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PETITIONER: HIMACHAL ROAD TRANSPORT CORPORATION.

       Vs.

RESPONDENT: SHRI DINESH KUMAR

DATE OF JUDGMENT:       07/05/1996

BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) JEEVAN REDDY, B.P. (J)

CITATION:  1996 SCC  (4) 560        JT 1996 (5)   319  1996 SCALE  (4)395

ACT:

HEADNOTE:

JUDGMENT:                             WITH                 CIVIL APPEAL NO 7846 OF 1996        (Arising out of S.L.P. (C) No. 16027 of 1995) Himachal Road Transport Corporation . V. Ms. Parveen Kumari                       J U D G M E N T PARIPOORNAN. J.      Special leave granted. 2. The  Himachal Pradesh  Road Transport  Corporation is the appellant in  both the appeals. One Shri Dinesh Kumar is the respondent  in   the  appeal  filed  against  Special  Leave Petition (C) No. 15998 of 1995 and one Ms. Parveen Kumari is the respondent  in the  appeal filed  against Special  Leave Petition (C)  No.  16027  of  1995.  In  this  judgment  the appellant will  be referred to as the ’Corporation’, and the respondents will be mentioned by their names. 3. The  Corporation has  filed the appeals against the order of Himachal  Pradesh Administrative  Tribunal  in  O.A.  No. 423/95 dated  27.3.1995 in the case of Shri Dinesh Kumar and against the  order passed  in O.A. No.3320/94 dated 6.3.1995 in the  case of  Ms. Parveen  Kumari. Both  the appeals  are connected. They  involve consideration of a common question, namely, whether the respondents are entitled to be appointed as clerks on regular basis forthwith under the ’kith and kin policy’. We  should hasten  to add  that the validity of kth and kin  policy was not questioned before us. So, we are not adjudicating the larger aspect in these appeals. 4. We  heard counsel.  The minimal  facts necessary  for the disposal of the appeals are as follows:-      The  respondents   in  both  the  appeals  applied  for appointment as  clerks under  kith and  kin  policy  in  the Corporation. Shri  Dinesh Kumar  is son  of late  Shri  Hari Krishan,  who   was  serving   as  an   Accountant  in   the Corporation. Shri  Hari Krishan  died on  14.4.1990, leaving

