Case: Hindustan Aeronautics Vs. A. Radhika Thirumalai

to be given in accordance with the relevant rules and guidelines that have been framed by the authority concerned and no person can claim appointment on compassionate grounds in disregard of such rule or such guideline (See : LIC v. Asha Ramchhandra Ambekar) 6. In the appellant-Company appointment on compassionate grounds is governed by rules. Under Rule 78.1 provision is made 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. 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 work force 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 at p. 470 : (SCC para 9) "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." * 7. In Umesh Kumar Nagpal it has been indicated that the decision of Sushma Gosain 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 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 of ladies in the said Department. Having regard to these facts this Court has observed : (SCC p. 470, para 8). "... 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 memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her wait till 1985 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." * 8. 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 has, therefore, no application in the facts of this case. 9. A situation similar to the present case arose in Himachal Road Transport Corpn. v. Dinesh Kumar. 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 : (SCC p. 563, para 10). "... 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 a mere misuse of public funds, which is totally unauthorised. Normally, even if 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 authorities concerned to create a supernumerary post and then appoint a person to such a post." * 10. 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 shall be given due consideration in accordance with her ranking in the waiting list.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]8. 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 has, therefore, no application in the facts of thisAs 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 shall be given due consideration in accordance with her ranking in the waiting list