Jharkhand High Court
Ramawatar Kumar Chandravanshi vs Union Of India & Ors on 20 June, 2017
Author: S.N.Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S)No.2393 of 2008
Ramawatar Kumar Chandravansi. ... ... ... ... ...Petitioner
-Versus-
1.Food Corporation of India, through its Managing Director, Bihar, Patna.
2.Sr. Regional Manager, Food Corporation of India, Regional Office,
Jharkhand, Ranchi.
3.Assit. Manager (D) F.C.I. FSD, Ranchi, Dist. Ranchi.
4.District Manager, F.C.I., Ranchi Dist. Ranchi. ... ...Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioners: Mrs. M.M.Pal, Advocate.
For the Respondents: Mr. Satish Bakshi, Advocate.
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C.A.V. on 05.05.2017 : Pronounced on 20.06.2017
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Dr. S.N.Pathak,J. The petitioner has approached this Hon'ble Court with a prayer for consideration of his case for appointment on compassionate ground in view of the scheme and circular prevalent in the Department and further to pass a reasoned and final order on the pending representation of the petitioner as his father retired prematurely on medical ground. FACTUAL MATRIX
2. The factual exposition as has been delineated in the writ application is that the father of the petitioner was posted at F.S.D., Ranchi during the period from 2001 to 2002 and was suffering from several ailments including the severe back pain and was not in a position to perform his duties regularly for which he also applied for leave from time to time.
3. It is stated that when the health condition of the petitioner's father deteriorated too much having no alternative in the year 2003 the petitioner applied for his retirement on medical ground and for employment to his eldest son on compassionate ground. The Assistant Manager (D) F.C.I. vide order dated 28.01.2003 directed the father of the petitioner to be examined by Chief District Medical Officer (Civil Surgeon) and to submit the medical certificate for considering the employment of his son on medical ground. In pursuance to the order and direction, the father of the petitioner was medically examined by the Chief Medical Officer/Civil Surgeon and a report was submitted to that extent for necessary action. The father of the petitioner was also directed to submit affidavit/undertaking for the purpose of employment of the present petitioner on compassionate ground consequent upon his retirement on medical ground which was duly submitted by the petitioner and his father. The entire documents relating to employment of dependents in case of death in harness or regarding retirement on medical ground was produced 2. and submitted before the authorities. It will be evident from the records that father of the petitioner applied for retirement on medical ground at the age of 53 years with request to provide employment to his son the present petitioner. It is further stated that the father of the petitioner was also made a detailed representation dated 22.03.2003 before the Senior Regional Manager, F.C.I. Regional Office, Ranchi through proper channel mentioning therein that he is unable to do handling work due to incapability of carrying 100 K.G. Bag so voluntarily he wants to retire on medical ground with condition that his son the present petitioner could be provided with an employment in his place as Handling Labour.
4. It is also the case of the petitioner that his father was the only earning member in their family and on his retirement none of the family members considered for employment the entire family would be put to extreme hardship.
5. It is the case of the petitioner that his father was made to retire vide office order dated 19.10.2004 issued by the District Manager, District Office, Ranchi w.e.f. 28.10.2004 from the service of the Corporation as has been declared completely and permanently incapacitated for further service of any kind in Food Corporation of India by the competent authority (Annexure-6). A further notification was also issued regarding retirement of the petitioner along with other employees vide order dated 27.10.2004 but till date no orders have been passed regarding employment of the present petitioner and the respondents are sitting tight over the pending representation and hence this present writ application has been preferred.
6. Mrs. M.M.Pal learned Sr. Counsel assisted by Mrs. Mahua Palit, Advocate vehemently argued that the case of the petitioner is a fit case for appointment on compassionate ground and is fully covered by the scheme/circular of the Department which speaks of appointment on compassionate ground when the employee retires on medical ground.
7. Learned Counsel argued that petitioner's father as well the petitioner himself made several applications/representations for voluntary retirement on medical ground and also for providing compassionate appointment after acceptance of the same.
8. Learned Sr. Counsel draws the attention of the Court towards the scheme/circular dated 3rd July, 1996 of F.C.I. which is brought on record by way of Addl. Counter-affidavit on behalf of respondents. The circular has come out with certain conditions and specifically mentioned that benefit of compassionate ground appointment shall be extended to the 3. dependent of the departmental worker who seek voluntary retirement on medical grounds at their own request subject to the following conditions:-
i. The worker who seek voluntary retirement on medical ground should apply within the age limit of 55 years for the purpose of availing the benefits of compassionate ground appointment.
ii. The retirement on medical ground should be accompanied with medical certificate from Civil Surgeon/District Medical/ Medical Officer of equal status in the prescribed proforma/ which will be subject to the verification by FCI. iii. The benefit of compassionate ground appointment shall be given only in Handling labour category that too for male dependent only.
iv. The maximum age limit for such compassionate ground appointment should not exceed 30 years. The minimum age of 18 years should not in any case be relaxed. v. The compassionate appointment shall be made only in deserving cases where there is no earning member in the family of the retired worker.
vi. While considering the compassionate ground appointment the financial benefits which may be available on retirement should also be taken into account and the competent authority should satisfy that the retirement benefit shall not meet for running the family. vii. Application for such compassionate grounds appointment shall be made within 3 months from the date of retirement and this period may be relaxed by the competent authority in exceptional and deserving case.
viii.The appointment shall be subject to medical fitness by an authorized medical officer confirming that he is fit to handle/carry bags of big size of 95 Kgs.
ix. The applications for compassionate grounds appointments should be in the prescribed proforma (enclosed).
