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.
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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 :
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The worker should seek voluntary
retirement on medical grounds before completing the age of 55 years.
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Such request should be accompanied
by a medical certificate issued by an Authorised Medical Officer, subject to
verification by FCI.
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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.
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The application for compassionate
appointment shall be made in the prescribed form, within three months from the
date of retirement.
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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 conditions of the family of the medically retired workers and
also subject to availability of the vacancy."
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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 ..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. Kindly allow me to go on retirement on
medical ground and provide employment to my above named son in my place as
handling labour"
[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.
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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.
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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 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 appointment for the son'. The said order is challenged
by FCI in this appeal by special leave.
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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.
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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.
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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 appointment on the ground of non-fulfilment of
conditions of scheme would amount to taking inconsistent stands, is clearly
erroneous.
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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.
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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.
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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 :
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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.
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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.
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Require the employee to make separate
applications for voluntary retirement on medical grounds and for compassionate
appointment strictly as per rules and the scheme.
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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.
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The appellant next contended that
when the employee stated in his application that he was medically unfit to
continue his work as a handling 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.
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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.
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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.
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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.
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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 or application. Be that as it may.
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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.
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