NizamuddIn S/O Sulaman and Vs. the District Manager, Food Corporation of India and - Court Judgment

SooperKanoon Citationsooperkanoon.com/486334
SubjectService
CourtAllahabad High Court
Decided OnMay-18-2007
JudgeB.S. Chauhan and; Ashok Bhushan, JJ.
Reported in[2007(115)FLR525]
AppellantNizamuddIn S/O Sulaman And; Sulaman S/O Jaituna
RespondentThe District Manager, Food Corporation of India And; Senior Regional Manager, Food Corporation of In
DispositionAppeal allowed
Cases ReferredFood Corporation of India and Anr. v. Ram Kesh Yadav and Anr.
Excerpt:
- - 15. my health is not good.1. heard sri r.c. gupta, learned counsel appearing for the appellants and sri n.p. singh, learned counsel appearing for the respondents, the food corporation of india, at length.2. this is an appeal against the judgment and order of learned single judge dated 29th march, 2005 dismissing the writ petition filed by the appellants.3. brief facts necessary to be noted for deciding the issues raised in the appeal are; the appellant no. 2, sulaman, has been working as handing labour in the food storage depot, chandari kanpur. the food corporation of india (hereinafter referred to as the corporation) issued a circular dated 3rd july, 1996 implementing a scheme for appointment of next kin of departmental workers, who seek retirement on medical ground at their own request. the said scheme provided that board of directors have approved on 10th june, 1996 that the benefit of compassionate ground appointment shall be extended to the dependent of the departmental workers who seek voluntary retirement on medical ground at their own request subject to conditions as provided in the circular. the appellant no. 2 submitted an application dated 16th february, 1998 to the senior regional manager, food corporation of india seeking retirement on medical ground and appointment of his son. the application was processed and petitioner no. 2 was sent for medical examination before the chief medical officer. the petitioner no. 2 was medically examined and certificate was issued. an affidavit was also obtained from appellant no. 1 that appellant no. 1 being appointed on account of retirement of his father on medical ground, shah look after his father and the entire family. an affidavit was also filed by appellant no. 2 that on retirement of appellant no. 2, his son (appellant no. 1) be given appointment. a committee constituted by the corporation, examined the appellant no. 1 and found him fit for the work of loader. a report was submitted to that effect. by an order dated 29th april, 2000 the appellant no. 2 was retired with effect from 30th april, 2000. although appellant no. 2 was retired but appointment was not given to appellant no. 1. when the order of appointment was not issued, appellants filed a writ petition being writ petition no. 11689 of 2003 in which an interim order was passed by this court on 13.3.2003 for considering the application of appellant no. 1 for appointment keeping in view the judgment of this court dated 2nd august, 2002 in writ petition no. 43714 of 2001 raj hath yadav and anr. v. senior regional manager, food corporation of india and anr. in pursuance of the interim order passed by this court, the case of respondent no. 1 was considered and rejected vide letter dated 23rd june, 2003 taking the view that since the date of birth of appellant no. 2, sulaman, is 8.2.1943, on the date when h3 gave an application for retirement on medical ground and appointment of his son, i.e., 16th february, 1998, he was more than 55 years, hence appointment to appellant no. 1 cannot be granted. the petitioners in the writ petition had prayed for a mandamus directing respondents no. 2 to issue appointment letter to appellant no. 1 on the post of handling labour. the writ petition was decided vide judgment a id order dated 29th march, 2005 against which order this appeal has b 3en filed.4. the appeal was earlier allowed by a division bench of this court on 11th may, 2005 against which corporation filed a civil appeal taking the ground that appeal was allowed without issuing any notice to the corporation. the supreme court vide its judgment dated 14th february, 2007 set-aside the order of the division bench of this court dated 11th may, 2005 and the matter was sent back for fresh disposal in accordance with law.5. the matter has been placed before this bench by order of the senior judge dated 16th may, 2007 and has been heard.6. sri r.c. gupta, learned counsel for the appellants, contended that food corporation of india having allowed the application of appellant no. 2 for retirement on medical ground under the scheme dated 3rd july, 1996, it was not open for the corporation to deny he compassionate appointment to appellant no. 1. he submits that the request submitted by appellant no. 2 to the corporation was a composite request praying for retirement on medical ground and giving compassionate appointment to son. the appellant no. 2 was prematurely retired with effect from 30th april, 2000 under the schemedated 3rd july, 1996 but the corporation has refused to give appointment to appellant no. 1. it is contended that the corporation cannot implement the scheme partly. it is further contended that when the stand of the corporation was that application submitted by appellant no.2 was submitted at the time when appellant no. 2 was more than 55 years by eight days, it was open for the respondents not to accept the retirement on medical ground of appellant no. 2, they having accepted i the retirement, it is not open for them to contend that appellant no. 1 cannot be appointed.7. sri n.p. singh, learned counsel appearing for the corporation, contended that one of the conditions of the scheme was that application has to be made by the worker within the age limit of 55 years and since the application of appellant no. 2 was made at the time when he was more than 55 years, the appellant no. 1 is not entitled for compassionate appointment.8. learned counsel for both the parties in support of their respective submissions have placed reliance on the judgment of the apex court reported in : air2007sc1421 food corporation of india and anr. v. ram kesh yadav and anr.9. we have considered the submissions of counsel for the parties and perused the record.10. the application filed by appellant no. 2, who is father of appellant no. 1, has been brought on the record as annexure-2 to the writ petition. the subject of the said application is 'retirement on medical grounds and appointment of son/close relatives on compassion grounds'. it is relevant to quote the contents of application dated 16.2.1999, which are as follows:to,the senior regional manager,food corporation of india,u.p. region.dated 16.2.98.sub: retirement on medical grounds and appointment of son/close relatives on compassionate grounds.sir,i am working as h.l in f.s.d. chandari depot ingang no. 15. my health is not good. physically i face difficulty insardar/mandal/handling labour/ancillary job. i, thereforerequest that the management may kindly retire me on medicalgrounds and at the same time give appointment to myson/close relative shri md. nizamudin aged 28.2.71 years,inplace as f.s.d. chandari in this depot, because there is noother person in the family to look after us. he has promised to look after me and family after my retirement.yours faithfully,thumb impressionsuleman ih/l g. no. 15,chandari.copy to the dm, fci, kanpur.11. after filing of the said application the corporation has started processing the application. the appellant no. 2 was sent for medical examination before the chief medical officer by letter dated 16th november. 