended that when the employee stated in his
application that he was medically unfit to continue his work as a handling
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labour and also produced a medical certificate from the concerned authority
declaring that he was medically unfit for the work, obviously he could not be
continued up to the age of superannuation and therefore, acceptance of his
request for retirement of the second respondent by order dated 29.7.2000
could not in any event be faulted. This contention would have merited
acceptance, if the employee’s offer to voluntarily retire was unconditional.
An employee is entitled to continue in service till the age of superannuation.
Even if he is having some medical ailment, due to economic reasons, he may
choose to continue up to 60 years. If the employer found that the employee
was physically unfit to carry on his work, the employer was at liberty to refer
his case to a Medical Board and on the basis of its opinion, compulsorily
retire the employee on medical grounds. A compulsory retirement by the
employer on medical grounds is different from a voluntary retirement by the
employee on medical grounds. In fact the scheme earlier provided for
compassionate appointment of a dependant, only when an employee was
(compulsorily) retired by the employer, on medical grounds. The scheme was
expanded on 3.7.1996, to provide for compassionate appointment for a
dependant, when an employee voluntarily retired on medical grounds.
13. The appellant next contended that even if its action was found to suffer
from some infirmity, the employee could at best contend that the action
retiring him from service with effect from 31.7.2000 was illegal, but it could
not be foisted with the obligation to offer employment to the son of the
employee. It is, therefore, submitted that even if any relief was to be given, it
ought to have been restricted to some nominal compensation for premature
retirement as at the end of 31.7.2000.
14. The question in this case is not whether the request of the respondents
was contrary to the scheme. Nor is it the question, whether the scheme would
be violated if the first respondent is appointed on compassionate grounds.
The limited question is whether FCI, having accepted the offer and accepted
performance of the offer by the second Respondent, can refuse to perform or
comply with the condition subject to which such offer was made. The answer
is obviously in the negative. Having accepted the offer, FCI cannot avoid
performance of the condition subject to which the offer was made. As noticed
earlier, nothing prevented FCI from rejecting the application of the employee
outright, or inform the employee before accepting the offer of voluntary
retirement that it could not accept the condition, so that the employee would
have had the option to withdraw the offer itself.
15. Lastly, it was pointed out that under the scheme, the competent
authority had the discretion to deny compassionate appointment even if all
the conditions were fulfilled; and that, therefore, the High Court ought to
have merely directed consideration of the application for compassionate
appointment, instead of directing appointment. But the denial of employment
was not on the ground that the competent authority on considering the
relevant circumstances, found that it was not a fit case for appointment on
compassionate grounds. It is true that in the normal course, if the employee’s
son was found eligible for employment on compassionate grounds, the court
ought to have directed consideration of his case in terms of the scheme
instead of issuing a mandamus to give employment. But as already observed,
the conditional offer having been accepted, FCI could not thereafter refuse
appointment. We also find that FCI did not dispute the fact that the first
respondent was eligible and suitable for the post of handling labour. Nor did
FCI contend that there was no vacancy. The employee had retired in 2000.
For nearly 7 years, his son has been denied employment. On the peculiar
facts, we do not find it appropriate to interfere with the direction given by the
High Court to appoint the first respondent, though for different reasons.
16. We have upheld the direction for grant of employment only because of
the acceptance of an inter-linked conditional offer. Where the offer to
voluntarily retire and request for compassionate appointment are not inter-
linked or conditional, FCI would be justified in considering and deciding
each request independently, even if both requests are made in the same letter
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or application. Be that as it may.
17. In view of the above, the appeal is dismissed. But neither the retired
employee nor his son will, however, be entitled to claim any monetary or
other benefits on the ground of delay in issuing the offer of appointment. The
appellant is given two months’ time from today to appoint first respondent as
per High Court’s order. Parties to bear their respective costs.