HIMACHAL ROAD TRANSPORT CORPORATION versus SH. DINESH KUMAR

Citation: [1996] SUPP. 2 S.C.R. 456 · Decided: 07-05-1996 · Supreme Court of India · Bench: B.P. JEEVAN REDDY · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

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. 
Arvind Minocha, C.K. Mahajan, S.L. Bisaria, S.K. Bisaria, for the 
Respondents. 
The Judgment of the Court was delivered by 
PARIPOORNAN, J. Special leave granted. 
2. The Himachal Pradesh Road Transport Corporation is the appel-
c 
D 
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 
A 
B 
c 
D 
E 
F 
458 
SUPREME COURT REPORTS [1996] SUPP. 2S.C.R. 
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, 
etc. In addition thereto one of the dependents of deceased Shri Hati 
Krishan, Shri Dinesh Kumar, the respondent, was provided with a par
Excerpt shown. Read the full judgment & AI analysis in Lexace.