1999, who was medically examined and report was submitted. the appellant no. 1 submitted an affidavit on the direction of the district manager, food corporation of india to the effect that he shall look after his father after retirement and other family members. an affidavit was also filed by appellant no. 2. a committee was constituted for the physical test of appellant no. 1 as to whether he is fit for job of loader. the said committee found appellant no. 1 fit and submitted report dated 28.2.2000 to that effect. it was thereafter that appellant no. 2 was retired by order dated 29th april, 2000 with effect from 30th apri, 2000 the order, which has been passed on 23rd june. 2003/1st september, 2003 by senior regional manager, food corporation of india, has been brought on the record, which gives only one reason for not appointing appellant no. 1 that the application filed by appellant no. 2 is beyond two days from 55 years. the date of birth of appellant no. 2 is 8.2.1943. the application was submitted on 16.2.1998, which can be said to be beyond eight age after appellant no. 2 attained the age of 55 years. learned single judge dismissed the writ petition taking the view that circular dated 3rd july, 1996 has force of law and non compliance of condition no. 1, i.e., application must be made before attaining the age of 55 years would be fatal to the employee who has applied for retirement on medical ground and the benefit of compassionate appointment to his kin would be denied on that ground.12. the judgment of the apex court relied by counsel for the parties is on similar facts and issues. in the case before the apex court also father and son both were appellants. the father, who was working as loader, made an application on 26th april, 1999 on which date his age was fifty-five years, two months and twenty days. on the application the father was retired on 31.7.2000 but subsequently the request for compassionate appointment was rejected by letter dated 19/21.12.2001. the learned single judge of high court has dismissed the writ petition vide its judgment and order dated 29th march, 2005, which was challenged before the division bench in appeal. the division bench allowed the appeal. the contents of the application in that case has been noted in paragraph 9, which is as under:the application specifically stated that he desired to go on retirement on medical grounds if his son was provided with employment in his place.13. after considering the respective contentions of the parties, the apex court laid down following in paragraphs 14,15 and 16:14. 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 of the offer by the second respondent, can refuse to perform or comply with the condition subject to which such over was made. the answer is obviously in 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 or application. be that as it may.14. learned counsel for the respondents has relied on paragraphs 7 and 8 of the said judgment. the apex court in paragraph 8 has held that 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 and the compassionate appointment of a dependant is not an automatic consequence of acceptance of voluntary retirement. the apex court after laying down the above proposition proceeded to examine the facts of that case and laid down that application in that case praying for retirement on medical ground was inter-linked with the prayer for giving compassionate appointment to the son. the said application was a conditional offer by employee and it was not open for the corporation to accept part of the offer, i.e., to retire the employee on medical ground under the scheme and refuse to give compassionate appointment to his son. the judgment of the apex court in food corporation of india's case (supra) squarely applies in the facts of the present case.15. in the case before the apex court the application was made beyond 55 years, which was the reason for denying the compassionate appointment in the present case also by an order dated 19/21st december, 2001 the claim of appointment has been denied only on the ground that application was made beyond two days. in the present case, there is one more relevant fact which is to be noticed. after the application given on 16th february, 1998 both appellants no. 1 and 2 were examined medically and application as whole was processed by the corporation. the appellant no. 2 was medically examined by a team of five doctors and appellant no. 1 was also examined by a committee to assess the capability of appellant no. 1 to perform the job of loader. a report of the committee dated 28.2.2000 has been brought on the record as annexure-7 to the writ petition. the said committee consisted of three officers of the corporation, which found the performance of the appellant no. 1 satisfactory to work as loader. thus the corporation itself proceeded to process both the parts of conditional offer, i.e., prayer of retirement on medical ground by appellant no. 2 and prayer of giving compassionate appointment to appellant no. 1. subsequently the corporation took objection that the application having been made after attaining the age of 55 years, compassionate appointment could not be given. in facts of the present case, the appellants have made out a case for issuing a direction to the corporation to give appointment to appellant no. 1, they themselves having found appellant no. 1 fully eligible to undertake the job of loader.16. in view of the foregoing discussions, this appeal is allowed. the judgment and order of learned single judge dated 29th march, 2005 is set-aside. the writ petition filed by the appellants is allowed. a direction h issued to the respondents to give appointment to appellant no. 1. the respondents are given two months time to give appointment to appellant no. 1.17. parties shall bear their own costs.
Judgment:

