HIMACHAL ROAD TRANSPORT CORPORATIONversusSH. DINESH KUMAR

A            HIMACHAL ROAD TRANSPORT CORPORATION
                                          v.
                              SH. DINESH KUMAR

                                   MAY 7, 1996

B          [B.P. JEEVAN REDDY AND K.S. PARIPOORNAN, JJ.]

          Service Law :

          Compassionate appointment-Children of deceased employees-State
C Administrative Tribunal directed appointment under 'kith and kin'
    policy-employer expressed inability to grant appointment due to non-
    availability of vacant posts-Held : it was not open to Administrative Tribunal
    to direct appointment of eligible person to a post or to create supernumerary
    post to accommodate claimant-Proper course for Tribunal was to direct
    appropriate autholity to consider each case in light of relevant rules and
D   subject to availability of post.

          The respondents children of deceased employees of the appellant-
    Corporation-had applied for appointment in the Corporation under 'kith
    and kin' policy. As there was no vacancy in the appellant-<:orporation,
E   respondent 1 was given a part-time job and respondent 2 was placed in the
    waiting panel.

          The respondents filed a petition In the State Administrative Tribunal
    for appointment as clerks on regnlar basis with immediate effect. The
    Tribunal allowed the petition. Being aggrieved, the appellant-Corporation
F   preferred the present appeal.

          Allowing the appeal, this Court

           HELD : 1. In the absence of a vacancy it is not open to the Corpora-
    tion to appoint a person to any post. It will be a gross abuse of the powers
G   of a public authority to appoint persons when vacanctes are not available.
    If persons are so appointed and paid salaries, it wiU be a mere misuse of
    public funds, which is totally unauthorised. Normally, even if the Trlbnnal
    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
H   authority to consider the case of the particular applicant, in the light of
                                          456
   HJMACHAL RD. TPT. CORPN. v. DINESH KR. [PARIPOORNAN, J.] 457

the relevant rules and subject to the availability of the post. It is not open A
to the Tribunal either to direct the appointment of any person to a post
or direct the concerned authorities to create a supernun1erary post and
then appoint a person to such a post. [459-H, 460-A-B)

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7844 of
1996.                                                                          B

     From the Judgment and Order dated 27.3.95 of the Himachal
Pradesh Administrative Tribunal, Shimla in O.A. No. 423 of 1995.

        J.S. Attri and L. R. Rathi for the Appellant.                          c
     Arvind Minocha, C.K. Mahajan, S.L. Bisaria, S.K. Bisaria, for the
Respondents.

        The Judgment of the Court was delivered by
                                                                               D
        PARIPOORNAN, J. Special leave granted.

       2. The Himachal Pradesh Road Transport Corporation is the appel-
lant in both the appeals. One Shri Dinesh Kumar is the respondent in the
appeal filed against Special Leave Petition (C) No. 15998 of 1955 and one      E
Ms. Parveen Kumari is the respondent in the appeal filed against Special
Leave Petition (C) No. 16027 of 1995. In this judgment the appellant will
be referred to as the 'Corporation', and the respondents will be mentioned
by their names.

      3. The Corporation has filed the appeals against the order of            F
Himachal Pradesh Administrative Tribunal in O.A. No. 423/95 dated
27.3.1995 in the case of Shri Dinesh Kumar and against the order passed
in 0.A. No. 3320/94 dated 6.3.1995 in the case of Ms. Parveen Kumari.
Both the appeals are connected. They involve consideration of a common
ques6on, namely, whether the respondents are entitled to be appointed as       Q
clerks on regular basis forthwith under the 'kith and kin policy'. We should
hasten to add that the validity of kith and kin policy was not questioned
before us. So, we are not adjudicating the larger aspect in these appeals.

      4. We heard counsel. The minimal facts necessary for the disposal of
the appeals are as follows :                                                   H
    458                   SUPREME COURT REPORTS [1996] SUPP. 2S.C.R.

