ASHOK KUMAR MEWARIversusUNION OF INDIA & OTHERS

                 [2023] 16 S.C.R. 1535 : 2023 INSC 1092



                              CASE DETAILS

                        ASHOK KUMAR MEWARI
                                        v.
                      UNION OF INDIA & OTHERS
                      (Civil Appeal No. 7956 of 2023)
                           DECEMBER 05, 2023
      [J.K. MAHESHWARI AND K.V. VISWANATHAN, JJ.]
                               HEADNOTES
     Issue for consideration: Appellant made a composite prayer for
voluntary retirement on medical ground subject to the condition that his
son may be appointed in his place on compassionate ground, in terms of
the Circular dtd.14.06.2006. Whether the respondents were justified in only
accepting his prayer for voluntary retirement, without accepting the prayer
of compassionate appointment to his son.
     Service Law – Conditional voluntary retirement application,
partially accepted – Impermissibility:
       Held: A conditional request was made by the appellant to retire him
voluntarily instead of offering him an alternative post and that his son be
appointed at his place – Meaning thereby, that his request for voluntary
retirement may be allowed only if his simultaneous request for compassionate
appointment of his son is accepted – Thus, the prayer of voluntary retirement
and to grant compassionate appointment were composite – Respondents by
segregating the same, only accepted the prayer for voluntary retirement,
without accepting appellant’s prayer of compassionate appointment to his
son – In view of the ratio of the judgment in Ram Kesh Yadav such action
is not justified when a request for voluntary retirement has been made
subject to the condition stipulated in the letter to grant the compassionate
appointment to his son, it ought to be accepted by the Board compositely,
i.e., accepting both the requests, or rejected in toto – Further, applicability of
the Circular dtd. 14.06.2006 was independent of the subsequent clarification
of the Board’s letter dtd.12.11.2014 explaining medical de-categorization of
the employees – Application for grant of voluntary retirement was made on
                                      1535
1536         SUPREME COURT REPORTS                       [2023] 16 S.C.R.


18.06.2013, prior to the purported clarificatory Circular dtd.12.11.2014 –
Circular dtd.14.06.2006 is independent of other circulars – There is also no
reference to the letter of 03.03.2009 in the Circular of 12.11.2014 – Order
passed by the West Central Railway, Jabalpur Division, Jabalpur rejecting
the claim of the appellant again, quashed – Orders passed by the Tribunal
in the Original Application and review as also the order of the High Court,
set-aside – Compassionate appointment, in the applicable post, be given to
the Appellant’s son. [Paras 11, 12, 9, 14 and 15]
        LIST OF CITATIONS AND OTHER REFERENCES
     Food Corporation of India and Another vs. Ram Kesh Yadav and
Another, [2007] 3 SCR 336 : (2007) 9 SCC 531 – relied on.
        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.7956 Of 2023.
     From the Judgment and Order dated 13.11.2018 of the High Court of
M.P., Principal Seat at Jabalpur in WP No. 25302 of 2018.
       Appearances:
     Nilendra Pratap Singh, Abhishek Raj, Dr. Sushil Balwada, Advs. for
the Appellant.
     Mrs. Aishwarya Bhati, A.S.G., Ms. Poornima Singh, Raj Bahadur
Yadav, Amrish Kumar, Ruchi Kohli, Ms. Swarupma Chaturvedi, Anmol
Chandan, Adit Khorana, Shantnu Sharma, Durga Dutt, Raghvendra
Srivastava, Advs. for the Respondents.
        JUDGMENT / ORDER OF THE SUPREME COURT

