Thdc India Limited And Others vs Smt Beena Chamoli on 29 November, 2017

[Cites 16, Cited by 1]

Uttarakhand High Court

Thdc India Limited And Others vs Smt Beena Chamoli on 29 November, 2017

Bench: K.M. Joseph, V.K. Bist

                                                    Reserved Judgment

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                    Special Appeal No. 335 of 2013

THDC India Limited,
Through its Chairman & Managing Director,
Ganga Bhawan, Pragatipuram, Bye-pass Road,
Rishikesh, Dehradun,
Uttarakhand & others.                    ............ Appellants

                                 Versus

Smt. Beena Chamoli,
W/o Late Shri Vinod Chamoli,
47/3, Rajeev Nagar, Nehru Gram,
Dehradun, Uttarakhand.                         ............. Respondent

Mr. Shobhit Saharia, Advocate for the appellants.
Mr. Sanjeev Sahay, Advocate with Ms. Sushma Anthwal and Mr. Harshit Sanwal,
Advocates for the respondent.

                             JUDGMENT

Coram: Hon'ble K.M. Joseph, C.J.

Hon'ble V.K. Bist, J.

Dated: 29th November, 2017 K.M. JOSEPH, C.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 2 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

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 we have referred to, could be erroneous, inasmuch as, there were already surplus employees with the organization during the period of appointment of the dependents of Chain Singh and D.C. Sharma. It is stated that it appears that the said two compassionate appointments were apparently given without properly construing and interpreting Clause 9.3. It is further stated that, in the absence of vacancy, the said two appointments could not have been made. It is further stated that the matter concerning the above appointments is under review and, after investigation, remedial measures, as may be legally permissible, would be initiated including 4 revocation of the said appointments. Thereafter, it is stated in paragraphs 11, 12 & 13 as follows:

"11. Another relevant event which took place in THDC was an understanding reached in a meeting of the Joint Committee of the Employee Unions and Management Representatives of THDC to settle the issues relating to compassionate appointment. In terms of the said understanding the following three decisions were arrived at:

(i) It was agreed that as the construction of project is nearing completion, leaving only operation and maintenance work thereafter, there will be surplus employees, and it will not be possible to give dependents of deceased employees any employment.

(ii) Further decided, for new projects dependents of deceased employees upto 23 July 2005 to be given priority in employment, on the basis of seniority list, subject to availability and eligibility of vacancies.

(iii) Formulation of a financial scheme for the welfare of dependents of deceased employees in lieu of providing employment to the dependents of deceased employees. The said scheme would be implemented after the process of consultation with the Unions.

12. A perusal of the above minutes of the joint meeting would show that as on 23.07.2005 there were almost 475 surplus employees with THDC and due to the same it was understood and agreed that it was not possible to give compassionate appointments to the dependents of the deceased employees in the project and compassionate appointments to the kith and kin of the deceased employee would only be considered in the new projects which would be undertaken by THDC in future wherein dependents of deceased employee who died till 23.07.2005 would be considered for employment on priority basis, based on seniority list, subject to eligibility and availability of vacancies.

13. It was in furtherance of the above agreement arrived at between the Workers Union and Management of THDC that the first representation of Mrs. Beena Chamoli for grant of compassionate appointment to her could not be acceded to and THDC vide its reply dated 13.06.2006 gave the reasons for its inability to consider granting compassionate appointment to her. The said reply categorically referred to the joint decisions agreed in the meeting of 23.07.2005 and clarified that no post has been notified after the meeting and hence compassionate appointment could not be offered to dependent of any of 5 the deceased employees. It was also clarified that due to the employees of THDC India Limited already being in surplus in the first project, it was practically not possible to give compassionate employment to dependents of the deceased employees."

8. It is further found that the writ petitioner has not stated any facts pertaining to the hardship being faced by her and her family now after the lapse of almost 8 years. It is stated that, at the relevant time when she made the representation on 02.06.2005, there were already surplus employees in the THDC, which was duly recorded and noted in the immediate succeeding month in the meeting dated 26.07.2005 of the Joint Committee comprising of the Management and the employees of THDC. It is further stated that there was no vacancy available in THDC, which was commensurate with the writ petitioner's qualification and experience. It is stated that, in the report prepared by the organization, the total number of surplus employees in the end of October, 2006 was about 475 and, as per which, the organization came with a voluntary retirement scheme. It is stated that, since the record date of the representation of the writ petitioner happens to be 02.06.2005, it would be fair to hold that she has not been discriminated against. Even as on that date, there was no vacancy available, which was commensurate with the qualification and experience of the writ petitioner whose educational qualifications are B.Sc., B.Ed. and PGDCA. Thereafter, the officer proceeds to enter the following findings:

"19. Firstly the circumstances leading to death of Mr. Chamoli is taken up. Mr. Vinod Chamoli joined THDC as an Attendant (Peon) in 1991. Records show that he was very industrious and through the grit of hard work, he could prosecute higher education through private study after obtaining permission and acquired BA degree. THDC rewarded him with a promotion as 'Data Entry Operator'. He got married subsequently. A son was born in the year 2001. Something happened. There was deterioration in his performance at work place, which was marred by bouts of absenteesm. Medical records in possession of THDC show that Late Mr. Vinod Chamoli was availing of psychiatric treatment from one Dr. Vineet Kumar Gupta, MD (Psychiatry), former Chief Resident, KG 6 Medical College, Lucknow, who started private practice at Dehradun.

20. It appears on 11.03.2003 at about 10.50 PM Late Vinod Chamoli was admitted in Combined Medical Institute (CMI), Dehradun with history of Suicidal Injuries/Penetrating wound on right side of neck that reportedly took place at about 7:30 PM. Patient was presented from Tehri Govt. Hospital. The external wound on the neck was earlier stitched at Tehri Govt. Hospital.

There was bleeding from mount (coming out on spitting). On the above occasion the life could be saved by doctors of CMI.

As per anecdotal accounts, it appears on the next occasion on 03.04.2003 he cut his left wrist and the result was instantaneous and fatal. The death certificate dt. 08.04.2003 issued by New Tehri Municipal authorities show the place of death as Moldhar, New Tehri. The certificate contains a foot note that "Reason for death as contained in the register can't be disclosed. Restricted under sub Section 17 (1).

Unfortunately no medical records pertaining to the occurrence of death of Mr. Vionod Chamoli on 03.04.2003 could be traced in THDC. The anecdotal accounts about his suicide cannot be outright brushed away. Late Mr. Vindo Chamoli was a young man in the prime of his youth, aged 35 years at time of his death, with no apparent history of physiological illness. It is understandable that the occurrence of his alleged unnatural death might even not have been reported to Police Authorities as required under law, since the benefits under insurance policy could be jeopardized. Record of correspondence in the files of Personnel Department of THDC shows anxious follow up of this matter by Mrs. Beena Chamoli. Had the local authorities taken cognizance of the case, the abettors of suicide if any would have been made accountable to law."

