( 1 ) THE petitioner herein joined service as Junior Clerk on 7/10/1971 in the service of the respondent Panchayat. He worked as Steno-typist from 23/07/1972 to 31/03/1973. On 1/04/1973) he was appointed as Stenographer Grade-II for six months which period was subsequently extended upto the time a permanent incumbent could be appointed. The Panchayat Service Selection Committee called for a report about the performance of the petitioner which was submitted on 10/10/1975. According to the petitioner his performance was quite satisfactory and that he was eligible to continue on the said post. By the circular dated 23/02/1978 the Government imposed the requirement of continuation in Panchayat service whereby the employees had to pass the departmental examination in the specified number of attempts. The petitioner was granted permission to appear in the examination to be held on 16/06/1978 He could not appear in the said examination on the ground of sickness. It is the petitioners case that he was suffering from duodenal ulcer and hence he was unable to appear in the examination. He however appeared in the examination on 30/12/1978 and failed. The petitioner again obtained permission to appear in the examination to be held on 29/04/1979. But according to him he fell sick on 24/04/1979 i. e. five days prior to the examination. The petitioner sent the medical certificate issued by the Additional District Health Officer District Panchayat Bulsar in support of his contention that he was sick and unfit to appear in the examination. A letter of the same date was also sent by the President District Panchayat stating that the petitioners performance as Stenographer was quite satisfactory and that he may be granted one more chance to appear in the examination. In the meantime the Panchayat authorities had decided to terminate the services of the petitioner on the ground that he had not passed the examination within the prescribed attempts. The petitioner came to this court and obtained the interim injunction restraining the respondent Panchayat from passing an order of termination of service of the petitioner.

( 2 ) MRS. K. A. Mehta the learned counsel for the petitioner has submitted that the petitioner has not exhausted all his three chances for passing the departmental examination which would have enable him to continue in the service. According to her the petitioner appeared in the examination only once and failed. On two other occasions i. e. 16/06/1978 and 29/04/1979 the petitioner could not appear for reasons beyond his control viz. his physical ailment. Mrs. Mehta has relied on a recent unreported decision of this court wherein it is held that if an employee is unable to appear in the examination on account of illness it could not be regarded as an attempt and therefore such an employee is entitled to one more attempt in lieu of the one missed due to sickness. Mrs. Mehta has further urged that the respondent Panchayat is not justified in terminating the services of the petitioner on the sole ground of the petitioner not having passed the departmental examination within the prescribed attempts. She has pointed out that the petitioners sickness is certified by the Medical Officer of the respondent Panchayat itself and that the President District Panchayat has expressed his satisfaction at the performance of the petitioner. Therefore according to her the petitioner is entitled to atleast one more chance to appear in the departmental examination to enable him to continue in the Panchayat service.

( 3 ) MR. M. C. Patel the learned A G. P. has pointed out from the affidavit of Secretary Panchayat Service Selection Board Ahmedabad that the petitioner had taken leave for three days and that the fact that the petitioner had come to Ahmedabad from Bulsar only one day after the examination was held shows that the petitioner was not genuinely sick on the day of examination. He therefore submits that the contention of the petit