JUDGMENT : S.R. BRAHMBHATT, J. 1. Heard learned counsels for the parties. 2. The petitioner, who happens to be an aspirant to be appointed on the basis of policy for making appointment on compassionate ground, has approached this Court by way of this petition under Articles 226 and 227 of the Constitution of India with following prayers. A. This petition be admitted and allowed. B. By exercising power under Article 226 of the Constitution of India, Your Lordship may be pleased to quash and set aside the Order dt. 10.3.2015 passed in Original Application No.138 of 2014 passed by Hon. Central Administrative Tribunal, Ahmedabad Bench whereby Hon. Tribunal dismissed the application filed by the petition and further Your Lordship may be pleased to allow the said Original Application No.138 of 2014 by directing the Respondent authority to give appointment to the petitioner on compassionate ground. C. Your Lordship may be pleased to direct the respondent authority to produce the list of those candidates who were given appointment on compassionate ground at the time of considering the case of the petitioner for compassionate appointment. D. Any other relief that may be deemed just, proper and necessary may also be kindly granted. 3. The facts in brief as gathered from the petition and required to adjudicate the controversy deserves to be setout as under : 3.1 The petitioner's father was serving as Permanent Telephonic Mechanic at Satlasna, District Mehsana and after rendering services for more than 20 years he passed away on 26th October 2009 in harness. As there was no earning member in the family and the petitioner being elder son applied for compassionate appointment on 15th July 2010. The application was submitted along with all the requisite documents as required. The authorities did not decide the application for around 4 years and after the period of 4 years, the application of the petitioner for compassionate appointment came to be rejected by respondent no.1 vide order dated 6th February 2013. The authority while rejecting the application did not mention any specific reason for rejection thereof. The said order of 6th February 2013 was communicated through GMTD, Mehsana along with the letter dated 15th May 2013. The authority while rejecting the application did not mention any specific reason for rejection thereof. The said order of 6th February 2013 was communicated through GMTD, Mehsana along with the letter dated 15th May 2013. 3.2 The petitioner came to know that there are some appointments made on compassionate ground and therefore, he made representation on 6th November 2013 for reconsideration of his case, which also came to be rejected vide order dated 19th November 2013 on the same ground. Ultimately, the petitioner has submitted in the petition that a petition came to be filed without his knowledge and thereafter, made following averments. “13. Petitioner states and submits that notice was issued in the abovementioned application, during the pendency of the said application, advocate of petitioner came to know from the advocate of the respondent authority that one application being O.A. No.138 of 2014 was filed in the name of the petitioner before the same Court and it was rejected on merits by the Order dt. 10.03.2015. A copy of the said impugned Order dt. 10.03.2015 is annexed herewith and is marked as Annexure O. Petitioner states that his advocate informed him about the same & asked him the reason for not disclosing the said fact to the advocate and to the Hon. Court. In reply to the same, petitioner submits that he did not know about the said application and about passing of the said order. Petitioner states & submits that his maternal uncle has given petitioner's document to one advocate who was family friend of petitioner's maternal uncle. As the said advocate was not handling the matters pertaining to petitioner's case, he has handed over the case paper of the petitioner's case to some another advocate about which the petitioner was totally unaware. Thereafter petitioner was called once by the advocate who was friend of his maternal uncle to take petitioner's signature on the case paper, at that time petitioner was not informed that the said document was pertaining to the matter to be filed in the Court nor petitioner was knowing the name of that advocate who was going to file his matter. Thereafter petitioner had contacted the said advocate many times but he got only one reply that his matter is in process, it will be filed soon. Thereafter petitioner had contacted the said advocate many times but he got only one reply that his matter is in process, it will be filed soon. The said advocate had never informed petitioner about the filing of the matter, about the name of the advocate on record/or the name of the advocate who was handling his matter, nor had informed about the disposal of the matter. Petitioner submits that he was completely unaware of the proceedings, therefore, petitioner, under the abovementioned facts and circumstances, request this Hon. Court to condone the mistake committed unintentionally by the petitioner in the interest of justice. 14. Petitioner states & submits that during the pendency of O.A. No.691 of 2016, petitioner has requested the Hon. Tribunal to grant him time to file the reply to explain the abovementioned circumstances to the Hon. Court, but as the application was already decided by the Hon. Tribunal previously, petitioner had to withdraw the same by Order dt. 20.12.2016 (Annexure N).” 