Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1330 (RAJ)

Hemant Chouhan v. State of Rajasthan

2001-08-24

A.R.LAKSHMANAN, BHAGWATI PRASAD

body2001
JUDGMENT 1. - This appeal is directed against the order passed by V.G. Palshikar, J. in the writ petition, by which the appellant/petitioner sought improvement of the position. 2. The short facts are that on the death of the appellant's father who was serving as Senior Commercial Taxation officer, Circle-III, Jodhpur, when he expired on 26.9.1991, the appellant's mother applied to the respondents for providing him appointment commensurate with his qualification under the Rajasthan Recruitment of Dependents of Government Servants (Dying while in Service) Rules, 1975 (for short 'the Rules of 1975' hereinafter). According to the appellant, he is possessed of Degree in Science Mathematics and Post-graduate degree in M.A. English Literature when application was sent for providing him appointment in place of his father on compassionate ground. The appellant was informed that in view of the instructions contained in the letter dated 1.4.1989, he can be appointed on the post of Commercial Taxation Inspector (Subordinate Service) and not on the post of Assistant Commercial Taxation officer. The appellant was asked by the aforesaid letter that he may state whether he is desirous of being appointed on the post of Commercial Taxation Inspector or not. In pursuance of this letter, the appellant submitted his acceptance letter but under protest reserving his right "to assail the validity of such action of the respondents. The appellant again submitted another application on 18.8.1991 stating that Shri Ketan Sharma, Miss Anita Khatri and Miss Anita Mathur have been given appointments on the post of Assistant Commercial Taxation officer under the Rules of 1975 and, therefore, they were appointed after the aforesaid instructions came into effect on 1.4.1989, the appellant should also be considered for appointment to the said higher post. However, the respondents have denied the appointment on the post of Commercial Taxation Inspector in terms of the guidelines of the above letter. Feeling aggrieved of the order dated 26.8.1991, the appellant preferred the writ petition for the reliefs claimed thereunder. 3. The writ petition was resisted by the respondents stating that the appellant himself had agreed to be appointed on the post of Commercial Taxes Inspector vide his letter dated 31.7.1991 though after reserving the rights in this respect and that the appellant cannot now come around and say that he should have been considered for the higher post on the basis of his qualification. Since right to be considered for appointment on compassionate ground was consummated, no further consideration on compassionate ground would arise. 4. Palshikar, J. dismissed the writ petition against which the present appeal has been filed. 5. We have heard Mr. Mridul for the appellant and Mr. Sangeet Lodha for the respondents. 6. Learned Sr. Adv. Mr. Mridul submitted that the appellant is possessed of Degree in Science Mathematics and Post-graduate degree in M.A. English Literature when application was sent for providing him appointment in place of his father on compassionate ground and the respondents instead of considering him for appointment to the higher post informed the appellant that in view of the instructions contained in the letter dated 1.4.1989, he can be appointed on the post of Commercial Taxation Inspector (Subordinate Service) and not on the post of Assistant Commercial Taxation officer. It is further submitted that the appellant being in dire necessity of the employment was compelled to convey his acceptance but he did so under protest reserving his right to assail the validity of such action of the respondents and, therefore, he submitted another application dated 18.8.1991. Mr. Mridul further submitted that the provision for compassionate appointment has been made in the Rules in view of the fact that the family of the deceased Government employee needs immediate succour on account of the loss of bread earner and in these circumstances, if the appellant accepted the appointment, he did so under compelling circumstances but he did so under protest, therefore, he submitted that there was no waiver of the right claimed by the appellant to be appointed as Assistant Commercial Taxation officer. 7. Learned Counsel Mr. Sangeet Lodha in reply submitted that the question of reconsideration and for giving further appointment to the appellant on the post of Assistant Commercial Taxation officer does not arise at all and moreover, there is no such provision in the Rules of 1975. He would further submit that the action on the part of respondents do not tend to violate any fundamental right or constitutional right of the appellant guaranteed by the Constitution when the appointment itself is on compassionate grounds and, therefore, the appellant cannot be permitted to lay a further claim for appointment on the higher post. He would further submit that the action on the part of respondents do not tend to violate any fundamental right or constitutional right of the appellant guaranteed by the Constitution when the appointment itself is on compassionate grounds and, therefore, the appellant cannot be permitted to lay a further claim for appointment on the higher post. It is further submitted that since the appellant has accepted the appointment, he cannot now resile back from his acceptance and ask for consideration of his name for a higher post. Mr. Sangeet Lodha in support of his contention, placed reliance on the following four rulings of the Supreme Court : (1) State Of Madhya Pradesh v. Ramesh Kumar Sharma, AIR 1994 SC 845 , (2) Umesh Kumar Nagpal v. State Of Haryana, 1994(4) SCC 138 , (3) State Of Bihar v. Samsuz Zoha, JT 1996 (6) SC 7 , and (4) State Of Rajasthan Umrao Singh, JT 1994 (6) SC 372. 