The acceptance of a lower post under compassionate appointment does not deprive an individual of their legal rights to a higher post if they are qualified for it and the relevant regulations support their appointment.

( 1 ) HEARD the learned counsel for the petitioner and the learned standing counsel.

( 2 ) THE brief facts of the case are that the father of the petitioner has expired on 10. 9. 1992 while he was in service and thereafter the widow of the deceased submitted an application on 17. 9. 1992 for the appointment of her son on compassionate ground under Dying-in-Harness rules. In the said application, it was inter alto stated that son is B. A. , B. Ed. The petitioner thereafter on 25. 9. 1992 submitted an application before the D. I. O. S. for his appointment under dying-in-Harness Rules. The D. I. O. S. vide an order dated 9. 10. 1992, directed the Management of the School for appointment of the petitioner on non-teaching post and in pursuance of the said order, the Principal of the College vide order dated 12. 10. 1992 appointed the petitioner on the post of Assistant Clerk. The petitioner being aggrieved by the aforesaid order has approached this Court and has prayed that a writ in the nature of mandamus be issued to the opposite parties to give the appointment to the petitioner on the post of Assistant Teacher L. T. Grade in pursuance of the Government Order dated 2. 2. 1995. On 2. 5. 2000, this Court by an interim order directed the petitioner to make a representation before the D. I. O. S. who will consider and decide the same within two months in the light of the judgment and order in Sanjeev Kumar Dubey v. D. I. O. S. Etawah and others. 2000 (18) LCD 427. In compliance of the order passed by this court, the D. I. O. S. by the impugned order dated 4. 7. 2000 dismissed the representation of the petitioner and refused to give appointment to the petitioner of the post of Assistant Teacher L. T. Grade.

( 3 ) THE learned counsel for the petitioner submits that when the application was moved by the petitioner in the year 1992, he was having the requisite qualification for the appointment of the post of Assistant Teacher L. T. Grade and by means of the Government Order dated 2. 2. 1995, the regulations 101. 103 and 107 have been amended which specifically provide that these regulations will be available with retrospective effect from 1991. On the strength of government Order dated 2. 2. 1995, the petitioner submits that the impugned order dated 4. 7. 2000 passed by the D. I. O. S. is legally not sustainable and the petitioner is entitled for the post of assistant Teacher L. T. Grade.

( 4 ) THE learned standing counsel appearing on behalf of the opposite parties submits that once the petitioner has accepted the post of Assistant Clerk in the year 1992, he cannot claim for any other post as the appointment to the petitioner was given on compassionate ground under dying-in-Harness Rules.

( 5 ) I have considered the arguments of the learned counsel for the parties and gone through the record. The application dated 17. 9. 1992 submitted by the mother of the petitioner clearly mentions that appointment may be given according to the qualification of the son and in the said application, it is mentioned that the petitioner is B. A. , B. Ed, The Government Order dated 2. 2. 1995 by which Regulations 101, 103 and 107 were amended are available to the legal heirs of those persons who died in harness in January, 1991 and onwards and as such the opposite parties ought to have given a job to the petitioner of the post of Assistant Teacher L. T. Grade as he was qualified for the said post at the relevant time. The argument of the learned standing counsel that once the petitioner has accepted the post of Assistant Clerk he cannot agitate the matter, has no force.

( 6 ) IF under compelling circumstances, a person has opted for a post which was offered to him, that will not deprive him from his legal rights. The D. I. O. S. has not considered the fact that the petitioner possesses requisite qualification for the appointment to the post of Assistant Teacher l. T. Grade and under the regulations he is eligible for the same.

( 7 ) IN the