IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 164 of 2007 Uttaranchal Transport Corporation …Appellant. Versus Smt. Mohini Devi …Respondent. Mr. Manoj Sah, Advocate for the appellant. Mr. Girish Chandra Lakhchaura, Advocate for the respondent. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) 1. The respondent’s husband Yadav Chand was inducted in the employment of the appellant as a Driver in 1977. He was placed under suspension in 1990 on account of his alleged rash and negligent driving. Thereafter, his employment was terminated by an order dated 27.1.1990. After his employment had come to an end, the respondent’s husband Yadav Chand died on 5.1.1997. 2. The respondent’s husband Yadav Chand assailed his order of the termination dated 27.1.1990 before the Industrial Tribunal, Haldwani. After his death, the name of the respondent was transposed in his place. The aforesaid Tribunal, vide its order dated 22.6.2002, set aside the impugned order of termination dated 27.1.1990. The effect of the setting aside of the order of termination dated 27.1.1990, according to the learned counsel for the respondent, was, that the respondent’s husband Yadav Chand had died in harness on 5.1.1997. The instant factual position cannot be disputed. The same is, in fact, not disputed by the learned counsel for the appellant. 3. After the order of termination dated 27.1.1990 was set aside by the Industrial Tribunal, Haldwani on 22.6.2002, the respondent moved a representation/application claiming appointment on compassionate grounds on 16.9.2002 i.e. within three months of the date when the Tribunal set aside the order of termination of the respondent’s husband Yadav Chand. Since the claim of the respondent was not being considered for appointment on compassionate grounds, the respondent approached this Court by filing Writ Petition (S/S) No. 1109 of 2005. The aforesaid writ petition was allowed by a learned Single Judge of this Court vide order dated 31.3.2006. The operative part of the impugned order dated 31.3.2006 is being extracted hereunder:- “In view of the above, writ petition deserves to succeed. A writ of mandamus is issued directing the authority concerned to dispose of the representation of the petitioner giving compassionate appointment to one of the family members of the petitioner within a period of two months from the date of presentation of the certified copy of the order.” 4. Through the instant Special Appeal, the appellant has assailed the order dated 31.3.2006 rendered by this Court while disposing of Writ Petition (S/S) No. 1109 of 2005. The primary contention of the learned counsel for the appellant is that no positive direction could be issued by this Court requiring the appellant to appoint the respondent on compassionate grounds. It is the submission of the learned counsel for the appellant that the claim of the respondent is liable to be considered on the basis of the prevalent Rules and Policy Instructions, and as such, the direction issued by this Court without taking into consideration the prevalent Rules and Policy Instructions is liable to be set aside. Learned Counsel for the respondent acknowledges the submission advanced by the learned counsel for the appellant. His submission, however, is that the aforesaid writ petition should have been disposed of by requiring the appellant to consider the claim of the respondent for appointment on compassionate grounds under the prevalent Rules and Policy Instructions. 5. In view of the above, we are satisfied that the order rendered by the learned Single Judge, the operative part whereof has been extracted hereinabove, is liable to be set aside. The same is accordingly set aside. Despite thereof, in view of the statement made by the learned counsel for the rival parties, we hereby direct the appellant to reconsider the claim of the respondent for appointment on compassionate grounds under the prevalent Rules and Policy Instructions. 6. Despite the conclusion recorded by us hereinabove, it is also imperative to record that it would not be open to the appellant to reject the claim of the respondent for appointment on compassionate grounds, merely on account of the fact that the respondent had submitted a representation/application for appointment on compassionate grounds on 16.9.2002, whereas her husband Yadav Chand died on 5.1.1997. This determination of ours is based on the fact that the respondent could not have claimed appointment on compassionate grounds while the order of termination dated 27.1.1990 was in subsistence, inasmuch as, the respondent’s husband Yadav Chand having died after his services were terminated by the order dated 27.1.1990, he could not be considered to have died in harness. For the first time, such an inference could be made only after the order dated 27.1.1990 was set aside by the Industrial Tribunal, Haldwani on 22.6.2002. After the order of termination of the respondent’s husband Yadav Chand was set aside, within three months thereof, the respondent applied for appointment on compassionate grounds. We are, therefore, satisfied that the claim of the respondent shall be considered, independently of the objection of delay at the hands of the appellant, on the basis of the prevalent Rules and Policy Instructions. 7. In view of the above, we direct the appellant to take a final decision on the issue in hand within two months from the date of receipt of a certified copy of this order. 8. The instant Special Appeal stands disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 28.4.2010 Rathour