D.B. CIVIL WRIT PETITION NO. 3243/2004 (Veera Ram V/s Union of India & Ors.) Date of order : 16.08.2007. HON'BLE MR. RAJESH BALIA, J. HON'BLE MR. GOPAL KRISHAN VYAS, J. Mr. Vijay Mehta, for the petitioner. Mr. Ravi Bhansali, for the respondents. Heard learned counsel for the parties. This petition is by the unsuccessful candidate seeking appointment on compassionate ground because his father Shri Shera Ram died while in service of the respondents. Having not found the relief from the respondents, the petitioner has preferred an Original Application before the Central Administrative Tribunal. The Original Application has been dismissed by the CAT vide order dated 12.02.2004 under challenge. The respondent's case was that, on considering the case on comparative economic status of the claimants for appointment on compassionate ground in the like circumstances, the petitioner stood lower in order of comparable indigence of persons who were found to be more in economic need on the basis of marks alloted under the formula framed by the respondents. The petitioner has obtained 58 marks. The controversy arose out of the aforesaid claim of the petitioner and regarding recommendations made by the Board for appointment on compassionate ground as per its proceedings dated May 1, 2001. The crux of the matter is that the respondents had produced before the Tribunal the comparative marks allotted to the competing claimants for appointment on compassionate ground with reference to various factors to be taken into consideration which was placed on record as Annx. 1. Relying on the aforesaid the Tribunal had rejected the claim of the petitioner. This court in order dated 28.09.2005 succinctly summarized the real controversy and issued directions as under:- “It is contended by Mr. Vijay Mehta that the deceased left behind him besides the petitioner two sons Kewal Ram & Moola Ram who are minor. The deceased also left behind him four daughter out of whom one daughter is minor and unmarried. He has also left behind his widow Smt. Chandani Devi. Thus, there are 5 dependents of the deceased. As per entry of HQ Southern Command Pune, Veera Ram obtained 58 marks. On re-assessment of mark-sheet, by including additional marks as one dependent and one minor child he has been allotted additional 10 marks which becomes 68 marks. It is contended that the deceased has not bothered to give any information with respect to other four children. Prima facie, we are of the view that assessment is required to be made on the basis of hard fact that the deceased left behind him five children. The petitioner cannot be punished for the reasons that the deceased had not given any information about the other children. The respondents are directed to re- calculate or to make re-assessment of the marks by taking into consideration the other members of the deceased family as averred in para two of the petition. List after six weeks.” It is apparent that the court has directed to re-assess or re-calculate marks awarded by the Board in its proceedings dated 01.05.2001 vis-a-vis other candidates considered alongwith petitioner in the said proceedings. There was no direction to consider the petitioner's case afresh for future vacancy to be filled on the basis of compassionate grounds. In pursuance of the aforesaid directions, the court was informed on 16.11.2005 that particulars of the dependents of late Shri Shera Ram had been furnished to department on 20.10.2005 and more time was sought for making re-calculation or re-assessment of the points/marks in the light of memorandum dated 09.03.2001 which is enclosed as Annx. 07 to the writ petition. Thereafter, on 03.01.2006 the court was informed by the learned counsel for the respondent that the marking of the petitioner has been reviewed and his case has been referred to the respondent Board for giving appointment on the basis of marks obtained by him on review. Since the decision of the Board has not been conveyed the matter was adjourned awaiting the Board's decision. The court further observed that it is expected that if the petitioner's case falls in the order of merit according to revision of the marks then grievance shall be redressed. After seeking more time, ultimately, the court directed the respondent to place on record the result of the re-assessment of the petitioner's merit in the light of memorandum dated 09.03.2001 which was in force at the time when the petitioner's case was considered for the compassionate appointment in terms of order dated 16.11.2005 and all the proceedings that has been taken place thereafter. In pursuance of that direction finally the record of re- consideration has now been placed before us rejecting the petitioner's claim for appointment on compassionate ground. We find from the material place before us that while recommending body has allotted marks to the petitioner on various items on the basis of situation that prevailed at that time when the consideration of the petitioner's case took place i.e. to say on 01.05.2001 but the Board has reconsidered the entire issue as it was considering the case of petitioner for the first time in 2006, by taking into consideration the subsequent increase in family pension and the merger of 50% D.A. in the family Pension and the fact that some of the minor daughters, who were dependent at the time of first consideration, had been married. Apparently, the Board has misconstrued the directions of the court in reviewing the marks given by the recommending authority by considering the case as on the date the board met i.e. to say on 28.04.2006 which was quite contrary to the directions of the court. The court has made its direction clear and the case of the petitioner in the matter of awarding mark properly be considered by taking into consideration the relevant factors qua the competing claimants at that time which included the factors like existence of all minor dependents and unmarried daughters and financial status at the time of first consideration, has to be recalculated and not merely on the basis of information submitted by the deceased in his forms. By making a fresh consideration of the application for appointment on compassionate ground as if the case was being considered in 2006 was wholly uncalled for. The subject matter of the petition was consideration of his case in comparison with others in 2001. Direction was also in relation to find out the exact placement of the petitioner in the merit list prepared by the Board for giving compassionate appointments in 2001. The facts coming into existing since then could not have been merged with the then existing facts while considering re- calculation or re-assessment of marks as on the date when the board met first in 2001. We find that while recommending authority on the basis of family pension payable to widow of the deceased Shera Ram has granted full marks, the board at Headquarter has reduced the same by 12 marks by taking into consideration the merger of Dearness Allowances in the family pension w.e.f. 01.04.2004. Similarly, the unit board has taken into consideration the case of unmarried daughters and minor children existing as on the date of first consideration in 2001 by awarding full marks, the Headquarter considering the case in May, 2006 has taken into consideration the fact that only one daughter has remained unmarried. This was wholly misreading of the court's order. Out of the four daughters which the deceased has left behind as on the date of the first consideration only one daughter was minor but all were unmarried. Similarly, the number of minor children in 2001, were found to be five and the unit board as on that basis awarded full marks which has been reduced to 5% by the Headquarter. We are not examining mainly this for the purpose of finding out merit of the petitioner's but only to demonstrate that the board has not considered the question of re-calculating the marks as on the date the first consideration took place by taking into consideration the actual existing factors about number of minor children and unmarried daughters and not confining to the number of children informed by the deceased on record of the respondents. In the above circumstances, the denial to recommend the case of the petitioner for appointment on compassionate ground on the basis of fresh assessment in 2006, as if it was a determination of merits for the first time in 2006 cannot be sustained. It is not disputed before us that if the reconsideration of merit is to be taken as in 2001, the marks allotted by the unit Board and petitioner's merit position on that basis is correctly determined which ought to have been accepted by the Headquarter Board. If that be so it is a clear case in which persons lower in merit has been given appointment. Allowing such a position would amount to perpetuating the hostile discrimination which is writ large on the administrative action of the respondents. It cannot be sustained. Accordingly, petition is allowed. The respondents are directed to consider the petitioner's case as per the merit as on 01.05.2001 on the basis of recommendation made by the unit board and if on that basis he is found in order of merit against the available vacancies, he may be given appointment with effect from the date person lower in order of merit with consequential benefit. The order be given effect to within three months. However, it will not entail claim to any arrears of emoluments before the date of actual appointment. The petition is accordingly disposed of. No order as to costs. (GOPAL KRISHAN VYAS)J. (RAJESH BALIA)J. makwna/