THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.1463 OF 1999 O R D E R Heard both the counsel. 2. The case of the petitioner, as stated in the affidavit filed in support of the writ petition, is that his father was appointment as Mechanic in the respondent – Corporation on 22.1.1969 and was due for retirement on attaining the age of 58 years on 31.1.1999. Corporation issued circulars dated 6.10.1987 and 15.2.1995 providing reservation of vacancies to the children of deceased/retired/in-service candidates. As the Corporation has issued circulars enabling the appointment of the children of employees who retired prematurely/voluntarily, the father of the petitioner, who had served for twenty years, submitted an application dated 20.1.1995, to retire him voluntarily and provide employment to his son in lieu of monetary benefits, additional P.F. and additional gratuity. The said application was accepted by the Depot Manager, Narketpally Depot on 27.1.1995. The petitioner, passed 10th class and pursuant to the conditional voluntary retirement of his father, made application for the post of cleaner under ‘bread winner scheme’. By proceedings No.P3/402(11)/98-RM:N dated 14.9.1998 the Regional Manger of the Corporation, Nalgonda, rejected the application of the petitioner on the ground that concessions vide circulars dated 6.10.1987 and 15.2.1995 were cancelled vide circular No.PO.21/1998 dated 27.2.1998, as the scheme providing reservation of vacancies to the children of retired/in-service employees, was held to be unconstitutional by the High Court. The case of the petitioner is that his father made application on 20.1.1995 and the same was accepted on 27.1.1995 and as the application was made prior to the withdrawal of the circular on 27.2.1998, his case shall be considered for the appointment to the post of cleaner. Aggrieved by the rejection of the application of the petitioner for the post of cleaner, the present writ petition is filed. 3. The respondent – Corporation filed counter affidavit and stated inter alia that as the circulars were cancelled, as being unconstitutional by this court, the case of the petitioner cannot be considered for appointment to the post of a cleaner under ‘bread winner scheme’ and therefore, the writ petition may be dismissed. 4. The learned counsel appearing for the petitioner submitted that as per the then existing circulars, the father of the petitioner submitted application to retire him voluntarily, on condition that his son shall be provided employment as Cleaner under the ‘bread winner scheme’. He stated that by the date of submission of application by the father of the petitioner, he was having about four years of service. As the circulars were issued by the Corporation, enabling appointment of children of the employees who retire prematurely, the father of the petitioner made conditional application. Though he was made to retire voluntarily, his son was not considered for providing employment on compassionate grounds. If there were no circulars, the father of the petitioner would not have made application and because of the circulars issued by the Corporation, he sought for voluntary retirement and thereby had foregone about four years of service on the fond hope that his son will be provided employment. As the conditional voluntary retirement application of the petitioner was accepted by the Corporation, it is under an obligation to provide employment to his son. In support of his contentions, he relied on the judgment of the Apex Court in FCI v. RAM KESH YADAV[1] and the Division Bench judgment of the High Court of Allahabad in NIZAMUDDIN v. D.M. FOOD CORPN. OF INDIA KANPUR NAGAR (Alld. H.C.)[2]. He stated that the cancellation of the circulars was on 27.2.1998, i.e., subsequent to the date of application of the father of the petitioner for conditional voluntary retirement and also subsequent to its acceptance and hence circular canceling the earlier circulars, cannot be made applicable retrospectively. With these submissions, he sought to allow the writ petition. 5. On the other hand, the learned standing counsel for the respondent – Corporation submitted that two Division Benches of this court in SHAIK AHMAD ALI SHAH v. DIVL. MANAGER, APSRTC[3] and APSRTC, HYD AND OTHERS v. VALLURU VENKATA NARAYANA[4] in similar circumstances while considering the circulars enabling the appointment of the children of employees who retire prematurely, held that such scheme is discriminatory and un constitutional. Considering these judgments, similar was expressed by another Division Bench of this court in SH.KHADER BASHA v. THE MANAGING DIRECTOR, APSRTC[5]. He further contended that Andhra Pradesh (Regulation of Appointment to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 regulates the recruitment procedure and Section 4 of the said Act deals with Regulation of recruitment and the procedure contemplated for recruitment shall be only under sub section (2) (a) which deals with compassionate appointments made in favour of son or a daughter or spouse of any person employed in public service who dies in harness or who retires from service on medical grounds, in accordance with the relevant orders issued from time to time. In the present case, as the petitioner is not the son of deceased employee, who died in harness, recruitment regulation under Section 4(1)(a) has to be followed and no exemption can be granted and that the Corporation cannot be directed to give appointment in contravention of the Regulations and the instructions, which govern appointment on compassionate grounds. In support of this contention, he relied on the judgment of the Apex Court in STATE OF H.P. v. JAFLI DEVI[6]. With these contentions, he sought to dismiss the writ petition. 6. The undisputed facts are that the father of the petitioner who was working as Mechanic, submitted application seeking voluntary retirement, and sought for appointment of his son as cleaner in the light of the circulars dated 15.2.1995 and 6.10.1987, which enable the Corporation to appoint the children of prematurely retired employees under the ‘Bread Winner Scheme’. The said circulars were held to be unconstitutional by this court. A Division Bench of this court in SH.KHADER BASHA v. THE MANAGING DIRECTOR, APSRTC, following the earlier Division Bench judgmens and the Apex Court, held that the said circulars are unconstitutional. Pursuant to the judgments of this court, the respondent – Corporation cancelled the earlier circulars vide circular no.P0.21/1998 dated 27.2.1998. 