ASHOK KUMAR MEWARI versus UNION OF INDIA & OTHERS
[2023] 16 S.C.R. 1535, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2023] 16 S.C.R. 1535 : 2023 INSC 1092
1535
CASE DETAILS
ASHOK KUMAR MEWARI
v.
UNION OF INDIA & OTHERS
(Civil Appeal No. 7956 of 2023)
DECEMBER 05, 2023
[J.K. MAHESHWARI AND K.V. VISWANATHAN, JJ.]
HEADNOTES
Issue for consideration: Appellant made a composite prayer for 
voluntary retirement on medical ground subject to the condition that his 
son may be appointed in his place on compassionate ground, in terms of 
the Circular dtd.14.06.2006. Whether the respondents were justified in only 
accepting his prayer for voluntary retirement, without accepting the prayer 
of compassionate appointment to his son. 
Service Law – Conditional voluntary retirement application, 
partially accepted – Impermissibility:
Held: A conditional request was made by the appellant to retire him 
voluntarily instead of offering him an alternative post and that his son be 
appointed at his place – Meaning thereby, that his request for voluntary 
retirement may be allowed only if his simultaneous request for compassionate 
appointment of his son is accepted – Thus, the prayer of voluntary retirement 
and to grant compassionate appointment were composite – Respondents by 
segregating the same, only accepted the prayer for voluntary retirement, 
without accepting appellant’s prayer of compassionate appointment to his 
son – In view of the ratio of the judgment in Ram Kesh Yadav such action 
is not justified when a request for voluntary retirement has been made 
subject to the condition stipulated in the
letter to grant the compassionate 
appointment to his son, it ought to be accepted by the Board compositely, 
i.e., accepting both the requests, or rejected in toto – Further, applicability of 
the Circular dtd. 14.06.2006 was independent of the subsequent clarification 
of the Board’s letter dtd.12.11.2014 explaining medical de-categorization of 
the employees – Application for grant of voluntary retirement was made on
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[2023] 16 S.C.R.
18.06.2013, prior to the purported clarificatory Circular dtd.12.11.2014 – 
Circular dtd.14.06.2006 is independent of other circulars – There is also no 
reference to the letter of 03.03.2009 in the Circular of 12.11.2014 – Order 
passed by the West Central Railway, Jabalpur Division, Jabalpur rejecting 
the claim of the appellant again, quashed – Orders passed by the Tribunal 
in the Original Application and review as also the order of the High Court, 
set-aside – Compassionate appointment, in the applicable post, be given to 
the Appellant’s son. [Paras  11, 12, 9, 14 and 15]
LIST OF CITATIONS AND OTHER REFERENCES
Food Corporation of India and Another vs. Ram Kesh Yadav and 
Another, [2007] 3 SCR 336 : (2007) 9 SCC 531 – relied on.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No.7956 Of 2023.
From the Judgment and Order dated 13.11.2018 of the High Court of 
M.P., Principal Seat at Jabalpur in WP No. 25302 of 2018.
Appearances:
Nilendra Pratap Singh, Abhishek Raj, Dr. Sushil Balwada, Advs. for 
the  Appellant.
Mrs. Aishwarya Bhati, A.S.G., Ms. Poornima Singh, Raj Bahadur 
Yadav, Amrish Kumar, Ruchi Kohli, Ms. Swarupma Chaturvedi, Anmol 
Chandan, Adit Khorana, Shantnu Sharma, Durga Dutt, Raghvendra 
Srivastava, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
ORDER
The Appellant who was an employee of the Railways applied 
for voluntary retirement on the
ground of medical ailments, subject to 
appointment of his son Mukesh Mewari on compassionate ground. The 
Respondent-Union of India through Divisional Railway Manager, W.C. 
