Once appointment has been made on compassionate grounds, the claimant would not be entitled to another appointment on a different post, and the appointment under the Dying-in-Harness Rules cannot be made an alternate source or mode of appointment.

Vineet Saran, J.—Petitioner was appointed on a class IV post on 1.12.1969 in the college of respondent No. 4. He was thereafter also confirmed in service. On a post of Assistant Clerk-cum-Librarian (a class III post) having fallen vacant in the college of respondent No. 4 on account of superannuation of the incumbent, the petitioner was promoted on such post, which, according to the petitioner, was a post falling in the quota to be filled up by promotion. The said promotion was granted to the petitioner vide order dated 13.1.1992.

2. The father of respondent No. 5 was an Assistant Teacher in some other college, who had died in harness in June, 1988. The respondent No. 5 had filed an earlier writ petition with a prayer for being given appointment under the Dying-in-Harness Rules. This Court, vide its order dated 13.12.1990, disposed of the said writ petition with a direction to the District Inspector of Schools to consider his (respondent No. 5 in the present writ petition) case and give him appointment under Dying-in-Harness Rules in accordance with his qualification, preferably in the college in which his father was working, or else, in case if there was no vacancy in the said college, in some other college of the district. Since there was no vacancy in the college in which the father of respondent No. 5 was working and a vacancy on a class IV post had occurred on 13.1.1992 in the college of respondent No. 4 on account of the promotion having been granted to the petitioner as Assistant Clerk-cum-Librarian (a class III post), the respondent No. 5 was given appointment on class IV post in the college of respondent No. 4 vide order dated 21.1.1992. Admittedly, the respondent No. 5 joined on the said post. By the impugned order dated 11.5.1992 passed by the District Inspector of Schools, the promotion granted to the petitioner vide order dated 13.1.1992 has been withdrawn and the respondent No. 5 has been appointed on class III post on which the petitioner had been promoted. Aggrieved by the said order the petitioner has filed the present writ petition.

3. On 20.5.1992, by an interim order granted by this Court, the operation of the impugned order dated 11.5.1992 had been stayed and liberty had been granted to the District Inspector of Schools to pass a fresh order after giving an opportunity of hearing to the petitioner and if any such order was passed, the same was to be subject to the result of this writ petition.

4. Counter and rejoinder-affidavits have been exchanged between the petitioner and respondent No. 5. No counter-affidavit has been filed by other respondents nor has it been stated at the Bar that any fresh order has been passed by the respondent-authorities after passing of the interim order dated 20.5.1992. Learned counsel for the petitioner has submitted that on the strength of the interim order granted by this Court, the petitioner is continuing to work on the post of Assistant Clerk-cum-Librarian in the college of respondent No. 4.

5. I have heard Sri Shashi Prakash Misra, learned counsel for the petitioner, Sri C. P. Gupta, learned standing counsel appearing for the State-respondents and Sri S. K. Tripathi, learned counsel appearing on behalf of respondent No. 5 and have perused the record. With the consent of learned counsel for the parties, this writ petition has been heard and is being disposed of at this stage.

6. The challenge of the petitioner to the impugned order is three fold, namely :

(i) once the respondent No. 5 had availed the benefit of compassionate appointment under the Dying in Harness Rules, it was not open for him to claim fresh appointment on a higher post ;

(ii) no appointment on compassionate ground could be made on a post which was required to be filled up by promotion ; and

(iii) the said order has been passed without giving any opportunity of hearing to the petitioner.

7. Admittedly the initial appointment of respondent No. 5 had been made on 21.1.1992 on a class IV p