Corporation of India & ANR. Vs. Nizamuddin & ANR.  INSC 215 (23 March 2010)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.
2627 OF 2010 [Arising out of Special Leave Petition (C) No.13704/2007] Food
Corporation of India & Anr. ... Appellants Nizamuddin & Anr. ...
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 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. I, 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 2 person in the family to look after us. He has promised to look after me
and family after my retirement."
In pursuance of it, after medical examination FCI, by its 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 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 competent
authority passed an order dated 13.3.2003 relevant portion of which is
extracted below :
reference to the above subject, your application dated 19.2.2003 for
appointment to the post of handling 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 No.43714 of 2001 Raj Nath Yadav and others vs. F.C.I. and also the
departmental rules and circulars.
Headquarters, New Delhi issued circular No. IR/L/31(27)/87 dated 3.7.96
contemplating norms for retirement on medical grounds as well the grant of
benefit of appointment on compassionate grounds to the dependent of such
employee who, at the time of application, was less than 55 years of age.
Suleman, who was working as handling labour at 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 the department, being
8.12.1943, the concerned employee 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 possible.
Hence your application is hereby rejected."
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 conditions of the circular dated 3.7.1996.
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 challenged in this appeal by special leave.
question for consideration is whether first respondent is entitled to claim
compassionate appointment under the relevant scheme.
4. FCI by
its circular dated 3.7.1996 extended the benefit of compassionate appointment
to dependants of departmental workers who sought voluntary retirement on
medical grounds subject to the following condition :
worker who seeks voluntary retirement on medical grounds should apply within
the age limit of 55 years for 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 made in
the prescribed form, within three months from the date of retirement.
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 running the family. The said
scheme also provided that compassionate appointment was discretionary :
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 account the circumstances and conditions of the family of the
medically retired workers and also subject to availability of the
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 grounds before completing the age of 55 years, the application for
compassionate appointment was liable to be rejected.
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 of this court in that case, the first respondent was entitled to 5
compassionate appointment. In Ram Kesh Yadav, legal position under the Scheme
dated 3.7.1996 was explained thus :
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
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.
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.
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 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-fulfillment of
conditions of scheme would amount to taking inconsistent stands, is clearly
case of Ram Kesh Yadav, the composite application dated 26.4.1999 of the
employee seeking voluntary retirement 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 as
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 6 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 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 to 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
But this Court
made it clear that the above position was in an 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 :
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."
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 may kindly retire me on medical grounds and at the
same time give appointment to my son." It merely contains two requests 7
(that 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. Therefore, Ramkesh Yadav
will not 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.
We accordingly allow this appeal, set aside the judgment of the
Division Bench and restore the order of the learned Single Judge dismissing the
..........................J. (R V Raveendran)