[2010] 3 S.C.R. 580

., A

FOOD CORPORATION OF INDIA AND ANR.

NIZAMUDDIN AND ANR. (Civil Appeal No. 2627 of 2010)

MARCH 23, 2010

[R.V. RAVEENDRAN AND K.S. RADHAKRISHNAN, JJ.]

Service Law: Compassionate appointment - Offer of voluntary retirement and request for compassionate C appointment when not interlinked or conditional - Each request to be decided independently even if both the requests made in same letter - On facts, voluntary retirement on medical grounds sought after completion of 55 years of age

- Application of son of retiree for compassionate appointment D rightly rejected as circular dated 3. 7.1996 provided that benefit of compassionate appointment was available to" the dependents of departmental workers who sought voluntary retirement on medical grounds within the age limit of 55 years

- Circular dated 3. 7.1996 issued by FCI.

On 16.2.1998, second respondent gave a letter to the employer-appellant seeking retirement on medical grounds and appointment of his son on compassionate grounds. The employer granted permission to the second F respondent to retire w.e.f. 30.4.2000. On 19.4.2003, the first respondent, son of second respondent submitted an application seeking compassionate appointment.

Therei'.!fter, on 8.3.2003, the respondents filed a writ petition before the High Court seeking a direction to G employer to appoint first respondent on compassionate grounds. High court passed, interim direction to the employer to pass a speaing order on the said application. The employer passed order dated 13.3.2003 holding that since the second respondent had crossed H 58p

FOOD CORPORATION OF INDIA AND ANR. v. 581

NIZAMUDDIN AND ANR.

the prescribed age of 55 years, the application for A compassionate appointment could not be entertained.

Subsequently, Single Judge of High Court dismissed the writ petition. However, Division Bench of High Court held that the first respondent was eligible for compassionate appointment under the relevant scheme. Hence the B appeal.

Allowing the appeal, the Court

HELD: Appellant by its circular dated 3.7.1996 extended the benefit of compassionate appointment to C

dependants of departmental workers who sought voluntary retirement on medical grounds subject to the condition that the worker who sought voluntary retirement on medical grounds should apply within the age limit of 55 years for the purpose of availing the D benefits of compassionate appointment. The second respondent sought voluntary retirement on medical grounds on 16.2.1998, after completion of 55 years. As the Scheme provided that benefit under it was available only if the worker sought voluntary retirement on medical E grounds before completin-g the age of 55 years, the application for compassionate appointment was liable to be rejected. In this case the offer of voluntary retirement in the application was neither conditional nor-mtei'linked.

It merely contained two requests that is permission to F retire voluntarily on medical grounds and request for appointment for his son, without any interlinking. Nor was the voluntary retirement conditional upon giving employment to his son. Each request had to be considered on its own merits with reference to the rules/ G scheme applicable. When so done, the first respondent would not be entitled to compassionate appointment. [Paras 4, 5, 7) [584-E-F; 585-C-D; 587-F-H; 588-A]

Food Corporation of India v. Ram Kesh Yadav (2007) 9 H

A SCC 531, held inapplicable.

Case Law Reference:

(2007) 9 sec 531 held inapplicable Para 3

B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2627 of 201 o.

From the Judgment & Order dated 18.5.2007 of the High Court of Allahabad in Special Appeal No. 579 of 2005.

C Govind Goel, Ambuj Agarwal, Nitin Singh, Brijeshwar

Singh, Dr. Kailash Chand for the Appellants.

Bharat Sangal for the Respondents.

-The Judgment of the Court was delivered by

R.V. RAVEENDRAN, J. 1. Second respondent was an employee of the appellant - Food Corporation of India ('FCI' for short). His date of birth was 8.2.1943. On 16.2.1998, the second respondent gave a letter seeking retirement on medical E grounds and appointment of his son on compassionate grounds. The said letter is extracted below:

"Sub: Retirement on medical grounds and appointment of son/close relatives on compassionate grounds.

I am working as H.L. in F.S.D. Chandari Depot in gang \ No.15. My health is not good. Physically I face difficulty in Sarder/ Manda/ Handling Labour/ Ancillary job. /, therefore request that the management may kindly retire me on medical grounds and at the same time give appointment to my Son/close relative Shri Md. Nizamudin aged 28.2.71 years, in place as F.S.D. Chandri in this depot, because there is no other person in the family to look after us. He has promised to look after me and family after my retirement."

[Emphasis supplied]

2. In pursuance of it, after medical examination FCI, by its A letter dated 29.4.2000 permitted the second respondent to retire with effect from 30.4.2000. Nearly three years later, on

19.2.2003, the first respondent who is the son of second respondent submitted an application seeking compassionate appointment. A fortnight later, on 8.3.2003, the respondents B filed a writ petition before the Allahabad High Court seeking a direction to FCI to appoint the first respondent on compassionate grounds. By interim order dated 13.3.2003, the High Court directed the competent authority under FCI, to pass a speaking order on the said application. In pursuance of it the C competent authority passed an order dated 13.3.2003 relevant portion of which is extracted below :

"With reference to the above subject, your application dated 19.2.2003 for appointment to the post of handling 0 labour in FSD Chandari, Kanpur of the Food Corporation of India, has been considered sympathetically in the light . of interim order dated 13.3.03 passed by the Hon'ble High Court of Allahabad and the judgment dated 2.8.2002 passed by the Hon'ble Allahabad High Court in Petition E No.43714 of 2001 Raj Nath Yadav and others vs. F.C.I. and also the. departmental rules and circulars.

