LAKSHMANAN, CJ. - (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. 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 vs. State (1), wherein, it was held that if a suitable post was vacant, it was obligatory on the State Govt. , u/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, the 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. 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. " 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. 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 appoint- ment 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.
(3.) THE learned Single Judge allowed the writ petition, following the decision of this Court, in case, Vivek Goswami (supra ). 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. 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. ;