IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4353 of 2010 1. RUPSHREE W/O KUMAR SANDIP AMBASTA EAST LANE KHAJANCHI ROAD, P.S.- PIRBAHORE, DISTT.- PATNA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVT. OF BIHAR PATNA 2. THE PRINCIPAL SECRETARY PERSONAL & ADMINISTRATIVE DEPARTMENT GOVT. OF BIHAR, PATNA 3. THE DIRECTOR CUM SECRETARY CIVIL AVIATION DEPARTMENT AIRPORT BIHAR PATNA ----------- 2/ 05/10/2010 Heard learned counsel for the petitioner and learned counsel for the State. The father of the petitioner died in harness. The petitioner was studying in B.A. Part-2. He came to be appointed on compassionate grounds on a Grade-4 post and joined service on 20.2.2002. Learned counsel for the petitioner submits that recently in January, 2010, the petitioner obtained information under the Right to Information Act. Vacancies of Class-3 were available. The person at serial No.41 below the petitioner in the list of recommendation when he was at serial No.28 has been appointed on Class-3 post. Hostile discrimination is therefore urged. Insofar as the issue of hostile discrimination is concerned, on the own showing of the petitioner, he holds the qualification of B.A. Part-2 while the person at serial-41 is a B.Sc. (Hon’s). Equality cannot apply between unequals. No case of hostile discrimination is - 2 - made out. The petitioner obtained compassionate appointment on 20.2.2002. He availed the benefit of the offer and eight years later virtually challenges that very order that has appointed him. If that be so, he must perish by the same sword which he wields. He cannot challenge an order and yet seek to retain the benefit of the order. Principles of Estoppel by conduct shall also apply against him. If that were not enough, his claim stands fully covered by a decision reported in 1996(2) P.L.J.R. S.C. 199 (State of Bihar & Ors. vs. Samsuz Zoha) holding at paragraph-4 in the relevant extract as follows: “4. The question that arises for consideration is whether the High Court is right in giving directions to appoint them afresh or give them promotion? It is not in dispute that there is no right vested in the candidates for particular appointment on compassionate grounds. The State had taken policy decision to appoint all the candidates irrespective of the qualifications at Class IV post and, therefore, the Committee consisting of the Secretary, Addl. Secretary and the Registrar met and decided the principle that all the available posts in Class IV should be made available to the candidates in the awaiting list for appointment on compassionate grounds. 12 posts available in Class III were reserved for appointment by promotion to the Class IV candidates who were entitled thereto as per the rules. The principle adopted by the Government cannot be said to be unjustified or illegal. Undoubtedly, some candidates had gone to the Court and obtained orders and in compliance thereof, at pain of contempt petition, the Government, instead of appointing them to class IV posts since by then the Class III posts were not available, upgraded Class IV post as Class III post and confirmed them as Class III employees. That order which was wrongly made by the High Court cannot be - 3 - a base to issue directions. In other words, if the directions are complied with all the Class IV posts would be converted into Class III posts which is against the discipline of the service. The High Court, therefore, was not justified in issuing directions in all the cases for appointment to Class III post.” The writ application is dismissed. KC ( Navin Sinha, J.)