1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Suresh Kumar Bohra vs. Raj. State Ganganagar Sugar Mills Ltd. & Ors. S. B . CIVIL WRIT PETITION NO. 9921/2008 Date of Order :: 14.12.2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Monoj Bhandari & Mr. Manoj Bohra, for the petitioner/s. Mr. Manish Shishodia, for the respondents. .... BY THE COURT: Late Sh. Ashulal Bohra, father of the petitioner, died on 29.12.2007 while in service of the respondent-company as Deputy Manager, thus, the petitioner applied for appointment to the post of Deputy Manager as per the provisions of the Rajasthan Compassionate Appointment of Dependants of Deceased Government Servants Rules, 1996 (hereinafter to be referred to as, 'the Rules of 1996'). The Senior 2 Manager of the respondent-company, under an order dated 21.1.2008 accorded appointment to the petitioner as a Class IV employee, but the petitioner did not choose to join on the post aforesaid. Vide letter dated 4.2.2008 he represented to the General Manager of the Company to consider his case for better appointment, no action thereupon is taken, hence, this petition for writ is preferred. As per the petitioner, the respondents have given appointments to certain other persons on higher posts commensurating to their qualification, but a conscious discrimination is made while considering his candidature. However, during the course of hearing learned counsel for the petitioner has confined claim of the petitioner for appointment as Lower Division Clerk. Incidentally, it shall be worthwhile to take note of the qualification possessed by the petitioner i.e. M.A. in the Subject of Psychology. The petitioner is also registered for undergoing research and to have a Degree of Ph.D. According to the respondents, the date on which the petitioner submitted application for appointment under the Rules of 1996, no vacancy was available in the cadre of Lower Division Clerk, thus, an appointment to Class IV Service was accorded to him under the order dated 21.1.2008. It is further submitted that on not availing the appointment as Class IV employee, case of the petitioner could not have 3 been considered for appointment on any other post in view of the provisions of sub-rule(2) of Rule 6 of the Rules of 1996, according to that, “once an appointment has been made on any post under these Rules, the benefit intended under these Rules shall be deemed to have been availed and the case shall not be re-opened for appointment to any other post under any circumstances.” By submitting an additional affidavit it is also pointed out by the respondents that at the first instance the vacancy in the cadre of Lower Division Clerk became available with them in the month of April 2010, i.e. after a period of more than two years from the date, the appointment was accorded to the petitioner in Class IV Cadre. It is also asserted that the vacancies so made available are required to be filled in from amongst the members who are already working with company on seasonal basis from last number of years, though the vacancies are relating to direct recruitment quota. Heard counsel for the parties. True it is, sub-rule (2) of Rule 6 of the Rules of 1996 provides that the case for consideration for appointment to any other post shall not be re-opened, if the appointment is offered to an incumbent and he is not availing that, however, as per sub-rule (6) of Rule 10 of the Rules of 1996 an applicant seeking appointment under the Rules of 1996 is 4 having option to wait for the post applied for by not joining the post in lower scale. Sub-rule (6) as referred above reads as under: “In case suitable post is not vacant but some post in lower scale is available immediately, such lower post can be offered to the applicant on first come first serve basis and the applicant shall have the option either to wait for the post applied for or to accepts the lower available post. In case the applicant accepts the lower available post, he/she shall lose his/her claim for higher post applied for and his/her claim will not be kept on waiting list. Provided that if there is no vacant post available in the department in which the deceased Government servant was working then the matter shall be referred to DOP immediately duly support by cogent reasons and DOP shall provide appointment in some other department.” In the instant case appointment was given to the petitioner in Class IV Cadre under the order dated 21.1.2008, and immediately thereafter on 4.2.2008, the petitioner conveyed to the respondents to consider his candidature for better appointment. In such circumstances, the petitioner, as a matter of fact, protected his right to be considered for appointment on a better post as per the proviso to sub-rule (6) of Rule 10 of the Rules of 1996. It is correct that the petitioner in the letter dated 4.2.2008 mentioned that his case for better appointment be 5 considered for the post he has applied, however, such mention in no manner precludes the respondents from considering candidature of the petitioner for other posts like Lower Division Clerk. The respondents have categorically admitted that in the month of April 2010 certain posts in the cadre of LDC against the direct recruitment quota were made available to them, and as such, against these vacancies candidature of the petitioner should have been considered by them. I do not find any just reason for not considering candidature of the petitioner for appointment against the vacancies relating to the post of Lower Division Clerk, those made available to the respondent- company in the month of April 2010. Accordingly, this petition for writ is allowed. The respondents are directed to consider candidature of the petitioner for appointment as Lower Division Clerk under the Rules of 1996 within a period of one month from today. No order as to cost. ( GOVIND MATHUR ),J. jgoyal