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Hindustan Aeronautics Ltd. v. A. Radhika Thirumalai (Smt) .
Factual and Procedural Background
Hindustan Aeronautics Ltd. (HAL) operates various units across India, including one in Hyderabad. Under HAL Rule 78.1, a dependant of a deceased employee may be considered for compassionate appointment, but Rule 78.3 restricts such appointment to the availability of vacancies in the relevant cadre.
A.S. Thirumalai, employed as Senior Inspector (Quality Control) at the Hyderabad unit, died on 10-8-1987. His widow (the respondent) applied for compassionate appointment and was placed at Sl. No. 22 on a waiting list. Before her turn could arise, HAL imposed a blanket ban on fresh recruitment due to declining work orders and an ongoing effort to reduce manpower.
The respondent filed W.P. No. 12896 of 1991 in the Andhra Pradesh High Court, seeking a mandamus to HAL to create a supernumerary post and appoint her. A learned Single Judge allowed the petition on 21-7-1995, directing HAL to consider and, if found suitable, appoint her within two months. A Division Bench dismissed HAL’s writ appeal on 26-4-1996, reiterating that a supernumerary post could be created for compassionate appointment. HAL thereafter appealed to the Supreme Court.
Legal Issues Presented
- Whether HAL is obliged to grant compassionate appointment when a ban on fresh recruitment is in force and no regular vacancy exists.
- Whether a court can direct a public employer to create a supernumerary post solely to accommodate a request for compassionate appointment.
Arguments of the Parties
Appellant (HAL)
- HAL is a high-technology defence enterprise facing reduced work orders, necessitating a progressive decrease in manpower through a recruitment ban and voluntary retirement schemes.
- Rule 78.3 permits compassionate appointment only “depending upon availability of vacancies”; no such vacancies exist.
- The High Court erred in relying on Sushma Gosain v. Union of India; subsequent Supreme Court cases have clarified that compassionate appointment cannot override vacancy requirements.
Respondent
- HAL has allegedly granted compassionate appointments in its medical department; therefore, a similar benefit should be extended to the respondent.
- The High Court correctly applied the humanitarian object of compassionate appointment to mitigate the respondent’s hardship.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sushma Gosain v. Union of India (1989) 4 SCC 468 | Advocated prompt compassionate appointment and, if necessary, creation of supernumerary posts. | Distinguished; the Court held the precedent was fact-specific and not applicable because the recruitment ban pre-dated the respondent’s application. |
| LIC v. Asha Ramchhandra Ambekar (1994) 2 SCC 718 | Compassionate appointment must conform strictly to governing rules and guidelines. | Relied on to emphasise that Rule 78.3 bars appointment in the absence of vacancies. |
| Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138 | Clarified the exceptional and rule-bound nature of compassionate appointment; cautioned against misreading Sushma Gosain. | Cited to underscore that compassionate appointment cannot be a matter of course and must respect vacancy limitations. |
| State of Haryana v. Naresh Kumar Bali (1994) 4 SCC 448 | The opinion does not elaborate on the specific principle. | Referenced by counsel; not specifically analysed by the Court in its reasoning. |
| Himachal Road Transport Corp. v. Dinesh Kumar (1996) 4 SCC 560 | Held that appointments cannot be ordered when no vacancies exist and tribunals cannot direct creation of supernumerary posts. | Applied as a direct authority to overturn the High Court’s directive to create a supernumerary post. |
Court's Reasoning and Analysis
The Supreme Court began by reiterating the settled law that compassionate appointment is an exception to the normal recruitment process and must strictly follow the employer’s rules. Rule 78.3 of HAL unequivocally requires vacancy availability. The Court accepted HAL’s uncontested assertion that a recruitment ban was in place, reflecting surplus labour and an ongoing reduction in workforce.
Addressing the High Court’s reliance on Sushma Gosain, the bench explained that Umesh Kumar Nagpal had already cautioned against over-extending that decision, which was confined to its unique facts where the recruitment ban was imposed years after the applicant had cleared all tests. In contrast, the ban here pre-existing the respondent’s request rendered Sushma Gosain inapposite.
The Court then drew support from Himachal Road Transport Corp. v. Dinesh Kumar, emphasising that public authorities cannot appoint individuals, or create supernumerary posts, in the absence of vacancies because doing so would constitute misuse of public funds.
Finally, the Court rejected the respondent’s plea for appointment in the medical department, noting the absence of evidence that any compassionate appointments were made there after her application. Nonetheless, the Court observed that her candidature would remain on the waiting list for consideration against any future Class III or Class IV vacancies.
Holding and Implications
APPEAL ALLOWED; High Court judgments set aside; respondent’s writ petition dismissed.
Immediate consequence: HAL is under no obligation to create a supernumerary post or otherwise appoint the respondent until a regular vacancy arises, though her position on the waiting list endures. Broader implication: the decision reaffirms that compassionate appointments cannot override explicit vacancy requirements and that courts may not compel public employers to create posts for this purpose, thereby reinforcing fiscal discipline in public employment.
S.C Agrawal, J.— Special leave granted.
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 dependants 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 (1989) 4 SCC 468, (1989) 11 ATC 878. 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 dependant 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.
3. 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 aircraft 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 1-4-1987 to 1-4-1996 there has been a progressive reduction of the work force including Class III and Class 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 placed reliance on the decisions of this Court in LIC v. Asha Ramchhandra Ambekar (1994) 2 SCC 718, (1994) 27 ATC 174; Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138, (1994) 27 ATC 537; State of Haryana v. Naresh Kumar Bali (1994) 4 SCC 448, (1994) 27 ATC 611 and Himachal Road Transport Corpn. v. Dinesh Kumar (1996) 4 SCC 560, (1996) 4 Scale 395.
4. 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 not be given an appointment on compassionate grounds in that department.
5. In Umesh Kumar Nagpal (1994) 4 SCC 138, (1994) 27 ATC 537 this Court has pointed out that appointment in public services on compassionate ground has been carved out as an exception, in the interests 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 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 (1994) 2 SCC 718, (1994) 27 ATC 174).
6. 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 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 (1989) 4 SCC 468, (1989) 11 ATC 878 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 (1994) 4 SCC 138, (1994) 27 ATC 537 it has been indicated that the decision of Sushma Gosain (1989) 4 SCC 468, (1989) 11 ATC 878 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 (1989) 4 SCC 468, (1989) 11 ATC 878 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:
“… 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 (1989) 4 SCC 468, (1989) 11 ATC 878 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 (1996) 4 SCC 560, (1996) 4 Scale 395. In that case this Court was dealing with two cases where applications had been submitted by the dependants 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 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.
11. 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 26-4-1996 in Writ Appeal No. 103 of 1996 as well as the judgment of the learned Single Judge dated 21-7-1995 in WP No. 12896 of 1991 are set aside and the writ petition filed by the respondent is dismissed. No order as to costs.
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