ORDER : 1. The petitioner has filed this writ petition challenging the inaction of the respondent authorities whereby case of the petitioner for grant of compassionate appointment has not been considered and decided till date even after submission of necessary documents. 2. The brief facts, as reflected from the records are that the petitioner is son of Shri Nestor Tirkey and his mother is Smt. Mukti Tirkey who is first wife of Shri Nestor Tirkey. She died on 14/05/1990, thereafter, petitioner’s father solemnized second marriage with one Smt. Lucia Tirkey. Petitioner’s father was initially appointed as Constable on 04/04/1987 and promoted as Head Constable in Railway Protection Force (RPF), SECR Bilaspur. On 11/11/2016 petitioner’s father was declared medically unfit in all categories of services in Indian Railway on Medical Grounds w.e.f. 11/11/2016 and on the basis of the findings of the Medical Board on 11/11/2016, followed by detailed medical report given by respondent No.5, the petitioner's father was given retirement on 15/03/2017. It has been further contended that petitioner’s father made an application before Respondent No.4 on 25/01/2018 to provide compassionate appointment to the petitioner. On 12/10/2018 petitioner’s father submitted details of living members of the family before respondent No. 4 and on 04/06/2019 submitted application cum declaration for employment assistance on compassionate ground in group 'C' and 'D'. The respondent authorities/SECR by communication dated 14/10/2019 directed the petitioner to submit details of legal heirs and NOC as well as consent in favour of the petitioner. In compliance of the same, the petitioner submitted NOC/ consent of all the legal heirs (living family members) on affidavit before respondent No.4. The petitioner has also submitted ‘National Trade Certificate' in Fitter Trade along with school certificates. 3. It has been further contended that despite furnishing each and every document as well as information demanded by the respondent authorities, the respondent authorities are acting arbitrary and contrary to the law applicable to the facts and circumstances of the case by not issuing appointment order to the petitioner on compassionate ground. Therefore, it has been prayed that the respondent authorities be directed to consider the case of the petitioner and grant him compassionate appointment. To substantiate his submission learned counsel for the petitioner has referred to policy/circular dated 14.06.2006 as well as circular No. 16 issued by the Ministry of Railways, Government of India which provide grant of compassionate appointment on medical ground. 4. To substantiate his submission learned counsel for the petitioner has referred to policy/circular dated 14.06.2006 as well as circular No. 16 issued by the Ministry of Railways, Government of India which provide grant of compassionate appointment on medical ground. 4. The respondent/Union of India has filed their return not disputing regarding appointment and promotion and also the fact that petitioner’s father got medically de-categorized in all medical category with effect from 11/11/2016 vide CMS/BSP L/No. fpfd@oSdfYir 2016/2248 dated 21/11/2016, thereafter, he opted for Voluntary Retirement and retired from service w.e.f. 15/03/2017. It has been further contended that petitioner’s father had submitted two applications on 07/12/2016 & 25/04/2017 (consent letter) for compassionate appointment in favour of his second wife's son David Tirkey. Petitioner’s father submitted another application on 25/01/2018 along with all required documents seeking compassionate appointment in favour of his first son Deepak Kumar Tirkey duly cancelling his earlier application submitted for compassionate appointment for David Tirkey. The compassionate appointment in favour of the petitioner was initiated and was under process. In the meantime, both Sri Nestor Tirkey and his 2nd wife Lucia Tirkey submitted an application dated 04/09/2019 before respondents alongwith copy of order passed in MJC 150/2019 dated 13/07/2019 passed by the Family Court, Bilaspur wherein it has been considered that Sri Nestor Tirkey and Lucia Tirkey have expressed their consent that both of them are agreed to give compassionate appointment in favour of their son Sri David Tirkey (Son of Sri Nestor Tirkey and Lucia Tirkey). It is also mentioned therein that in case of denial of David Tirkey for compassionate appointment, case of Smt. Lucia Tirkey should be processed duly cancelling all previous applications submitted by Nestor Tirkey seeking compassionate appointment. Based on their applications, process for compassionate appointment in favour of Deepak Kumar Tirkey was held up by the respondents. Subsequently, case of compassionate appointment in favour of David Tirkey was initiated afresh. However, on 04.10.2019, David Tirkey has submitted his application expressing his unwillingness for compassionate appointment. Thereafter, a letter dated 14.10.2019 has been sent to Nestor Tirkey advising him to submit application afresh nominating his other family member for compassionate appointment and in turn, Nestor Tirkey submitted an application dated 20.11.2019 wherein compassionate appointment in favour of Lucia Tirkey was sought. In the given situation the claim of the petitioner could not be proceeded. 5. Thereafter, a letter dated 14.10.2019 has been sent to Nestor Tirkey advising him to submit application afresh nominating his other family member for compassionate appointment and in turn, Nestor Tirkey submitted an application dated 20.11.2019 wherein compassionate appointment in favour of Lucia Tirkey was sought. In the given situation the claim of the petitioner could not be proceeded. 5. The learned counsel for the petitioner would submit that subsequently David Tirkey has informed the respondents that he is not ready and willing to get employment under the compassionate policy framed by the railways and accordingly, he has sent the letter dated 04.10.2019. Copy of the same was also filed by the respondents in their return. Therefore, this Court vide its order dated 03.05.2024 has directed to implead David Tirkey as respondent No. 7, accordingly, he was impleaded as respondent No. 7 and submitted an affidavit before this Court on 08.05.2024 wherein it has been stated as under:- “1. That I have no objection against the application filed by the petitioner for grant of compassionate appointment. I have come to know that the petitioner has submitted yet another application for grant of compassionate appointment through registered post on 31/08/2023. I have no objection to that application as well. 2. That I further submit it on oath that I shall never raise any objection or dispute if the petitioner is given compassionate appointment by the respondents.” 