Full Judgment Text
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PETITIONER:
HINDUSTAN AERONAUTICS LTD.
Vs.
RESPONDENT:
SMT. A. RADHIKA THIRUMALAI
DATE OF JUDGMENT: 09/10/1996
BENCH:
S.C. AGRAWAL, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.C. AGARWAL, J. :
Special Leave granted.
Hindustan Aeronautics Ltd., appellant herein, is a
public sector undertaking having a number of units in the
country and one such unit is located at Hyderabad. The
appellant has made rules providing for employment on
compassionate grounds. Rule 78.1 prescribes that one of the
dependents of the deceased employee could be considered for
appointment in the company, in preference to other
applicants without being sponsored by the employment
exchange. In Rule 78.3 it is, however, laid down that the
General Managers are empowered to effect such appointment
depending upon available ability of vacancies in the
respective staffing cadre/authorization. A.S. Thirumalai,
the husband of the respondent, was employed as Senior
Inspector [Quality Control] in the Hyderabad Unit of the
appellant. He died on August 10, 1987. After his death the
respondent submitted an application for appointment on
compassionate grounds. Since a number of other applications
had been received earlier for such appointment on
compassionate grounds the name of the respondent was put on
the wait list of candidates who had applied for employment
on compassionate grounds. Her name was at Sl.No. 22 in the
said wait list. On account of a ban having been imposed on
further appointments in the various units of the appellant
no appointment could be made on compassionate grounds out of
the said wait list. The respondent filed a writ petition
[W.P.No. 12896 of 1991] in the Andhra Pradesh High Court
praying for a writ of mandamus directing the appellant to
provide suitable permanent employment to the respondent by
creating a supernumerary post. The writ petition was opposed
by the appellant on the ground that no vacancy was available
since there was a ban on fresh recruitment and, therefore,
appointment could not be given to the respondent. The
learned Single Judge of the High Court by judgment dated
July 21, 1995 issued a writ of mandamus directing the
appellant to consider the candidature of the respondent on
compassionate grounds to any suitable post in Class III or
Class IV only and, if found suitable and eligible to appoint
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her to such post within a period of two months. The learned
Single Judge rejected the submission urged on behalf of the
appellant that since there was a ban on further recruitment
the appointment could not be given on compassionate grounds
to the respondent. Reliance was placed on the observations
contained in the decision of this Court in Smt. Sushma
Gosain & Ors v. Union of India & Ors., 1989 (40 SCC 468. The
appeal filed by the appellant against the judgment of the
learned Single Judge was dismissed by the Division Bench of
the High Court by judgment dated April 26, 1996. It was held
that appointment on compassionate grounds is given
notwithstanding whether there is any vacancy in the regular
service or cadre or post, by creating supernumerary post and
continuing such supernumerary appointment until a regular
vacancy is made available and the dependent of the bread
winner is brought to the main stream of the service. Feeling
aggrieved by the said judgment of the Division Bench of the
High Court the appellant has filed this appeal.
Shri A.N. Jayaram, the learned senior counsel appearing
for the appellant, has submitted that the appellant is a
high-tech Government company essentially attempting to meet
defence requirements of aircrafts and that during the last
10 years, owing to change of policies, there is a serious
decline in the work-order position and as a result the
appellant is compelled to progressively decrease its
manpower by placing a ban on fresh recruitment and offering
incentives for voluntary retirement. It has been pointed out
that during the period April 1, 1987 to April 1, 1996 there
has been a progressive reduction of the workforce including
Class III and IV employees in all the units including the
Hyderabad unit. The submission is that the High Court was in
error in holding that even when there is no vacancy
available and there is a ban on fresh recruitment it was
incumbent on the appellant to give appointment on
compassionate grounds to the respondent. Shri Jayaram has
place reliance on the decisions of this Court in Life
Insurance Corporation of India vs. Asha Ramchandra Ambekar &
Anr., 1994 (2) SCC 718; Umesh Kumar Nagpal vs. State of
Haryana & Ors, 1994 (4) SCC 138; State of Haryana vs Naresh
Kumar Bali,1994 (4) SCC 448 and Himachal Road Transport
Corpn. vs. Shri Dinesh Kumar, 1996 (4) SCALE 395.
Shri Nageshwara Rao, the learned counsel appearing for
the respondent, has supported the impugned judgment of the
High Court and has submitted that since appointments have
admittedly been made by the appellant on compassionate
grounds in the medical department there was no reason why
the respondent could be given an appointment on
compassionate grounds in that department.
In Umesh Kumar Nagpal [Supra] this Court has pointed
out that appointment in public services on compassionate
ground has been carved out as an exception, in the interest
of justice, to the general rule that appointments in the
public services should be made strictly on the basis of open
invitation of applications and merit and no other mode of
appointment nor any other consideration is permissible. A
compassionate appointment is made out of pure humanitarian
consideration taking into consideration the fact that unless
some source of livelihood is provided the family would not
be able to make both ends meet and the whole object of
granting such appointment is to enable the family to tide
over the sudden crisis. This court has also laid down that
an appointment on compassionate ground has to be given in
accordance with the relevant rules and guidelines that have
been framed by the concerned authority and no person can
claim appointment on compassionate grounds in disregard of
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such rule or such guideline [see : Life Insurance
Corporation vs. Asha Ramchandra Ambekar(supra)].