Railways, Jabalpur allowed the request of the Appellant, in part, by 
accepting the voluntary retirement without considering the prayer for grant
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ASHOK KUMAR MEWARI v. UNION OF 
INDIA & OTHERS
of compassionate appointment to his son. Dissatisfied, the appellant filed 
Original Application No. 200/00398/2015 before the Central Administrative 
Tribunal, Jabalpur Bench, Jabalpur, (for short “Tribunal”) which was 
allowed vide order dated 11.2.2016. The directions issued by the Tribunal 
are as under:
“8. The reliance placed by the learned counsel for the respondent on 
circular No. E(NG)II/2009/RC-1/CR/2 dated 12.11.2014 issued by 
the Railway Board wherein it is clarified that a railway employee 
can be termed as medically decategorized only when he/she has been 
declared unfit in his/her original post as well as original medical 
category but fit in lower medical category/post, is misplaced since the 
applicant had already voluntarily retired with effect from 18.09.2013 
i.e. before coming into existence of circular dated 12.11.2014 and, 
therefore, the applicant’s case is fully covered by the earlier circular 
dated 14.05.2006. The reliance placed by the learned counsel for the 
respondents on the decision of Hon’ble Supreme Court in the matters 
of S.S. Grewal Vs. State of Punjab and others, 1993 Supp (3) SCC 
234 also cannot strengthen their case.
9. In the result, the Original Application is allowed. The respondents 
are directed to consider applicant’s claim for appointment of his son 
on compassionate ground in terms of the circular dated 14.05.2006 
within a period of three months from the date of
communication of 
this order. No costs.”
The said order was challenged in Writ Petition No. 7540 of 2016 before 
the High Court, which was allowed in part vide order dated 12.1.2017. The 
High Court remitted the matter with certain observations. The operative 
portion of the order is reproduced as thus:
“However, while doing so, the Tribunal lost sight of the crucial fact 
that circular dated 12.11.2014 was not a circular which created a 
right for the first time. It was only a clarification of the circular dated 
14.06.2006 (wrongly been mentioned as 14.05.2006 by the Tribunal 
in its order) where the right for claiming appointment and question 
of invalidation on medical ground was laid down and circular issued 
on 12.11.2014 was only a clarificatory circular. Without taking note
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[2023] 16 S.C.R.
of the circular dated 14.06.2006, merely allowing the application by 
holding that the circular dated 12.11.2014 would not be applicable, 
we are of the considered view that the Tribunal has committed a 
manifest error in dealing with the matter. The Tribunal should have 
first examined the matter in terms of circular dated 14.06.2006, 
interpreted it in the manner as canvased by the parties and thereafter 
the effect of its clarification on 12.11.2014 should have been taken 
note of by the Tribunal. That apart, once the claim of the employee 
for granting compassionate appointment was rejected on 11.02.2015 
without challenge to this order, the question would be as to whether 
the application itself was maintainable before the Tribunal is also a 
crucial question. As all these questions have not been adverted to 
by the Tribunal in right perspective, we allow this petition, quash 
the order passed by the Tribunal and remand the matter back to the 
Tribunal for reconsideration. The Tribunal is directed to proceed 
in the matter and decide the application now within a period of 
three months.
With the aforesaid, the petition stands allowed and disposed of.”
On remand, the Tribunal vide order dated 18.12.2017 dismissed the 
same with an observation that the Board Circular dated 12.11.2014 gives 
clarification to the words “medically de-categorised” which is clarificatory 
to the original circular dated 14.6.2006 and would apply
from the date of 
the said circular. In view of the clarificatory nature of the circular, it was 
observed that the appellant has been declared fit in his original medical 
category but unfit for the post he occupied, therefore, he is not entitled for 
the relief as prayed.
The review filed by the Appellant against the said order was dismissed 
on 16.7.2018 by the Tribunal. Being aggrieved, the appellant filed Writ 
Petition No. 25302 of 2018 before the High Court of Madhya Pradesh, 
Principal Bench at Jabalpur which came to be dismissed vide order dated 
13.11.2018, putting a stamp of approval to the findings recorded by the 
Tribunal, which resulted in filing of this appeal.