A         The respondents in both the appeals applied for appointment as
    clerks under "kith and kin policy" in the Corporation. Shri Dinesh Kumar
    is son of late Shri Hari Krishan who was serving as an Accountant in the
    Corporation. Shri Hari Krishan died on 14.4.1990, leaving behind him his
    wife and three sons. The Corporation has settled and paid all dues to the
    family by way of family pension, gratuity, provident fund, leave encashment,
B
    etc. In addition thereto one of the dependents of deceased Shri Hati
    Krishan, Shri Dinesh Kumar, the respondent, was provided with a part-
    time job on Rs. 600 per month in Bilaspur. Earlier, he was offered the post
    of a conductor on reffellar basis, but he declined to ac.cept the same. Since
    there was no vacancy in the clerical post Shri Dinesh Kumar was appointed
c   on contract basis as a clerk. He moved the Administrative Tribunal and
    prayed for his appointment as clerk on regular basis with immediate effect.
    The Tribunal granted the prayer with a condition that the applicant should
    qualify the typing test within one year. The order of the Tribunal is dated
    27.3.1995.
D
          The respondent Ms. Parveen Kumari is the daughter of late Shri Om
    Prakash, who was serving as a driver in the Corporation. He died on
    2.11.1991. The respondent submitted application seeking employment
    under kith and kin policy. The deceased left behind him his wife and
    daughter. The Corporation settled the monetary compensation due to the
E   deceased by way of family pension, gratuity, provident fund, leave encash-
    ment, etc. Under the scheme of appointment for kith and kins of deceased
    the Corporation took a lenient view and approved the case of the respon-
    dent for employment for the post of clerk on 27.5.1993. Her name was
    included in the waiting panel.
F
           5. The Corporation has filed Annexure-1 showing details of the
    candidates waiting for appointment under kith and kin policy for the post
    of clerk. Shri Dinesh Kumar i s serial number 27 and Ms. Parveen Kumari
    is serial number 45. According to the Corporation, due to high incidents
    of bus accidents in the hill roads, the death rate in the Corporation is very
G   high whereas the availability of posts are comparatively lesser. It is further
    stated that list of dependents and claimants for appointment on kith and
    kin policy are very large. Since there are only limited posts the Corporation
    is not in a ·position to accommodate all of them in the permanent posts. It
    takes some time to provide the persons, who are entitled under the kith
H   and kin policy, with suitable jobs. It is stated with reference to Annexure-1
           HIMACHAL RD. TPT. CORPN. v. DINESH KR. [PARIPOORNAN, J.] 459

        that serial numbers 1 to 11 were absorbed as clerk-cum-typists during 1994 A
        on regular basis. 20 candidates, appearing al serial numbers 12, 13, 1.5, 16,
        17, 18, 20, 21, 22, 23, 24, 25, 26, 28, 30, 31, 32, 33, 34 and Shri Dinesh Kumar
        were absorbed on contract basis as clerk-cum-typists is 1995. Shri Dinesh
        Kumar did not accept the post of a regular conductor offered to him earlier
        on 31.12.1994. So he was appointed on part-time basis as clerk-cum- typist.
                                                                                         B
        According to the Corporation Shri Dinesh Kumar will have priority num-
        ber 16 for appointment on regular basis.

              6. Ms. Parveen Kumari is in waiting panel of kith and kin candidates
        awaiting employment. In the waiting list her serial number is 45. As many
        as 35 candidates in waiting panel have been absorbed on contract basis.          C
        Ms. Parveen Kumari is serial number 10 in the waiting panel. She has to
        wait for her chance. She applied to the Tribunal for appointment as a clerk.
        The corporation pleaded that since there is J!o vacancy and her place is
.....   number 10 in the waiting list for being appointed even on part-time basis,
        she has to wait. The Tribunal, by order dated 6.3.1995, held that even if        D
        there is no _suitable post for appointment, a supernumerary post will be
        created to appoint the applicant and the respondent Ms. Parvecn Kumari
        should be appointed against that post.

               7. In both the eases the Tribunal has directed the Corporation to
        appoint the respondents as clerks on regular basis. According to the             E
        Corporation, no vacant post is available to absorb the respondents imme-
        diately on permanent basis. Shri Dinesh Kumar is working on contract basis
        and his priority number to be appointed on regular basis is 16. Ms. Parveen
        Kumari is in waiting list, to be appointed on contract basis, and her serial
        number is 10 in that list. Counsel for the Corporation submitted that in the     F
        absence of available posts the Administrative Tribunal acted illegally in
        directing that the respondents should be appointed on permanent basis
        forthwith. In the case of Ms. Pa~een Kumari the Tribunal has gone further
        and has stated that a supernumerary post may be created to accommodate
        her to be appointed as a clerk.
                                                                                         G
              8. We are of the view that the Himachal Pradesh Administrative
        Tribunal acted illegally and without jurisdiction in passing the orders dated
        27.3.1995 and 6.3.1995 and in directing that the respondents be appointed
        in the regular clerical posts forthwith. In the absence of a vacancy it is not
        -open to the Corporation to appoint a person to any post. It will b e a gross    H
    460                   SUPREME COURT REPORTS (1996J SUPP. 2 S.C.R.

A   abuse of the powers of a public authority to appoint persons when vacan-
    cies are not available. It 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 ap-
B   plicant, in the light of the relevant rules and subject to the availability of
    the post. It is nol open to the Tribunal either to direct the appointment of
    any person to a post or direct the concerned authorities to create a
    supernumerary post and then appoint a person tc such a post. We are of
    the view that directions given by the Administrative T·ibunal, in these two
c   appeals, are totally unauthorised and illegal. We are, therefore, constrained
    lo set aside the orders appealed against. We hereby do so and allow the
    appeals. There shall be no order as to costs.

          9. Before concluding, we should record the factual position conceded
    by the counsel appearing for the Corporation. It is stated that Shri Dinesh
D   Kumar is serial number 16 in the priority list for regular appointment as
    clerk and that Ms. Parveen Kumari is serial number lO for appointment in ·
    the waiting panel for the post of clerk on contract basis. As and when
    vacancies arise for appointment to such posts, the Corporation shall con-
    form to the priorities mentioned hereinabove in the matter of filling up the
E   posts, subject to the fulfilment of necessary qualifications by the candidates
    concerned.

    v.s.s.                                                       Appeal allowed.