Aditya Kulshreshtha vs State Of Madhya Pradesh And Others

Vishal Dhagat, J

Petitioner has filed this petition under Article 226 of the Constitution of India making a prayer to issue writ of mandamus commanding respondents to comply with order dated 17.03.2023 and grant appointment to petitioner on post of Junior Assistant-cum-Data Entry Operator on compassionate basis.

Learned counsel appearing for petitioner submitted that petitioner was having requisite qualification on date when his application was under consideration for being appointed to the post of Junior Assistant-cum-Data Entry Operator. However, Clerk played a mischief and wrongly informed petitioner that there is no vacant position. Due to said wrong information, petitioner accepted the post of Chowkidar-cum-Helper. It is submitted that had correct information been given to petitioner, petitioner may not have exercised his option. It is also submitted that other similarly situated candidates were given appointment on post of Junior Assistant-cum-Data Entry Operator. Petitioner has been discriminated and therefore, there is violation of Article 14 of the Constitution of India. Counsel appearing for petitioner made a prayer to issue writ of mandamus.

Learned counsel appearing for respondent No.2 opposed the prayer. It is submitted that petitioner does not have any right to the post. Appointment on compassionate basis is granted to help a candidate to tide over financial crisis. As a right, a candidate cannot ask for being appointed to a particular post. It is further submitted that petitioner has accepted appointment in year 2020 without any grudge. Once he accepts appointment, right of petitioner for further consideration to another post is over. Same request cannot be considered after appointment is given to petitioner.

Learned counsel appearing for petitioner further submitted that order passed by appellate authority dated 17.03.2023 is without jurisdiction. There is no statutory right of appeal. Said order could not be relied upon.

Heard the counsel for the parties.

Learned counsel appearing for petitioner has argued that petitioner is not making any claim for complying order dated 17.03.2023, however, petitioner had made pleadings in writ petition that order dated 17.03.2023 is to be complied with. Due to aforesaid wrong assertion before this Court, cost of Rs. 5000/- (Rs. Five Thousand) is imposed upon counsel for petitioner, to be paid to Secretary, High Court Legal Services Committee, Jabalpur within a period of 15 days.

Learned counsel for petitioner has relied upon judgment passed by Apex Court in case of Surya Kant Kadam vs State of Karnataka and others, reported in (2002) 9 SCC 445. In said case, it was found that petitioner was having qualification to be appointed as Sub Inspector of Excise but has been appointed as Second Division Assistant Clerk. In said case also, mischief was played against petitioner therein by Clerk. In view of same, Apex Court held that there is violation of Article 14 of the Constitution of India and therefore, relief was granted in favour of petitioner therein.

Learned counsel appearing for respondent No.2 has relied upon judgment passed by Apex Court in case of The Director of Town Panchayat and others vs M. Jayabal and another, reported in 2025 LiveLaw (SC) 1203. In said case, Apex Court has held as under :

"9. The law on the issue is well-settled. The issue as to whether a second option can be exercised by the dependent family member of the deceased employee, once option for compassionate appointment has already been exercised and the dependent family member of the deceased joined on the post to which appointment was given, was considered by this Court in State of Rajasthan v. Umrao Singh, (1994) 6 SCC 560. In this case, the deceased was working as Sub-Inspector, CID. On account of his death during service, application for appointment on compassionate basis was made. The dependant was offered appointment on the post of L.D.C. The same was accepted and the incumbent joined on the post. Later, he requested for consideration of his case for appointment on the post of Sub-Inspector, being eligible for the same. This Court negated the claim holding that once right for consideration for appointment on compassionate post was consummated, any further or second consideration for a higher post on the ground of compassion would not arise. The relevant paragraph 8 is extracted below:

“8. Admittedly the respondent's father died in harness while working as Sub-Inspector, CID (Special Branch) on 16-3-1988. The respondent filed an application on 8-4-1988 for his appointment on compassionate ground as Sub-Inspector or LDC according to the availability of vacancy. On a consideration of his plea, he was appointed to the post of LDC by order dated 14- 12-1989. He accepted the appointment as LDC. Therefore, the right to be considered for the appointment on compassionate ground was consummated. No further consideration on compassionate 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 learned 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.”

(emphasis supplied)

In view of the law laid down by this Court, it stands clarified that the once the right of an applicant to be considered for appointment on compassionate grounds has been consummated, no further consideration is warranted. Once dependent of a deceased employee is offered employment on compassionate basis, his right stood exercised. Thereafter, no question arises for seeking appointment on a higher post. Otherwise, it would be a case of ‘endless compassion’."

It is submitted that in view of aforesaid judgment passed by Apex Court, petitioner is not having any right to be appointed on a particular post. It is also submitted that further claim to be appointed on a higher post cannot be considered if appointment has already been given to a candidate.

Considered aforesaid two judgments passed by the Apex Court.

In case of Surya Kant Kadam (supra), mischief was played by Clerk and therefore, petitioner was deprived of right to equality under Article 14 of the Constitution of India, therefore, Apex Court had granted relief to petitioner therein. However, in case of Director of Town Panchayat (supra), no mischief was played and claim was made for appointment to a higher post. In said case, relief was declined as party has approached for appointment to a higher post after period of 3 years, but no mischief was played with said candidate and right of equality has not been violated. In view of same, two cases are distinguishable. Case of petitioner is identical to that of Surya Kant Kadam (supra).

In view of same, petition filed by petitioner is disposed off directing respondents to re-consider the case of petitioner for appointment to post of Junior Assistant-cum-Data Entry Operator, if vacant post is available with them. Exercise be completed within a period of 90 days.

With aforesaid direction, writ petition is disposed off.