During pendency of the appeal in the proceedings of the case, this 
Court on 10.10.2023 passed the following order:
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INDIA & OTHERS
“The petitioner was an employee of the Railways who applied for 
voluntary retirement on medical ground and submitted an application 
on 18.06.2013 with a request to retire him voluntarily and instead of 
granting alternative post, his son Mukesh Mewari who is B.Com (Pass) 
may be considered for appointment at his place. On considering the 
said application, by the office of Divisional Railway Manager vide 
communication dated 12.09.2013 informed to the petitioner that his 
request for voluntary retirement has been accepted by the competent 
authority from 18.09.2013 (Afternoon) and he be treated as retired 
but no order was passed on the prayer of grant of compassionate 
appointment to his son.
During hearing, it is urged by the petitioner that a composite prayer was 
made by him asking voluntary retirement and to grant compassionate 
appointment to his son, therefore, accepting the prayer of voluntary 
retirement only is not justified. In support of his contention, reliance is 
placed on the judgment of this Court in the case of Food Corporation 
of India and Another v. Ram Kesh Yadav and Another (2007) 9 SCC 
531. In the facts and circumstances of this case, we find substance in 
the argument as advanced by the petitioner.
We have also perused the order passed by the Tribunal and the High 
Court. On perusal thereof, it appears that the clarification issued 
subsequently on 12.11.2014 by the Railways has been made
applicable 
in the case of the petitioner though the request for voluntary retirement 
and to grant compassionate appointment to the petitioner’s son was 
prior to the said clarification. It is seen from record that the order 
accepting the voluntary retirement was passed on 18.09.2013 prior to 
the said clarification.
At this stage, learned counsel appearing on behalf of the Railways 
submits that the Circular dated 12.11.2014 is a clarificatory in nature, 
therefore, it will be applicable to the date of the main Circular but we 
are not impressed by the said submission, in particularly the prayer 
made by the petitioner in the application dated 18.06.2013 which was 
composite, i.e., for voluntary retirement and to grant compassionate 
appointment to his son. The Department accepted the prayer of 
voluntary retirement prior to issue of the clarification.
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In view of the above, we thought it appropriate to give one chance 
to the respondent to decide the claim of the petitioner for grant of 
compassionate appointment expeditiously in view of the above 
observations.
We direct the authorities to do the needful within four weeks and file 
an affidavit on or before the next date of hearing.
List the matter on 21st November, 2023.”
As per the above observations, this Court was clearly of the view that 
one chance ought to be given to the authorities to decide the application 
afresh filed for composite relief by the appellant asking voluntarily retirement 
subject to appointment of his son. However, the claim of the appellant has 
again been rejected vide order dated 10.11.2023. The operative portion of 
the said order is reproduced as thus:
“Compassionate appointment on medical grounds is considered where 
employee is either totally incapacitated for continuation in job or 
medically decategorized i.e. unfit in one medical category but fit in 
another lower medical category. Time and again, Board has clarified 
that the concept of extending compassionate appointment is not 
applicable in a case where an employee is unfit in a medical category 
for a particular job but fit in the same medical category for other job. 
Thus, an employee is considered medically decategorized only when 
he is unfit for his original category and post but fit for posts with lower 
medical category i.e. where
change in medical category is taking place. 
In this regard, Board’s letter No. L.No.E(NG)II/2009/RC1/CR/2 dated 
03.03.2009 has also been perused which is much prior to the same 
clarification reiterated by Board vide L.N. E(NG)II/2009/RC1/CR/2 
dated 12.11.2014.
In the light of the above clarification of Board issued vide letter dated 
03.03.2009, reiterated vide letter dated 12.11.2014, the matter is not 
considered fit for appointment on compassionate ground. The retired 
employee (Petitioner) may be advised accordingly.”
In the order extracted above, the respondent has again reiterated their 
understanding and relied upon the circular dated 12.11.2014.