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behind him  his wife  and three  sons. The  Corporation  has settled and  paid all  dues to  the family  by way of family pension, gratuity, provident fund, leave encashment, etc. In addition thereto one of the dependants of deceased Shri Hari Krishan, Shri  Dinesh Kumar,  the respondent,  was  provided with a  part-time job  on Rs.  600/- per  month in Bilaspur. Earlier, he  was offered  the post of a conductor on regular basis, but  he declined  to accept the same. Since there was no vacancy  in the  clerical  post  Shri  Dinesh  Kumar  was appointed on  contract  basis  as  a  clerk.  He  moved  the Administrative Tribunal  and prayed  for his  appointment as clerk on  regular basis  with immediate effect. The Tribunal granted the  prayer with  a  condition  that  the  applicant should qualify the typing test within one year. The order of the Tribunal is dated 27.3.1995.      The respondent  Ms. Parveen  Kumari is  the daughter of late Shri  Om Prakash,  who was  serving as  a driver in the Corporation. He  died on 2.11.1991. The respondent submitted application seeking  employment under  kith and  kin policy. The deceased  left behind  him his  wife and  daughter.  The Corporation settled  the monetary  compensation due  to  the deceased by way of family pension, gratuity, provident fund, leave encashment,  etc. Under  the scheme of appointment for kith and  kins of  deceased the  Corporation took  a lenient view and  approved the case of the respondent for employment for the  post of clerk on 27.5.1993 Her name was included in the waiting panel. 5. The  Corporation has  filed Annexure-I showing details of the candidates  waiting for  appointments under kith and kin policy for  the post  of clerk.  Shri Dinesh Kumar is serial number 27  and Ms.  Parveen Kumari,  Is  serial  number  45. According to  the Corporation,  due to high incidents of bus accidents  in   the  hill  roads,  The  death  rate  in  the Corporation is  very high  whereas the availability of posts are comparatively  lesser. It is further stated that list of dependants and  claimants for  appointment on  kith and  kin policy are  very large.  Since there  are only limited posts the Corporation  is not  in a position to accommodate all of them in  the permanent  posts. It takes some time to provide the persons, who are entitled under the kith and kin policy, with suitable Jobs. It is stated with reference to Annexure- I that  serial numbers  1 to  11 were absorbed as clerk-cum- typists  during   1994  on  regular  basis.  20  candidates, appearing at  serial numbers  12, 13, 15,16, 17, 18, 20, 21, 22, 23,  24, 25,  26, 28,  30, 31,  33, 34,  and Shri Dinesh Kumar were  absorbed on  contract basis as clerk-cum-typists in 1995.  Shri Dinesh  Kumar did  not accept  the post  of a regular conductor  offered to  him earlier on 31.12.1994. So he was  appointed on  part-time basis  as  clerk-cum-typist. According to  the Corporation  Shri Dinesh  Kumar will  have priority number 16 for appointment on regular basis. 6. Ms.  Parveen Kumari  is in  waiting panel of kith and kin candidates awaiting  employment. In  the  waiting  list  her serial number  is 45.  As many  as 35  candidates in waiting panel have  been absorbed  on contract  basis.  Ms.  Parveen Kumari is  serial number 10 in the waiting panel. She has to wait for  her  chance.  She  applied  to  the  Tribunal  for appointment as  a clerk.  The Corporation pleaded that since there is  no vacancy  and her  place is  number  10  in  the waiting list  for being  appointed even  on part-time basis, she has to wait. The Tribunal, by order dated 6.3.1995, held that even  if there  is no  suitable post for appointment, a supernumerary post  will be created to appoint the applicant and the  respondent Ms.  Parveen Kumari  should be appointed against that post.

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7.  In   both  the  cases  the  Tribunal  has  directed  the Corporation to  appoint the respondents as clerks on regular basis. According  to the  Corporation,  no  vacant  post  is available to absorb the respondents immediately on permanent basis. Shri  Dinesh Kumar  is working  on contract basis and his priority  number to he appointed on regular basis is 16. Ms. Parveen  Kumari is  in waiting  list, to be appointed on contract basis,  and serial  number  is  10  in  that  list. Counsel for the Corporation submitted that in the absence of available posts  the Administrative Tribunal acted illegally in directing  that the  respondents should  be appointed  on permanent basis forthwith. In the case of Ms. Parveen Kumari the  Tribunal  has  gone  further  and  has  stated  that  a supernumerary post  may be  created to accommodate her to be appointed as a clerk. 8.  We   are  of   the  view   that  the   Himachal  Pradesh Administrative  Tribunal   acted   illegally   and   without jurisdiction, in  passing the  orders  dated  27.3.1995  and 6.3.1995 and  in directing that the respondents be appointed in the regular clerical posts forthwith. 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 tc appoint persons when vacancies are not  available.   If  persons  are  so  appointed  and  paid salaries, it will be a mere misuse of public funds, which is totally unauthorised.  Normally, even  it the Tribunal finds that a  person is  qualified to be appointed to a 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. We are of the view that directions given by the Administrative Tribunal,  in these  two appeals, are totally unauthorised and  illegal. We are, therefore, constrained to set aside  the orders  appealed against. We hereby do so and allow the appeals. There shall be no order as to costs. 9. Before  concluding, we should record the factual position conceded by the counsel appearing for the Corporation. It is stated that  Shri Dinesh  Kumar as  serial number  16 in the priority list  for regular appointment as clerk and that Ms. Parveen Kumari  is serial  number 10  for appointment in the waiting panel  for the  post of  clerk on contract basis. As and when  vacancies arise for appointment to such posts, the Corporation  shall   conform  to  the  priorities  mentioned hereinabove in  the matter  of filling up the posts, subject to  the  fulfillment  of  necessary  qualifications  by  the candidates concerned.