21. The above is relevant to determine whether the events leading to death of Mr. Vinod Chamoli could be construed to have resulted in 'death while in harness'. The 10th edition of Concise Oxford Dictionary (Thumb Index edition) lists the word 'harness' on page 650 and gives its meaning as : "2. in the routine of daily work : an ordinary man who died in harness". Going by the natural meaning of the phrase and given the circumstances preceding the death of Mr. Vinod Chamoli, it may not in the first place be appropriate to hold that Mr. Vinod Chamoli died in harness."

9. Thereafter, in paragraph 22, the following was the discussion in relation to hardship:

"22. Next I take up the assessment of 'hardship' of the bereaved family in 2003. In her deposition during personal hearing Mrs. Beena Chamoli herself claimed that she has been working as a teacher since 1999. Officers of THDC found documentary evidence that incontrovertibly establishes that on 09.06.2003, Mrs. Beena Chamoli associated with certain others to formulate bye-laws of a society for registration in the name and style of 'Shivalik Parvatheeya Jana Kalyan and Siksha Samithi'. The Registration Certificate issued by the Office of Registrar of Societies on 02.07.2003 shows the name of Mrs. Beena Chamoli at S.No. 1 in the list of Office bearers as- Mrs. Beena w/o Vinod Chamoli, R/o Moldhar, (PO) New Tehri, New Tehri, Post: Manager, Occupation: Teacher. Her brother-in-law, Sh. Dinesh Chamoli S/o Indramohan, retired from Navy listed at S.No. 2 as President. Mr. Dinesh Chamoli is brother of Late Mr. Vinod Chamoli. Under the aegis of the said Society a school by the name 'Vinod Chamoli Memorial Shivalik Public School' was set up and recognition of the Office of District Basic Education Officer was obtained on 27.04.2004. Prior to that, it is understood that the said school was being run as an unrecognized school. This school is still running as a profitable enterprise and its recognition was renewed by education department from time to time. The District Education Officer, Tehri Garhwal, Narendra Nagar renewed the recognition for a further period of 3 (Three) years from the academic year 2009-10. The above possibly explains why Mrs. Beena Chamoli was not very keen to present her application for compassionate appointment in THDC, soon after the death of her husband on 03.04.2003. Obviously she was busy and engrossed in pursuit of her business interest. She could also command adequate resources to own a self constructed house in the urban agglomeration of Dehradun. Further Mrs. Beena Chamoli represented to THDC that following death of her father-in-law, she would be the sole beneficiary of terminal benefits such as PF, Gratuity, Leave Encashment and Group Insurance payable on death of her Late husband. All this money was disbursed to her for beneficial enjoyment of herself and her only son, there being no other sharer. In addition, the medical expenses would be reimbursable by THDC for life in the case of Mrs. Beena Chamoli and in her son's case upto the age of 25 or till he becomes gainfully employed, which ever is earlier. The above establishes beyond doubt that Mrs. Beena Chamoli was gainfully employed as teacher prior to 2003 and she was financially well endowed in the year 2003 and well positioned to support herself and her only son ever since."

10. The Managing Director, thereafter, referred to the decisions of the Apex Court in the cases of Umesh Kumar Nagpal vs. State of Haryana & others, reported in (1994) 4 SCC 138, and Sushma Gosain vs. Union of India & others, reported in (1989) 4 SCC 468, and proceeded to reject the case of the writ petitioner for compassionate appointment as follows:

"24. Based on the facts of the case, the application of legal principles laid down by the Hon'ble High Court and after due consideration of deposition of Mrs. Beena Chamoli in the personal hearing afforded to her as per directions of the Hon'ble High Court, and in view of reasons recorded herein above, and in furtherance of directions given by Hon'ble Sudhanshu Dhulia, J in WP(SS) No. 437 of 2007, it is hereby decided that Mrs. Beena Chamoli's representation for being appointed to a post in THDC on compassionate grounds under the scheme prevalent in the year 2003 is not tenable. The Hon'ble High Court had ruled that the case of Mrs. Beena Chamoli does not come under the purview of the Financial Benefit Scheme of 2007. Nevertheless, in case Mrs. Beena Chamoli makes a request for disbursement of benefits as contained in the said scheme, a sympathetic view could be taken by THDC."

Judgment passed by the learned Single Judge:

11. The learned Single Judge noted that this is a third round of litigation. He referred to the facts, which culminated in the impugned order. In paragraph 3, it is noted that the impugned order runs into 17 pages rejecting the claim of the writ petitioner once again, but this time on absolutely new grounds. The learned Single Judge finds that the impugned order reflects the determination of the concerned authority not to give appointment to the writ petitioner. He finds that the reasons are not at all justified, rather a bias against the writ petitioner is clearly reflected. He finds in paragraph 4 that the case of the appellants that the writ petitioner moved the application only on 02.06.2005 is not correct, as there is an application on record as Annexure No. 9 and, though it does not reflect any date, it is on the required proforma and it has been specifically stated that the said application was given on 23.09.2003. He notes that there is no clear 9 denial that such an application was not filed. It was found that the mindset of the appellants in denying the appointment is further reflected from the baseless allegation made against the writ petitioner, which is not borne out from the records at all. The allegations are found to be harsh, uncomplimentary and verge on defamation and they suggest as if the writ petitioner was herself responsible for the death of her husband and the authorities had gone so far to say that there is no clear evidence that her husband died while in harness. Thereafter, it is stated in paragraphs 6 & 7 of the judgment as follows:

"6. Regarding the financial condition of the petitioner, the concerned authority has further said that petitioner was an office bearer of a society known as "Shivalik Parvatheeya Jana Kalyan and Siksha Samiti" which runs a school known as "Vinod Chamoli Memorial Shivalik Public School". There is no evidence with the respondents to show that the petitioner was earning income from that school but yet an observation has been made that soon after the death of her husband on

03.04.2003 "obviously she was busy and engrossed in pursuit of her business interest". It further goes on to say that "she could also command adequate resources to own a self constructed house in the urban agglomeration of Dehradun". It goes on to say further that "Mrs. Beena Chamoli was gainfully employed as teacher prior to 2003 and she was financially well endowed in the year 2003 and well positioned to support herself and her only son ever since". These aspects are not reflected by any evidence at all as the petitioner has clearly denied that she was getting any income from the said school.