1. Heard Sri R.C. Gupta, learned Counsel appearing for the appellants and Sri N.P. Singh, learned Counsel appearing for the respondents, the Food Corporation of India, at length.

2. This is an appeal against the judgment and order of learned Single Judge dated 29th March, 2005 dismissing the writ petition filed by the appellants.

3. Brief facts necessary to be noted for deciding the issues raised in the appeal are; the appellant No. 2, Sulaman, has been working as Handing Labour in the Food Storage Depot, Chandari Kanpur. The Food Corporation of India (hereinafter referred to as the Corporation) issued a circular dated 3rd July, 1996 implementing a scheme for appointment of next kin of departmental workers, who seek retirement on medical ground at their own request. The said scheme provided that Board of Directors have approved on 10th June, 1996 that the benefit of compassionate ground appointment shall be extended to the dependent of the departmental workers who seek voluntary retirement on medical ground at their own request subject to conditions as provided in the circular. The appellant No. 2 submitted an application dated 16th February, 1998 to the Senior Regional Manager, Food Corporation of India seeking retirement on medical ground and appointment of his son. The application was processed and petitioner No. 2 was sent for medical examination before the Chief Medical Officer. The petitioner No. 2 was medically examined and certificate was issued. An affidavit was also obtained from appellant No. 1 that appellant No. 1 being appointed on account of retirement of his father on medical ground, shah look after his father and the entire family. An affidavit was also filed by appellant No. 2 that on retirement of appellant No. 2, his son (appellant No. 1) be given appointment. A committee constituted by the Corporation, examined the appellant No. 1 and found him fit for the work of loader. A report was submitted to that effect. By an order dated 29th April, 2000 the appellant No. 2 was retired with effect from 30th April, 2000. Although appellant No. 2 was retired but appointment was not given to appellant No. 1. When the order of appointment was not issued, appellants filed a writ petition being Writ Petition No. 11689 of 2003 in which an interim order was passed by this Court on 13.3.2003 for considering the application of appellant No. 1 for appointment keeping in view the judgment of this Court dated 2nd August, 2002 in Writ Petition No. 43714 of 2001 Raj hath Yadav and Anr. v. Senior Regional Manager, Food Corporation of India and Anr. In pursuance of the interim order passed by this Court, the case of respondent No. 1 was considered and rejected vide letter dated 23rd June, 2003 taking the view that since the date of birth of appellant No. 2, Sulaman, is 8.2.1943, on the date when h3 gave an application for retirement on medical ground and appointment of his son, i.e., 16th February, 1998, he was more than 55 years, hence appointment to appellant No. 1 cannot be granted. The petitioners in the writ petition had prayed for a mandamus directing respondents No. 2 to issue appointment letter to appellant No. 1 on the post of Handling Labour. The writ petition was decided vide judgment a id order dated 29th March, 2005 against which order this appeal has b 3en filed.