FCI Headquarters, New Delhi issued circular No. IR/U 31 (27)/87 dated 3 .. 7.96 contemplating norms for retirement on medical grounds as well the grant of benefit F of appointment on compassionate grounds to the dependent of such employee who, at the time of application, was less than 55 years of age .

. Since Suleman, who was working as handling labour at G

FSD Chandari of F.C.I., had applied for retirement on medical grounds vide application dated 16.2.98, date of birth of the said employee, as per the record of ttie department, being '8.12.1943, the concerned employee

A had crossed the prescribed age of 55 years by about 2 days. This fact has been corroborated by you in your application dated 19.2.2003. Therefore, as per rules of the department, your application cannot be entertained and your appointment on compassionate grounds is not B possible. Hence your application is hereby rejected."

3. Subsequently, a learned Single Judge, by judgment dated 29.3.2005, dismissed the writ petition holding that the first respondent was not eligible for appointment in view of . c conditions of the circular dated 3.7.1996. However a Division Bench of the High Court allowed the appeal filed by the respondents by judgment dated 18.3.2007 purporting to follow the decision of this Court in Food Corporation of India v. Ram Kesh Yadav [2007 (9) SCC 531]. The said judgment is D challenged in this appeal by special leave. The question for consideration is whether first respondent is ntitled to claim compassionate appointment under the relevant scheme.

4. FCI by its circular dated 3.7.1996 extended the benefit E of compassionate appointment to dependants of departmental

workers who sought voluntary retirement on medical grounds subject to the following condition :

'The worker who seeks voluntary retirement on medical grounds should apply within the age limit of 55 years for F the purpose of availing the benefits of compassionate appointment. The retirement on medical ground should be accompanied by medical certificate .... ".

The application for compassionate appointment had to be G made in the prescribed form, within three months from the date of retirement. Compassionate appointment was to be given only in deserving cases, that is, where there was no earning member in the family of the retired worker, or where it was found that the financial benefits which were available to the worker ..

on retirement were not be sufficient to meet the needs for A runni.ng the family: The said scheme also provided that .compassionate appointment was discretionary:

"Notwithstanding anything contained in the above,. the compassionate ground appointment i.s not as a matter of 8 . . right put purely at the discretion of the c9mpetent authority taking into account the circumstances and conditions of the family of the medically retired workers and also subject to availability of the vacancy."

5. The second respondent sought voluntary retirement on C medical grounds on 16.2.1998, after completion of 55 years.

As the Scheme provided that benefit under it was available only if the worker sought voluntary retirement on medical grounds . before completing the age of 55 years, the application for ·· compassionate appointment was liable to be 11ejected.

6. The High Court however held that the facts of the case were similar to the case of the applicant in Ram Kesh Yadav and having regard to the decision ofthis court in that case, the first respondent was entitled to compassionate appointment E In Ram Kesh Yadav, legal position under the Scheme dated 3.7.1996 was explained thus: ·

"10. As rightly contended by FCI, the issue of voluntary retirement of an employee on medical grounds and the issue of compassionate appointment to a dependant of F 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 G 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 a.II conditions as per guidelines H

A 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 B appointment to a dependant. Therefore, the observation of the High Court in Nizamuddin that allowing the request of the employee for voluntary retirement on medical grounds and rejecting the application of the dependant for compassionate appointment on the ground of none fulfillment of conditions of scheme would amount to taking inconsistent stands, is clearly erroneous."

In the case of Ram Kesh Yadav, the composite application dated 26.4.1999 of the employee seeking voluntary retirement

0 . on medical grounds stated : "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." In view of the peculiar wording of the letter seeking voluntary retirement this Court held that the aforesaid general principle will not apply and proceeded to hold a~ follows : E

"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 F 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 (the first respondent G herein) was provided with employment. If FCI felt that such a conditional application was contrary to the scheme or not warranted, it"dught to have rejected the application.

Alternatively, it ought to have informed the employee that the compassionate appointment could not be given to his H son because he (the employee) had already completed 55

years of age and that it will consider his request for A 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 B by accepting the conditional offer, FCI cannot refuse to comply with the condition subject to which the offer was made."

But this Court made it clear that the above position was in an C exceptional situation where the offer of voluntary retirement was inextricably interlinked and conditional upon his son being . offered appointment and the employer accepted and acted upon the conditional offer. This Court however reiterated the general rule as follows :

"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 E deciding each request independently, even. if both requests are made in the same letter or application. Be that as it may."

[emphasis supplied] F

7. In this case the offer of voluntary appointment in the application was neither conditional nor interlinked. The words used are "I therefore request that the management r.1ay kindly retire me on medical grounds and at the same time give appointment to my son." It merely contains two requests (that G is permission to retire voluntarily on medical grounds and request for appointment for his son), without any interlinking.

Nor was the voluntary retirement conditional upon giving employment to his son. ~Jmerefore, Ramkesh Yadav will not H

A apply. Each request had to be considered on its own merits with reference to the rules/scheme applicable. When so done it iS' clear that the first respondent will not be entitled to compassionate appointment.

8. We accordingly allow this appeal, set aside the judgment of the Division Bench and restore the order of the

learned Single Judge dismissing the writ petition.

\D.G.

Appeal allowed.