8. We have carefully considered the rival claim and submissions made by both the parties. We are of the opinion that the appellant has not made out any case for interference with the order passed by the learned Single Judge. The respondents on a consideration of the application submitted before the Commissioner Commercial Taxes, Rajasthan considered the name of the appellant for appointment on the suitable post. The appellant himself has agreed to be appointed on the post of Commercial Taxation Inspector vide his letter dated 31.7.1991. When the appellant himself had accepted the appointment and has joined the duty on the post of Commercial Taxes Inspector, it shall be considered to be made on compassionate ground and legally, he cannot be permitted to lay a further claim for appointment on the post of Assistant Commercial Taxation officer. In our view, the right to be considered for appointment on the compassionate ground was consummated and, therefore, no further consideration would ever arise. 9. The law is well settled on this issue. The Supreme Court in State of Madhya Pradesh and Ors. v. Ramesh Kumar Sharma, 1995(6) SLR 63(SC). held that the claimant has no right to any particular post of his choice and he can only claim to be considered for post. It is noteworthy to refer para 3 and reproduce the same here under : "3. The Supreme Court in State of Madhya Pradesh and Ors. v. Ramesh Kumar Sharma, 1995(6) SLR 63(SC). held that the claimant has no right to any particular post of his choice and he can only claim to be considered for post. It is noteworthy to refer para 3 and reproduce the same here under : "3. Learned Counsel for the appellants has contended that under the instructions in question the respondent is not entitled to a higher post of his choice merely because he fulfils the requisite eligibility qualifications. Learned Counsel for the respondent has attempted to defend his case by citing the illustration of another applicant-Rajiv Dwivedi-who, according to him, was appointed in similar circumstances as APP Grade-II. The facts relating to Rajiv Dwivedi are not on record and it is the mere assertion of the respondent that the circumstances are identical. Even assuming that Rajiv Dwivedi's case was similar to that of the respondent, the applicant has no right to any particular post of his choice, he can only claim to be considered for that post. It would ultimately be for the authority to decide if some common principle was involved in the two cases. It a mistake was committed in an earlier case, that cannot be a ground for directing the State to perpetuate the error for all times to come. Learned Counsel for the respondent has not been able to show before us any rule or Government instructions under which the respondent can claim the post of APP-Grade-II." 10. The Supreme Court in another case of compassionate ground Umesh Kumar Nagpal v. State of Haryana and Ors. 1994(2)SLR 677(SC) after referring to the factors necessary to be taken into account before offering compassionate appointment, held that mere death of an employee does not entitle his family to compassionate appointment and the authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crisis resulting from the employee's death. In the said judgment, the Supreme Court has also held that ad hoc appointments should be confined to only Class-III and IV posts and such appointments to Class-I or II post, is legally impermissible. The Supreme Court held as under : "The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. In the said judgment, the Supreme Court has also held that ad hoc appointments should be confined to only Class-III and IV posts and such appointments to Class-I or II post, is legally impermissible. The Supreme Court held as under : "The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood, the Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. Offering compassionate employment as a matter of course irrespective of the financial condition of the family of the deceased and making compassionate appointments in posts above Classes-III and IV, is legally impermissible. State of Bihar v. Samsuz Zoha etc., 1996(4) SLR 235 (SC) 11. The above appeal was filed by the State of Bihar before the Supreme Court. The High Court in this case interfered with the appointments made on compassionate ground by the Government. In this case, the Government had resolved to appoint on compassionate ground the dependent son or daughter of the deceased employee who died in harness. The department recommended candidates for certain posts depending upon the qualifications etc. A committee so appointed after identifying the vacant posts made recommendations of the candidates for appointment as Class- IV employees. The candidates, who were appointed as Class-IV employees approached High Court by way of writ petitions. The High Court directed the respondents to consider afresh their appointments to any one of the Class-III posts which were kept reserved for promotion from existing Class-IV employees. The candidates, who were appointed as Class-IV employees approached High Court by way of writ petitions. The High Court directed the respondents to consider afresh their appointments to any one of the Class-III posts which were kept reserved for promotion from existing Class-IV employees. The question before the Supreme Court was as to whether the High Court is right in giving directions to appoint them afresh or give them promotion? The Supreme Court held that the State had taken a policy decision to appoint all the candidates irrespective of the qualifications as Class-IV post and, therefore, the Committee decided the principle that all the available posts in Class-IV should be made available to the candidates in the awaiting list for appointment on compassionate grounds. The Supreme Court held that the principle adopted by the Government cannot be said to be unjustified or illegal. The Supreme Court further held that the High Court was not justified in issuing such directions in all the cases for appointment to Class-III post. State of Rajasthan v. Umrao Singh, 1994(5) SLR 638. 