[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 372 of 1997 RAVINDRA SINGH V/S STATE & ORS Mr. PP CHOUDHARY, for the appellant / petitioner Mr. DEEPAK CHAUDHARY, for the respondent Date of Order : 17.7.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- This appeal has been filed, seeking to challenge, the order of the learned Single Judge dated 06.09.1996, dismissing the petitioner's writ petition. The necessary facts are, that on 24.11.1989, the petitioner filed the present writ petition, alleging inter- alia that the petitioner's father was working on the post of Agriculture Assistant (Plant Protection) w.e.f. 01.09.1968, on which post, later on, he was confirmed. Then, it was alleged that the petitioner possesses academic qualification of B.Sc. Agriculture, having been acquired in 1989, and was unemployed. The petitioner's father is said to have expired on 08.04.1985, while discharging official duties. In such circumstances, the petitioner being entitled, and being only eligible candidate to be appointed, under the Rajasthan (Recruitment of Dependants [2] of Government Servants Dying while in Service) Rules, 1975 (hereinafter, referred to, as '1975 Rules'), therefore, after the sad demise, the petitioner submitted an application on 26.04.1985, for his appointment on the post of Assistant Agriculture Officer. This is averred in Para 5. It is further averred in Para 5, that copy of such application is not with the petitioner, so the same is not being filed alongwith the petition, and that the respondents vide order dated 07.08.1985, expressed their inability to provide appointment to the petitioner on the post of Assistant Agriculture Officer, under the 1975 Rules, but no reasons have been given for such inability. This order dated. 07.08.1985 is produced as Annex.2. It is also alleged in this order itself, that the petitioner was informed, that he can be appointed on the post of Agriculture Supervisor. Then, it is alleged, that in view of the provisions of 1975 Rules, since the petitioner was entitled to be appointed on the post of Assistant Agriculture Officer, under Rajasthan Agriculture Subordinate Service Rules, 1978, in view of his possessing qualification of B.Sc. Agriculture, even without necessity of any relaxation. According to the petitioner, since the deceased was only bread earner, and the family was in harness, the petitioner accepted the appointment of Agriculture Supervisor, and submitted application to the respondents, that in case the appointment on the post of Assistant Agriculture Officer is not possible, as well as, in case the petitioner is not found eligible for appointment on this post, then he may be provided appointment on the post of Agriculture Supervisor. The [3] appointment order was issued on 08.11.1985, appointing him as Agriculture Supervisor, which has been produced as Annex.3. Then, representations were made on 27.03.1989 and 29.04.1989 but to no good. Inter-alia, on these factual matrix, it is claimed, that in view of 1975 Rules, especially Rule 5, the respondents were under an obligation to provide “suitable employment” to the petitioner, obviously, commensurate with his academic qualification, subject, of course, to the availability of vacancy, and it was prayed, that the respondents be directed to provide appointment to the petitioner, on the post of Assistant Agriculture Officer, w.e.f. 26.04.1985, when application for appointment was submitted, with all consequential benefits. The writ was contested by the respondents, by filing a reply, contending inter-alia, that the petitioner was eligible for the lowest post of such cadre, on which the deceased was serving, and it was informed that he was not entitled for the post asked for by him, and in compliance of this information, the petitioner agreed and accepted the appointment to the post of Agriculture Supervisor, which was accordingly given, and the petitioner accordingly joined as well, as such, he is not entitled to seek relief from this Court. Various other pleadings have been taken in the reply, which need not detain us. The learned Single Judge, by the impugned order found, that in view of the judgment of the Hon'ble Supreme Court, in State of Rajasthan Vs. Umrao Singh, reported in [4] JT 1994 (6) SC 372, wherein it has been held, that once a candidate accepted the appointment, his right to be considered on compassionate ground is consummated, and no further consideration for appointment on compassionate ground arises. Thus, betterment of job is not open, where appointment is accepted on compassionate ground, the writ petition was dismissed. Assailing the impugned order, the learned counsel for the appellant placed reliance on two judgments of this Court, one being in Vivek Goswami Vs. State of Rajasthan, a Division Bench Judgment, reported in 1989 (1) RLR 620, and another Single Bench judgment of this Court in Pritam Singh Vs. State of Rajasthan, reported in 1995 (1) RLR 481, to contend, that under the scheme of Rules, the petitioner has a right to be appointed on compassionate ground, by being given a “suitable employment”, and the term 'suitable employment' has been explained by this Court in Pritam Singh's case 'to be an employment appropriate to the qualification possessed by the applicant', ofcourse, excluding major State services. Likewise, in Pritam Singh's case, it has also been held, that even betterment of service is permissible, and in that case betterment was directed, and therefore, the