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2017 Supreme(UK) 366
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. JOSEPH, V.K. BIST, JJ.
THDC India Limited, Through its Chairman & Managing Director - Appellants
Versus
Smt. Beena Chamoli, W/o Late Shri Vinod Chamoli - Respondent
Special Appeal No. 335 of 2013
Decided on : 29-11-2017
For the Appellant :Mr. Shobhit Saharia, Advocate
For the Respondent:Mr. Sanjeev Sahay, Advocate with Ms. Sushma Anthwal and Mr. Harshit Sanwal, Advocates
Headnote:
COMPASSIONATE APPOINTMENT - [KEYWORD] - SUBJECT - [ACT SECTION LIST] - [SUMMARY]
Fact of the Case:
The husband of the writ petitioner was initially appointed by the appellants in the year 1991 as an Attendant. Still later, he came to be promoted as a Data Entry Operator. On 03.04.2003, the husband of the writ petitioner passed away. He was survived by the writ petitioner and a son.
Finding of the Court:
The court found that the appellants had not justified their denial of compassionate appointment to the writ petitioner. The court noted that the appellants had made two appointments under the compassionate appointment scheme in the years 2003 and 2004, and that these appointments were made without properly construing the relevant clause of the Recruitment Policy. The court also found that the appellants had not shown that there were no vacancies available against which the writ petitioner could be appointed.
Issues: Whether the appellants were justified in denying compassionate appointment to the writ petitioner.
Ratio Decidendi: The court held that the appellants were not justified in denying compassionate appointment to the writ petitioner. The court found that the appellants had not followed the proper procedure for making compassionate appointments, and that they had not shown that there were no vacancies available against which the writ petitioner could be appointed.
Final Decision: The court directed the appellants to appoint the writ petitioner to a Class IV or Class III post, commensurate to her qualifications.
K.M. JOSEPH, J.
Appellants are the respondents in the writ petition. The late husband of the respondent / writ petitioner was initially appointed by the appellants in the year 1991 as an Attendant. Still later, he came to be promoted as a Data Entry Operator. On 03.04.2003, the husband of the writ petitioner passed away. He was survived by the writ petitioner and a son.
2. Writ Petition (S/S) No. 1868 of 2005 was filed by the writ petitioner complaining that her case for compassionate appointment was not being considered. The writ petition was disposed of on 06.03.2006 with the direction to decide the representation dated 02.06.2005. By order dated 13.06.2006, the representation was rejected. On 02.04.2007, it appears that a Scheme was put in place by the appellants to make provision for the dependents of deceased employees. It was provided that the said Scheme will have effect notwithstanding any pending application under the Dying in Harness Scheme.
3. Challenging order dated 13.06.2006, Writ Petition (S/S) No. 437 of 2007 was filed by the writ petitioner. Vide judgment dated 05.01.2011, the learned Single Judge of this Court quashed the order dated 13.06.2006. The Chairman and the Managing Director was directed to consider the case of the writ petitioner for compassionate appointment. It was further directed that it was to be considered with regard to her financial position as in 2003, as she had made the application in 2003. Appellants appealed the said judgment by filing Special Appeal No. 13 of 2011. The judgment passed by the learned Single Judge was affirmed by the dismissal of the appeal on 10.06.2011.
4. It appears that, thereafter, a hearing was given by the Managing Director on 08.07.2011. By order dated 20.07.2011, the Managing Director rejected the claim of the writ petitioner. It is this order, which led to the filing of Writ Petition (S/S) No. 1550 of 2011, which stands allowed by the learned Single Judge and, hence, the present appeal.
Findings in the impugned order dated 20.07.2011:
5. The Managing Director referred to the earlier orders, which were passed. It is noted that the writ petitioner has not questioned the validity of Clause 9.3 of the Recruitment Policy. He reproduced Clause 9.3 and found that the following requirements are necessary:
(a) Vacancy must be available;
(b) The dependent must have necessary qualification and experience in respect of the available vacancy; and
(c) Priority is to be given to the dependents of those, who died as a result of accident while on duty.
6. Reference is made to the two cases, where compassionate appointments were made, namely, in the case of a driver by the name Chain Singh, who died on 29.08.2003, and also in the case of one Senior Manager by the name D.C. Sharma, who died on 31.01.2004 while on duty. It is found by the Managing Director that both the employees expired while at work and, hence, priority was given. The wife of Chain Singh was given appointment as a Peon on 03.02.2004 and the son of D.C. Sharma was appointed as Junior Supervisor on 02.08.2004. Both the appointments are stated to have been made prior to the first representation said to have been made on 02.06.2005 by the writ petitioner. It is stated that, after these two appointments, the appellants (Corporation) was not in a position to give compassionate appointment due to the fact that the existing manpower in most cadres was much more than the requirement. The Company is alleged to have offered voluntary retirement scheme. It is also stated that, apart from the above two exceptional appointments, the last compassionate appointment was given in respect of an employee, who died on 25.09.2001. In 12 cases, where death took place during the interregnum, compassionate appointments could not be offered and the families accepted the benefits under the financial benefit scheme in lieu of compassionate appointment.
7. In para 10 of the order, it is stated that the appointment of the two employees, which