12. This is a case filed by the State of Rajasthan in Supreme Court. The respondent therein Umrao Singh's father died while he was serving as a Sub-Inspector in 1989. He applied to the appellant for appointment of compassionate ground and was appointed as L.D.C. on 14.12.1989 on compassionate ground. After having accepted the appointment as L.D.C., he sought appointment as Sub-Inspector which was denied. He preferred a writ petition and the learned Single Judge of High Court of Rajasthan directed consideration of his candidature for appointment to the post of Sub-Inspector in accordance with the proviso to Rule 5 of the Rules. Assailing the correctness of the said judgment, special appeal was filed which was dismissed on the ground of delay of 112 days. The State of Rajasthan preferred the above civil appeal before the Supreme Court. Two contentions were raised on behalf of the State of Rajasthan - (1) the division bench erred in dismissing the appeal merely on the ground of delay and (2) in identical circumstances, the Supreme Court set aside the direction of the High Court for consideration of candidature on compassionate ground when on such compassionate ground, the candidate has been appointed as a clerk. The Supreme Court granted special leave and condoned the delay and thereafter proceeded to decide the matter on merits. The Supreme Court granted special leave and condoned the delay and thereafter proceeded to decide the matter on merits. It is held in para 8 as under : "Admittedly, the respondent's father died in harness while working as Sub-Inspector, C.I.D. (Special Branch) on 16.3.1988. The respondent filed an application on 8.4.1988 for his appointment on compassionate ground as Sub-Inspector or L.D.C. according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of L.D.C. by order dated 14.12.1989. He accepted the appointment as L.D.C. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate ground would ever arise. Otherwise, it would be a case of 'endless compassion'. Eligibility to be appointed as Sub-Inspector of Policy is one thing, the process of selection is yet another thing. Merely because of the so-called eligibility, the learned Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case. 13. It is thus, seen from the above judgment that once a right has consummated, any further or second consideration for a higher post on the ground of compassion would not arise. 14. We may also in this context usefully refer to a very recent judgment of this Court (Jaipur Bench) rendered by Chief Justice and Mr. Justice A.K. Parihar in D.B. ( State of Rajasthan and Ors. v. Sushil Kumar Natani), Civil Special Appeal (Writ) No. 616/2001 dated 14.8.2001. The above appeal was filed by the State of Rajasthan against the direction issued by the learned Single Judge with a direction to the respondents therein (State of Rajasthan) to consider the case of the petitioner therein (Sushil Kumar Natani) to give appointment on the post of Junior Accountant. The writ petition was resisted by the State on the ground that once the respondent had been given appointment on the post of L.D.C. for which he was eligible, he cannot claim to be appointed on a higher post. The writ petition was resisted by the State on the ground that once the respondent had been given appointment on the post of L.D.C. for which he was eligible, he cannot claim to be appointed on a higher post. It was also submitted that the compassionate ground is not a vested right and once the respondent accepted the post, his right to be considered for appointment on a higher post was consummated and therefore, no consideration of compassionate appointment would further arise for consideration of his name for a higher post. The Division Bench following the rullings reported in (a) 1994 (Suppl. III) SCC 661, (b) 1997 (1) WLC 133 and (c) JT 1994 (6) SC 372, was of the opinion that the judgment reported in R.L.R. 1989(1) 620 and the decision of the learned Single Judge reported in 1995(1) RLR 481 are no longer good law and, therefore, they are not bound to follow the same as the same was overruled by the Supreme Court in Umrao Singh's case. In the concluding portion, the division bench has held as follows : "We are firmly of the opinion that since the rules, providing for compassionate appointments, are based on humanitarian considerations and for giving immediate employment to the bereaved family, are liable to be considered as the rules, putting reasonable restrictions on the fundamental right, provided by Article 16. To give a wider interpretation to these rules, may result in the rules becoming unreasonably restricting any such restriction, which, in our view, is not permissible in law. We, therefore, are unable to accept the submission, made by Shri V.D. Gathala, that merely because the respondent is liable to be appointed on a higher post, he should be so appointed, by issue of a writ of mandamus, when the basis of such appointment, is compassion. Therefore, no writ of mandamus can be issued, directing appointment of the respondent, on a higher post, when hundreds of eligible candidates, for that post, are waiting for their turn and when the respondent-petitioner was already granted preferential treatment and given appointment on the post of Lower Division Clerk. The said post was given to the respondent- petitioner, without even permitting him or exposing him to competition with several other candidates. The said post was given to the respondent- petitioner, without even permitting him or exposing him to competition with several other candidates. In such a situation, we are of the opinion that it is not a case, where the learned Single Judge could issue a mandamus, directing the appellants, to appoint the respondent, on a higher post. The order of the learned Single Judge, is not correct and is, therefore, set aside. 15. In the result, the appeal fails and is dismissed. However, there will be no order as to costs.Appeal dismissed. *******