MISRA, J. - (1.) THE petitioner who had been appointed as a Class-IV servant on compassionate ground in place of his deceased father under the Rajasthan Recruitment of Dependents of Government Servants (Dying while in Service) Rules, 1975 (hereinafter to be referred as `compassionate Appointment Rules 1975') has challenged the order dated 17. 7. 89 vide annexure-4 by which the petitioner's representation for appointment to the higher post of LDC on compassionate ground has been rejected.
(2.) THE claim of the petitioner emerges under the following facts and circumstances of the case :- The petitioner is the son of one late Shri Ramswaroop Sharma who was working as Beldar (Class IVth employee) in the Malviya Regional Engineering College at Jaipur (hereinafter to be referred as `the respondent College') who died on 12. 8. 81 while he was in service. Since the family of the deceased Ramswaroop Sharma was bound to face financial hardship as he was the sole earning member of the family, the petitioner was offered an appointment as a Class-IV servant on compassionate ground under Rule 5 of the Compassionate Appointment Rules 1975. The petitioner's case in that although his educational qualification justified an appointment on the post of LDC and he had also applied for the same, he was granted appointment only as a Class IV servant since his father was a Beldar. The petitioner's plea is that under Rule 5 of the Compassionate Appointment Rules, 1975, the dependent of the deceased is eligible to be appointed on a suitable post as per his qualification and since the petitioner was eligible for the post of LDC as he was first year TDC pass, he should have been offered the appointment on the post of LDC. However, the petitioner under the compelling circumstances of his family, jointed as a Class-IV servant and thereafter applied for the post of LDC when it fell vacant in the respondent College, but his request was not accepted and denial of the request was conveyed to him vide letter dated 17. 7. 89. The petitioner's further case is that he has already completed more than nine years of service as Class-IV servant and hence he should be recommended for appointment by promotion to the post of LDC under the Compassionate Appointment Rules, 1975 and his request for the same should not have been turned down. The petitioner feeling aggrieved by the order of rejection dated 17. 7. 89 has filed this writ petition challenging the action of the respondents in not granting him suitable appointment on the post of LDC according to his educational qualification. A show cause notice was issued to the respondents on the aforesaid-plea of the petitioner, in response to which Mr. Amrit Soni has appeared and contested the plea of the petitioner by urging that the petitioner having already joined on the post of Class-IV servant under the Compassionate Appointment Rules, 1975 way back in the year 1981, cannot be allowed to claim further promotion or appointment, as claimed by the petitioner, on compassionate ground. In support of his submission he has relied upon a Division Bench judgment of this High Court State of Rajasthan and Ors. vs. Sushil Kumar Natani (1), which squarely covers the controversy raised by the petitioner in this writ petition. The learned Judges of the Division Bench considered a catena of cases on the controversy involved and were pleased to hold that once the compassionate appointment is given and accepted by the dependent of the deceased, right to appointment on higher post stands exhausted. It was further held therein that a compassionate appointment is based on humanitarian consideration and it is not a vested right and therefore, if the dependent of the deceased accepts as appointment on a particular post even if it is not as per his qualification, he cannot claim a higher appointment on the plea of compassionate appointment in future. This Division Bench Judgment over-ruled the earlier Division Bench judgment delivered in the case of Vivek Goswami vs. State of Rajasthan (2), wherein the learned Judges of the Division Bench had been pleased to hold that if a suitable post was vacant, it was obligatory on the State Government, under Rule 5 of the Compassionate Appointment Rules, 1975, to give appointment to the applicant. In this judgment the learned Judges had held that the language of Rule 5 of Compassionate Appointment Rules 1975 was imperative in nature and after acquiring requisite qualification and being otherwise qualified, the dependent of a deceased government 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 law laid down in this earlier Division Bench judgment was held as no longer a good law by the subsequent Division Bench Judgment delivered in the case of State of Rajasthan & others vs. Sushil Kumar Natani (supra) relying on a large number of authoritative pronouncements of the Supreme Court on the point involved. One such case is the case of State of Madhya Pradesh vs. Ramesh Kumar (7) (3), wherein the Hon'ble Supreme Court had held that the dependent of a deceased is not entitled to a higher post of his choice merely because he fulfills the requisite eligibility qualification. In this case, respondent-dependent of the deceased had attempted to defend his claim for appointment on a higher post by citing the illustration of another applicant Rajiv Dwivedi who according to him was appointed, in a similar circumstance, as A. P. P. Grade-II whereas the respondent-dependent was granted appointment on a lower post. The learned Judges of the Supreme Court while considering this aspect of the matter had held that even assuming that Rajiv Dwivedi's case was similar to that of the respondent, the applicant dependent had no right to any particular post of his choice as he can only claim to be considered for that post and it would ultimately be for the authority to decide if some common principle was involved in the two cases. It was still further observed therein that 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. In yet another case on this point which was considered by the Division Bench was the decision delivered in the case of State of Bihar & others vs. Samsuz Zoha & others (4), wherein the Hon'ble Supreme Court while considering the case of compassionate appointment had been pleased to told that the High Court was not justified in judicially reviewing the Government's policy decision as the scope of judicial review in policy matters is very limited. On the relevant controversy regarding compassionate appointment, it was held that no right vested in the candidates for the particular appointment on compassionate ground and the High Court was not justified in issuing directions in all cases for appointment on Class-III posts in place of Class-IV posts. Thus, after perusing all the rulings of the Supreme Court, the earlier view taken by the Division Bench was not accepted as a correct view by the Division Bench in the case of State of Rajasthan vs. Sushil Kumar Natani (supra) and hence it was held that the rules providing compassionate appointments are based on humanitarian consideration for giving immediate appointment to the bereaved family and are liable to be considered as the rules putting reasonable restrictions on the fundamental right provided by Article 16 of the Constitution. To give a wider interpretation to these rules, may result in the rules becoming unreasonably restricting any such restriction, which was held impermissible in law. It is thus apparent that a dependent of the deceased under the Compassionate Appointment Rules, 1975 although can be permitted to claim appointment on compassionate ground in place of the deceased, there is no right vested in him that he is bound to get an employment as per his suitability and choice as there is no vested right in him. In the instant case the petitioner's plea is on a worse footing as he had accepted the appointment on a Class-IV post nine years ago, before the order of rejection was passed and thereafter practically claimed promotion on compassionate ground although according to the perception of the petitioner, he is claiming merely an appointment on the promoted post on compassionate ground as per the compassionate Appointment Rules, 1975. He is clearly missing that the plea of compassionate appointment completely got exhausted nine years ago when he had accepted the appointment on Class-IV post and thereafter nine years later he cannot be permitted to take the plea that a promotion also can be given to him on compassionate basis to the exclusion of the others who might be waiting in the line of promotion. The plea raised in this writ petition by the petitioner, therefore, has absolutely no legal basis and hence, it is fit to be rejected.
(3.) CONSEQUENTLY, this writ petition stands dismissed but without any order as to costs. .;