Rajasthan High Court - Jaipur
State Of Rajasthan And Ors. vs Sushil Kumar Natani on 14 August, 2001
Equivalent citations: 2001(3)WLC533, 2003(1)WLN545
Bench: Ar. Lakshmanan, A.K. Parihar
JUDGMENT Lakshmanan, C.J.
(1). Heard Mr. Mohd. Rafiq, for the appellants; and Mr. V.D. Gathala, for the respondent.
(2). The State of Rajasthan, through the Finance Commissioner-cum-Secretary to the Government of Rajasthan and two others are the appellants.
(3). The appeal was filed against the order dated 1.6.2001, passed by a learned Single Judge of this Court, in SB Civil Writ Petition No. 822/1991, filed by the respondent herein, which was allowed by the learned Single Judge, with a direction to the respondent therein (appellants herein, to consider the case of the respondent to give appointment, on the post of Junior Accountant. In arriving at the said conclusion, the learned Judge placed reliance on a Division Bench decision of this Court, in Vivek Goswami v. State (1), wherein, it was held that if a suitable post was vacant, it was obligatory on the State Govt., under Rule 5, to give employment, to the applicant. According to the learned Judge, the language of Rule 5, was imperative in nature, and after acquiring requisite qualification and being otherwise qualified, me dependant of a deceased Govt. servant, has to be given suitable employment, against an existing vacancy, if that is not within the purview of the State Public Service Commission.
(4). The short facts are as follows. The respondent herein, filed the writ petition, with the following prayer:-
"The Hon'ble Court may graciously be pleased to call for the entire record relating to the case and be pleased to direct the respondents by issuing an appropriate writ, order or direction to consider the case of the petitioner for appointment on the post of Accountant since his date of first appointment i.e. 11.4.85 being qualified and eligible for this post and be further pleased to direct the respondents to pay all consequential benefits as the result of his appointment on the post of Accountant."
(5). According to the petitioner, his father expired on 18.3.85, while in the service of the Government of Rajasthan, and he submitted an application on 7.5.85, for getting employment in place of his father, under the provisions of the Rajasthan Recruitment of Dependants of Government Servants (Dying while in Service) Rules, 1975 (hereinafter called, "the Rules"). It is the case of the petitioner that he was possessing a degree of B.Com,, at the time of submitting the application, and being a degree-holder, he was eligible for appointment on the post of Accountant. However, instead of giving him appointment on a suitable post, for which, the respondent-petitioner was eligible, the appellants herein, appointed him on the post of Lower Division Clerk, on 10.4.85. The appointment was only for three months. The petitioner thereafter made several representations, requesting them, to appoint him, on the post of Accountant. Since the representations were not heeded, the respondent filed the above writ petition, against the final decision of the Government, which had been conveyed to him, by the Director of Treasury & Accounts, the reconsideration in his matter, was not possible, as he had taken the benefit once, on the lower post and joined the service on the same post. The respondent-petitioner contends that the said order is unreasonable and discriminatory and that the petitioner has been deprived of consideration of his case, for appointment on the post of Accountant, illegally and arbitrarily, since the action of the appellants, are contrary to Article 311-A of the Constitution of India, and hence, the writ petition.
(6). The writ petition was resisted by the respondent, by filing a reply. According to the appellants herein, once the respondent had already been given an appointment, on the post of LDC, for which he was eligible, he cannot claim to be appointed on a higher post. It was also submitted that compassionate appointment 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 ground would further arise for consideration of his name for a higher post.
(7). The learned Single Judge allowed the writ petition, following the decision of this Court, in case, Vivek Goswami (supra).
(8). We have heard the respective parties, perused the pleadings and materials, placed before us and also the rulings, cited by the learned counsel for the appellants herein.
(9). As already noticed, the respondent was given an appointment under Rule 75, on the post of Lower Division Clerk, though, he had applied for the post of Accountant. It is not in dispute that the respondent had accepted the appointment and joined the post. As the department was of the view that he was eligible for appointment on the post of Lower Division Clerk, he was given appointment on the said post, vide order dated 10.4.85, which is now questioned by the respondent, in the writ petition. In our opinion, since the benefit of compassionate appointment had already been availed by the respondent, the State Authorities could not consider the claim of the respondent herein, for appointment on the higher post. In other words the respondent could be given appointment only on a post, as per his eligibility and that once the respondent had been appointed on the post of Lower Division Clerk, his right to claim appointment on compassionate grounds, stood exhausted.