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ASHOK KUMAR MEWARI v. UNION OF 
INDIA & OTHERS
During hearing, Ms. Aishwarya Bhatti, learned ASG placed a letter of 
clarification dated 03.03.2009 issued by the Government of India, Ministry 
of Railways. It is urged that the subsequent clarification dated 12.11.2014 is 
based on the said letter dated 03.03.2009, and contended that the request of 
the Appellant was subsequent to the Board letter dated 03.03.2009. Therefore, 
according to the learned ASG, the findings as recorded by the Tribunal and 
confirmed by the High Court are in conformity with the said letter.
We have perused the Circular dated 14.6.2006, and on going through 
the same, it is clear that the Ministry of Railways through the Railway 
Board has laid down that “in case where an employee has been medically 
invalidated/de-categorised and where the administration cannot find 
alternative posts for such an employee, he may be kept on a supernumerary 
post in the grade in which he was working on regular basis till such time 
suitable post can be identified or till his retirement, whichever is earlier.” 
It was decided that a medically de-categorized employee may be retired 
voluntarily and be allowed to work on supernumerary post. In the same 
Circular in paragraphs 4 and 5, the directions have been issued as under:
“4. Pursuant to the demand raised by staff side the issue has been 
deliberated upon at length in the full Board Meeting and it has been 
decided that compassionate ground appointment to the
wife/wards/
depended of partially medically de-categorized staff who seeks 
voluntary retirement may be given subject to the following provisions: -
a) The appointment will be given only in the eligible group ‘D’ 
categories. ‘Eligible’ would mean that in case group ‘D’ recruitment 
is banned for any particular category, the same would also apply for 
the compassionate ground appointments.
b) Such an appointment should only be given in case of employees 
who are declared partially de-categorized at a time when they have at 
least 5 years or more service left.
c) CMD of the Railways should keep a watch over the trend of de-
categorization so that the present figures do not get inflated. CMD 
should also get 10% partially de-categorized cases re-examined by 
another medically Board not belonging to Divisional Hospital which 
initially declared them unfit.
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5. All those employees medically de-categorized after issuance of 
Board’s letter No. E(NG)II/95/RC-1/14 dated 18.01.2000 will also 
be covered under these instructions. However, such cases which have 
already been finalized in terms of Board’s letters No. E(NG) II/95/
RC- 1/94 dated 18.01.2000, 10.11.2000 and No. E(NG)II/2000/RC-1/
Genl./17 dated 06.03.2002 & 26.05.2004 need not be reopened.”
It is not made clear whether the Board’s letter dated 03.03.2009 and 
the Circular dated 12.11.2014 are in continuation of or in reference to the 
Circular dated 14.06.2006. The said fact may have relevance to construe 
Instruction No. 5 afore-mentioned, by which it was made clear that those 
employees who were medically de-categorized after the issuance of the 
Board’s letter dated 18.01.2000 will also be covered by the said instruction 
except in cases which have already been finalized and their cases need not 
be re-opened. Therefore, in our view, the applicability of the Circular dated 
14.06.2006 is independent of the subsequent clarification of the Board’s letter 
dated 12.11.2014 explaining medical decategorization of the employees. It is 
not out of place to state that the application for grant of voluntary retirement 
was made on 18.06.2013, prior to the purported clarificatory Circular dated 
12.11.2014. The Board’s letter dated 03.03.2009 was never placed before the 
Tribunal or the High Court to support the contention presumably
because 
the Circular dated 14.06.2006 is independent of other circulars. There is 
also no reference to the letter of 03.03.2009 in the Circular of 12.11.2014. 
It has also not been clearly explained as to whether that wide publicity was 
given to the internal letter of 03.03.2009.
In addition to the above, it is also relevant to refer to the request made 
by the appellant seeking voluntary retirement. The contents of the letter 
dated 18.6.2013 are relevant, therefore reproduced as under:
“To
The Divisional Rail Manager (ka.)
Jabalpur
Sub: By granting voluntary retirement to the applicant also give 
appointment to my son Mukesh Mewari.