7. It is true that compassionate appointment is not to be given as a matter of right. In fact it is an exception to the Rule where public employment has to be earned on the basis of merit. Nevertheless there cannot be an arbitrariness in the matter, where compassionate appointment is given to "A" and denied to "B" on wholly irrelevant grounds. In the present case, scheme came after the death of petitioner's husband while at the time of death of the petitioner's husband, no such scheme was in force, and admittedly appointments were given on compassionate grounds. THDC is an instrumentality of the State. It must be just, fair and reasonable. Far from it the impugned order is totally arbitrary infact it rather gives an impression as if the THDC has been predetermined not to give appointment to the petitioner inspite of both the law and equity being in her favour. The matter has not been examined in a dispassionate manner as it deserved and rather smacks of prejudice and bias."

12. Finally, the relief was granted by directing the appointment to be given to the writ petitioner on a Class IV post or a Class III post, commensurate to her qualifications.

Arguments:

13. We have heard Mr. Shobhit Saharia, learned counsel for the appellants and Mr. Sanjeev Sahay, learned counsel for the respondent / writ petitioner.

14. Mr. Shobhit Saharia, learned counsel for the appellants, would contend that the writ petitioner had not made the application in the year 2003. He would emphasise that the application was, actually, made only on 02.06.2005. In support thereof, he would point out that, in the first round of litigation, namely, Writ Petition (S/S) No. 1868 of 2005, the learned Single Judge had directed the application dated 02.06.2005 to be considered. He would further submit that the learned Single Judge has proceeded to hold that there is pick and choose, as certain others have been appointed under the compassionate appointment scheme. He would assert that the last appointment under the compassionate appointment scheme was made by the appellants in the year 2004 and, thereafter, there has been no appointment under the compassionate appointment scheme. He would point out that those two persons, who were given appointments under the compassionate appointment scheme, had made applications immediately on the death of the employees; whereas the writ petitioner, in this case, made the application only on 02.06.2005 and it was this application, which was directed to be considered by the learned Single Judge in the first writ petition filed by the writ petitioner. By the time the judgment was pronounced in Writ Petition (S/S) No. 1868 of 2005 on 06.03.2006 directing the application dated 02.06.2005 to be considered, he would point out that a meeting had taken place between the workmen and the management and he would point out that the proceedings of the meeting dated 23.07.2005 would show that there were 475 employees, who were surplus. He would 11 assert that there was no vacancy against which the writ petitioner could be considered. In fact, even the two persons, who were given appointments under the Dying in Harness Scheme, were given the said appointments erroneously. He would point out that Clause 9.3 of the Recruitment Policy provided as follows:

"9.3 Dependents of Deceased Employees A dependent of deceased employee will be eligible for consideration for appointment in the Company against an available vacancy commensurate with qualification and experience. Priority will, however, be given to dependents of those who died as a result of an accident while on duty. This consideration will be admissible even if the name of such dependents is not sponsored by the Employment Exchange or if he/she has not applied against any advertisement, provided the applicant is otherwise eligible. It is, however, obligatory to notify such a vacancy to the Employment Exchange concerned indicating in the requisition that the vacancy in question is proposed to be filled by the dependent of a deceased employee and that nominations by the Employment Exchange are not required. Non-existence of an earning member in the family of the deceased employee will be an important criteria.

Note : For purposes of this concession "dependents" mean only "sons", unmarried daughters or widow." "Deceased Employee"

means an employee who dies while in Company's service."

15. Therefore, he would emphasise that, unless there is a vacancy, the learned Single Judge could not have directed appointment of the writ petitioner. He would, in fact, submit that there is no ground made for a writ of mandamus being issued. It is submitted that Clause 9.3 only provided that the dependents would have a right to have their case considered, which was, in fact, done after taking into consideration all the aspects. He would further point out that the financial condition of the writ petitioner was not such that it warranted appointment being given. In fact, he would point out that, even according to the writ petitioner, she had been given all the retiral benefits on the death of her husband and a house was constructed on the basis of the said funds. It is also emphasized that the writ petitioner was actually the Manager of a School, which was engaging employees. He would highlight that appointment under the compassionate appointment scheme is to ward-off destitution, which 12 would afflict the family when the sole bread-winner passes away while in harness and such was not the case in the present facts. It is further pointed out that a perusal of the order dated 06.03.2006 passed in the first writ petition (WPSS No. 1868 of 2005) would show that it was a direction to consider the application of the writ petitioner in accordance with the Resolution dated 23.07.2005. He would further point out that the learned Single Judge erred in observing that the observations, which were made by the officer of the appellants while rejecting the application of the writ petitioner, reflected the mindset and his bias. He would submit that all that had happened was that the officer made those observations while exploring the concept of Dying in Harness. Ignoring the observations, he would submit that the learned Single Judge should have found that there is no case made out for issuance of a writ of mandamus. In this regard, he pointed out that the learned Single Judge has relied upon Annexure No. 9, which is an application made by the writ petitioner. He complains that the learned Single Judge overlooked the fact that, actually, the said application was made by the writ petitioner pursuant to an Advertisement issued by the Corporation and the application of the writ petitioner could not be considered under the said Advertisement. He would further submit that the learned Single Judge was not justified in finding that the condition of the writ petitioner was such that it warranted issuance of a writ of mandamus for appointing the writ petitioner. In this regard, he would point out that the averment of the writ petitioner made in justification of the demand for appointment under the compassionate appointment scheme was that she needed the job for better educating her son. He poses the question, whether educating the son could be the basis for grant of appointment under the compassionate appointment scheme, which, he emphasizes, is an exception to the general rule that appointments are to be made after equal opportunity to all. A compassionate appointment, in other words, is to be given only in exceptional cases, where the requirements of the scheme in question are fulfilled and where there is penury.

16. Per contra, Mr. Sanjeev Sahay, learned counsel appearing for the writ petitioner would emphasise that this is a third round of litigation. He supported the mandamus issued by the learned Single Judge to grant appointment to the writ petitioner. He would point out that, in the first order rejecting the application of the writ petitioner, namely, order dated 13.06.2006, appellants did not reject the application on the basis that the writ petitioner did not have financial hardship. He would point out that, hence, new grounds are now being brought in to deny what was legitimately due to the writ petitioner. He would support the findings of the learned Single Judge in regard to the financial condition of the writ petitioner. He would rely on the audited balance-sheet, which clearly goes to show that the writ petitioner was not earning any income. On being queried by the Court as to how she supported herself, it is submitted that her father, a pensioner, and her brother were supporting the writ petitioner. He would further submit that the law is not that the amounts, which are received by way of pensionary benefits, are to be looked into for the purpose of deciding the question of financial hardship. He would point out that, prior to the death of the husband of the writ petitioner, she had worked for sometime as a Teacher and that was about all. He would also point out that the contents of the balance-sheet would show that the amounts, which were being paid to the teachers / employees, were so meager that it could hardly be imagined that the condition of the writ petitioner was such that it did not merit appointment being given. In fact, this was not the case of the appellants in the earlier rounds of litigation. He would point out that, in Writ Petition (S/S) No. 437 of 2007, which is the second writ petition, and also in the appeal, which was filed by the appellants, there was no attempt to justify rejection on the ground that the writ petitioner's financial condition was such that compassionate appointment could be denied.