                                 ORDER

     The Appellant who was an employee of the Railways applied
for voluntary retirement on the ground of medical ailments, subject to
appointment of his son Mukesh Mewari on compassionate ground. The
Respondent-Union of India through Divisional Railway Manager, W.C.
Railways, Jabalpur allowed the request of the Appellant, in part, by
accepting the voluntary retirement without considering the prayer for grant
            ASHOK KUMAR MEWARI v. UNION OF                                1537
                    INDIA & OTHERS

of compassionate appointment to his son. Dissatisfied, the appellant filed
Original Application No. 200/00398/2015 before the Central Administrative
Tribunal, Jabalpur Bench, Jabalpur, (for short “Tribunal”) which was
allowed vide order dated 11.2.2016. The directions issued by the Tribunal
are as under:
     “8. The reliance placed by the learned counsel for the respondent on
     circular No. E(NG)II/2009/RC-1/CR/2 dated 12.11.2014 issued by
     the Railway Board wherein it is clarified that a railway employee
     can be termed as medically decategorized only when he/she has been
     declared unfit in his/her original post as well as original medical
     category but fit in lower medical category/post, is misplaced since the
     applicant had already voluntarily retired with effect from 18.09.2013
     i.e. before coming into existence of circular dated 12.11.2014 and,
     therefore, the applicant’s case is fully covered by the earlier circular
     dated 14.05.2006. The reliance placed by the learned counsel for the
     respondents on the decision of Hon’ble Supreme Court in the matters
     of S.S. Grewal Vs. State of Punjab and others, 1993 Supp (3) SCC
     234 also cannot strengthen their case.
     9. In the result, the Original Application is allowed. The respondents
     are directed to consider applicant’s claim for appointment of his son
     on compassionate ground in terms of the circular dated 14.05.2006
     within a period of three months from the date of communication of
     this order. No costs.”
      The said order was challenged in Writ Petition No. 7540 of 2016 before
the High Court, which was allowed in part vide order dated 12.1.2017. The
High Court remitted the matter with certain observations. The operative
portion of the order is reproduced as thus:
     “However, while doing so, the Tribunal lost sight of the crucial fact
     that circular dated 12.11.2014 was not a circular which created a
     right for the first time. It was only a clarification of the circular dated
     14.06.2006 (wrongly been mentioned as 14.05.2006 by the Tribunal
     in its order) where the right for claiming appointment and question
     of invalidation on medical ground was laid down and circular issued
     on 12.11.2014 was only a clarificatory circular. Without taking note
1538          SUPREME COURT REPORTS                        [2023] 16 S.C.R.


       of the circular dated 14.06.2006, merely allowing the application by
       holding that the circular dated 12.11.2014 would not be applicable,
       we are of the considered view that the Tribunal has committed a
       manifest error in dealing with the matter. The Tribunal should have
       first examined the matter in terms of circular dated 14.06.2006,
       interpreted it in the manner as canvased by the parties and thereafter
       the effect of its clarification on 12.11.2014 should have been taken
       note of by the Tribunal. That apart, once the claim of the employee
       for granting compassionate appointment was rejected on 11.02.2015
       without challenge to this order, the question would be as to whether
       the application itself was maintainable before the Tribunal is also a
       crucial question. As all these questions have not been adverted to
       by the Tribunal in right perspective, we allow this petition, quash
       the order passed by the Tribunal and remand the matter back to the
       Tribunal for reconsideration. The Tribunal is directed to proceed
       in the matter and decide the application now within a period of
       three months.
       With the aforesaid, the petition stands allowed and disposed of.”
      On remand, the Tribunal vide order dated 18.12.2017 dismissed the
same with an observation that the Board Circular dated 12.11.2014 gives
clarification to the words “medically de-categorised” which is clarificatory
to the original circular dated 14.6.2006 and would apply from the date of
the said circular. In view of the clarificatory nature of the circular, it was
observed that the appellant has been declared fit in his original medical
category but unfit for the post he occupied, therefore, he is not entitled for
the relief as prayed.
      The review filed by the Appellant against the said order was dismissed
on 16.7.2018 by the Tribunal. Being aggrieved, the appellant filed Writ
Petition No. 25302 of 2018 before the High Court of Madhya Pradesh,
Principal Bench at Jabalpur which came to be dismissed vide order dated
13.11.2018, putting a stamp of approval to the findings recorded by the
Tribunal, which resulted in filing of this appeal.
     During pendency of the appeal in the proceedings of the case, this
Court on 10.10.2023 passed the following order:
       ASHOK KUMAR MEWARI v. UNION OF                                1539
               INDIA & OTHERS

