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2015 DIGILAW 604 (RAJ)

MAHAVEER SINGH v. STATE OF RAJASTHAN

2015-03-10

PRAKASH GUPTA, SUNIL AMBWANI

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Judgment 1. We have heard learned counsel appearing for the appellant. 2. The Special Appeal arises out of the judgment dated 01.07.2014, by which the writ petition filed by the appellant, claiming arrears of salary on the post of driver, on which he was allegedly discharging the duties since 1987, was dismissed on the ground that in view of the order dated 28.10.2009, passed in earlier writ petition No.12611/2009, his representation was partly allowed, in compliance with which he was promoted on that post of driver with effect from 23.07.2010. 3. Learned Single Judge held that since the petitioner was appointed as Class IV employee under the Rajasthan Recruitment of Dependants of Government Servants (Dying While in Service) Rules, 1975, and he had accepted the appointment, even if he was required to work as driver, he was not entitled to salary on the post of driver until he was promoted on the post of driver by order dated 23.07.2010. Learned Single Judge further observed that the writ petition filed four years after the promotion, claiming the salary from the year 1987 to 2010, was barred by unexplained laches. 4. Learned counsel appearing for the appellant has relied on the judgment of Single Bench of this Court in Dharmendra Parth Vs. The State of Rajasthan, 2002(1) WLC(Raj.) 609, in which it was held, relying upon the case of Vivek Goswami Vs. State of Raj. & Ors., 1989 (1) RLR 620, that a person should be given appointment on compassionate grounds commensurate to his qualification. In paragraphs 3, 6 and 7 of the judgment, learned Single Judge has referred to a Division Bench judgment of this Court in Vivek Goswami's case(supra), and had differed from the judgments of the Supreme Court in State of Rajasthan Vs. Umrao Singh, 1994(6) SCC 560 , as well as in Umesh Kumar Nagpal Vs. State of Haryana And Others, 1994(4) SCC 138 . Paragraphs 3, 6 and 7 of the judgment are quoted as below:- “3. A Division Bench of this Court in the case of Vivek Goswami Vs. State of Raj. Umrao Singh, 1994(6) SCC 560 , as well as in Umesh Kumar Nagpal Vs. State of Haryana And Others, 1994(4) SCC 138 . Paragraphs 3, 6 and 7 of the judgment are quoted as below:- “3. A Division Bench of this Court in the case of Vivek Goswami Vs. State of Raj. & Ors., 1989(1) RLR 620, while interpreting the Rule 5 of the Rules, 1975 and also certain instructions had observed that Rule 5 makes it abundantly clear that if one is qualified, his case can be considered for the post for which the person had applied and the Rule 5 does not say that if any temporary appointment, as such has been given, thereafter, on acquiring requisite qualification higher employment cannot be made to such person applying under Rule 5; if a suitable post is vacant, it was obligatory for the State Government under rule 5 to give employment to person against existing vacancy. 6. Counsel for the respondent relies on the judgment in case of State of Rajasthan Vs. Umrao Singh, 1994(6) SCC 560 , where after having accepted the post of LDC, the dependent wanted appointment to the post of Sub Inspector of Police i.e. the post on which his late father was working. The contention of the candidate was not accepted by the Apex Court. The case of the Umrao Singh (supra) was not the case of the specialised qualification. 7. Similarly the reliance has been placed on the judgment in case of Umesh Kumar Nagpal Vs. State of Haryana and others, 1994(4) SCC 138 . This case also does not help the respondents, firstly there are no such rules applicable in State of Haryana, secondly the case of Umesh KUmar Nagpal was that the compassionate employment cannot be granted after lapse of reasonable period. The facts of the present case are distinguished from the judgments cited by counsel for respondent, for the reason that the dispute involved in the present case is whether the petitioner was entitled to a suitable job according to his specialised qualifications and as per circular of Government itself.” 5. Much water has flown, after the judgment in Vivek Goswami's case (supra). The Supreme Court has laid down the principle in more than one decision, namely in Bhawani Prasad Sonkar Vs. Much water has flown, after the judgment in Vivek Goswami's case (supra). The Supreme Court has laid down the principle in more than one decision, namely in Bhawani Prasad Sonkar Vs. Union of India And Others, (2011) 4 SCC 209 , and Local Administration Department And Another, M.Selvanayagam Alias Kumaravelu, (2011) 13 SCC 42 , following the judgment in Umesh Kumar Nagpal Vs. State of Haryana And Others (supra), rendered in the year 1994, and State of Rajasthan Vs. Umrao Singh (supra), rendered in the same year in 1994, that compassionate appointment is provided to be given, in accordance with the statutory Rules, to one of the dependants of the family of the person dying in harness to tide over the immediate financial crisis faced by the family. A person does not have a choice to the post, even if the post is lying vacant, to claim it commensurate to his qualification. Having accepted the employment in the year 1987, the appellant had no right to claim the post of driver, even if he had the driving license, and was eligible for the post of driver, and was deputed to work as a driver. The appellant was appointed as Class IV employee, and continued as Class IV employee from the year 1987 to 2010, when he was promoted as driver. The appellant had absolutely no claim for salary on the post of driver from 1987 to 2010. 6. The Special Appeal is dismissed.