petitioner is entitled to the relief prayed for. It is contended, that under the 1978 Rules, the academic qualification prescribed for the post of Assistant Agriculture Officer is B.Sc. Agriculture, which qualification was possessed by the petitioner, and since it is not the case of the respondents, that at that time there was no vacancy, therefore, there was no earthly [5] reason to deny him appointment on the post of Assistant Agriculture Officer, and that, simply because, in the state of harness, the petitioner accepted the appointment, offered to him on the post of Agriculture Supervisor, that does not debar him from claiming appointment to the post of Assistant Agriculture Officer, to which he was legitimately entitled. On the other hand, learned counsel for the respondents supported the impugned judgment by relying on the judgment of Hon’ble the Supreme Court, in State of Rajasthan Vs. Shri Umrao Singh [JT 1994 (6) (SC) 372], and contended, that it has clearly been ruled therein, that once the appointment is accepted on any lower post, the right to be considered on a higher post is consummated, and has rightly been held so by the learned Single Judge. Learned counsel also invited our attention to Annex.4 & 5, wherein the petitioner has admitted, that he had clearly written, that if it is not possible to appoint him on the post of Assistant Agriculture Officer, he may be appointed on the post of Agriculture Supervisor, and since he was appointed on the post of Agriculture Supervisor, which appointment has been accepted by him, it is not open to him, to now claim any betterment in service. We have considered submissions. So far as, factual aspect, of the petitioner, applying for the post of Assistant Agriculture Officer is concerned, in our view, it is clear, even from Annex.2 that the petitioner did apply for the post of Assistant Agriculture Officer, which was [6] declined to him, and it was conveyed, that he can be given appointment on the post of Agriculture Supervisor. From a look at Annex.2, it is clear, that it is in response to the petitioner's application dated 26.04.1985, and the communication dated 07.08.1985. It is, in these circumstances, that Annex.4 & 5 were required to be read, which clearly show, that therein the petitioner had recited the contents of communication dated 07.08.1985, and in response thereto, in view of the fact, that the said communication was also received after four months of his father's death, which had shattered his mental and economic condition, and therefore, he agreed to accept the appointment on the post of Agriculture Supervisor. As such, it is clear, that the petitioner did apply for the post of Assistant Agriculture Officer, and did not apply for the post of Agriculture Supervisor, in the alternative, as claimed by the learned counsel for the respondents, be that as it may. The core question, involved in the matter is, that the factual position does remain, that it was in the year 1985 that the petitioner was given appointment to the post of Agriculture Supervisor under 1975 Rules, and this was given consequent upon the petitioner's application submitted by him, after receipt of the communication dated 07.08.1985, and the petitioner did joined on that post, and thereafter, reacted for the first time, practically after four years i.e. 27.03.1989 or 29.04.1989, as is alleged by the petitioner. Thus, it is clear that after having accepted the appointment, the petitioner has raised the [7] issue at a belated hour. This is one aspect of the matter. The other aspect of the matter is, that all said and done, the petitioner was given appointment under 1975 Rules, and as the case of the respondents is, that he was given that appointment in view of the petitioner having been found eligible for that post. The question then is, as to whether it is open to the petitioner, or the petitioner has any right to claim betterment in service, on the basis of the fact, that at the time of death of deceased employee, or at the time of filing application for compassionate appointment, he was possessing requisite qualification for any post, higher than the one, on which he has been given appointment. This aspect has been examined by the learned Single Judge, and the case laws cited on the side of appellant, as has been cited before us, have been held to be no more holding good, in view of the judgment of the Hon'ble Supreme Court, in Umrao Singh's case. Umrao Singh's case has been cited before us, and had been relied upon by the learned Single Judge as well, and nothing has been shown on the side of the appellant, that after Umrao Singh's case, any contrary view has been taken by Hon'ble Supreme Court, or that the rules have undergone any such change, which may have the effect of watering down the rigor in Umrao Singh's case, rather, nothing was submitted by the learned counsel for the appellant regarding Umrao Singh's case. It is by the way, and only an irrelevant circumstance, which may be noticed, that after 1975 Rules, [8] 1996 Rules have been enacted, and specific provisions have been enacted therein, prohibiting the claims for compassionate appointment, or re-agitating issue on any ground, in future. Ofcourse 1996 Rules are not applicable, but we only mentioned it as a fact legal position, which has come about. In view of aforesaid discussion, we do not find any force in the appeal, the same is therefore dismissed. (KISHAN SWAROOP CHAUDHARI),J. ( N P GUPTA ),J. jpa/