B. S. Chauhan and Ashok Bhushan, JJ. - (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. Brief facts necessary to be noted for deciding the issues raised in the appeal are ; the appellant No. 2, Sulaman, has been working as Handling 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, shall 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 Nath Yadav and another v. Senior Regional Manager, Food Corporation of India and another. 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 he 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 respondent No. 2 to issue appointment letter to appellant No. 1 on the post of handling labour. The writ petition was decided vide judgment and order dated 29th March, 2005, against which order this appeal has been filed. 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.
(3.) THE matter has been placed before this Bench by order of the senior Judge dated 16th May, 2007 and has been heard. 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 the 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 scheme dated 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 the retirement, it is not open for them to contend that appellant No. 1 cannot be appointed.;