17. It is further submitted that the attempt made by the appellants to brush aside the two appointments given, which we have referred to, in the years 2003 and 2004 as being erroneous is an afterthought. He 14 poses the question, what action has been taken in the matter, and he himself answers it by saying that no action has been taken. He would submit that, at this length of time, to deny the appointment to the writ petitioner, the case is set forth that the two appointments, which were made, were erroneous.

18. He would point out the pleadings in the first writ petition, namely, Writ Petition (S/S) No. 1868 of 2005 and would point out that, despite opportunity given to the appellants to file counter affidavit, no counter affidavit was filed. Next, he would point out that the document dated 23.07.2005, which is directed to be considered in the first round of litigation, reads as follows (translated version):

"Sub. - Regarding employment of deceased dependents.

Today on date 23.7.2005, Director (Personnel), Director (Technical), GM (Project)-Tehri, AGM (Estt.)-Koteshwar, AGM (Personnel) & members of THDC Workmen Union Coordination committee had meeting in a congenial environment at Guest House Top terrace, Bhagirathipuram wherein the Management and Coordination Committee agreed upon, on which the Management has asked the Coordination Committee to submit a written application which is as follows:

1) 'death during work' dependents will be employed immediately as has been in the past.

2) dependents of late Sh. S.S. Rana and Late Sh. D.C. Dharma were immediately employed, similarly other dependents of deceased be given employment by the Management (even though other deaths were not while on duty).

3) the argument of the Management is not valid that presently THDC has no vacancy, while Management has 37 vacancies for which recruitment is under process.

4) In the Irrigation department, all the deceased dependents are given employment and this process is still applicable and has the assent of the Task Force Committee that Workmen should be provided with facilities as in past.

5) Industrial Disputes Act, 1947 also has a provision about the same.

6) The Management has assured that in new projects by THDC, dependents of the deceased will be given utmost priority in appointments, on which the Joint Coordination Committee has expressed agreement.

7) It has been agreed with the management that if in future any welfare scheme is prepared it would be implemented only after consensus with the trade unions.

8) It has also been assured by the Management that after the end of the protest, members of the Coordination Committee as well as the other workmen will not be made to suffer any proceedings nor any member Workmen whose absenteeism has been recorded will be considered as present.

9) The format for the scheme mentioned in point no. 7 will be discussed upon within 10 days.

Thus, it is hoped by the Joint Coordination Committee that the Management will act upon the above points, or else the Joint Coordination Committee will be compelled to launch a protest for which the Management shall be solely responsible."

19. Learned counsel would emphasise that, in the order dated 13.06.2006, which was passed pursuant to the direction of the Court to consider the case of the writ petitioner, the Court may note that the appellants have referred to Clause 3 of the decision dated 23.07.2005. In other words, it is pointed out that the ground for denying compassionate appointment to the writ petitioner, as is taken in the impugned order in this case, was not taken at that stage. All that was said was that as and when vacancies would arise, it will be considered. In this connection, learned counsel would refute the contention of the appellants that there is no vacancy, which has arisen in the Tehri unit. He would submit that this contention is in the teeth of Clause 9.3, which does not limit it to any particular project and it speaks about the vacancies in the Company. He would, in this regard, seek to draw support from the contents of the supplementary affidavit, to which we shall make a reference, and contend that it would show that number of vacancies have arisen, which have been filled-up and which will lay hollow the claim that no vacancy existed. Secondly, he would submit that the case of the appellants that no vacancy arose in Tehri Unit, in which the late husband of the writ petitioner worked, cannot be countenanced, as it is also contrary to the terms of Clause 6 of the Resolution dated 23.07.2005, which we have adverted to, namely, that the understanding was that the persons dying in harness would be considered with reference to the vacancies, which will arise in any project in future. He would, therefore, submit that the stand taken by the appellants is clearly inconsistent with what is being held out in Clause 9.3 and also in the meeting dated 23.07.2005. He would 16 submit that the argument that the writ petitioner was not in a state of destitution in order to deny the benefit due to her is unsustainable. He would further draw our attention to the seniority list of dependents, which was produced along with the counter affidavit filed by the writ petitioner in Special Appeal No. 13 of 2011, which was filed by the appellants. He would point out that the widow of Chain Singh, who was given the appointment, ranked below the writ petitioner. Immediately it may be noticed that the response of the appellants is that the writ petitioner did not file application immediately on the death of her husband and her application was filed only on 02.06.2005; whereas, the widow of Chain Singh filed the application immediately and she was given appointment.

20. Learned counsel for the writ petitioner would point out that another remit back to the authority for determining the financial condition may not be done having regard to the facts in this case and the writ petitioner would certainly not get justice at the hands of the appellants.

21. Learned counsel for the appellants, in reply, would reiterate that there is no case that any compassionate appointment was given after 2004. He would point out that, actually, the document dated 23.07.2005 is not a Resolution as such. He also drew our attention to case-law, which we will refer to.

Case-law relied upon by the appellants:

22. In Life Insurance Corporation of India vs. Asha Ramchhandra Ambekar (Mrs.) & another, reported in (1994) 2 SCC 718, the case related to a claim for compassionate appointment, which was found to be in the teeth of a statutory provision and the court found that no mandamus could be issued.

23. In Umesh Kumar Nagpal vs. State of Haryana & others, reported in (1994) 4 SCC 138, the court observed that such 17 appointments are made to tide over sudden crisis and the only ground, which can justify such appointment, is the penurious condition of the family of the deceased. It was further observed that such appointment can be given only in respect of Class III and Class IV posts.

24. In State of Haryana & others vs. Rani Devi & another, reported in (1996) 5 SCC 308, the court, while interpreting the word "employee", ruled-out compassionate appointment in favour of the dependents of ad hoc and casual employees.

25. In Ram Saran vs. IG of Police, CRPF & others, reported in (2006) 2 SCC 541, the court dealt with the scope of judicial review.

In short, the court ruled that judicial review is concerned with the decision making process.

26. In State of J&K & others vs. Sajad Ahmed Mir, reported in (2006) 5 SCC 766, the application was made for compassionate appointment after 4 ½ years. Three years after the rejection, the writ petition was filed. Supreme Court agreed with the High Court that the petition was barred by laches.

