1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Ashok Kumar & Anr. Vs. State of Rajasthan & Anr. S.B.CIVIL WRIT PETITION NO.2896/2005 DATE OF ORDER :: May 04, 2007 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.N.L.Joshi, for the petitioners. Dr.G.R.Kalla, for the respondents. BY THE COURT: By the instant joint writ petition under Article 226 of the Constitution of India, the petitioners seek quashing of order Annexure-1 dt. 17.10.1996 passed by Secretary, Rajasthan State Electricity Board. I have heard learned counsel for the parties. A reply to the writ petition has been filed by the respondents stating therein that as there being no same cause, 2 the joint writ petition, in view of Rule 375(4) of the Rajasthan High Court Rules, 1952, is not maintainable. It is further submitted that as per the averments made in the writ petition, the petitioner No.1 taking the advantage of order Annexure-1, dt. 17.10.1996 has accepted the compassionate appointment on the post of Helper-I by order dt. 5.2.2000 and, therefore, now he cannot turn back and challenge the very order. As per the averments made in the writ petition, the petitioner was given compassionate appointment on the post of Helper-I on 5.2.2000. There is no averment with regard to petitioner No.2 in the writ petition as to when and in what manner, he was appointed. The respondents invited the applications for the post of Lower Division Clerk (for short `the LDC' hereinafter) vide notification Annexure-3 dt. 20.10.2004 providing eligibility criteria that the technical employees of un-skilled and semi- skilled possessing the qualification of graduation and who have rendered at-least three years satisfactory service in the Nigam are eligible to apply for the post of LDC. It appears that both the petitioners did not apply for the said post in pursuance of the notification Annexure-3 dt. 20.10.2004, may be for the reason they did not fulfill the eligibility criteria as notified vide notification Annexure-3 and, therefore, challenged the order dt. 17.10.1996 Annexure-1. 3 It is contended by the learned counsel for the petitioner that the qualifications prescribed vide Annexure-1 are discriminatory to the extent that for the male candidates, who possess qualification of high school and above but below graduation are appointed as Helper-I, whereas for the female candidates possessing qualification of high school and above are continued to be appointed on the post of LDC. Learned counsel for the respondents submits that the controversy similar to that of instant writ petition came to be considered by this Court in S.B.Civil Writ Petition No.3147/1991 decided on 23.7.1996 as also in S.B.Civil Writ Petition No.1227/1993, Vishnu Lal Mathur vs. R.S.E.B. & Anr. decided on 13.3.1997. The petitioner therein was provided compassionate appointment on the post of Bill Distributor on the death of his father, who was working as Assistant Engineer with the respondent RSEB and expired while in service. After having accepted the compassionate appointment on the post of Bill Distributor, the petitioner therein filed a writ petition claiming appointment on the post of LDC on the ground he possesses the qualification for the post of LDC. This Court held that merely because the petitioner therein is eligible to be appointed as Lower Division Clerk, he should be so appointed by issue of a writ of mandamus when the basis of such appointment is 4 compassion and no writ of mandamus can issue directing appointment on the post of Lower Division Clerk, when thousands of other eligible candidates for the post of Lower Division Clerk are awaiting their turn and their consideration for employment in the public sector. In Vishnu Lal Mathur vs. R.S.E.B. & Anr. (supra), the appointment of the petitioner therein was made in the year 1989 and the discrimination complained of is regarding appointment made in the year 1991. This Court held that the nature of appointment offered to the petitioners does not permit them to raise a grievance because such grievance can be raised by thousands of employment seekers who are waiting to get an appointment against the petitioners as well, for they have already been given a preferential treatment. In State of Rajasthan vs. Umrao Singh, (1994) 6 SCC 560, the Hon'ble Supreme Court while considering the case of the person, who accepted the compassionate appointment on the post of LDC claimed the higher post on the post of Sub-Inspector on the basis of the qualification possessed by him held that having accepted the appointment as LDC, the respondent's right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate 5 ground would ever arise. 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. Merely because of the so-called eligibility, the Single Judge of the High Court was persuaded to the view that direction be issued under proviso to Rule 5 of Rules which has no application to the facts of this case. In the instant case, the petitioner No.1 has accepted the compassionate appointment on the post of Helper-I and have been serving on the said post under the scheme now cannot turn back and after having taking benefit of scheme, he is estoped to challenge the same, even otherwise, Annexure-1 cannot be said to be discriminatory or violative of any provisions of Constitution of India. In the circumstances, therefore, the writ petition is liable to be dismissed on the ground of non- maintainability of joint writ petition as also on merit. Consequently, the writ petition is dismissed. Stay petition also stands dismissed. There shall be no order as to costs. [H.R.PANWAR],J. m.asif/-