“The petitioner was an employee of the Railways who applied for
voluntary retirement on medical ground and submitted an application
on 18.06.2013 with a request to retire him voluntarily and instead of
granting alternative post, his son Mukesh Mewari who is B.Com (Pass)
may be considered for appointment at his place. On considering the
said application, by the office of Divisional Railway Manager vide
communication dated 12.09.2013 informed to the petitioner that his
request for voluntary retirement has been accepted by the competent
authority from 18.09.2013 (Afternoon) and he be treated as retired
but no order was passed on the prayer of grant of compassionate
appointment to his son.
During hearing, it is urged by the petitioner that a composite prayer was
made by him asking voluntary retirement and to grant compassionate
appointment to his son, therefore, accepting the prayer of voluntary
retirement only is not justified. In support of his contention, reliance is
placed on the judgment of this Court in the case of Food Corporation
of India and Another v. Ram Kesh Yadav and Another (2007) 9 SCC
531. In the facts and circumstances of this case, we find substance in
the argument as advanced by the petitioner.
We have also perused the order passed by the Tribunal and the High
Court. On perusal thereof, it appears that the clarification issued
subsequently on 12.11.2014 by the Railways has been made applicable
in the case of the petitioner though the request for voluntary retirement
and to grant compassionate appointment to the petitioner’s son was
prior to the said clarification. It is seen from record that the order
accepting the voluntary retirement was passed on 18.09.2013 prior to
the said clarification.
At this stage, learned counsel appearing on behalf of the Railways
submits that the Circular dated 12.11.2014 is a clarificatory in nature,
therefore, it will be applicable to the date of the main Circular but we
are not impressed by the said submission, in particularly the prayer
made by the petitioner in the application dated 18.06.2013 which was
composite, i.e., for voluntary retirement and to grant compassionate
appointment to his son. The Department accepted the prayer of
voluntary retirement prior to issue of the clarification.
1540           SUPREME COURT REPORTS                          [2023] 16 S.C.R.


       In view of the above, we thought it appropriate to give one chance
       to the respondent to decide the claim of the petitioner for grant of
       compassionate appointment expeditiously in view of the above
       observations.
       We direct the authorities to do the needful within four weeks and file
       an affidavit on or before the next date of hearing.
       List the matter on 21st November, 2023.”
      As per the above observations, this Court was clearly of the view that
one chance ought to be given to the authorities to decide the application
afresh filed for composite relief by the appellant asking voluntarily retirement
subject to appointment of his son. However, the claim of the appellant has
again been rejected vide order dated 10.11.2023. The operative portion of
the said order is reproduced as thus:
       “Compassionate appointment on medical grounds is considered where
       employee is either totally incapacitated for continuation in job or
       medically decategorized i.e. unfit in one medical category but fit in
       another lower medical category. Time and again, Board has clarified
       that the concept of extending compassionate appointment is not
       applicable in a case where an employee is unfit in a medical category
       for a particular job but fit in the same medical category for other job.
       Thus, an employee is considered medically decategorized only when
       he is unfit for his original category and post but fit for posts with lower
       medical category i.e. where change in medical category is taking place.
       In this regard, Board’s letter No. L.No.E(NG)II/2009/RC1/CR/2 dated
       03.03.2009 has also been perused which is much prior to the same
       clarification reiterated by Board vide L.N. E(NG)II/2009/RC1/CR/2
       dated 12.11.2014.
       In the light of the above clarification of Board issued vide letter dated
       03.03.2009, reiterated vide letter dated 12.11.2014, the matter is not
       considered fit for appointment on compassionate ground. The retired
       employee (Petitioner) may be advised accordingly.”
     In the order extracted above, the respondent has again reiterated their
understanding and relied upon the circular dated 12.11.2014.
             ASHOK KUMAR MEWARI v. UNION OF                             1541
                     INDIA & OTHERS

