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CASE NO.: Appeal (civil)  3451 of 2006

PETITIONER: Food Corporation of India & Another

RESPONDENT: Ram Kesh Yadav & Another

DATE OF JUDGMENT: 27/02/2007

BENCH: Tarun Chatterjee & R. V. Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

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.  

2.      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  :  

a)      The worker should seek voluntary retirement on medical grounds  before completing the age of 55 years.  

b)      Such request should be accompanied by a medical certificate issued  by an Authorised Medical Officer, subject to verification by FCI.        

c)      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.  

d)      The application for compassionate appointment shall be made in the  prescribed form, within three months from the date of retirement.   

e)      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

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conditions of the family of the medically retired workers and also subject  to availability of the vacancy."  

3.      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 \005

\005\005..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\005. Kindly allow me to go on retirement on  medical ground and provide employment to my above named son in my  place as handling labour\005"

[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.  

4.      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.  

5.      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 \026 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

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appointment for the son’. The said order is challenged by FCI in this appeal  by special leave.  

6.      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.  

7.      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.

8.      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

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appointment on the ground of non-fulfilment of conditions of scheme would  amount to taking inconsistent stands, is clearly erroneous.   

9.      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.

10.     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.

11.     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 :  (a)     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.  

(b)     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.   

(c)     Require the employee to make separate applications for voluntary  retirement on medical grounds and for compassionate appointment  strictly as per rules and the scheme.  

(d)     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.  

12.     The appellant next contended that when the employee stated in his  application that he was medically unfit to continue his work as a handling

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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.  

13.     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.  

14.     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.  

15.     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.  

16.     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

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or application. Be that as it may.

17.     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.