1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7752 OF 2008 Rukhminibai w/o. Ramesh Mali Age 40 years, Occ. Household R/o. Quarter NO. 3488/LA At Ordnance Factory, Warangaon, Tq. Bhusawal, Dist. Jalgaon. .. petitioners Versus 1] The Union of India. Through Ministry of Defence, New Delhi. 2] Ordnance Factory Warangaon, Tq. Bhusawal Dist. Jalgaon, through its General Manager. .. Respondent. --- Mr. P.B. Rakhunde, Advocate for the petitioner Mr. Alok Sharma, Advocate for the Union of India. 2 CORAM : B.R. GAVAI & N.D.DESHPANDE,JJ. DATE : 10TH SEPTEMBER,2009. ORAL JUDGMENT :- [PER B.R. GAVAI,J.] 1] Rule. Rule made returnable forthwith. Heard by consent. 2] By way of present petition, the petitioner is seeking a direction the respondents, particularly, to the respondent No.2 to appoint the petitioner on compassionate ground. 3] Facts in brief, giving rise to the present petitioner are as under :- . That, the husband of the petitioner namely, Shri Ramesh S/o. Pandurang Mali, was working with the respondent No.2. The husband of the petitioner died on 3rd December, 2003 during the tenure of his service. After the demise of the petitioner 's husband, the petitioner applied on 18th March, 2004, for appointment on compassionate ground. It was the contention of the petitioner that all the members in her family are dependent on her and that she was not having any other source of income and, therefore, had requested for appointment on compassionate ground. However, it appears that the respondent No.2 while considering the claim of the petitioner on 1/11/2004 and 20/2/2006 found that the petitioner was not eligible for appointment on compassionate ground. Hence, denied the appointment. The petitioner, therefore, approached this court. 3 4] In response to the notice issued by this court, an affidavit has been filed on behalf of the respondents stating that on 1st November, 2004, the case of the petitioner was considered for the first time. It is submitted that on the said date, the petitioner's son was below 18 years. Therefore, as per scheme 5 marks under column minor children have been given. It is, however, submitted when the claim of the petitioner was considered on 1st November, 2004, persons who had allotted more than 52 marks were only appointed. . It is stated that on the second occasion, the claim was considered on 20th February, 2006. It is submitted that on the said date, the son of the petitioner had become major and therefore, as per the scheme no marks were allotted under the column of minor children and the petitioner was allotted 47 marks. It is stated that on the said date, no person who had secured less than 47 marks was appointed. 4] It can thus clearly be seen that on the second occasion, the petitioner was allotted 47 marks on the ground that the petitioner 's son had become major and, therefore, the petitioner was not entitled to additional 5 marks, which are allotted only in case of a person having minor children. The respondents in this respect relies on the declaration made on 3rd May, 2004, by the petitioner before the Labour Officer, wherein, the age of the petitioner's son Mahesh is shown as 17 years. 4 5] We have perused the record, The only reliance placed by the respondent No.2 to arrive at a finding, that on the date on which the petitioner's case was considered on second occasion, I.e. 20/2/2006, the petitioner was not allotted 5 marks as her son had attained majority, is the declaration made by the petitioner. 6] We have seen the said declaration. it could be seen that the entire details in the said declaration are in English, whereas, the signature of the petitioner is in Marathi. It is clear that all these details have been recorded on the said declaration by someone else and presumably, the Labour Officer and only petitioner's signature has been taken thereon. 7] It is relevant to note that the son of the petitioner Mahesh was born at Varangaon itself and that the relevant authority to maintain register of birth and death in so far as Varangaon is concerned, is the respondent No.2 I.e. the Ordnance factory. From the extract of birth register 884/1975, it is clear that the date of birth of the petitioner's son Mahesh is shown as 26th April, 1988. The name of the petitioner as well as her husband is also recorded on the said document which is annexed at Exhibit B to the petition. Not only thus, the petitioner's son has also taken education at Varangaon, in the school which is run by the respondent No.2 . In the said document also, the date of birth of the petitioner 's son Mahesh is shown as 26th April, 1988. We are, therefore, of the considered view that when the record maintained by the respondent No.2 was very much available which itself shows that the date of birth of the petitioner's son is 26th April, 1988, the so called reliance 5 placed by the said respondent on the declaration of the petitioner for rejecting the claim of the petitioner was not warranted in law. 8] From the record, it is clear that on 20th February, 2006, the petitioner's son Mahesh was yet to attain majority. The petitioner was, therefore, entitled to the additional 5 marks in accordance with the scheme framed by the respondent No.2 itself. Had the 5 marks been added in the petitioner's case, the petitioner could have scored 52 marks. From the perusal of the record, it is clear that the legal heir of one R.R. Saraf has been considered for compassionate appointment though only 50 marks were allotted in the said case. It is thus clear that had the 5 marks, to which the petitioner was legally entitled, been added to 47 marks allotted to the petitioner, the petitioner would have secured 52 marks and as such, could have been above the case of legal heir of late Mr.R.R. Saraf. 9] We are, therefore, of the considered view that in the selection process, which was considered on 20th February, 2006, the petitioner had a better claim than the claim of legal heir of late Mr. R.R. Saraf. In that view of the matter, we are of the considered view that the respondent No.2 was not justified in rejecting the claim of the petitioner on 20/2/2006, solely on the ground that the petitioner was not entitled to 5 marks on account of her son being not minor. As has been already discussed hereinabove, the entire record of birth and death is maintained by the respondent No.2 itself and as such, the record relating to the date of birth of the petitioner's son which was 6 very much available with it, would have shown that he was minor on the date on which the petitioner's case was considered on the second occasion. 10] As already discussed hereinabove, the petitioner had a better claim on 20/2/2006 than the claim of the legal heir of late Mr. R.R. Saraf, who has been found to be eligible for appointment on compassionate ground. 11] We find that the petitioner was entitled to be appointed on compassionate ground when her case was considered on the second occasion on 20/2/2006. However, since the legal heir of late Mr. R.R. Saraf is already appointed for a considerable length of time, we are not inclined to interfere with the said appointment, though we find that the petitioner had a better claim than the legal heir of late Mr. R.R. Saraf. 12] In the result, we allow the petition with a direction to appoint the petitioner on compassionate ground in the next available vacancy. Rule made absolute in above terms with no orders as to costs. [N.D. DESHPANDE, J.] [B.R. GAVAI,J.] Grt/-