9. Learned Sr. Counsel submits that his case is fully covered by the scheme and the petitioner fulfills all the required conditions for appointment on compassionate ground and as such there is no legal impediment for appointing the petitioner on compassionate ground and illegally and arbitrarily the respondents are sitting tight over the representation passing no orders.
10. In order to strengthen her argument, learned Sr. Counsel 4. placed reliance on the reported judgment of Hon'ble Supreme Court in case of "Food Corporation of India & Another Vrs. Ram Kesh Yadav and Another "., reported in (2007) 9 S.C.C. 531.
11. Mrs. Pal further argued that there is no specific condition in voluntary retirement scheme, the respondent cannot give a go-bye and sit tight over the matter passing no orders.
12. Per contra counter-affidavit has been filed.
13. Learned Counsel for the State Mr. Baxi opposes the contention of the petitioner and submits that the writ application itself is not maintainable on the ground of delay. Learned Counsel argued that the son of the employee filed the present writ application and the same was not maintainable as he was not the employee of the Food Corporation of India and as such the case is fit to be dismissed at this score itself.
14. Learned Counsel argued that the case of petitioner regarding voluntary retirement was never accepted by the Department and as such the judgment relied on by the petitioner does not help him and is distinguished as in that case voluntary retirement was accepted but in the present case voluntary retirement was never accepted with any condition.
15. Learned Counsel submits that compassionate appointment cannot be claimed as a matter of right but is purely discretion of the competent authority taking into account the circumstances and condition of the family of the medically retired workers and also subject to availability of the vacancy.
16. Learned Counsel argued that petitioner does not deserve to be appointed on compassionate ground and as such the present case requires no interference and no direction can be given for appointment on compassionate ground.
17. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. The respondents authorities are sitting tight over the matter passing no orders. This itself shows lackadaisical approach of the respondent. Nothing prevented the respondents to reject the case of the petitioner outright or never the employee before accepting offer of voluntary retirement though it could not accept the condition so that the employee would have had the option to withdraw the offer itself. The respondent cannot take the benefit of their own wrong.
18. The Hon'ble Apex Court in the case of "Kusheshwar Prasad Singh" has held in paragraph-11 as under:
" 11. In this connection, our attention has been invited by the learned Counsel for the appellant to a decision of this Court in Mritunjay Pany and Anr. Vs. Narmada Sasmal and Anr., MANU/SC/0357/1961: [1962]1 5. SCR 290, wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim 'Commodum ex injuria sua nemo habere debet' (No party can take undue advantage of his own wrong).
13. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, " a wrong doer ought not to be permitted to make a profit out of his own wrong."
19. In the present case the respondent having accepted the offer cannot avoid purpose of condition subject to which the offer was made till date no orders have been passed nothing prevented the respondents from rejecting the application of the employee outright or never the employee before accepting of voluntary retirement though it could not accept the condition so that employees would have had the option to withdraw the offer itself.
20. In the case of "Food Corporation of India & Anr. Vrs. Ram Kesh Yadav & Anr.", reported in (2007) 9 S.C.C. 531 the Supreme Court held in paragraph 11 as under:
"1 1 But on facts, this case is different. The second respondent's application dated 26.04.1999 was a composite application for conditional voluntary retirement on medical ground, 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.
"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 6. made.
"13 In the context of the second respondent's conditional offer of voluntary retirement contained in the letter dated 26.04.1999, 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 ground.
"14 When FCI accepted the offer unconditionally and retired the second respondent from service by office order dated 29.07.2000, 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 ( 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 7. 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."
21. The above legal propositions clearly states that when the offer has been accepted and not denied the authorities are bound to consider the case for compassionate appointment as per the scheme. The contention of the learned Counsel for the respondent is misconceived and not tenable in the eyes of law. The petitioner made a request for voluntary retirement on medical ground and for offering appointment to the son of the deceased employee. The scheme brought on record by the respondent clearly shows that there is specific speculation/condition in VRS for appointment on compassionate ground of course with certain conditions this Court is of the considered view that the respondents themselves have committed wrong and laches on their part cannot be ruled out.
22. As a cumulative effect of the aforesaid rules, guidelines and the judicial pronouncements this Court is of the considered view that the case of the petitioner deserves consideration as such the respondents are directed to consider the case of petitioner for appointment on compassionate ground as per the scheme taking into consideration the reported judgment of the Hon'ble Apex Court in (2007) 9 S.C.C. referred above and pass a reasoned order in accordance with law within a period of six weeks from the date of receipt of the order.
23. Needless to say that if there is no legal impediment, letter of appointment be issued to the petitioner within a period of four weeks from the date of the order passed by the respondents.
24. Resultantly the writ petition stands allowed.
[Dr. S.N.Pathak,J.] P.K.S.