27. Union of India & another vs. K.G. Soni, reported in (2006) 6 SCC 794, was a case, where judicial review was sought of an order of appointment. The court reiterated the limits of judicial review.

28. Union Bank of India & others vs. M.T. Latheesh, reported in (2006) 7 SCC 350, was a case, where compassionate appointment was sought from the appellant Bank. Under the scheme of the Bank, the Bank rejected the application finding that the respondent's family was not indigent. It was the case of the Bank that compassionate appointment in the Bank was meant only for rare cases of complete penury of the dependents of the deceased employee. It was contended that the family of the deceased employee was getting pension and had other monthly income, which, taken together, exceeded the last pay drawn by the deceased and, hence, there is no scope for granting the 18 appointment. The Apex Court, inter alia, held that fresh employment with the Bank had reduced considerably and grant of employment on compassionate grounds in all the cases would shut the door for employment to the ever growing population of unemployed youth, more particularly, when the industry was being asked to reduce the employees by offering retirement scheme. The High Court failed to notice, it was held, that the scheme was very elaborate. In fact, the scheme in the said case provided that the competent authority was to take into account the financial condition, which included considering the family pension, gratuity, employee-employer's contribution to the provident fund, any compensation by the bank or its welfare funds, income for family from other sources, employment of other family members, size of the family and liabilities, if any, proceeds of LIC policy and other investments of the deceased employee. The terminal benefit of Rs. 5,47,495/- received, after deducting the liabilities of housing loan and personal loan, was taken note of. The court found that the Bank had considered the application in terms of the statutory scheme. It was found that the respondent was not entitled, as the financial status of the family was much above the criterion fixed in the new scheme. The court drew support from the judgment in General Manager (D&PB) & others vs. Kunti Tiwary & another, reported in (2004) 7 SCC 271, wherein the court had relied on Umesh Kumar Nagpal's case (supra) and noted that compassionate appointment was to be resorted to in cases of penury.

29. We may notice that, in fact, in the judgment of the Apex Court in General Manager (D&PB) & others vs. Kunti Tiwary & another, reported in (2004) 7 SCC 271, the deceased employee worked in the State Bank of India. Pursuant to Umesh Kumar Nagpal's case (supra), the Bank made a scheme. It is to be noted that the scheme provided for compassionate appointment only where the deceased left the family in penury and without any means of livelihood. There also, the scheme contemplated taking into consideration the retiral benefits among other things for determining the financial condition. The court took the view that the respondent in 19 the said case was not left in penury or without any means of livelihood.

30. The case in State Bank of India & another vs. Somvir Singh, reported in (2007) 4 SCC 778, again involved State Bank of India. The court took note of the concept of dependents being left without any means of livelihood and unable to make both ends meet. Here also, the court drew support from General Manager (D&PB) & others vs. Kunti Tiwary & another (supra), which we have already referred to.

Case-law relied upon by the writ petitioner:

31. In Smt. Sushma Gosain and others vs. Union of India and others, reported in (1989) 4 SCC 468, the Apex Court has declared that in all claims for appointment on compassionate grounds, there should not be any delay in appointment, as such appointment is to immediately redeem the family in distress. It is also ordered that, if there is no suitable post, supernumerary post should be created.

32. In Canara Bank & another vs. M. Mahesh Kumar, reported in (2015) 7 SCC 412, respondent's father died while serving as a Clerk in the appellant Bank. The respondent applied in time, but his application was rejected on the ground of absence of indigent circumstance. But latter, there was a scheme for ex-gratia payment. A scheme was brought-in in 2014 reviving the scheme for compassionate appointment. The Apex Court took the view that the appellant Bank was not justified in contending that the application cannot be considered in view of the passage of time. The court, inter alia, took the view that the claim for compassionate appointment under the scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. The court further took the view that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for 20 providing employment assistance. In this regard, the court held as follows:

"19. Insofar as the contention of the appellant-bank that since the respondent's family is getting family pension and also obtained the terminal benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case the dependant of deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is a minor, the bank would keep the appointment open till the minor attains the majority."

33. The writ petitioner also placed reliance on a Bench decision of this Court in Usha Saxena vs. Divisional Forest Officer & another, reported in 2013 (1) UC 652, wherein the court had directed to issue the appointment order as per the educational qualifications.

34. The judgment in Darshan Singh vs. State of Punjab, reported in (2007) 14 SCC 262, is relied on by the writ petitioner for the proposition that the State cannot take contradictory stand before the Apex Court from that taken in the courts below. The matter arose in a civil case.

35. The judgment in State of Bihar vs. Kumar Promod Narain Singh & others, reported in (1997) 5 SCC 298, is relied on to persuade us not to accept the pick and choose policy, as it would be an arbitrary exercise of power.

36. In fact, we may notice another judgment of the Apex Court in the case of State Bank of India & another vs. Raj Kumar, reported in (2010) 11 SCC 661. This is also a case, where State Bank of India was the employer and, necessarily, the scheme was one which we have already noticed. The question involved in the said case was whether the new scheme, which provided for ex-gratia payment in 21 lieu of compassionate appointment, would apply. In the context of the same, the Apex Court was pleased to hold as follows:

"9. Normally the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfillment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the scheme in force at the time of death would apply.

10. On the other hand if a scheme provides that on the death of an employee, if a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfill any eligibility criteria, then the scheme creates a right in favour of the applicant, on making the application and the scheme that was in force at the time when the application for compassionate appointment was filed, will apply. But such schemes are rare and in fact, virtually nil.

11. Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made of the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need to verify the eligibility and antecedents of the applicant or the financial capacity of the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a selection committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies."

Findings:

37. The husband of the writ petitioner was originally appointed in the year 1991 (apparently as an oustee from the land, which was required by the appellants for their project) as an Attendant. In the year 1998, he was promoted as a Data Entry Operator. While he was working in the appellant Company, he passed away on 03.04.2003.

38. In the first round of litigation, namely, Writ Petition (S/S) No. 1868 of 2005, actually, the direction, which was given by the learned Single Judge, reads as follows:

"12. In view of the above, the respondents are directed to decide the representations 02.06.2005 (filed as Annexure Nos. 2 to the writ petition) of the petitioner giving her appointment on compassionate ground according to resolution of meeting dated 23.07.2005 within a period of six weeks from the date of presentation of certified copy of the order."

39. The English translation of the order dated 13.06.2006, which was passed thereafter, reads as follows:

      "Letter No. THDC/.../2006/2266                  Dated 13.6.06
      From,
             Personnel and Administration,
             THDCL, Tehri.
      To,
             Smt. Beena Chamoli,
             W/o Late Sri Vinod Chamoli,
             47/3 Rajeev Nagar Danda,
             Post Nehru Gram, Dehradun.

