Case Note & Summary
The dispute arose out of two original applications before the Himachal Pradesh Administrative Tribunal concerning appointments under the 'kith and kin policy' of the Himachal Road Transport Corporation. The respondents, Dinesh Kumar and Parveen Kumari, were dependants of deceased employees of the Corporation. Dinesh Kumar's father, Hari Krishan, an accountant, died on 14 April 1990; Parveen Kumari's father, Om Prakash, a driver, died on 2 November 1991. Both families received monetary benefits including family pension, gratuity, provident fund and leave encashment. The Corporation had also provided Dinesh Kumar a part-time job and later appointed him on contract basis as a clerk after he declined an offer for a regular conductor post. Parveen Kumari's case was approved for employment as a clerk on 27 May 1993 and her name was placed on a waiting panel. The Corporation maintained a large waiting list under the kith and kin policy due to high death rates and limited posts. Dinesh Kumar was at serial number 27 in the overall waiting list and Parveen Kumari at serial number 45. Several candidates were absorbed as clerk-cum-typists on regular or contract basis according to seniority. Dinesh Kumar was given priority number 16 for regular appointment, and Parveen Kumari was serial number 10 in the waiting panel for contract appointment. The Tribunal, by orders dated 27 March 1995 and 6 March 1995, directed the Corporation to appoint both respondents as clerks on regular basis and further directed creation of a supernumerary post for Parveen Kumari if no suitable post was available. The Corporation appealed to the Supreme Court, contending that no vacancies existed and that the Tribunal exceeded its jurisdiction. The Supreme Court considered whether the Administrative Tribunal could direct regular appointment without vacancy and direct creation of a supernumerary post. The Court held that in the absence of a vacancy, a public authority cannot appoint a person to any post, as it would be a gross abuse of power and a misuse of public funds. The Tribunal's role is limited to directing consideration of the applicant's case in light of relevant rules and subject to availability of posts. It cannot direct appointment or creation of supernumerary posts. Accordingly, the Court set aside both orders and allowed the appeals, with no order as to costs. The Court recorded that Dinesh Kumar was at serial number 16 in the priority list for regular clerk appointment and Parveen Kumari was at serial number 10 in the waiting panel for contract appointment, and directed the Corporation to conform to these priorities as and when vacancies arise, subject to fulfilment of necessary qualifications.
Headnote
A) Administrative Law - Judicial Review of Tribunal Orders - Appointment to Public Post - Not mentioned - The Himachal Pradesh Administrative Tribunal directed the Corporation to appoint respondents as clerks on regular basis and to create a supernumerary post for one respondent despite absence of vacancies - The Supreme Court held that in absence of vacancy a public authority cannot appoint and that such direction is illegal and without jurisdiction; the Tribunal may only direct consideration of the applicant's case subject to rules and availability of post - Held that directions to appoint or create supernumerary post are unauthorised and illegal (Paras 7-8). B) Service Law - Kith and Kin Policy - Priority and Waiting List - Not mentioned - The Court recorded factual concessions on priority positions: Dinesh Kumar at serial 16 for regular clerk appointment and Parveen Kumari at serial 10 for contract waiting panel - Held that as and when vacancies arise, the Corporation shall conform to these priorities subject to fulfillment of necessary qualifications by candidates (Para 9).
Issue of Consideration
Whether the respondents are entitled to be appointed as clerks on regular basis forthwith under the 'kith and kin policy' and whether the Administrative Tribunal can direct the Corporation to appoint them on regular basis or create supernumerary posts in the absence of vacancies
Final Decision
Appeals allowed; orders of Himachal Pradesh Administrative Tribunal dated 27.3.1995 and 6.3.1995 set aside; no order as to costs. Tribunal's directions directing regular appointment and creation of supernumerary post held illegal and without jurisdiction. Corporation directed to consider respondents for appointment as per their priority numbers (Dinesh Kumar serial 16 for regular clerk; Parveen Kumari serial 10 for contract waiting panel) as and when vacancies arise, subject to qualifications.
Law Points
- In absence of vacancy
- public authority cannot appoint person to any post
- appointment without vacancy is gross abuse of power and misuse of public funds
- Administrative Tribunal can only direct consideration of applicant's case subject to relevant rules and availability of post
- Tribunal cannot direct appointment or creation of supernumerary post
- kith and kin policy is subject to availability of vacancies and priority lists
