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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.