LAKSHMANA, CJ. - (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. 91, the appellant's mother applied to the respondents for providing him appointment commesurate with his qualification under the Rajasthan Recruitment of Dependents of Govt. 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. 89, 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. 91 stating that Shri Ketan Sharma, Miss Anita Khatri and Miss Anita Mathur have been given appointments on the post of Assistant Commercial Taxation Officers under the Rules of 1975 and, therefore, they were appointed after the aforesaid instructions came into effect on 1. 4. 89, 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. 91, the appellant preferred the writ petition for the reliefs claimed thereunder. 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. 91 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 consumated, no further consideration on compassionate ground would arise. Palshikar, J. dismissed the writ petition against which the present appeal has been filed. We have heard Mr. Mridul for the appellant and Mr. Sangeet Lodha for the respondents. 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. 89, 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. 91. 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.
(3.) 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. It is further submitted that since the appel- lant 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:- AIR 1994 SC 845 (1 ). 1994 (4) SCC 138 JT 1996 (6) SC 7 (3) and JT 1994 (6) SC 372, (4) 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. 91. 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 consumated and, therefore, no further consideration would ever arise. The law is well settled on this issue. The Supreme Court in State of Madhya Pradesh and others vs. Ramesh Kumar Sharma (1), 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 Dwiveli - 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 asserting 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. " ;