1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH WRIT PETITION NO.7202 OF 2008 Mahadeo s/o. Vikramrao Phad, age 28 years, occ. service, R/o. Kanherwadi, taluka Parli Viajanath, district Beed. - - - Petitioner versus 1. The Chief Executive Officer, Zilla Parishad, Beed. 2. The State of Maharashtra. 3. The Secretary, General Administration Department, Mantralaya, Mumbai. Mrs. M.A. Deshpande, Advocate for the petitioner. Shri N. L. Jadhav, Advocate for respondent No.1. Shri S. K. Kadam, Asstt. Govt. Pleader for respondents Nos.2 and 3. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Reserved for orders on : 7th September 2009. Pronounced on : 18th September 2009. 2 ORDER : [ Per N. D. Deshpande, J. ] 1. By this petition under Article 226 of the Constitution of India, the petitioner is seeking directions to the respondents for his appointment to the post of Extension Officer or Senior Clerk together with other consequential benefits and also prayed for ad interim relief for such appointment in the existing vacancy as stop gap arrangement pending hearing and final disposal of this petition. 2. Rule. Rule made returnable forthwith. Perused original file pertaining to the appointment and Affidavit dated 9-4-2009 and one more Additional Affidavit in reply on behalf of respondent No.1 dated 7-9-2009 pursuant to the order dated 24-8-2009 passed by this Court with regard to information supplied by Information Officer and Deputy Chief Officer, Zilla Parishad, Beed at page 21 of the paper book. 3. Heard Shri A. S. Deshpande, Advocate for petitioner, Shri N. L. Jadhav, Advocate for Respondent No.1 and Shri S. K. Kadam, A.G.P. for respondents Nos.2 and 3. 3 4. At the outset, it must be mentioned here that this is second round of litigation of the parties. Earlier, petitioner filed a Writ Petition No. 3993 of 2000 for his appointment as Junior Clerk on compassionate ground upon sad demise of his father Vikramrao Phad who met untimely death on 23-5-1996 while in service, under respondent No.1, the Chief Executive Officer, Zilla Parishad, Beed, as Gram Sevak since 1965. The said writ petition was allowed by this Court. However, the petitioner was constrained to file Contempt Petition No. 148 of 2002 and the contempt proceedings was subsequently dropped only after respondents issued an appointment order on 30-8-2002 as Junior Clerk as per his qualification, on compassionate ground pursuant to the directions given in earlier Writ Petition No. 3993 of 2000. Since then petitioner is working as Junior Clerk on the establishment of respondent No.1. It is further stated that Chief Executive Officer, Zilla Parishad, Beed along with Block Development Officer were summoned to remain present before this Court and, therefore, they are prejudiced against him. However, the petitioner's case in earlier Writ Petition No. 3993 of 2000 decided on 12-10-2000 by this Court in his favour, do not require any consideration and it shall have no bearing for the disposal of the present writ petition on merits. 4 5. The cause of action for present petition, according to the petitioner, is based on certain grounds stated in the petition, amongst others and those are squarely dealt in the two affidavits dated 9-4-2009 and 7-9-2009 filed on record. We minutely examined the grievance of the petitioner in the light of the information supplied at page 21 of the paper book giving out a list of 15 beneficiaries who got appointments to the post of Senior Clerk on compassionate ground, referring to their educational qualifications on the date of their respective application. Out of them, 6 persons have been appointed to the post of Senior Assistant (Statistics) and the petitioner is not qualified to be appointed on the post of Senior Assistant (Statistics). One Morale R.S. at Sr. No.1 was appointed as Extension Officer (Panchayat) and remaining 8 persons have been appointed on the post of Senior Assistant. Those posts were filled in as were available at the material time by those persons who have been directly appointed on compassionate ground. 6. The main grievance of the petitioner is that after he joined pursuant to the appointment order dated 30-8-2002 and started working as junior clerk, it came to his knowledge that the 5 candidates, who were junior to him in the list meant for consideration on compassionate appointment, have been appointed to the post of Extension Officer or Senior Clerk in higher pay scale and he was discriminated in the matter of compassionate appointment by respondent No.1, by offering a post of junior clerk in the lower scale, while all other appointments were made against the vacancies in Group "C" post during the period 2000-2006. He got said information on or about 20-11-2006 under the Right to Information Act, 2005. The petitioner claimed his seniority from the date of his application, being senior most candidate possessing necessary qualification, graduate degree, amongst those 15 others were considered to the post of Senior Clerks in higher pay scale and were given appointments. Therefore, the petitioner urged to consider his candidature for appointment as Senior Clerk or as an Extension Officer, in the light of directions issued by this Court in the year 2000, with regard to merit and seniority at the time of filling of then existing vacancies of 20 Senior Clerks and one Extension Officer (Panchayat) and the new vacancies available. According to the petitioner, respondent No.1 under one or the other pretext was not ready and willing to consider him to such post in higher scale as per his seniority in the list and qualification just to rebuke the 6 petitioner, for having approached this Court earlier and on account of contempt motion, taken out for getting an appointment earlier on compassionate ground. 