3.3 When the petitioner filed another petition being Original Application No.691 of 2016, it came to the knowledge that there was already a petition filed, which came to be rejected and the petitioner withdraw the petition filed by him on 10th December 2016. Though even that time also the counsel has submitted that there was no time given for seeking instruction. However, this petition is filed challenging the order passed by the tribunal in Original Application No.138 of 2014 on 30th March 2015. During the pendency of this petition the petitioner invoked the provisions of Right to Information Act to obtain instructions and now it has been replied to the petitioner by the department that the grounds on which the O.A. came to be dismissed were nonexistence and there was no other way but to place the same on record. 4. Learned counsel for the petitioner submitted that affidavit in reply if read along with the reply which petitioner received under the provisions of RTI, then it would become absolutely clear that there was no earthly reason to deny the compassionate appointment to the petitioner. 5. Learned counsel for the petitioner submitted that petitioner could not have been denied the benefit of appointment on compassionate ground by invoking the provision, which was not existing at all i.e. the right not to appoint. 5. Learned counsel for the petitioner submitted that petitioner could not have been denied the benefit of appointment on compassionate ground by invoking the provision, which was not existing at all i.e. the right not to appoint. The interpretation of scheme purported to be leaving discretion is incorrect and the same is required to be declared so. 6. Learned counsel for the petitioner further submitted that the technical submission qua petitioner's requiring to file another O.A. on account of revelation under RTI Act would counter productive to cause of justice, as the petitioner, who has been languishing on the plight of unemployment for years will have to undergo enigma of litigation without any fruits of litigation. Whereas, the provision of the scheme coupled with the fact that it leaves no discretion in the authority would indicate that the petition is required to be allowed. 7. Learned counsel for the respondent contended that the petitioner cannot be permitted to make submission qua his ignorance of filing of the first petition being O.A. No.138 of 2014 as the same could not have been filed behind his back and therefore, this petition can be said to be not tenable in eye of law. 8. Learned counsel for the respondent further submitted that the petitioner in fact has not challenged the subsequent order, which according to him was result of O.A. No.691 of 2016, which in fact had been withdrawn and without challenging that order or seeking any other liberty thereon, the present petition could not have been maintained. 9. Learned counsel for the respondent further submitted that the petitioner has obtained information under the RTI Act and therefore, in any event, the petitioner was required to either go to the tribunal to seek appropriate relief on account of the unearthing of new material or file fresh O.A., but the petitioner assailed the order of O.A. No.138 of 2014 based upon the new material straight way in the High Court. 10. Learned counsel for the respondent submitted that the availability of vacancy would not be a compulsion upon the High Power Committee or the respondent to make appointment of the candidates on the compassionate ground. The discretion is left in the policy and therefore, the discretion is rightly exercised by the authority in recommending the names. 10. Learned counsel for the respondent submitted that the availability of vacancy would not be a compulsion upon the High Power Committee or the respondent to make appointment of the candidates on the compassionate ground. The discretion is left in the policy and therefore, the discretion is rightly exercised by the authority in recommending the names. The two names sent so far as the Gujarat Circle is concerned, but the vacancy position sent under RTI happens to be 110 in number and out of this only two persons came to be appointed and therefore, it can well be said that it is incumbent upon the authority not to make any appointment on compassionate ground. 11. Heard learned counsels for the parties and perused the record and proceedings. We are of the view that the learned counsel for the respondent is not absolutely incorrect in making submission qua the requirement of petitioner either approaching tribunal by way of review or by filing fresh application i.e. O.A. as in the instant case, the entire thirst of the submission for assailing the order of tribunal is based upon the material, which was made available to the petitioner on account of his application made under RTI. Now, that application and the material provided thereupon can be said to be a new material, which surely was not available to the tribunal when the tribunal rendered the order on 10th March 2015, which is subject matter of challenge and scrutiny in this petition. Therefore, we are of the view that there appears to be some substance and justification on the part of the learned counsel for the respondent. However, the same alone is required to be viewed in light of the provision of law and the principle of fair play and equity. In the instant case, we are of the considered view that the respondents have not acted in the spirit of the policy, which was promulgated to assuage the plight of those employees, who died in harness as it was meant for providing some kind of respite to those, who were to be declared as indigent and needed immediate help on account of such policy where in our view they unfortunately denied the compassionate appointment, which otherwise flown from the policy. 12. The policy, which is placed on record at page no.64 is the policy dated 9th October 1998. 