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2011 DIGILAW 453 (ALL)

KHUSHI LAL v. FOOD CORPORATION OF INDIA

2011-02-24

SUDHIR AGARWAL

body2011
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri B.N. Singh, learned counsel for the petitioners and learned Standing Counsel as well as Sri R.K. Singh, Advocate for the respondents. 2. The petitioner No. 1 has sought voluntary retirement and appointment for his son (petitioner No. 2) by application dated 8.8.2001 in the light of the Standing Order contained in Regulation 22-A of FCI (Staff) Regulation, 1971 stating that since he is not well the authorities may accept his retirement and give appointment to his son. The respondents have accepted retirement of petitioner No. 1 on medical ground and declined to give appointment to his son. Hence this petition. 3. Placing reliance on a Division Bench decision of this Court in Ram Gopal and another v. Union of India and others, 2006(6) ADJ 533 (DB), learned counsel for petitioner contended that it was incumbent upon the respondents to provide appointment to petitioner No. 2. 4. However, this Court find that the matter was examined by the Apex Court in Food Corporation of India and another v. Ram Kesh Yadav and another, JT 2007(4) SC 1, wherein the Apex Court has observed if the letter sent by employee concerned seeking retirement on medical ground is conditional and if the employer has accepted the same then it is incumbent upon the employer to give appointment. It is not the case that the application submitted by petitioner No. 1 is conditional one. The application reads as under: “Sir, With due respect I beg to inform you that as per the standing instruction under Regulation 22(A) of FCI (Staff) Regulations, 1971, I am seeking my retirement w.e.f. 30th November, 2001 since at present I am medically unfit to perform my official duties. The medical certificate issued by the CMO, Kanpur in form No. 23 under Rule 38(3) is also enclosed herewith for your further necessary action at your end. In this connection your goodself is also requested to accept my retirement w.e.f. 30.11.2001 and in my place my son may kindly be appointed on compassionate grounds. His particulars area s under : 1. Name : Naresh Babu 2. Date of Birth : 15.7.1973 3. Qualification : M.A. (Final) 1996 (Sociology) You are therefore very kindly requested to look into the matter personally and do the needful at you earliest by accepting my retirement w.e.f. 30.11.2001 and appointment of my son Naresh Babu. His particulars area s under : 1. Name : Naresh Babu 2. Date of Birth : 15.7.1973 3. Qualification : M.A. (Final) 1996 (Sociology) You are therefore very kindly requested to look into the matter personally and do the needful at you earliest by accepting my retirement w.e.f. 30.11.2001 and appointment of my son Naresh Babu. Thanking you for this act of kindness.” 5. I need not go in detail in order to find out whether this application of petitioner No. 1 can be construed as conditional or not for the reason that a similar application having already been considered by Apex Court in Food Corporation of India and another v. Nizamuddin and another, 2010(2) ESC 280 (SC), wherein considering a similar application the Apex Court held that it is not a conditional one. Para 10 of the judgment reads as under: “10. In this case the offer of voluntary appointment in the application was neither conditional nor interlinked. The words used are “I therefore request that the management may kindly retire me on medical grounds and at the same time give appointment to my son.” It merely contains two requests (that is permission to retire voluntarily on medical grounds and request for appointment for his son), without any interlinking. Nor was the voluntary retirement conditional upon giving employment to his son. Therefore, Ramkesh Yadav will not apply. Each request had to be considered on its own merits with reference to the rules/scheme applicable. When so done it is clear that the first respondent will not be entitled to compassionate appointment.” 6. I have also considered a similar matter in Civil Misc. Writ Petition No. 34434 of 2007, Mohit Kumar and another v. Senior Regional Manager and another, decided on 5.1.2011. 7. In view of above the application of petitioner No. 1 since cannot be held to be a conditional one, it cannot be said that since petitioner’s No. 1 retirement on medical ground has been accepted, it is incumbent upon the authorities to provide appointment to his son, i.e., petitioner No. 2. 8. Sri B.N. Singh, learned counsel for the petitioners further referring to paras 23 and 24 of the writ petition submitted that in similar circumstances, where similar applications were submitted, the respondents have given appointment to the wards of retiring employees but the said treatment has been denied to petitioners. 9. 8. Sri B.N. Singh, learned counsel for the petitioners further referring to paras 23 and 24 of the writ petition submitted that in similar circumstances, where similar applications were submitted, the respondents have given appointment to the wards of retiring employees but the said treatment has been denied to petitioners. 9. Suffice it it mention here that application to provide appointment as a result of acceptance of retirement is available only when application is conditional and not otherwise. Merely because in some other matter some error or illegality has been committed by respondents that will not give a cause of action to petitioners to claim parity in the matter of such illegality. If some benefit has been given by the respondents to some persons illegally or contrary to the law, no mandamus can be issued to the respondents to commit same illegality again, inasmuch as, the right of equality is not extended to claim parity in illegal acts since it is well settled legal position that two wrongs will not make one right. The Apex Court in the case of State of Bihar and others v. Kameshwar Prasad Singh and another, AIR 2000 SC 2306 ; Union of India and another v. International Trading Co. and another, AIR 2003 SC 3983 ; Lalit Mohan Pandey v. Pooran Singh and others, AIR 2004 SC 2303 ; M/s Anand Buttons Ltd. etc. v. State of Haryana and others, AIR 2005 SC 565 ; and Kastha Niwarak G. S. S. Maryadit, Indore v. President, Indore Development Authority, AIR 2006 SC 1142 , has clearly held that Article 14 has no application in such cases. 10. In view of aforesaid discussion, I find no merit in this petition. It is accordingly dismissed. No costs. —————