       During hearing, Ms. Aishwarya Bhatti, learned ASG placed a letter of
clarification dated 03.03.2009 issued by the Government of India, Ministry
of Railways. It is urged that the subsequent clarification dated 12.11.2014 is
based on the said letter dated 03.03.2009, and contended that the request of
the Appellant was subsequent to the Board letter dated 03.03.2009. Therefore,
according to the learned ASG, the findings as recorded by the Tribunal and
confirmed by the High Court are in conformity with the said letter.
      We have perused the Circular dated 14.6.2006, and on going through
the same, it is clear that the Ministry of Railways through the Railway
Board has laid down that “in case where an employee has been medically
invalidated/de-categorised and where the administration cannot find
alternative posts for such an employee, he may be kept on a supernumerary
post in the grade in which he was working on regular basis till such time
suitable post can be identified or till his retirement, whichever is earlier.”
It was decided that a medically de-categorized employee may be retired
voluntarily and be allowed to work on supernumerary post. In the same
Circular in paragraphs 4 and 5, the directions have been issued as under:
     “4. Pursuant to the demand raised by staff side the issue has been
     deliberated upon at length in the full Board Meeting and it has been
     decided that compassionate ground appointment to the wife/wards/
     depended of partially medically de-categorized staff who seeks
     voluntary retirement may be given subject to the following provisions: -
     a) The appointment will be given only in the eligible group ‘D’
     categories. ‘Eligible’ would mean that in case group ‘D’ recruitment
     is banned for any particular category, the same would also apply for
     the compassionate ground appointments.
     b) Such an appointment should only be given in case of employees
     who are declared partially de-categorized at a time when they have at
     least 5 years or more service left.
     c) CMD of the Railways should keep a watch over the trend of de-
     categorization so that the present figures do not get inflated. CMD
     should also get 10% partially de-categorized cases re-examined by
     another medically Board not belonging to Divisional Hospital which
     initially declared them unfit.
1542          SUPREME COURT REPORTS                          [2023] 16 S.C.R.


       5. All those employees medically de-categorized after issuance of
       Board’s letter No. E(NG)II/95/RC-1/14 dated 18.01.2000 will also
       be covered under these instructions. However, such cases which have
       already been finalized in terms of Board’s letters No. E(NG) II/95/
       RC- 1/94 dated 18.01.2000, 10.11.2000 and No. E(NG)II/2000/RC-1/
       Genl./17 dated 06.03.2002 & 26.05.2004 need not be reopened.”
      It is not made clear whether the Board’s letter dated 03.03.2009 and
the Circular dated 12.11.2014 are in continuation of or in reference to the
Circular dated 14.06.2006. The said fact may have relevance to construe
Instruction No. 5 afore-mentioned, by which it was made clear that those
employees who were medically de-categorized after the issuance of the
Board’s letter dated 18.01.2000 will also be covered by the said instruction
except in cases which have already been finalized and their cases need not
be re-opened. Therefore, in our view, the applicability of the Circular dated
14.06.2006 is independent of the subsequent clarification of the Board’s letter
dated 12.11.2014 explaining medical decategorization of the employees. It is
not out of place to state that the application for grant of voluntary retirement
was made on 18.06.2013, prior to the purported clarificatory Circular dated
12.11.2014. The Board’s letter dated 03.03.2009 was never placed before the
Tribunal or the High Court to support the contention presumably because
the Circular dated 14.06.2006 is independent of other circulars. There is
also no reference to the letter of 03.03.2009 in the Circular of 12.11.2014.
It has also not been clearly explained as to whether that wide publicity was
given to the internal letter of 03.03.2009.
     In addition to the above, it is also relevant to refer to the request made
by the appellant seeking voluntary retirement. The contents of the letter
dated 18.6.2013 are relevant, therefore reproduced as under:
            “To
                       The Divisional Rail Manager (ka.)
                       Jabalpur
            Sub: By granting voluntary retirement to the applicant also give
            appointment to my son Mukesh Mewari.
            Ref: Your letter No. Jabal./ka./620/appointment/Medi./Part 06
            dated 11.2.2013
            ASHOK KUMAR MEWARI v. UNION OF                            1543
                    INDIA & OTHERS