12. The policy, which is placed on record at page no.64 is the policy dated 9th October 1998. The relevant portion which has been placed reliance upon by the learned counsel for the respondent is runs as under :” DETERMINATION/AVAILABILITY OF VACANCIES (a) Appointment on compassionate grounds should be made only on regular basis and that too only if regular vacancies meant for that purpose are available. (b) Compassionate appointments can be made upto a maximum of 5% of vacancies falling under direct recruitment quota in any Group 'C' or 'D' post. The appointing authority may hold back upto 5% of vacancies in the aforesaid categories to be filled by direct recruitment through Staff Selection Commission or otherwise so as to fill such vacancies by appointment on compassionate grounds. A person selected for appointment on compassionate grounds should be adjusted in the recruitment roster against the appropriate category viz. SC/ST/OBC/General depending upon the category to which he belongs. For example, if he belongs to SC category he will be adjusted against the SC reservation point, if he is ST/OBC he will be adjusted against ST/OBC point and if he belongs to General category he will be adjusted against the vacancy point meant for General category. (c) While the ceiling of 5% for making compassionate appointment against regular vacancies should not be circumvented by making appointment of dependent family member of Government servant on casual daily wage/adhoc/contract basis against regular vacancies, there is no bar considering him to such appointment if he is eligible as per the normal rules/orders governing such appointments. (d) The ceiling of 5% of direct recruitment vacancies for making compassionate appointment should not be exceeded by utilizing any other vacancy e.g. sports quota vacancy. (e) Employment/Department/Office in which deceased/medically retired Government servant had been working. Such an appointment can be given anywhere under the Government of India depending upon availability of a suitable vacancy meant for the purpose of compassionate appointment. (f) If sufficient vacancies are not available in any particular office to accommodate the person in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministry/Department/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.” 13. (f) If sufficient vacancies are not available in any particular office to accommodate the person in the waiting list for compassionate appointment, it is open to the administrative Ministry/Department/Office to take up the matter with other Ministry/Department/Offices of the Government of India to provide at an early date appointment on compassionate grounds to those in the waiting list.” 13. Learned counsel for the respondent submitted that this policy cannot be said to be taking away any discretion in the authorities and the assessment of the criterion at page no.58 as per the assessment advice promulgated from 27th June 2007 also cannot be interpreted as taking away any discretion from the authority. In our view, this submission is required to be rejected as the entire policy, which was promulgated in the year 1998 read along with the assessment criterion laid down in the year 2007 left no room for discretion in the authority as the assessment criterion providing for making appointment of the deserving candidates in terms of their need also lays down that those, who are securing 55 points or above are eligible candidates and any discretion to be exercised in selecting from amongst them is available only when there are more eligible candidates and less vacancies than the candidates, who has secured higher points will surely get preference to the one who has got less or point. But, when the vacancies are available, which are earmarked for offering them to the persons, whose guardians have died in harness, on the compassionate ground then developing or creating discretion so as to deny appointment to the indigent person so declared on account of the points assessed and not given the appointment in our view would be contrary to the policy and the assessment procedure and is also contrary to the Supreme Court judgment under which the policy came to be framed. The plain reading of discretion in the policy would therefore, militate against the spirit and letter of the policy and therefore, the same is unfortunately nothing but an attempt to create discretion where there is none and therefore, the same in our view amounts to deny the benefit, which is otherwise a legitimately admissible to the candidates like the present petitioner. 14. 14. In view of the aforesaid discussion, when we examine the submission of learned counsel for the respondent that the petitioner is required to be relegated to the tribunal would pale into insignificance as the policy and its incorrect interpretation adopted by the respondent authority in denying the compassionate appointment would clearly indicate that there is injustice which require to be restricted and relief is required to be granted. In that view of the matter, relegating the petitioner to the tribunal would serve no useful purpose especially when the tribunal is functional intermittently so far as the Ahmedabad is concerned on account of vacancies not filled in. 15. In view of this, we partly allow this petition and direct the authorities to reconsider the case of the petitioner on the basis of the points, which he has received and if there is nothing against him then offer him an appointment and the same exercise would be over within the period of 30 days from the receipt of writ of this order. Rule made absolute to the aforesaid extent. However, there shall be no order as to costs.