7. The petitioner made a representation to the competent authority on 5-10-2006 and it was rejected by communication dated 9-11-2006. The petitioner also pointed out the order of this Court dated 17-10-2000 and observations made in favour of the petitioner for his appointment as per his merit and seniority as on 16-11-1996 i. e. date of his application, and raised his claim for appointment to the post of Senior Clerk/ Extension Officer same was not considered. Other candidates, who had applied after the petitioner, were considered to such post in higher pay scale. However, it is seen that when he made his application for the first time on 16-11-1996, he was minor and, therefore, said date cannot be reckoned for consideration in the seniority list. 8. In order to substantiate his claim in this petition, the petitioner relied on appointment of one Pravin Kundlik Yeole who was earlier appointed on compassionate ground to the post of Junior Clerk and then absorbed on the post of Senior Clerk as he was holding requisite qualification to such post and, therefore, 7 urged to consider his case for identically situated candidate and thus complained for discriminatory treatment, denying him similar benefit by respondents. Petitioner in para 13 of the petition admitted that appointment on compassionate ground is not vested right, nevertheless, there cannot be discriminatory treatment to two similarly placed candidates and concluded his petition saying that the petitioner was denied appointment on a higher post, though there was vacancy merely because he had approached this Court for his legal claims and the respondent No.1 was ordered to remain present personally in a contempt motion and now urged for redressal of his grievance once again. 9. We have gone through both the affidavits of respondent No. 1 carefully. It is admitted that nine persons whose appointments are impugned have been directly appointed to the post of Senior Assistants as the posts were available at the relevant time. It is seen that the petitioner was issued appointment order on 30-8-2002 and no posts of Senior Assistant on the date of his appointment was available from the direct recruitment quota of 25 per cent, considering the scheme of compassionate ground, and as such, petitioner was favoured by giving appointment order to the post of Junior Clerk. Our attention was also invited to the 8 Government Resolution dated 23-8-1996. As per the said Government Resolution, if the appointment is given in Class IV category on compassionate ground and the said person has qualification for appointment on Class III post, he can latter on when Class III post is available, would be appointed, but that too on the condition that the said thing must have been mentioned in the appointment order. Admittedly, petitioner has been given appointment on compassionate ground in Class III post and there is no resolution issued by the Government to issue further appointment order in Class III post on higher pay scale. It is also stated that though petitioner was having more qualification, suitable to the post of Senior Assistant, he could not be appointed as no post of Senior Assistant was available. The petitioner once availed or exercised his right in class III post, he cannot further claim another post having higher pay scale in class III cadre. In a similarly situated case, the Respondent No.1 placed reliance on a judgment of the Division Bench of this Court in the case of Sanjay Jaganath Patil vs State of Maharashtra reported in 2007(6) Bombay C.R., page 439. 10. Respondent No.1 also explained how and in what circumstances Pravin Kundlik Yeole was appointed on the basis of 9 written directions given by the Government of Maharashtra and stated that even if his appointment order is given wrongly or illegally at the instance of the Government, the petitioner cannot claim the benefit of illegal act and quoted : "The Hon'ble Court in the case of Union of India and another vs. International Trading Company and another (2003) (5) S.C.C. page 437 held, " a party cannot claim that, since something wrong has been done in another case, direction should be given for doing another wrong. In such matter there is no discrimination involved." It was also pointed out that all 133 persons who have been given appointments on compassionate ground in Zilla Parishad, Beed, in Class IV cadre, those 133 persons are having requisite qualification to be appointed on Class III posts. It is further submitted that as per the Government Resolution dated 28-8-1996, it was not mentioned in their appointment order that they would be again appointed on Class III post as soon as suitable post is made available. So far as the case of the petitioner is concerned, if he is allowed to issue fresh appointment 10 order on the post of Senior Assistant then, all those 133 persons will also claim the higher posts. 11. We find considerable force and substance in the submissions made by respondent No.1. Although petitioner possesses required qualification, he has no vested or legal right to claim appointment to the post of Extension Officer or Senior Clerk having higher pay scale in class III cadre on compassionate ground. No case is made out by the petitioner. Petition deserves to be dismissed and the same is accordingly dismissed. Rule discharged. ( N.D.DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/wp720208