          Sir
             With regard to the above reference letter you are requested to
          the applicant Ashok Kumar Mewari, Pointsman, Kachhpura was
          declared unfit for the aforesaid post by the Railway Hospital on
          the basis I was given alternative post of UDC.
          Sir, I am suffering from kidney ailment and neither I can work
          for a long time by sitting at one place nor I can move frequently.
          Therefore, you are requested to give me voluntary retirement
          instead of alternative post and my son Mukesh Mewari who is
          B.Com pass be appointed at my place.
          I will be highly obliged.
          Dated 18.06.2013.
                                                                Applicant
                                                                     Sd/-
                                                    Ashok Kumar Mewari
                                                    Pointsman, Kachhpura
                                                               Jabalpur.”
      From a bare reading of the contents of the aforesaid letter, it is
clear that a conditional request was made by the appellant to retire him
voluntarily instead of offering him an alternative post and that his son
Mukesh Mewari, who is B.Com pass, may be appointed at his place.
Meaning thereby, that his request for voluntary retirement may be allowed
only if his simultaneous request for compassionate appointment of his
son is accepted. This Court had the occasion to consider a similar issue
in the case of Food Corporation of India and Another vs. Ram Kesh
Yadav and Another (2007) 9 SCC 531, wherein this Court considered
whether a conditional voluntary retirement application can be partially
accepted, by granting only the request for voluntary retirement without
acceding to the condition. The relevant paragraphs of the said judgment
are reproduced for ready reference as thus:
     “11. 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
1544           SUPREME COURT REPORTS                            [2023] 16 S.C.R.


       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 made.
       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 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.”
            ASHOK KUMAR MEWARI v. UNION OF                             1545
                    INDIA & OTHERS

       In the case at hand the appellant applied for voluntary retirement
subject to the condition that his son Mukesh Mewari may be appointed
in his place, in terms of the Circular dated 14.6.2006. Thus, the prayer
of voluntary retirement and to grant compassionate appointment were
composite. The respondents by segregating the same, only accepted
the prayer for voluntary retirement, without accepting the prayer of
compassionate appointment to the appellant’s son. In view of the ratio
of the judgment in Ram Kesh Yadav (supra) such action is not justified.
It is not the case of the Respondent’s Board that it had informed the
appellant that the request of conditional voluntary retirement (as made)
was contrary to the Circular, and that the Board was not willing to
consider the same. It is also not the case of the Respondent’s Board
that it had informed the Appellant that on account of the existing
norms, compassionate appointment to his son cannot be granted, and
that therefore he has to apply unconditionally for voluntary retirement.
In our view, when a request for voluntary retirement has been made
subject to the condition stipulated in the letter to grant the compassionate
appointment to his son, it ought to be accepted by the Board compositely,
i.e., accepting both the requests, or rejected in toto.
      As held in Ram Kesh Yadav (supra), the employer had an option to
inform the employee that compassionate appointment could not be given in
view of the existing norms, and that it would consider the employee’s request
for retirement on medical grounds by delinking the request of voluntary
retirement from the request of compassionate appointment. As per above
discussion, this was not done in this case.
     In view of the foregoing legal position, vide order dated
10.10.2023 referred above, we requested the Board to decide the claim
of the appellant afresh. But again, it was rejected without considering
the ratio of the judgment of Ram Kesh Yadav (supra) which, in our
view, is without application of mind and contrary to the law as laid
down by this Court.
      In view of the above discussion, we allow this appeal and set-aside
the orders dated 18.12.2017 and 16.07.2018 passed by the Tribunal in the
Original Application and review respectively and the order dated 13.11.2018
of the High Court. We also quash the order dated 10.11.2023 passed by
1546           SUPREME COURT REPORTS                    [2023] 16 S.C.R.


the West Central Railway, Jabalpur Division, Jabalpur. Consequently, we
direct that compassionate appointment, in the applicable post, be given to
the Appellant’s son Mukesh Mewari within a period of 4 weeks from the
date of communication of this order. No order as to costs.


Headnotes prepared by:                                      Appeal allowed.
Divya Pandey