6. Looking to the inter se dispute between the petitioner and the respondent No. 6, this Court has directed to serve notice to respondent No. 6 Smt. Lucia Tirkey and fixed the matter on 25.04.2024. The notice was served upon them through humdast still no one has appeared. The petitioner has also submitted affidavit regarding service of notice humdast, therefore, this Court has proceeded further in the matter and adjourned the case on 09.05.2024. The matter was adjourned to 11.06.2024, on that day the respondent No. 6 has not appeared, but only respondent No. 7 alongwith his counsel appeared and raised no objection in considering the case of the petitioner for grant of compassionate appointment. 7. From the abovestated factual matrix the point for determination by this Court is whether the mother’s claim for compassionate appointment has to be given priority or the petitioner’s claim who has long tenure in the employment has to be given. 8. 7. From the abovestated factual matrix the point for determination by this Court is whether the mother’s claim for compassionate appointment has to be given priority or the petitioner’s claim who has long tenure in the employment has to be given. 8. To ascertain this question, it has to be seen by this Court that the object of compassionate appointment as compassionate appointment is only a compassionate and cannot be claimed as matter of right in absence of rules or instructions issued in this behalf. The compassionate appointment has to be made immediately upon death/incapacitation and the employer cannot be compelled to make appointment de hors the rules or scheme. In the present case, there is a dispute between mother who is aged about 51 years and the son of first wife of Shri Nestor Tirkey. Therefore, while considering the rival claim between them, this Court has to ascertain to whom the compassionate appointment granted will be more benefitted for the family and fulfill the obligations and conditions of the compassionate appointment policy. On the other hand it has to be seen that there should be proper protection to the interest of the person who has been denied compassionate appointment. 9. In light of the above background if the facts of the case have to be seen, it would be quite vivid that the petitioner is aged about 32 years and the mother is aged about 51 years, as such the petitioner will get tenure of service of about 25 years, whereas the respondent No. 6 has short tenure of service which will be about 6-7 years and she will not be able to get much financial support, therefore, considering this aspect of the matter, the balance of equity and convenience lies in favour of the petitioner, therefore, direction can be very well issued to respondents to consider the case for compassionate appointment. Even otherwise as per the policy of Railways the petitioner being beneficiary of compassionate appointment has to maintain old age mother and other family members which is prerequisite for grant of compassionate appointment thus, safeguards to protect the interest of respondent No. 6 have already been made. 10. The issue with regard to permissibility of substitution of one legal heir in his place another legal heir is not against the object of compassionate appointment or it does not defeat the object of compassionate appointment. 10. The issue with regard to permissibility of substitution of one legal heir in his place another legal heir is not against the object of compassionate appointment or it does not defeat the object of compassionate appointment. The same has been examined extensively by the Hon’ble full Bench of Bombay in case of 2024 (4) MHLJ 3112, Neutral Citation : 2024 BHC-NAG-5826 wherein the Hon’ble Bombay High Court has considered the object of compassionate appointment and the law declared by the Hon’ble Supreme Court in paragraph 36, 41 and 42 has held as under:- “36. In this background now let us get the perspective of this matter looking at the ground realities of today's life. The upper age to seek employment under State of Maharashtra is 40 years for the open category and 45 years for the reserved category. The average age of marriage in the state of Maharashtra is 28 to 30 years. Thus, it is a possibility that, an employee dies in harness between the age of 45 to 47 years and his widow is aged more than 42 years and less than 45 years on the date of death of the employee. Resultantly, She applies for compassionate appointment since her son/daughter is below 18 years of age and not eligible for seeking employment. In that event if no appointment is made immediately before she attains age of 45 years, her name will be deleted within a period of three years on the ground that she has attained the age of 45 years. The consequences of it would be harsh i.e. in less than the maximum period of three years provided for making application for appointment including the period of condonation of delay, the family would be disentitled to claim appointment if substitution is not permitted. Therefore, denial to substitute the name of another member of the family only because substitution is sought on the ground that the member waitlisted has attained age of 45 years cannot be said to be justifiable in such or similar matters. 41. It may be noted there may be n number of reasons justifying the request for substitution of name in consonance with the object of compassionate employment. 41. It may be noted there may be n number of reasons justifying the request for substitution of name in consonance with the object of compassionate employment. Though, it is difficult to anticipate every such situation, few are stated hereunder as illustrations: i) The widow of the employee, aged 41 years or more applies with an expectation that before she attains age of 45 years, she would get employment. However, because of delay in appointment, her son/daughter attains the minimum age of 18 years. ii) If the member who is beyond 18 years of age and is pursuing his studies, applies for appointment but because no appointment is made immediately he may have reached a particular stage in his academic career where pursuing further academic course is far more important for future prospects and consequently, the family members instead of him, seek employment in favour of any other member of the family. iii) On making an application by one of the members of the family and before the appointment is made, family realizes that for certain reasons another member is more appropriate and suitable for an appointment. iv) On making the application such member of the family becomes incapacitated physically or medically. v) The widow of the deceased employee applies as the son/daughter is a minor. But, before the appointment is made, the son/daughter attains age of 18 years and the family takes a decision that it would be more appropriate to seek employment for the son/daughter. 42. In any of the above eventuality denial to substitute the name amounts to denial to grant compassionate appointment contrary to the scheme.” 11. In light of above factual matrix, writ of mandamus be issued to the respondents to consider the case of the petitioner for grant of compassionate appointment within 2 months from the date of receipt of copy of this Court as per the circular/policy of the Railways and they will also issue appropriate direction to see that interest of the respondent No. 6 is also protected. 12. With the aforesaid observation and direction, the writ petition is allowed.