(10). The Courts have held that appointment on compassionate ground, was not a vested right and that the object and the very concept of compassionate appointment in itself, is to give succor to the family, to tide over sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member. In the instant case, the respondent had accepted the appointment on the post of Lower Division Clerk and had joined on such post, without any protest, reservation' or murmur, and his subsequent representations and the writ petition, were, in our view, only an after thought. He had no right to claim appointment on the post of Accountant. While appointing him on the post of Lower Division Clerk, the authorities had considered his eligibility, qualification and suitability, and he was rightly offered the post of LDC. The respondent having accepted such appointment, cannot now be allowed to turn about and claim appointment on a higher post. We are, therefore, of the opinion that the writ petition deserves to be dismissed and the appeal, filed by the State, deserves to be allowed.
(11). The learned Single Judge, as noticed earlier, vide his order, impugned in this appeal, allowed the writ petition of the respondent-petitioner, with a direction to the appellants, to consider the case of the petitioner, to give him appointment on the post of Junior Accountant, from the date when the respondent- petitioner had approached the Court, in February, 1991. Such a direction, in our opinion, is not grant-able, in the facts and circumstances of the case and in the cases of compassionate appointments. We shall now consider the case-laws on the subject.
(12). In a recent decision, a Division Bench of this Court, comprising of myself (Dr. AR. Lakshmanan, CJ. and Hon'ble Mohd. Yameen, J.), in case, Board of Revenue for Rajasthan and Anr. v. Rajendra etc. (2), held that the object and very concept of compassionate appointment in itself is to give succor to the family, to tide over sudden financial crisis befallen the dependents, on account of the untimely demise of its sole earning member. It is in order to mitigate the hardship, caused to the family and alleviate the distress of the family that as a welfare measure, appointments are given on compassionate grounds. In this context, the Division Bench followed the judgments of Hon'ble The Supreme Court, in cases, Umesh Kumar Nagpal v. State of Haryana, (3); and in Managing Director, MMTC Ltd. v. Prornoda Devi (4), which held that consideration for compassionate appointment, is not a vested right and such right cannot be exercised at any time, in future. As held by Hon'ble the Supreme Court, in the case of Umesh Kumar Nagpal (supra), mere death of an employee in harness, does not entitle his family to compassionate appointment. The Division Bench, in its elaborate judgment, considered the entire aspect of the matter, relating to appointment on compassionate ground, and recorded reasons in detail, for setting aside the order, passed by the learned Single Judge, in a similar writ petition and allowed the appeals.
(13). It is pertinent to notice that the learned Single Judge, while relying upon the judgment of this Court, in the case of Vivek Goswami (supra), did not take note of the subsequent law, enunciated by Hon'ble the Supreme Court, in various judgments, wherein, the view taken by the Division Bench of this Court, has been overruled. A similar view was taken by a Division Bench of this Court, in DB Civil Special Appeal No. 481/91, vide judgment dated 20.9.93 (5), and the judgment was expressly overruled by Hon'ble the Supreme Court, in the case of State of Rajasthan v. Umrao Singh (6), wherein, their Lordships categorically held that once the appointment on the post of LDC, given to Umrao Singh in that case, was accepted by him, his right to be considered for appointment, on compassionate ground, was consummated and no consideration on compassionate ground would further arise. Their Lordships held that otherwise, it would be a case of "endless compassion". Eligibility to be appointed as Sub-inspector of Police, is one thing, the process of selection is yet another thing. The Supreme Court held that once the right was consummated, any further or second consideration for appointment on a higher post, on the ground of compassion, would not arise. The settled principle of law on the question, is that once a compassionate appointment was given and accepted, the right to such appointment, stands exhausted. The view, taken by the Division Bench, in Vivek Goswami's case (supra), is, therefore, not correct, and for the same reason, therefore, also, the view, taken by the learned Single Judge, in the impugned order, is not correct. The said order is, therefore, liable to be quashed and set aside. Accordingly, we do so.
(14). The learned Single Judge, in our opinion, has not noticed that compassionate appointment cannot be insisted upon, for a particular post, which appointment is offered and given out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood would be provided, the family would not be able to make the both ends meet. Such a provision makes a departure from the general provisions of making appointment, by following prescribed procedure and, therefore, is in the nature of exception to the general provisions.
(15). Mr. Rafiq, the learned Additional Advocate General, submitted that an exception cannot override the main provision and thereby nullify the main provision, by taking away completely the right, conferred by the main provision. We see substance in this submission. In the circumstances, therefore, the claim of the respondent, for appointment on the post of Account and for that matter, Junior Accountant, was wholly misconceived. Where a compassionate appointment is offered and accepted, such appointment on higher post can be denied, but also, in cases where it is offered and declined, the right comes to an end, and appointment cannot be thereafter claimed in law. For this proposition, Mr. Rafiq placed reliance on the judgment of Hon'ble the Supreme Court, in case of State of Madhya Pradesh v. Ramesh Kumar (7). In the said case, Hon'ble the Supreme Court held:
"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. If 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 of Government instructions under which the respondent can claim the post of APP, Grade-II".
(16). The impugned order, therefore, is liable to be quashed, in view of this decision.