Ref: Your letter No. Jabal./ka./620/appointment/Medi./Part 06 
dated 11.2.2013
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Sir
With regard to the above reference letter you are requested to 
the applicant Ashok Kumar Mewari, Pointsman, Kachhpura was 
declared unfit for the aforesaid post by the Railway Hospital on 
the basis I was given alternative post of UDC.
Sir, I am suffering from kidney ailment and neither I can work 
for a long time by sitting at one place nor I can move frequently.
Therefore, you are requested to give me voluntary retirement 
instead of alternative post and my son Mukesh Mewari who is 
B.Com pass be appointed at my place.
I will be highly obliged.
Dated 18.06.2013.
Applicant
Sd/-
Ashok Kumar Mewari
Pointsman, Kachhpura
Jabalpur.”
From a bare reading of the contents of the aforesaid letter, it is 
clear that a conditional request was made by the appellant to retire him 
voluntarily instead of offering him an alternative post and that his son 
Mukesh Mewari, who is B.Com pass, may be appointed at his place. 
Meaning thereby, that his request for voluntary retirement may be allowed 
only if his simultaneous request for compassionate appointment of his 
son is accepted. This Court had the occasion to consider a similar issue 
in the case of Food Corporation of India and Another vs. Ram Kesh 
Yadav and Another (2007) 9 SCC 531, wherein this Court considered 
whether a conditional voluntary retirement application can be partially 
accepted, by granting only the request for voluntary retirement without 
acceding to the
condition. The relevant paragraphs of the said judgment 
are reproduced for ready reference as thus:
“11. 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
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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.
12. 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.
14. 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.”
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ASHOK KUMAR MEWARI v. UNION OF 
INDIA & OTHERS
In the case at hand the appellant applied for voluntary retirement 
subject to the condition that his son Mukesh Mewari may be appointed 
in his place, in terms of the Circular dated 14.6.2006. Thus, the prayer 
of voluntary retirement and to grant compassionate appointment were 
composite. The respondents by segregating the same, only accepted 
the prayer for voluntary retirement, without accepting the prayer of 
compassionate appointment to the appellant’s son. In view of the ratio 
of the judgment in Ram Kesh Yadav (supra) such action is not justified. 
It is not the case of the Respondent’s Board that it had informed the 
appellant that the request of conditional voluntary retirement (as made) 
was contrary to the Circular, and that the Board was not willing to 
consider the same. It is also not the case of the Respondent’s Board 
that it had informed the Appellant that on account of the existing 
norms, compassionate appointment to his son cannot be granted, and 
that therefore he has to apply unconditionally for voluntary retirement. 
In our view, when a request for voluntary retirement has been made 
subject to the condition stipulated in the letter to grant the compassionate 
appointment to his son, it ought to be accepted by the Board compositely, 
i.e., accepting both the requests, or rejected in toto.
As held in Ram Kesh Yadav (supra), the employer had an option to 
inform the employee that compassionate
appointment could not be given in 
view of the existing norms, and that it would consider the employee’s request 
for retirement on medical grounds by delinking the request of voluntary 
retirement from the request of compassionate appointment. As per above 
discussion, this was not done in this case.
In view of the foregoing legal position, vide order dated 
10.10.2023 referred above, we requested the Board to decide the claim 
of the appellant afresh. But again, it was rejected without considering 
the ratio of the judgment of Ram Kesh Yadav (supra) which, in our 
view, is without application of mind and contrary to the law as laid 
down by this Court.
In view of the above discussion, we allow this appeal and set-aside 
the orders dated 18.12.2017 and 16.07.2018 passed by the Tribunal in the 
Original Application and review respectively and the order dated 13.11.2018 
of the High Court. We also quash the order dated 10.11.2023 passed by

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the West Central Railway, Jabalpur Division, Jabalpur. Consequently, we 
direct that compassionate appointment, in the applicable post, be given to 
the Appellant’s son Mukesh Mewari within a period of 4 weeks from the 
date of communication of this order. No order as to costs.
Headnotes prepared by:
Appeal allowed.
Divya Pandey