Sub: In relation to giving employment as dependent of the deceased.

Madam, In pursuance of your applications dated 02.06.2005 and 22.05.2006 on the above-noted subject and order dated 06.03.2006 passed by the Hon'ble High Court at Nainital, in the representation given by you, you have demanded appointment on the basis of the decision taken in the meeting dated 23.07.2005 held with the Joint Coordination Committee. In relation to the same, it is to be informed that, in the discussion that took place with THDC Joint Coordination Committee, the consensus was arrived at that, at present, the construction work of the Tehri Project is nearing completion and, on arriving at the stage of operation and maintenance, the employees working in the project would become surplus; in such a situation, there is hardly any chance of providing employment to the dependent of the deceased. And in future appointments to be made in various projects on expansion of the Corporation, the dependents of the deceased till 23.07.2005 will be given priority on the basis of seniority as per the available vacancies and as per the eligibility.

In compliance with the order dated 06.03.2006 passed by the Hon'ble High Court, after due consideration of your application as per the rules, you are informed that, at present, no 23 posts are being advertised for new project. And after the discussion, which took place in the meeting dated 23.07.2005, no dependent of the deceased has been given appointment in the project. For this reason, it is not possible to give you appointment as a dependent of the deceased.

Hence, as per the order dated 06.03.2006 passed by the Hon'ble High Court, your application is disposed of.

Manager Personnel and Administration"

40. This led to the further writ petition, namely, Writ Petition (S/S) No. 437 of 2007. The findings recorded in the said judgment may be noticed as under:

Immediately after the death of the husband of the writ petitioner, she applied for appointment since her husband died during harness. Although there is no specific scheme on which such claim can be made, it is evident from time to time that such appointment has been given on compassionate ground. In the short counter affidavit, appellants referred to a scheme known as "Scheme of Financial Package for Dependents of Deceased Employees in lieu of Practice of Giving Employment". The scheme was enforced vide order dated 02.04.2007. Clause 2(ii) provided that it shall also be applicable to all pending applications of dependents of deceased employees for compassionate appointment. The case, which was set up in defence of the order passed, which we have adverted to, was based on the terms of the new scheme. This argument was found to be absolutely misplaced for two reasons. Firstly, it was found that the scheme effectively came into force on 02.04.2007 and the writ petitioner was found to be in hardship in the year 2003 and was pleading with the appellants for the last several years for appointment, but the appointment has been denied to her for one technicality or another.

Secondly, it is found also that it is admitted that the appellants had given appointments to the dependents of the deceased even before the implementation of the scheme and the death of the husband of the writ petitioner was caused on 03.04.2003, which is much before the new scheme. Thereafter, it was held as follows:

"The petitioner has annexed a list along with Rejoinder Affidavit, which is RA-1, which shows that the dependent of Sri Sunder Singh who died on 14.9.2003 and the dependant of Sri D.C. Sharma, who died on 31.1.2004 i.e. much after the death of the husband of the petitioner, have been given appointment under dying in harness. Therefore, it is directed that the Managing Director, THDC i.e. respondent no. 1 shall consider the representation of the petitioner on settled claims and considerations which are applicable in such matters, namely, the hardship of the family concerned and whether under the similar circumstances at the relevant time or thereafter, such appointments were made by THDC. THDC will not reject the claim of the petitioner merely because they have come under the new "scheme". It is made clear that the petitioner's case shall be considered for appointment, on compassionate grounds. The relevant period for consideration of the hardship shall be 2003 and not the present, as the application for appointment was made by the petitioner well in time i.e. in 2003. Order dated 13.6.2006 (Annexure no. 6 to the writ petition) is hereby set aside. Fresh representation of the petitioner shall be considered in the light of the observations made in the preceding paragraphs. It is directed that the Managing Director, Tehri Hydro Development Corporation will personally hear the matter and decide the case of the petitioner with a speaking order as expeditiously as possible but in any case not later than six weeks from the date a certified copy of this order along with representation is presented before him."

41. An appeal was carried against the said judgment as Special Appeal No. 13 of 2011. The Division Bench also did not find favour with the contention of the appellants, which was based on the provisions of the new scheme, which provided for financial aid in lieu of compassionate appointment. The reasons recorded in the judgment are as follows:

".....The petitioner's application for appointment on compassionate ground was not pending when the scheme came into existence on 2nd April, 2007. The petitioner's application had already been rejected by the appellant on 13th June, 2006. The learned Single Judge allowed the writ petition and quashed the order dated 13th June, 2006 and directed the appellant to decide the matter afresh. Once the matter has been remanded back, the application of the writ petitioner could only be considered in accordance with the scheme that was in existence at the time when the application was filed. The new scheme of 2007 could not be considered.

In the light of the aforesaid, the learned Single Judge was justified in directing the appellant to consider the application of the petitioner afresh in the light of the scheme that was existing in the year 2003 and not in accordance with the scheme of 2007. The court does not find any error in the order passed by the learned Single Judge. The special appeal fails and is dismissed."

42. Thus, the judgment passed by the learned Single Judge in Writ Petition (S/S) No. 437 of 2007 became final.

43. From the findings recorded in the judgment passed by the learned Single Judge in Writ Petition (S/S) No. 437 of 2007, we notice that the learned Single Judge had made it clear that the claim of the writ petitioner could not be rejected on the basis of the new scheme. The writ petitioner's case was to be considered for appointment on compassionate grounds. The relevant period for consideration of the hardship was to be 2003 and not the present, as the application for appointment was made by the writ petitioner well in time, i.e. in 2003. The writ petitioner was allowed to make a fresh representation, which was to be considered in the light of the observations in the preceding paragraph. The Managing Director was to personally hear the matter and decide the case. The first thing we would notice, therefore, is that the appellants may not be justified in view of the said judgment, which has become final, to contend that the application of the writ petitioner was made on 02.06.2005.

44. The next bone of contention between the parties is whether, in view of the two appointments given under the compassionate appointment scheme in the years 2003 and 2004 being recorded as erroneous, any claim could be rested on the said score.

45. In the order, which is impugned in the writ petition, undoubtedly, it is pointed out that those appointments were made, which could be erroneous and that it appears that appointments were made without properly construing Clause 9.3 and that there were surplus employees at that time and that the matter would be reviewed.