4. The appeal was earlier allowed by a Division Bench of this Court on 11th May, 2005 against which Corporation filed a civil appeal taking the ground that appeal was allowed without issuing any notice to the Corporation. The Supreme Court vide its judgment dated 14th February, 2007 set-aside the order of the Division Bench of this Court dated 11th May, 2005 and the matter was sent back for fresh disposal in accordance with law.

5. The matter has been placed before this Bench by order of the Senior Judge dated 16th May, 2007 and has been heard.

6. Sri R.C. Gupta, learned Counsel for the appellants, contended that Food Corporation of India having allowed the application of appellant No. 2 for retirement on medical ground under the scheme dated 3rd July, 1996, it was not open for the Corporation to deny he compassionate appointment to appellant No. 1. He submits that the request submitted by appellant No. 2 to the Corporation was a composite request praying for retirement on medical ground and giving compassionate appointment to son. The appellant No. 2 was prematurely retired with effect from 30th April, 2000 under the schemedated 3rd July, 1996 but the Corporation has refused to give appointment to appellant No. 1. It is contended that the Corporation cannot implement the scheme partly. It is further contended that when the stand of the Corporation was that application submitted by appellant No.2 was submitted at the time when appellant No. 2 was more than 55 years by eight days, it was open for the respondents not to accept the retirement on medical ground of appellant No. 2, they having accepted I the retirement, it is not open for them to contend that appellant No. 1 cannot be appointed.

7. Sri N.P. Singh, learned Counsel appearing for the Corporation, contended that one of the conditions of the scheme was that application has to be made by the worker within the age limit of 55 years and since the application of appellant No. 2 was made at the time when he was more than 55 years, the appellant No. 1 is not entitled for compassionate appointment.

8. Learned counsel for both the parties in support of their respective submissions have placed reliance on the judgment of the Apex Court reported in : AIR2007SC1421 Food Corporation of India and Anr. v. Ram Kesh Yadav and Anr.

9. We have considered the submissions of counsel for the parties and perused the record.

10. The application filed by appellant No. 2, who is father of appellant No. 1, has been brought on the record as Annexure-2 to the writ petition. The subject of the said application is 'retirement on medical grounds and appointment of son/close relatives on compassion grounds'. It is relevant to quote the contents of application dated 16.2.1999, which are as follows:

To,

The Senior Regional Manager,

Food Corporation of India,

U.P. Region.

Dated 16.2.98.

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

Sir,

I am working as H.L in F.S.D. Chandari Depot ingang No. 15. My health is not good. Physically I face difficulty inSardar/Mandal/Handling Labour/Ancillary job. I, thereforerequest that the management may kindly retire me on medicalgrounds and at the same time give appointment to mySon/close relative Shri Md. Nizamudin aged 28.2.71 years,inplace as F.S.D. Chandari in this depot, because there is noother person in the family to look after us. He has promised to look after me and family after my retirement.

Yours faithfully,

thumb impression

Suleman I

H/L G. No. 15,

Chandari.

Copy to the DM, FCI, Kanpur.

