Riaz Ahmed vs State of Jammu and Kashmir

O.P. Sharma, J.—The case of the petitioner is that vide order dated 26.11.1995 issued by respondent2, he was appointed as classIV

employee in terms of SRO 43/94 on compassionate ground. However, similarly placed persons namely, Miss Rajni Bala Gupta, Anita Sharma and

Sandeep Kumar were appointed as Laboratory Assistants in District Poonch. Petitioner filed SWP No. 1219/97 in which this Court on 15.7.1996

directed the respondents to consider the petitioner for the post of Lab. Asstt. Respondent2 considered the petitioner, but rejected his claim vide

order dated 20.5.1999. This order has been called in question by the petitioner on the ground that his case has been wrongly rejected. The

grievance of the petitioner is that he should also be treated similarly and appointed Lab. Asstt. against the available vacancy. The stand of the

respondents is that petitioner having accepted the appointment has no right to claim appointment to a post on which he has to be promoted on his

own turn. In case he was not satisfied with the appointment, he should not have accepted and joined. As a matter of fact, he accepted the post and

joined in 1995. The question is whether a person who accepts appointment made on compassionate ground and joins the duty has no right to claim

higher post. In State of Bihar v. Samsuz Zoha, AIR 1996 SC 1961 : 1996(4) SCT 51 (SC) Their Lordships held as under :

.....It is not in dispute that there is no right vested in the candidates for particular appointment on compassionate grounds.

Similarly in Umesh Kumar Nagpal v. State of Haryana, 1994(4) SCC 138 : 1994(3) SCT 174 (SC) Supreme Court held :

It is obvious from the above observations that the High Court endorses the policy of the State Govt. to make compassionate appointment in

posts equivalent to the posts held by the deceased employees and above Classes III and IV. It is unnecessary to reiterate that these observations

are contrary to law. If the dependent of the deceased employee finds it below his dignity to accept the post offered, he is free not to do so. The

post is not offered to cater to his status but to see the family through the economic calamity.

The next question is whether the petitioner has been discriminated as similarly situated persons were appointed on higher post. First of all, there

is no plea merely because the petitioner holds the same qualification does not make him similarly situated. The petitioner has nowhere pleaded the

position his father held in the Education Department. Moreover, wrong orders passed earlier in favour of some persons do not amount to

discrimination, if correct order is passed in favour of others. This has been laid down in M/s Faridabad CT Scan Centre v. D.G., Health Services,

AIR 1997 SC 3801 : 1997(4) SCT 463 (SC) which reads :

We fail to see how Article 14 can be attracted in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated

with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and, therefore, there will be

discrimination against others it correct orders are passed against them. In fact, in the case of Union of India (Railway Board) and others v. J.V.

Subhaiah, 1996(2) SCC 258 : 1996 AIR SCW 705, the same learned Judge in his judgment has observed in para21 that the principle of equality

enshrined under Article 14 does not apply when the order relied upon is unsustainable in law and is illegal. Such an order cannot form the basis for

holding that other employees are discriminated against under Article 14.

In view of the above, this petition is not maintainable as the order passed by respondent2 on 21.5.1999 does not suffer from any infirmity. The

petition is dismissed.