Case: Hindustan Aeronautics Vs. A. Radhika Thirumalai

2. 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 availability 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 10-8-1987. 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 (WP 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 21-7-1995 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 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 Sushma Gosain v. Union of India. 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 26-4-1996. 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 breadwinner is brought to the mainstream of the service. Feeling aggrieved by the said judgment of the Division Bench of the High Court the appellant has filed this appeal

Reasoning:
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