Reportable 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

Vs. Nizamuddin & Anr. … Respondents

J U D G M E N T

R. V.  RAVEENDRAN, J.

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  

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  

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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 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 :

“With 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.

FCI 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.

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Since 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.”

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  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 challenged in this appeal by special leave.  

The 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 :

“The 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….”  

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The  application  for  compassionate  appointment  had  to  be  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 running the  

family.    The said scheme also provided that compassionate appointment  

was discretionary :  

“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  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  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.  

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  of  this  court  in  that  case,  the  first  respondent  was  entitled  to  

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compassionate appointment. 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  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 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 erroneous.”            

In the 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 follows :   

“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  

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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  made.”   

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 :  

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

[emphasis supplied]

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 may kindly retire me on medical grounds and at the  

same time give appointment to my son.” It  merely contains two requests  

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(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.  

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.

……………………..J. (R V Raveendran)

New Delhi; …………………….J. March   23, 2010. (K S Radhakrishnan)  

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