We would think that the learned counsel for the writ petitioner is correct in pointing out that it appears to be an afterthought. Such a case was not set up in the second round of litigation, namely, in Writ Petition (S/S) No. 437 of 2007 or even in Special Appeal No. 13 of 2011, which arose therefrom. It is also not shown to us as to what action was taken in regard to those appointments. Therefore, to merely brush aside those two appointments as having been made erroneously, in order to deny the benefit to the writ petitioner, if she is otherwise entitled to, may not be justified.

46. The next point on which we must focus on is the financial condition of the writ petitioner. We must, here, notice that the learned Single Judge had specifically directed the Managing Director to consider the financial condition of the writ petitioner as it was in the year 2003 and not at the time of the disposal of the writ petition. The husband of the writ petitioner passed away leaving behind the writ petitioner along with their son. We have already noticed the findings of the authority as also of the learned Single Judge in regard to the same. Essentially, there are only two aspects. Firstly, the writ petitioner was given retiral benefits on the death of her husband. It is to be noted that there is nothing in the compassionate appointment scheme, which is brought to our knowledge, which mandates that the benefits given by the Company are to be taken into consideration or that they are to be excluded. In other words, this is a case, where the scheme is silent on this aspect. It is true that the case of the writ petitioner herself is that it is using these funds that the building, which is commented upon by the Managing Director, came to be put up. Is this sufficient to deny compassionate appointment? The idea behind compassionate appointment is, essentially, to provide for the sudden vacuum created by the passing away of the bread-winner of the family. The application for appointment must be considered in terms of the scheme. In some schemes, retiral benefits are to be considered; whereas, in others, they are to be excluded. So, it all depends upon the terms of the scheme. In this case, the terms of the scheme do not provide for reckoning the benefits received by the dependent for 27 deciding whether the benefit of compassionate appointment is to be given or not. The writ petitioner was a widow of a Data Entry Operator, who began his innings as an Attendant. She, apparently, has used the proceeds for construction of a house; but, will that provide her with the income with which alone she and her son could continue to survive? Did she have any other income? It is here that we must pass on to the case of the appellants that the writ petitioner was a Manager of a School and, therefore, there is no warrant for giving her appointment. Here, we may notice that there is material produced in the form of audited balance-sheet. Immediately on the death of her husband, it appears that the writ petitioner proceeded to participate in setting-up of a School in Tehri district. Learned counsel for the appellants would point out that she continued to reside at Dehradun (apparently, she would point out that she had to fall back on the support of her family following the untimely death of her husband). There is no material produced by the appellants to show whether the writ petitioner was in receipt of any income and the exact income which the writ petitioner was drawing. The case of the writ petitioner was that she was not in receipt of any income as such from pursuing the activities of the School as Manager.

47. Ordinarily, it is true that the matter may have had to be remitted back; but, we would think that Article 226 is not an absolute bar to enter findings of fact. No doubt, if a point can be established only on taking oral evidence, the Court may stay its hands; but, if a fact can be said to be established on pleadings coupled with material produced, Article 226 is certainly no bar to enter findings of fact. Therefore, in the facts of this case, we would think that, to remand the matter back to the authority all over again to decide this question, may not be fair or justified. Hence, we would come to the conclusion that the findings recorded by the authority that the writ petitioner was busy and engrossed in pursuit of her business interest and that she could also command adequate resources to own a self constructed house in the urban agglomeration of Dehradun or that she received financial benefits, would certainly not commend itself having regard to the 28 material available. We would think that the writ petitioner, who was the wife of a Data Entry Operator, and a family, which did not even have their own house, could be said to be not in need of compassionate appointment. It may be true that the writ petitioner would get medical expenses reimbursed for herself and, in case of her son, up to the age of 25 years or till he becomes gainfully employed, whichever is earlier; but, that cannot be an answer to her claim for compassionate appointment. While on the death of the sole bread- winner, it is not the law that the dependents are to live a life of comfort with the job offered and there can be no gain saying that a stable source of income provided by an employment is expected of a model employer, namely, the State in cases, which, otherwise, warranted the same. Regarding the school running as a profitable exercise, as found by the learned Single Judge himself, the findings against the writ petitioner are not supported by any material.

48. It may be noticed that this concept of penury and being unable to make both ends meet are concepts, which are engrafted in the scheme of the Bank in the cases, which we have referred to, following the observations in Umesh Kumar Nagpal's case (supra). Appointments under the compassionate appointment scheme, undoubtedly, must be decided with reference to the particular scheme, which may be statutory or contained in an executive order. In the facts of this case, we are not shown any provision as such, which contemplates taking into consideration the financial benefits, which were given to the writ petitioner on the death of her husband. In fact, the only relevant condition, which we notice, is that, in Clause 9.3, non-existence of an earning member in the family of the deceased will be an important criterion. Further, we notice that priority under Clause 9.3 is to be given to those, who die as a result of an accident while on duty. Since nothing is brought to our notice regarding consideration of such aspects, we do not think we should oust the writ petitioner on the said score. It is not clear that the two persons, who were also given appointments, were not given the benefits and yet they have been given appointments.

49. It is true that the right of a person is to be considered for being appointed. We have already noticed the previous litigation, which has preceded the present writ petition. This is a third round of litigation. In the first round of litigation, the learned Single Judge, in our view, correctly directed the consideration of the case. In the order, which was passed thereafter, without any objection regarding the financial condition of the writ petitioner or any other aspect being raised, the writ petitioner was turned away on the basis that there was no vacancy. Thereafter, in the second round of litigation, an attempt was made to reject the claim of the writ petitioner by relying on a new scheme, which provided for financial benefits in lieu of compassionate appointment. In the said round of litigation, this Court had specifically directed that the writ petitioner's case be considered and, that too, with reference to her condition in the year 2003 and further on the basis that she had made the application in the year 2003. We would think that the parties cannot wriggle out of this finding by the learned Single Judge made in the second round of litigation, even though we agree that, in the first round, the direction was to consider the application dated 02.06.2005. Therefore, in such circumstances, we would think that it may not be just or fair to again direct the matter to be considered afresh and prolong the matter any further. No doubt, this would be subject to our answering the case of the appellants based on absence of any vacancy.