(17). It is pointed out by the learned counsel for the appellants, at the time of hearing that the finding, recorded by the learned Single Judge that the respondent had been protesting from the very first day of his appointment on the post of Lower Division Clerk and, therefore, he was entitled for consideration for appointment, on compassionate ground, on a higher post, is not a correct finding, as the respondent-petitioner himself had, unconditionally, joined his duties, without any protest or reservation. His subsequent representations, therefore, were his afterthought, and the grievance, as now expressed by him in the writ petition, in nothing, but imaginary. What is important is that the respondent, when he was offered appointment on the post of Lower Division Clerk, readily and voluntarily, he accepted the offer and pursuant to his appointment order dated 10.4.85, he joined on the subsequent day, on 11.4.85, on the said post. Mere repeated representations therefore, do not give rise to any fresh cause of action in his favour.
(18). A learned Single Judge of this Court, in the case of Ravindra Singh v. The State of Rajasthan (8), has opined that a mandamus cannot be issued, when source of right created, is compassion and that the right, once availed under compassion, no mandamus can be claimed. In the above case, before Hon'ble V.G. Palshikar, J., the counsel appearing on behalf of the petitioner therein, has placed reliance heavily on a Division Bench (Hon'ble Acting Chief Justice M.C. Jain and Hon'ble I.S. Israni), J. decision of this Court, in Vivek Goswami's case (supra) as also a Single Bench decision, reported in (9). In support of his contention that suitable employment means, employment of which, the dependent is eligible as per his qualifications and it cannot be the intention of the rule that the son of a Class-IV employee, who possess higher education, be employed as a Class-IV only and, therefore', it is permissible to seek suitable post or higher post, after appointment having been made. While disagreeing with the proposition, Hon'ble Palshikar, J. said that suitable appointment means appointment, suitable according to the qualifications held by the dependent and that betterment of such appointment is permissible under the Rule of 1975 and that the principles of precedence require that in the event of a disagreement between two Single Benches, a reference is to be made to a Division Bench, and the Division Bench judgment is binding on the Single Bench, in all circumstances, except where the Division Bench judgment is per incurium. As far as the Division Bench judgment in Vivek Goswami's case (supra) is concerned, it speaks of permissibility under Rule 5 of giving appointment on higher post, when once it is given on a lower post. Such question, according to the learned Judge, does not fall for consideration in the case of Ravindra Singh (supra). The learned Single Judge did not make any reference, in the said case as the Government Pleader had cited a decision of Hon'ble the Supreme Court, in the case of Umrao Singh (supra), presently reported in JT 1994 (6) SC 372 where, Hon'ble the Supreme Court has considered Rule 5 of the Rules and has held that once the candidate accepted the appointment, his right to be considered on compassionate ground, is consummated and no further consideration on compassionate ground would further arise, and it was therefore, held that betterment of job is not open, where appointment is accepted on compassionate ground.
(19). In view of the authoritative pronouncements of Hon'ble the Supreme Court, we are of the opinion that the judgment, reported in RLR 1989 (1) 620 (supra); and the decision of the learned Single Judge, reported in 1995 (1)RLR 481 (supra), are no longer a good law and, therefore, we are not bound to follow the same.
(20). In the case of State of Bihar and Ors. v. Samsuz Zoha and Ors. (10), Hon'ble the Supreme Court was considering the case of compassionate appointment. In the said case, the Government had decided to appoint all the candidates, respective of their qualifications to Class-IV posts, reserving Class-ill posts for being filled up by promotion. The High Court had ordered to appoint them in Class-III posts. Hon'ble The Supreme Court held that the High Court was not justified in judicially reviewing the Government's poliy-decision and that in policy- matters, the scope of judicial review, is very limited. In that case, it was held as follows:-
"There is no right vesled in the candidates for particular appointment on compassionate grounds. The State had taken a policy decision to appoint all the candidates irrespective of the qualifications in Class-IV posts and 12 posts available in Class- III were reserved for appointment by promotion to the Class-IV candidates, who were entitled thereto as per the rules. The principle adopted by the Government cannot be said to be unjustified or illegal. Undoubtedly, some candidates had gone to the court and obtained orders and in compliance there of, at pain of contempt petition, the Government, instead of appointing them to Class-IV post, since by then, the Class-III posts were not available, upgraded Class-IV post as Class-III post and confirmed them as Class-III employees. That order which was wrongly made by the High Court cannot be a base to issue directions. In other words, if the directions are complied with all the Class-IV posts would be converted into Class-III posts, which is against the discipline of the service. The High Court, therefore, was not justified in issuing directions in all the cases for appointment to Class-III post."
(21). We are firmly of the opinion that since the rules, providing for compassionate appointments, are based on humanitarian considerations and forgiving 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. 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.
(22). In the result, the appeal, filed by the State, succeeds and is allowed. However, there will be no order as to costs.