G.N. Ray, J.
1. This appeal is directed against judgment dated 16.1.1986 passed by the Bombay High Court in Criminal Writ Petition No. 36 of 1986. The appellants were charged under Section 409 IPC and Section 5 of the Prevention of Corruption Act for making false panchnama disclosing recovery of 90 gold biscuits on 21.9.1969 although according to prosecution case, the appellants had recovered 99 gold biscuits. The appellants were tried in special case No. 8 of 1971 before the Special Judge for Greater Bombay. Two of the appellants were acquitted by the learned trial Judge and the remaining two appellants were acquitted on 6.12.1995 by the High Court inter alia on the finding that the prosecution had failed to prove misappropriation.
2. The appellants were also tried for offence under Section 120-B IPC and Sections 135 and 136 of the Customs Act. Section 85 of the Gold Control Act and Section 23(IA) of Foreign Exchange Regulation Act and Section 5 of Imports and Export Control Act. The appellants filed an application before the learned Judicial Magistrate contending that on the self, same facts they could not be tried for the second time in view of Section 403 of the Code of Criminal Procedure 1898 (corresponding to Section 300 of the Code of Criminal Procedure, 1973). The said application was rejected by the learned Magistrate and the appellants preferred Criminal Revision Application No. 201 of 1980 in the Bombay High Court. Such revision application was also dismissed by the High Court inter alia by holding that it would be open for the appellants to make submissions and raise contentions as to the applicability of Section 403 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 (See Life Insurance Corporation v. Asha Ramchhandra Ambekar (supra)).
6. In the appellant company appointment on compassionate grounds is governed by rules. Under Rule 78.1 provision is made that one of the dependents of the deceased employee could be considered for appointment in the company in preference to other applicants without being sponsored by employment exchange. But in Rule 78.3 it has been laid down that such appointment would be made depending upon the availability of vacancies in the respective staffing cadre/authorization. In other words, an appointment on compassionate grounds can be made only if a vacancy is available. According to the appellant no vacancy is available since there is surplus labour and the policy of the appellant is to progressively reduce the workforce and with that end in view, a ban has been imposed on fresh recruitment and the appellant is also offering incentives for voluntary retirement. The learned Single Judge of the High Court was of the view that in spite of such a ban on fresh recruitment, it was obligatory for the appellant to make appointment on compassionate grounds. The learned Single Judge has placed reliance on the following observations of this Court in Sushma Gosain (supra) at page 470:-
``We consider that it must be stated unequivocally that in all claims for appointment of compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be created to accommodate the applicant.''
7. In Umesh Kumar Nagpal's case (supra) it has been indicated that the decision of Sushma Gosain's case (supra) has been misinterpreted to the point of distortion and that the decision does not justify compassionate appointment as a matter of course. The observations on which reliance has been placed by the learned Single Judge in Sushma Gosain (supra) have to be read in the light of the facts of that particular case. In that case the appellant, Smt. Sushma Gosain, after the death of her husband, who was working as Storekeeper in the Department of Director General Border Roads, sought appointment as Lower Division Clerk on compassionate grounds. In January, 1983 she was called for the written test and later on for interview and had passed the trade test. She was, however, not appointed till January, 1985 when a ban was imposed on appointment on ladies in the said Department. Having regard to these facts, this Court has observed :
``Sushma Gosain made an application for appointment as Lower Division Clerk as far back as November 1982. She had then a right to have her case considered for appointment on compassionate ground under the aforesaid Government memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her to wait till 1983 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter.'' (p. 470)
8. In the instant case the ban on fresh recruitment was in force when the respondent submitted the application for appointment on compassionate grounds. The decision in Sushma Gosain (supra) has, therefore, no application in the facts of this case.
9. A situation similar to the present case arose in Himachal Road Transport Corporation v. Dinesh Kumar (supra). In that case this Court was dealing with two cases where applications had been submitted by the dependants of the deceased employees for appointment on compassionate grounds and both of them were placed on the waiting list and had not been given appointment. They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observed :
``In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If 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 applicant, in the light of the relevant rules and subject to the availability of the post. It is not 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 to such a post.'' (p. 397)
10. As regards the submission of Shri Nageshwara Rao that the respondent could be given compassionate appointment in the medical department, it may be stated that there is nothing to show that any appointment on compassionate ground has been made in the medical department after the respondent had submitted her application for such appointment. It cannot, therefore, be said that any vacancy is available for making such appointment in that department. All that can be said is that in the event of the appellant making fresh appointment on a Class III or Class IV post, the application of the respondent for appointment on such post shall be given due consideration in accordance with her ranking in the waiting list.
11. For the reasons aforementioned, we are unable to uphold the impugned judgment of the High Court. The appeal is accordingly allowed, the judgment of the High Court dated April 26, 1996 in Writ Appeal No. 103 of 1996 as well as the judgment of the learned Single Judge dated July 21, 1995 in W.P. No. 12896 of 1991 are set aside and the writ petition filed by the respondent is dismissed. No order as to costs.
12. Appeal allowed.
13. Writ Petition dismissed.