IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 5854 of 2010 SPECIAL CIVIL APPLICATION NO. 5856 of 2010 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE G.R.UDHWANI ========================================================== Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ? Whether their Lordships wish to see the fair copy of the judgment ? Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== RAJESHKUMAR ATMARAM YADAV & 1....Petitioner(s) Versus FOOD CORPORATION OF INDIA & 1....Respondent(s) ========================================================== Appearance: MR AMAR N BHATT, ADVOCATE for the Petitioner(s) No. 1 - 2 MR SHAKEEL A QURESHI, ADVOCATE for the Respondent(s) No. 1 - 2 RULE SERVED BY DS for the Respondent(s) No. 1 - 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 26/09/2016 This group of petitions raise a common question of law and fact as to whether after having accepted voluntary retirement of its servant on medical ground with a condition of appointment of the petitioners on compassionate basis as per the scheme of the respondent Food Corporation of India (FCI for short), is it open for the employee to partially accept voluntary retirement and retire the employee without making compassionate appointment of the petitioners.
2. Having considered the rival contentions, the question does not seem to be res integra any more in view of Food Corporation of India & another v. Ram Kesh Yadav & another reported in (2007) 9 SCC 531 wherein under similar circumstances a conditional offer of voluntary retirement was made under the same scheme of FCI as can be noticed from paragraph No. 4 of the judgement and the Apex Court in paragraph Nos. 12, 13, 14, 17 and 19 held thus:
12. 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.
13. In the context of the second respondents 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.
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 made (appointment of his dependant son on compassionate grounds). In his application, the second respondent made it clear tht 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.
17. The question in this case is not whether the request of the respondents was contrary to the scheme. Nor is it the question, whether 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.
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, FIC 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.
3. In the affidavit in reply, the respondent FCI has stated that earlier the petitioners case was rejected in view of expiry of the life of the list of such candidates being limited for three years which limitation has now been removed and thus, the case of the petitioners and other similarly situated persons is scheduled to be reconsidered in accordance with law.
4. In view of above affidavit, it is not necessary for this court to address the question on merit. Suffice it to require the respondents to reconsider the case as indicated by respondent FCI in the affidavit in reply. The respondents will take into consideration the decision in the case of Food Corporation of India & another v. Ram Kesh Yadav & another (supra) while deciding the application of the petitioners as also other similarly situated persons.
5. The learned counsel for the respondent FCI has invited the attention of this court to oral order dated 18.6.2016 passed by this court in Special Civil Application No. 17465 of 2012 wherein the court had noted that similar cases are under review in light of change in the policy as mentioned in paragraph No. 15 and 20 of the affidavit in reply filed in that case. It is contended by the learned counsel for the respondent FCI that the case of the petitioners shall have to be considered in view of the altered policy.
6. The learned counsel for the petitioners, however, relied on the decision in the case of Canara Bank & another
v. M. Mahesh Kumar and allied matters reported in (2015)
7 SCC 412 and submitted that the scheme as prevalent on the date of the application is required to be considered.
7. Having considered the above issue, it is apparent in Canara Bank & another v. M. Mahesh Kumar (supra) that the scheme as prevalent on the date of the application is required to be taken into consideration while considering the compassionate appointment. Therefore, it is directed that the scheme as prevalent on the date of the petitioners applications shall be taken into consideration by the respondents in the light of the judgement in Food Corporation of India & another v. Ram Kesh Yadav & another (supra).
8. In the result, the impugned order at annexure-A is quashed and set aside. Rule is made absolute with no order as to costs. (G.R.UDHWANI, J.) (pkn)
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