Shailendrasingh Natubha Gohil vs State of Gujarat and 2 Ors.

Abhilasha Kumari, J.—Rule. Mr. Hardik Soni, learned Assistant Government Pleader, appearing on an advance copy of the petition, waives service of notice of Rule for the respondents. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

By preferring this petition under Article-226 of the Constitution of India, the petitioner has challenged the order dated 31.05.2010, whereby his services as Junior Clerk have been terminated on the ground that he failed to clear the Pre-Service Training Examination in three chances plus two additional chances.

It is the case of the petitioner that he was appointed on compassionate grounds, as his father died in harness. The petitioner was granted appointment as Junior Clerk on ad-hoc basis, with a fixed salary of Rs. 2,500/- per month and he joined service with effect from 21.09.2004. On completion of five years of service, the petitioner was given regular appointment on 14.12.2009, subject to the condition that he would pass the Pre-Service Training Examination within the prescribed number of chances and the time schedule. The petitioner had to pass a Departmental Examination in the specified three chances, within the specified time period. He appeared for the Pre-Service Training Examination, but failed in the three chances available to him plus the two additional chances that were granted to him. Hence, the services of the petitioner were terminated vide the impugned order dated 31.05.2010.

Ms. Reena Kamani, learned advocate for Mr. P.H. Pathak, learned advocate for the petitioner, submits that as the family of the petitioner was in dire need of employment, he was initially appointed on compassionate grounds. Unfortunately, the petitioner could not pass the examination within the three chances that were given to him plus two additional chances. The services rendered by the petitioner were satisfactory and there was no complaint against him. The petitioner has crossed the age for Government employment. The entire burden of maintaining the family is on the petitioner, therefore, looking to the overall circumstances, the prayers made by the petitioner may be granted.

The learned advocate for the petitioner has submitted that the petitioner can be considered for appointment against the Class-IV post, where there is no necessity of passing the Departmental Examination, looking to the fact that he was initially appointed on compassionate grounds. In support of this submission, reliance has been placed upon the judgment of the Supreme Court in Brijesh Vipin Chandra Shah Vs. State of Gujarat and Others, .

It is submitted on behalf of the petitioner that the case of the petitioner is covered by the above judgment of the Supreme Court, therefore, directions, in accordance with the observations made by the Supreme Court, may be issued.

Mr. Hardik Soni, learned Assistant Government Pleader submits that in view of the judgment of the Supreme Court, this Court may pass appropriate orders.

In Brijesh Vipin Chandra Shah v. State of Gujarat & Ors. (supra), the Supreme Court was dealing with a case wherein the appellant before them was appointed on compassionate grounds as a Junior Clerk, as his father had died while in harness. In that case as well, the appellant could not clear the Pre-Service Training Examination within three chances and was given an additional chance, but was unable to pass the examination in that chance, as well. This led to the termination of the services of the appellant therein. After having considered the entire matter, the Supreme Court held as below:

At this stage, learned counsel for the appellant submits that having worked for about 12 years, the appellant cannot now be rendered jobless. Even though he is not entitled to a Class III post, he would be certainly entitled to a Class IV post on compassionate grounds. He, therefore, prays that the appellant may be permitted to continue on Class IV post. However, this request is vehemently opposed by the learned counsel for the respondents and he submits that once the appellant had been appointed on Class III post, he cannot be considered for regularising his service on a Class IV post.

We are of the considered opinion that the stand taken by the respondents is unnecessarily harsh. It must be remembered that the appellant was initially appointed on compassionate grounds as his father had died while he was in service. Compassionate appointment is made by relaxation of the normal service rules for providing immediate financial assistance to the family of the deceased who dies in harness. It is unfortunate that the appellant was unable to pass the in-service examination so as to enable him to continue on a Class III post. But that ought not to result in depriving him of service altogether.

In view of the above, we allow this appeal and direct the respondents to appoint the appellant on a Class IV post. The appointment of the appellant on a Class IV post shall be from the date he was initially appointed on Class III post. His seniority shall be reckoned from the date of initial appointment. However, the appellant shall not be entitled to any back-wages since he has not worked, on any of the posts, after the date of termination of his services.

(emphasis supplied)

The facts of the case before the Supreme Court are similar to the facts obtaining in the present case, therefore, the principles of law enunciated by the Supreme Court in the above-quoted judgment would be applicable to the case of the present petitioner. The petitioner herein has worked for six years as a Junior Clerk and has been terminated because he could not clear the Pre-Service Training Examination in three chances plus additional two chances. Considering that the appointment of the petitioner was on compassionate grounds and in view of the observations made by the Supreme Court in the case of Brijesh Vipin Chandra Shah v. State of Gujarat & Ors. (supra), similar directions can be issued to the respondents.

In view of the above, the petition is partly-allowed. The respondents shall consider the case of the petitioner for appointment to a Class-IV post. The said appointment to the Class-IV post shall be considered to have been made since the initial date when the petitioner was appointed on a Class-III post and his service seniority reckoned, accordingly. It is, however, made clear that the petitioner shall not be entitled to back-wages, as he has not worked after the date of termination of his services.

Rule is made absolute, to the above extent. There shall be no orders as to costs.