11. After filing of the said application the Corporation has started processing the application. The appellant No. 2 was sent for medical examination before the Chief Medical Officer by letter dated 16th November. 1999, who was medically examined and report was submitted. The appellant No. 1 submitted an affidavit on the direction of the District Manager, Food Corporation of India to the effect that he shall look after his father after retirement and other family members. An affidavit was also filed by appellant No. 2. A committee was constituted for the physical test of appellant No. 1 as to whether he is fit for job of loader. The said committee found appellant No. 1 fit and submitted report dated 28.2.2000 to that effect. It was thereafter that appellant No. 2 was retired by order dated 29th April, 2000 with effect from 30th Apri, 2000 The order, which has been passed on 23rd June. 2003/1st September, 2003 by Senior Regional Manager, Food Corporation of India, has been brought on the record, which gives only one reason for not appointing appellant No. 1 that the application filed by appellant No. 2 is beyond two days from 55 years. The date of birth of appellant No. 2 is 8.2.1943. The application was submitted on 16.2.1998, which can be said to be beyond eight age after appellant No. 2 attained the age of 55 years. Learned Single Judge dismissed the writ petition taking the view that circular dated 3rd July, 1996 has force of law and non compliance of Condition No. 1, i.e., application must be made before attaining the age of 55 years would be fatal to the employee who has applied for retirement on medical ground and the benefit of compassionate appointment to his kin would be denied on that ground.

12. The judgment of the Apex Court relied by counsel for the parties is on similar facts and issues. In the case before the Apex Court also father and son both were appellants. The father, who was working as Loader, made an application on 26th April, 1999 on which date his age was fifty-five years, two months and twenty days. On the application the father was retired on 31.7.2000 but subsequently the request for compassionate appointment was rejected by letter dated 19/21.12.2001. The learned Single Judge of High Court has dismissed the writ petition vide its judgment and order dated 29th March, 2005, which was challenged before the Division Bench in appeal. The Division Bench allowed the appeal. The contents of the application in that case has been noted in paragraph 9, which is as under:

The application specifically stated that he desired to go on retirement on medical grounds if his son was provided with employment in his place.

13. After considering the respective contentions of the parties, the Apex Court laid down following in paragraphs 14,15 and 16:

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 of the offer by the second respondent, can refuse to perform or comply with the condition subject to which such over was made. The answer is obviously in 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 or application. Be that as it may.

14. Learned counsel for the respondents has relied on paragraphs 7 and 8 of the said judgment. The Apex Court in paragraph 8 has held that 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 and the compassionate appointment of a dependant is not an automatic consequence of acceptance of voluntary retirement. The Apex Court after laying down the above proposition proceeded to examine the facts of that case and laid down that application in that case praying for retirement on medical ground was inter-linked with the prayer for giving compassionate appointment to the son. The said application was a conditional offer by employee and it was not open for the Corporation to accept part of the offer, i.e., to retire the employee on medical ground under the scheme and refuse to give compassionate appointment to his son. The judgment of the Apex Court in Food Corporation of India's case (supra) squarely applies in the facts of the present case.

15. In the case before the Apex Court the application was made beyond 55 years, which was the reason for denying the compassionate appointment In the present case also by an order dated 19/21st December, 2001 the claim of appointment has been denied only on the ground that application was made beyond two days. In the present case, there is one more relevant fact which is to be noticed. After the application given on 16th February, 1998 both appellants No. 1 and 2 were examined medically and application as whole was processed by the Corporation. The appellant No. 2 was medically examined by a team of five doctors and appellant No. 1 was also examined by a committee to assess the capability of appellant No. 1 to perform the job of loader. A report of the committee dated 28.2.2000 has been brought on the record as Annexure-7 to the writ petition. The said committee consisted of three officers of the Corporation, which found the performance of the appellant No. 1 satisfactory to work as Loader. Thus the Corporation itself proceeded to process both the parts of conditional offer, i.e., prayer of retirement on medical ground by appellant No. 2 and prayer of giving compassionate appointment to appellant No. 1. Subsequently the Corporation took objection that the application having been made after attaining the age of 55 years, compassionate appointment could not be given. In facts of the present case, the appellants have made out a case for issuing a direction to the Corporation to give appointment to appellant No. 1, they themselves having found appellant No. 1 fully eligible to undertake the job of loader.

16. In view of the foregoing discussions, this appeal is allowed. The judgment and order of learned Single Judge dated 29th March, 2005 is set-aside. The writ petition filed by the appellants is allowed. A direction h issued to the respondents to give appointment to appellant No. 1. The respondents are given two months time to give appointment to appellant No. 1.

17. Parties shall bear their own costs.