7. In the present case, the father of the petitioner gave notice of voluntary retirement on 20.1.1995 and the 3rd respondent – Depot Manager accepted the same on 27.1.1995, i.e., much prior to the judgments of this court and the circular dated 27.2.1998. The petitioner also earlier filed writ petition before this court in 4094/1998 and this court by interim order dated 23.2.1998 directed the respondent to consider the claim of the petitioner and when the said interim order was not complied with, the petitioner filed contempt case in C.C.No.1493/1998 and subsequently, the present impugned order was passed rejecting the claim of the petitioner. 8. There cannot be any dispute with regard to the law laid down by the Division Benches of this court in the decisions cited supra. But because of the circulars issued by the Corporation, the father of the petitioner, expecting that his son would get employment as Cleaner submitted application seeking voluntary retirement. In the said application, he had informed that he was facing family problems, financially and physically and had decided to take voluntary retirement from the Corporation and since he had rendered 20 years of service, requested to treat the application as notice for voluntary retirement and he further informed that he was in need of employment to his son in lieu of monetary benefits, additional P.F. and Additional Gratuity. The Depot Manager, had forwarded the said application to the Personnel Officer, APSRTC, Nalgonda by proceedings dated 28.3.1995. The relevant portion of the same is extracted as under: “Sri B.Ramulu E.35390, Mechanic of Narketpally depot has submitted an application-cum-notice for voluntary retirement. He has submitted an application for voluntary retirement. He has submitted an application for employment to his son Sri B.Srinivasu as Clearner in lieu of Addl. Monetary benefit of leftover service and notional amount of PO.F. and gratuity together with the declarations. The application is herewith forwarded for further action at your end together with his bio-data particulars please. 1. Date of Birth : 16.1.1941. 2. Date of appointment: 22.01.1969 3. Date of retirement on attaining the age of superannuation: 31.1.1999.” 9. Consequent to the above proceedings, the Depot Manager by proceedings dated 27.1.1995 intimated the following to the petitioner: “With reference to your application cited, your are hereby informed that your application is hereby accepted as notice of three months for acceptance of Voluntarily retirement in terms of Reg.6(1)(b) of APSRTC Employees (Service) Regulations, 1964 and you will be retired on completion of three months from the date of your application. Therefore, you are further informed that you shall produce a no due certificate from APSRTC, CC Office immediately. You may also attend this office and submit your dependants application for employment together with the requisite format to process the case to competent authority for examining and feasibility of employment.” 10. From the above communication it is clear that the voluntary retirement application was accepted and he was made to retire after completion of three months notice. 11. It is to be noticed that when he had made conditional offer seeking voluntary retirement and sought for employment to son, the circulars enabling employment to the dependants of the employees, who retire prematurely, were very much in existence and the said application was not contrary to the schemes existing then. The Corporation had also accepted his application. When the Corporation had accepted his voluntary retirement, it could not keep quiet on the request seeking employment to his son. 12. In similar circumstances, the Apex Court in Food Corporation of India (1 supra), also held that employer cannot be directed by court to give compassionate appointment contrary to the scheme and that the court cannot relax any condition and hold it directory. However, in the light of peculiar facts and circumstances therein, where the employee made conditional offer to retire on medical grounds subject to the condition that his son was appointed in his place and as the employer accepted the condition in its entirety, held that compensation appointment was directed to be given to the dependant of the retired employee. The relevant portion is extracted as under: 9. 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 dehors the policy. In LIC v. Asha Ramchhandra Ambekar2 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. 17. 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. 18. 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. 19. We have upheld the direction for grant of employment only because of the acceptance of an interlinked conditional offer. Where the offer to voluntarily retire and request for compassionate appointment are not interlinked or conditional, FCI would be justified in considering and deciding each request independently, even if both requests are made in the same letter or application. Be that as it may. 20. 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 the first respondent as per the High Court's order. Parties to bear their respective costs. 13. In view of the above peculiar facts and circumstances and the judgment of the Apex Court, the impugned proceedings are set aside and the 3rd respondent – Corporation shall consider the case of the petitioner for appointment to the post of cleaner and pass appropriate orders in accordance with law within a period of four weeks from the date of receipt of a copy of this order. 14. The writ petition is accordingly disposed of. No costs. AVS ------------------------------- 05—08—2011 [1] (2007)9 SCC 531 [2] (2007) (115) FLR 525 [3] 1996(3) ALT 994 (D.B.) [4] 2008(3) ALD 511 (DB) [5] W.A.NO.258/2002 dated 19.11.2010 [6] (1997)5 SCC 301.