GOVERNMENT
OF ANDHRA PRADESH
GENERAL
ADMINISTRATION (SERVICES.A) DEPARTMENT
Circular
Memo. No.46742/Ser.A 98-1 Dated:11.08.1998.
Sub: Compassionate
appointments to the dependents of deceased Government employees who die in
harness - certain orders of Supreme Court of India - Communicated - Reg.
@@@@@
The
following salient features of the orders of Supreme Court of India in certain
cases of compassionate appointments to the dependents of Government employees
who die in harness are communicated herewith for information and further
necessary action:
"The Supreme
Court of India in Civil Appeal No. 12889 of 1996 arising out of S.L.P(C) No.
11791 of 1996 in a case of compassionate appointment, while setting aside the
orders of Andhra Pradesh High Court dated 26.4.1996 in W.A. No. 103, of 1996
and dated 21.07.1995 in W.P.No. 12896 of 1991., has observed that when there is
no vacancy available, candidate cannot insist that he should be appointed on
compassionate ground. The details of the case are as follows. In this case.
viz, Hindustan Aeronautics Ltd. (Appellant) Vs, Smt, A. Radhika Thirumalai
(Respondent), the appellant had made rules for employment on compassionate
grounds, subject to availability of vacancies in the respective staffing
cadre/authorisation consequent on the death of her husband, the respondent
applied for compassionate appointment, which was put on the wait list by the
Appellant among the list of candidates who applied earlier for employment on
compassionate grounds. Further in view of ban imposed on recruitment in their
unit by the Appellant, compassionate appointment could not be provided to the
Respondent. The Respondent filed a W.P. No. 12896 of 1991 in 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 learned single Judge of High Court by Judgement dated 21.06.1995
issued a writ of mandamus directing the appellant to consider the candidature
of the respondent on compassionate grounds to any suitable post and if found
suitable, to appoint her to such post within a period of two months, duly
rejecting the plea of appellant that since there was a ban on recruitment the
appointment could not be given on compassionate grounds. Even the Division
Bench of Andhra Pradesh High Court, while dismissing the WI.A. filed by the
Appellant held that appointment on compassionate ground is given
notwithstanding whether there is any vacancy not by creating supernumerary
post. Aggrieved by the said Judgement of Division Bench of the High Court, the
appellant has filed appeal before Supreme Court. The Supreme Court of India,
while dismissing the case in detail, among other things observed that in the
appellant company, appointment on compassionate grounds is governed by Rules. Though
in their rules a provision is made for compassionate appointment, another rule
laid down that such appointment would be made depending upon the availability
of vacancies in the respective staff cadre/authorisation. In other words, an
appointment on compassionate grounds can be made only if a vacancy is
available. In the course ·of argument, the supreme Court observed that an appointment
on compassionate ground has to be given in accordance with the relevant rules and
guidelines that have been framed by the concerned authority and so person can
claim appointment on compassionate ground in disregard of such rule or
guidelines. For the above reason and also the other reason discussed in the
case, the Supreme Court set aside the Judgement of. Andhra Pradesh High Court
dated 26.4.96 in WA No. 103 of 1996 as well as judgement of learned single
judge dated 21.7.95 in W.P. No. 17896 of 1991 duly dismissing the W.P. filed by
the respondents.
Further in the
cases of Umesh Kumar Nagpal (1994 AIR SCW 2305) the Supreme 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
appointment 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 concerned authority
and no person can claim appointment on compassionate grounds in disregard of
such rule or such guideline (Sec. Life Insurance Corporation Vs. Asha
Ramachandra Ambekar, (1994 AIR SCW 1947), (Supra).
Further in
Himachal Pradesh Road Transport Corporation Vs. Dinesh Kumar (1996 AIR SCW
2727), the Supreme Court of India, among other things, has observed that
normally even if the Tribunal finds that a person is qualified to be appointed
to a post under kith & kin policy, the Tribunal should only give direction
to the appropriate authority to consider the case of the applicant, in the
light of relevant rules. It is not open to Tribunal to direct the appointment
of any person to a post and also direct to create supernumerary post. The
supreme Court in this case observed that the Tribunal should only give a
direction to the appropriate authority to consider the case of the particular application,
in the light of the relevant rules and subject to availability of post and
accordingly set-aside the orders of the Administrative Tribunal of Himachal Pradesh
dated 27.3.95 ordering conditional appointment to acquire the Typewriting
qualification within one year as well as the order of Himachal Pradesh
Administrative Tribunal dated 06.03.1995 for creation of supernumerary post to
accommodate the candidates when there is no such provision in the rules".
In
all these cases, as seen from the judgements pronounced by supreme Court in the
cases of compassionate appointments, it is observed that the Tribunals or High
Court cannot direct the appropriate authorities the appointment of any person
to a post or direct for creation of supernumerary posts when there are no
vacancies available and in the absence of orders for creation of supernumerary
in the rules governing compassionate appointments. The Supreme Court of India
has laid down that an appointment on compassionate ground has to be given in
accordance with relevant rules and guidelines that have been framed by the
concerned authority.
All
the departments of Secretariat, all Heads of Departments all the District
Collectors and all the Government Pleaders at Andhra Pradesh Administrative
Tribunal and High Court of Andhra Pradesh are requested to keep in view the
above orders of Supreme Court while dealing with the court cases relating to
compassionate appointments.
N.V.H. SASTRY
SECRETARY TO
GOVERNMENT (SERVICES).