In the appellant company appointment on compassionate
grounds is governed by rules. Under Rule 78.1 provision is
made that one of the dependants of the deceased employee
could be considered for appointment in the company in
preference to other applicants without being sponsored by
employment exchange. But in Rule 78.3 it has been laid down
that such appointment would be made depending upon the
availability of vacancies in the respective staffing
cadre/authorization. In other words, an appointment on
compassionate grounds can be made only if a vacancy is
available. According to the appellant no vacancy is
available since there is surplus labour and the policy of
the appellant is to progressively reduce the workforce and
with that end in view a ban has been imposed on fresh
recruitment and the appellant is also offering incentives
for voluntary retirement. The learned Single Judge of the
High Court was of the view that in spite of such a ban on
fresh recruitment it was obligatory for the appellant to
make appointment on compassionate grounds. The learned
Single Judge has placed reliance on the following
observations of this Court in Sushma Gosain [supra] at
p.470:
"We consider that it must be stated
unequivocally that in all claims
for appointment on compassionate
grounds, there should not be any
delay in appointment. The purpose
of providing appointment on
compassionate ground is to mitigate
the hardship due to death of the
bread earner in the family. Such
appointment should, therefore, be
provided immediately to redeem
the family in distress. It is
improper to keep such case pending
for years. If there is no suitable
post for appointment supernumerary
post should be created to
accommodate the applicant."
In Umesh Kumar Nagpal [supra] it has been indicated
that the decision of Sushma Gosain [supra] has been
misinterpreted to the point of distortion and that the
decision does not justify compassionate appointment as a
matter of course. The observations on which reliance has
been placed by the learned Single Judge in Sushma Gosain
[supra] have to be read in the light of the facts of that
particular case. In that case the appellant, Smt. Sushma
Gosain, after the death of her husband, who was working as
Storekeeper in the Department of Director General Border
Road, sought appointment as Lower Division Clerk on
compassionate grounds. In January, 1983 she was called for
the written test and later on for interview and had passed
the trade test. She was, however, not appointed till
January, 1985 when a ban was imposed on appointment on
ladies in the said Department. Having regard to these facts
this Court has observed :
"........... Sushma Gosain made an
application for appointment as
Lower Division Clerk as far back in
November 1982. She had then a right
to have her case considered for
appointment on compassionate ground
under the aforesaid Government
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memorandum. In 1983, she passed the
trade test and the interview
conducted by the DGBR. There is
absolutely no reason to make her
to wait till 1983 when the ban on
appointment of ladies was imposed.
The denial of appointment is
patently arbitrary and cannot be
supported in any view of the
matter." [p.470].
In the instant case the ban on fresh recruitment was in
force when the respondent submitted the application for
appointment on compassionate grounds. The decision in Sushma
Gosain [supra] has, therefore, no application in the facts
of this case.
A situation similar to the present case arose in
Himachal Road Transport Corporation vs Dinesh Kumar (supra).
In that case this Court was dealing with two cases where
applications had been submitted by the dependents of the
deceased employees for appointment on compassionate grounds
and both of them were placed on the waiting list and had not
been given appointment. They approached the Himachal Pradesh
Administrative Tribunal and the Tribunal directed the
Himachal Road Transport Corporation to appoint both of them
as Clerk on regular basis. Setting aside the said decision
of the Tribunal this Court has observed :
"..... In the absence of a vacancy
it is not open to the Corporation
to appoint a person to any post.
It will be a gross abuse of the
powers of a public authority to
appoint persons when vacancies are
not available. If persons are so
appointed and paid salaries, it
will be mere misuse of public
funds, which is totally
unauthorised. Normally, even if the
Tribunal finds that a person is
qualified to be appointed to post
under the kith and kin policy, the
Tribunal should only give a
direction to the appropriate
authority to consider the case of
the particular applicant, in the
light of the relevant rules and
subject to the availability of the
post. It is not open to the
Tribunal either to direct the
appointment of any person to a post
or direct the concerned authorities
to create a supernumerary post and
then appoint a person to such a
post."
[p.397]
As regards the submission of Shri Nageshwara Rao that
the respondent could be given compassionate appointment in
the medical department it may be stated that there is
nothing to show that any appointment on compassionate
ground has been made in the medical department after the
respondent had submitted her application for such
appointment. It cannot, therefore, be said that any vacancy
is available for making such appointment in that department.
All that can be said is that in the event of the appellant
making fresh appointment on a Class III or Class IV post the
application of the respondent for appointment on such post
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shall be given due consideration in accordance with her
ranking in the waiting list.
For the reasons aforementioned we are unable to uphold
the impugned judgment of the High Court. The appeal is
accordingly allowed, the judgment of the High Court dated
April 26, 1996 in the writ Appeal No. 103 of 1996 as well as
the judgment of the learned single judge dated July 21, 1995
in W.P. No. 12896 of 1991 are set aside and the writ
petition filed by the respondent is dismissed. No order as
to costs.