50. It is true that Clause 9.3, which we have adverted to, contemplates consideration against a vacancy. It is noteworthy to begin with that, in the second round of litigation, going by the judgment of the learned Single Judge and also that of the Division Bench, the objection, which is primarily raised by the appellants, was based on the new scheme. There is no case as such based on absence of vacancy. Furthermore, we would think that it would be really unjust, in the facts of this case, to decline appointment to the writ petitioner based on the plea of absence of vacancy. We must remind ourselves that the direction contained in the second round of litigation 30 was to consider the case of the writ petitioner on the basis that she had applied in the year 2003. If we proceed on the basis that the writ petitioner applied in the year 2003, we must not ignore the fact that appointments had been given to two others, of which, no doubt, one is in the case of a person, who died in the managerial cadre. In this regard, we would again remind ourselves that, in the seniority list prepared by the appellants of dependents under the compassionate appointment scheme, the writ petitioner figured above the person whose claim was countenanced. The argument, which is raised by the appellants in this regard, is only that, though the employee in the said case died later than the husband of the writ petitioner, his dependent applied immediately and, therefore, she was given the appointment. We may further notice, at any rate, that the writ petitioner has been directed to be considered against Class III or Class IV post. Writ petitioner is a Graduate. She is having B.Ed. We further notice that the contention that there are no jobs in the Tehri project and any appointments, which may have been made, were in connection with other projects, can only be rejected, as we have noted what was held out by the appellants, going by the contents of the meeting which took place between the workmen and the management on 23.07.2005, was that the cases of the dependents would be considered against other projects, namely, that the project at Tehri was coming to an end, but the cases of the dependents of the deceased employees would be considered in respect of other projects. Furthermore, we also notice that Clause 9.3 contemplates appointment being made in the Company. The Tehri project is only one of the projects of the Company. Therefore, the writ petitioner could not be denied appointment on the basis that the matter was being considered project- wise.

51. It is true and, in fact, there is no dispute raised by the learned counsel for the writ petitioner also that Annexure No. 9 to the writ petition was not an application made by the writ petitioner seeking appointment under the Dying in Harness scheme; but, it was pursuant to an advertisement issued by the Company. It also appears that the 31 writ petitioner did not get appointment. In this regard, we may notice that, in Clause 9.3, it was inter alia provided that the dependent need not be sponsored by the employment exchange. Also, the dependent need not even apply against any advertisement, provided the applicant is otherwise eligible. In this case, we may notice that the writ petitioner did apply pursuant to the advertisement in 2003 and it is likely that the Corporation would have been aware that she is the widow of one of its employees; but, we need not say anything further on the said basis.

52. With the supplementary affidavit filed by the writ petitioner in the appeal, Annexure SA1 List has been produced to show that, between 2005-2012, hundreds of appointments had been made. Annexure SA2 purports to reveal 11 such appointments in the year 2003. Annexure SA3 is produced to show that, in 2005-2006, 9 persons have been appointed in different categories. Annexure SA4 purports to reveal persons outsourced through UPNL. They are, however, described as appellants have given several appointments. Annexure SA5 is produced to show that, as on 22.07.2011, the employees' position with the appellants as per UPNL (apparently through UPNL) was 210. As on 05.09.2017, the manpower position, again as per UPNL, is shown as 471. It is further stated that several other persons were appointed as Industrial Trainees. Annexure SA9 is employment notice for recruitment of 52 Apprentices. There is also a case that huge sum has been spent in this litigation and the same is done to cover-up the mala fide action of the appellants in denying the rightful claim of the writ petitioner.

53. To the supplementary affidavit, objections have been filed by the appellants. In the objections, it is, inter alia, stated that any query regarding vacancies being filled-up by THDC has to be considered only in the workmen cadre. THDCIL employees are broadly classified in three grades, namely, (i) executive grade, (ii) supervisor grade and (iii) workmen grade. Different modes of recruitment for 32 these three categories have been detailed. It is stated that recruitment in regard to the executive grade is done on the basis of open examination or through national level test. In regard to supervisor grade, it is clarified that the last recruitment was advertised in 2001 and, thereafter, recruitment in the supervisor grade was advertised in 2016 after almost 13 years since no vacancy was available in this category. It is also stated that the posts advertised are of disciplines for which the writ petitioner was not qualified. Lastly, in regard to the workmen cadre, it is stated that induction in this category over last 12 years since 2005 has been made only either under R&R scheme for the projected affected persons or under Persons with Disability category for physically disabled persons. Detailed chart containing the names of the persons employed in the workmen cadre is annexed as Annexure No. 2. It is stated that appointments were made for giving effect to the rehabilitation policy and as per the presidential directives of the Government of India for giving appointments to persons with disabilities. It is reiterated that no appointments had been given on compassionate grounds after the last appointments given to the dependents of Late Sri Chain Singh and Late Sri D.C. Sharma. It is also reiterated that no application was received in the year 2003 from the writ petitioner. The veracity and genuineness of the annexures produced in paragraph 5 of the supplementary affidavit is specifically denied. In regard to paragraph 6 of the supplementary affidavit, it is stated that Industrial Wing of the Corporation proposes for requirement of temporary workmen in the Corporation and, accordingly, the Management enters into contract with UPNL for hiring stipulated number of workmen. Thereafter, on the basis of skill-based test conducted by both UPNL and THDCIL, persons are recruited for temporary duration. It is averred that the Corporation has no available vacancy, nor ample resources for engaging full-time employees in great number or for menial jobs. Agreement is entered into every year with UPNL for temporary labour like mechanic, stenographer, typist, etc for short duration. Annexure No. 3 purports to be the outsourcing agreement. It is averred also in regard to the industrial trainees that they are selected pursuant to a circular for 33 filling-up the vacancies specifically under the Siksha Seh Rojgar Yojana introduced for the Koteshwar Dam Project. It is also averred that the 2017 advertisement for apprenticeship is for the purpose of facilitating vocational training and human resource development. Reference is made to Apprentices Act, 1961. Only vocational training is provided to youths, it is stated. The allegation in regard to the dependent of Late Sri Chain Singh is answered by pointing out that Smt. Manorma Khurana was appointed long before the writ petitioner's claim arose, in the year 1998, and she has been superannuated (Annexure No. 5 is the appointment letter).

54. It is true that Clause 9.3 contemplates availability of a vacancy and what it provides is for consideration for appointment; but, having regard to the facts in this case, we are of the view that it is neither just nor legal to permit the appellants to raise a contention about the non- availability of vacancies having regard to fairly large number of appointments, which have been made. It may be true that the appellants went on making appointments in terms of the rehabilitation scheme for the displaced persons; but, that would show that there were vacancies. It is difficult to hold that there were no vacancies as such at all.

55. We cannot totally ignore the observations, which were made by the officer, who is a top ranking officer of the Corporation, who forays into areas like circumstances leading to the death of the late husband of the writ petitioner and even proceeds to find that it cannot be treated as a case of death in harness. It is true that, ordinarily, mandamus is issued to consider the matter; but, we notice that this is the third round and we would think that we should draw upon the court's power available, as it is available in appropriate cases, to give the direction to do the thing, instead of directing consideration of the matter.

56. In such circumstances, the appeal will stand dismissed. There will be no order as to cost.

              (V.K. Bist, J.)              (K.M. Joseph, C. J.)
               29.11.2017                       29.11.2017
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