Neutral Citation No. - 2025:AHC-LKO:49401-DB Court No. - 1 Case :- WRIT - A No. - 5603 of 2023 Petitioner :- Amit Mishra Respondent :- Central Administrative Tribunal, Lucknow Bench, Lucknow And Others Counsel for Petitioner :- Shyam Mohan Pradhan Counsel for Respondent :- Varun Pandey,A.S.G.I. Hon'ble Rajan Roy,J. Hon'ble Manjive Shukla,J. 1. Heard Ms. Adya Antya, learned counsel for the petitioner and Sri Varun Pandey, learned counsel for the Union of India. 2. After hearing learned counsel for the parties and perusing the record, ultimately, what comes out is that father of the petitioner died on 7.12.2009 at that time the he was a minor. The mother applied for compassionate appointment of the petitioner on 31.12.2010. On the said date also the petitioner was a minor but subsequently the mother applied for the petitioner's compassionate appointment again on 31.8.2014 after he had attained majority. His date of birth being 31.12.1995 he had already attained the age of majority on 31.12.2013. The attaining age of majority as also the application dated 31.8.2014 was within the period of 5 years envisaged in Clause -ii of the Office Memorandum dated 25.3.2014, which reads as under:- "(ii) The status of the family and liabilities of education of children, marriage of daughter should be assessed on the date of death and age of the applicant should be determined on the date of application. However, in the belated cases say 5 year or more old cases, the status of the family should be adjudged on the date of application." 3. By this Office Memorandum dated 25.3.2014, the earlier Office Memorandum dated 9.10.1998 etc. were clarified. Based on the aforesaid provision, the status of the family and liabilities of education of children, marriage of daughter were to be assessed on the date of death although the age of the candidate (petitioner) was to be determined on the date of application. 4. It being so, when we peruse the order impugned before the Tribunal, copy of which is annexed as Annexure-2 to this writ petition, we find that while calculating the merit points, which is the basis for offering compassionate appointment in terms of the relevant office memorandums on this subject, it has been mentioned that the petitioner herein secured only 55 merit points, however, while calculating his merit points we find that at Serial No. (f) while mentioning the unmarried daughters two unmarried daughters have been mentioned and 10 marks have been given. The contention of the petitioner's counsel is that in fact on the date of the death i.e. 7.12.2009 there were three unmarried daughters as was mentioned in the application dated 31.8.2014, however, learned counsel for the opposite parties says that in the form submitted by the petitioner, which is contained as Annexure-10, only two unmarried daughters had been shown. The counsel for the petitioner submits that as this form was being submitted on 20.11.2014 therefore, this error crept in as the applicant was not aware about the provision contained in Office Memorandum dated 25.3.2014 according to which marriage of daughter had to be assessed on date of death. 5. We are of the opinion that if, otherwise, on facts, it is proved that there were three unmarried daughters as on 7.12.2009 then the aforesaid cannot be a ground for denying compassionate appointment. In the counter affidavit in para-8 the opposite parties themselves have stated that one of the daughters was married in 2011, therefore, it is an admitted fact that on 7.12.2009 the said daughter was unmarried. There is no dispute about the other two daughters Shaurya Mishra and Kshama Mishra being unmarried not only on the date of death but also on the date of application. Further in the application dated 31.8.2014, there is mention of three unmarried daughters, therefore, justice should not be denied merely on a technical plea. It appears that the opposite parties proceeded to calculate the merit point on the basis of date of application, erroneously and dehors the O. M. dated 25.3.2014 Before us, it is clear that there were three unmarried daughters on the date of death i.e. 7.12.2009, therefore, instead of 10 marks, the petitioner was entitled to 15 marks as it was a case where the application had been submitted within the period of five years from the date of death. 6. This apart we find that the number of minor children is mentioned in the order dated 27.1.2020 as Nil and marks as Zero (0) whereas, according to the petitioner's counsel on the date of death i.e. on 7.12.2009 there were three minor children, namely, the petitioner- Amit Mishra whose date of birth is 31.12.1995, secondly Kshama Mishra whose date of birth is 4.3.1993 and thirdly Shaurya Mishra whose date of birth is 8.12.1991. Out of these two WRIA No. 5603 of 2023 2 of the children were minor in terms of Clause -(ii) of order dated 25.3.2014 , namely, Kshama Mishra whose date of birth is 4.3.1993 and Shaurya Mishra whose date of birth is 8.12.1991. Though Amit Mishra was also a minor but he being the applicant for compassionate appointment, his age was to be calculated on the date of application, by that date, he had attained majority, therefore, in the columns corresponding to serial no. (g) of the order dated 27.1.2020 specifically column-II and III instead of mentioning Nil and Zero, the figures 2 and 10 should have been mentioned. The aforesaid dates of birth are mentioned in C.A.-10, which has been relied by the opposite parties. Now, at least this fact is apparent from the record/document being relied by the opposite parties themselves. This also gives force to the contention of the petitioner that instead of making the calculation of merit points on the basis of date of death in terms of clause-(ii) of Office Memorandum dated 25.3.2014, the opposite parties have calculated the same on the date of application, erroneously in respect of two children. This being the apparent factual position about which there can not be two views, at serial no. (g) of the order dated 27.1.2020 instead of mentioning 'Nil' in Column-II and Zero (0) in Column -III, the figures 2 and 10 should have been mentioned as against maximum 15 marks, two children were minor on the date of application. 7. Even if the contention of Sri Pandey that in the application form contained in Annexure No. CA-10 submitted by the petitioner himself, instead of three unmarried daughters only two unmarried daughters were mentioned, therefore, the opposite party rightly gave 10 marks instead of 15 marks is accepted it will only mean that the marks at serial no. (f) would remain as it is, even then, the petitioner would secure 65 marks which is more than the last selected compassionate appointment, therefore, this contention does not make any difference to the result of the petition. 8. Based on the aforesaid, the total merit point secured by the petitioner would have been much more than the last selected/ a candidate appointed on compassionate basis who had only secured 57 merit points, therefore, apparently the consideration is dehors the material on record and the provision contained in clause-(ii) of Office Memorandum dated 25.3.2014. 9. The tribunal has missed all these relevant aspects and it has dismissed the OA on a cursory consideration of the matter only with reference to certain decisions of Hon'ble The Supreme Court without noticing the relevant provision of the Office Memorandum dated 25.3.2014 and the facts WRIA No. 5603 of 2023 3 as borne out from the records before it. 10. The contention that only 5% quota is prescribed for compassionate appointment and it is not known as to whether there are any vacancies under the said quota, is also not acceptable for the simple reason, the opposite parties have appointed a person having less merit point than the petitioner and if we accept this contention it would be discriminatory. The opposite parties cannot commit a wrong and then try to take advantage of it. If there is no vacancy in the quota as of now then they will have to create a supernumerary post for the petitioner who can be adjusted against a vacancy under the quota as and when it occurs. 11. We accordingly find the judgment to be erroneous and accordingly quash the order dated 12.5.2023 passed by the Central Administrative Tribunal, Lucknow Bench as well as order dated 27.1.2020 passed by the respondent no. 4. OA No. 332/00202/2021 stands allowed. The petitioner shall be offered compassionate appointment within one month from the date of a certified copy of this is produced, in the light of the above discussion. 12 . The writ petition is, accordingly, allowed. . (Manjive Shukla,J.) (Rajan Roy,J.) Order Date :- 22.8.2025 Anuj Singh WRIA No. 5603 of 2023 4 Digitally signed by :- ANUJ PRATAP SINGH High Court of Judicature at Allahabad, Lucknow Bench