Case Note & Summary
The dispute arose from a claim for compassionate appointment following the death of an employee of Hindustan Aeronautics Ltd., a public sector undertaking with a unit at Hyderabad. The respondent, widow of A.S. Thirumalai who was a Senior Inspector (Quality Control) and died on August 10, 1987, applied for appointment on compassionate grounds under the company's rules. Rule 78.1 gave preference to dependants of deceased employees without employment exchange sponsorship, but Rule 78.3 empowered General Managers to make such appointments only depending upon availability of vacancies in the staffing cadre or authorization. After her application, the respondent's name was placed at serial number 22 in a wait list of candidates seeking compassionate appointment. The company had imposed a ban on fresh appointments due to a progressive reduction in workforce and surplus labour, so no compassionate appointment was made from the wait list. The respondent filed Writ Petition No. 12896 of 1991 in the Andhra Pradesh High Court seeking a mandamus to provide her suitable permanent employment by creating a supernumerary post. A learned Single Judge by judgment dated July 21, 1995 directed the appellant to consider her candidature for any suitable Class III or Class IV post within two months. The Division Bench dismissed the appellant's appeal on April 26, 1996, holding that compassionate appointment could be given notwithstanding absence of regular vacancy by creating a supernumerary post until a regular vacancy became available. The appellant challenged this before the Supreme Court. The appellant argued before the Supreme Court that the High Court erred in directing appointment when no vacancy existed due to a ban on recruitment and surplus manpower; it relied on Life Insurance Corporation of India v. Asha Ramchandra Ambekar, Umesh Kumar Nagpal v. State of Haryana, State of Haryana v. Naresh Kumar Bali, and Himachal Road Transport Corpn. v. Dinesh Kumar. The respondent supported the High Court and contended that since appointments had been made in the medical department on compassionate grounds, she could be appointed there. The Supreme Court analyzed compassionate appointment as an exception to the merit-based norm, made on humanitarian grounds to tide over sudden crisis, but held that it must be in accordance with governing rules. Under Rule 78.3, appointment could be made only if a vacancy existed. The Court found that no vacancy was available due to ban; distinguished Sushma Gosain because there the applicant had passed tests before a ban, while here the ban was in force when the respondent applied. Following Himachal Road Transport Corpn. v. Dinesh Kumar, the Court held that in absence of a vacancy, a public authority cannot appoint and directing creation of supernumerary post is a gross abuse of power and misuse of public funds. On the medical department argument, the Court observed there was nothing to show any appointment made there after the respondent's application, so no vacancy could be assumed. The appeal was allowed, the judgments of the Division Bench and Single Judge were set aside, and the writ petition was dismissed; no order as to costs. The Court clarified that if the appellant makes fresh appointment on a Class III or Class IV post, the respondent's application shall be given due consideration according to her wait-list ranking.
Headnote
A) Service Law - Compassionate Appointment - Availability of Vacancy - Hindustan Aeronautics Ltd. Service Rules, Rule 78.3 - Compassionate appointment under company rules could only be made if a vacancy existed, and the General Managers were empowered to effect such appointment depending upon availability of vacancies in staffing cadre/authorization. The appellant had imposed a ban on fresh recruitment due to surplus labour and progressive reduction of workforce, so no vacancy was available. The High Court erred in directing appointment despite absence of vacancy; Held that no compassionate appointment could be ordered in absence of vacancy under Rule 78.3 (Paras not mentioned) B) Service Law - Compassionate Appointment - Supernumerary Post Creation - Hindustan Aeronautics Ltd. Service Rules, Rule 78.3 - The High Court had directed that appointment could be made by creating a supernumerary post and continuing it until a regular vacancy arose. The Supreme Court relied on Himachal Road Transport Corpn v. Dinesh Kumar and held that in the absence of a vacancy it is not open to a public authority to appoint a person to any post, and directing creation of supernumerary post amounts to gross abuse of power and misuse of public funds. Held that no direction to create supernumerary post can be issued when no vacancy exists (Paras not mentioned) C) Service Law - Compassionate Appointment - Interpretation of Precedent - Sushma Gosain v. Union of India, 1989 (4) SCC 468 - The learned Single Judge relied on observations in Sushma Gosain about immediate appointment and creation of supernumerary post. The Supreme Court clarified that Sushma Gosain had been misinterpreted and was distinguishable because in that case the applicant had passed tests before a ban was imposed, whereas in the present case the ban was in force when the respondent applied. Held that Sushma Gosain does not justify compassionate appointment as a matter of course and has no application (Paras not mentioned) D) Service Law - Compassionate Appointment - Nature and Scope - General principles under Hindustan Aeronautics Ltd. Service Rules - Compassionate appointment is an exception to the general rule that appointments in public services should be made strictly on the basis of open invitation and merit, and is granted out of pure humanitarian consideration to enable the family to tide over sudden crisis. However, such appointment must be in accordance with relevant rules and guidelines, and no person can claim appointment in disregard of those rules. Held that compassionate appointment cannot be claimed as a matter of right when the applicable rule requires vacancy (Paras not mentioned) E) Service Law - Compassionate Appointment - Medical Department Vacancy and Future Consideration - Hindustan Aeronautics Ltd. Service Rules, Rule 78.1 and Rule 78.3 - The respondent argued that appointments had been made in the medical department on compassionate grounds, so a vacancy existed there. The Court found no evidence that any appointment on compassionate ground was made in the medical department after the respondent submitted her application. The Court directed that if the appellant makes fresh appointment on a Class III or Class IV post, the respondent's application shall be given due consideration in accordance with her ranking in the waiting list; Held that no immediate vacancy was shown but future consideration subject to vacancy and ranking was warranted (Paras not mentioned)
Issue of Consideration
Whether compassionate appointment can be granted when no vacancy exists and there is a ban on fresh recruitment; whether High Court can direct creation of supernumerary post for compassionate appointment; whether the decision in Sushma Gosain justified the direction for appointment; whether respondent could be appointed in medical department based on alleged appointments
Final Decision
Appeal allowed; High Court judgments dated April 26, 1996 in Writ Appeal No. 103 of 1996 and July 21, 1995 in W.P. No. 12896 of 1991 set aside; writ petition dismissed; no order as to costs; if appellant makes fresh appointment on Class III or IV post, respondent's application to be considered per wait-list ranking.
Law Points
- Compassionate appointment is an exception to merit-based appointment
- must conform to applicable service rules
- Rule 78.3 requires vacancy for compassionate appointment
- no vacancy
- no appointment
- no direction to create supernumerary post in absence of vacancy
- Sushma Gosain distinguishable
- future consideration subject to vacancy and wait-list ranking
