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Gujarat High Court
Judgename :MS.R.M.DOSHIT
KALPESH KUMAR BABUBHAI PATEL - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 9635 Of 2006
Decided On : 02/15/2007
Constitution of India - Article 309 - Petitioner a Government servant appointed on compassionate grounds, challenges the Notification issued by the Institute of Public Administration - Petitioner was appointed as a Clerk in Class-III service of the State Government on compassionate grounds on the terms and conditions mentioned therein. Since his appointment as a Clerk under the Non-Secretariat Clerks and Clerk-cum-Typists framedof the Constitution of India - Petitioner was required to take the pre-service training and pass the post-training examination. Accordingly, the petitioner took the said training given by the SPIPA. - He failed to pass the post-training examination within the specified chances - It appears that the last of the said chances was availed of by the petitioner - Concerned heads of the department were instructed to discharge the examinees from service who had failed to pass the said examination at the last available chance - Undoubtedly petitioner is one of such examinees who had availed of the last chance and had failed at the said examination - It is pertinent to note that the petitioner does not challenge the result declared by the SPIPA where the petitioner has been declared to have failed nor the appointing authority has discharged the petitioner from service - It is mere apprehension of his discharge from service which has brought the petitioner before this Court - Petition is premature and is not maintainable - Nevertheless the petition is heard and decided on merits – Petitioner having been appointed on compassionate grounds is not required to undergo any training nor he is required to pass the post-training examination - Under the terms and conditions of his appointment also he was not required to pass such examination - Court in the matter Development Commissioner and others particularly thereof - He has submitted that the said judgment has been confirmed by the Division Bench in Letters Patent Appeal – Held, Resolution specifically provides that once an appointment is made on compassionate ground such employee is put at par with other Government employees and would be governed by all the rules and regulations governing the service conditions of the Government servants - Rules in connection with the recruitment recruitment examination, pre-service training post-training examination and other rules and rules for departmental examination would be binding to such employees. It should be noted that similar was the provision in the earlier scheme considered by this Court in the matter - Even otherwise whether it is made a specific condition of employment or not, once in Government service irrespective of the appointment made on compassionate grounds such servant would be governed by all rules and regulations which govern the service conditions of the Government servants - Petitioner s claim for special consideration on the ground that he was appointed on compassionate ground is illegal and wholly unjustified. Such a claim cannot be accepted particularly in view of the settled - Petitioner be given one more chance to take the post-training examination - Admits that the petitioner has not applied for such additional chance - Absence of a formal application made by the petitioner the prayer cannot be granted - Under the relevant rules the petitioner may apply for an additional chance to take the post-training examination - Petition is dismissed.
( 2 ) RULE returnable today. Mr. Hasurkar waives service of rule. With the consent of the learned advocates, the petition is heard and disposed of today.
( 3 ) THE petitioner, a Government servant appointed on compassionate grounds, challenges the Notification dated 19th April, 2006 issued by the Sardar Patel Institute of Public Administration, Gujarat State (hereinafter referred to as, ?the SPIPA?) and the apprehended order of termination of service of the petitioner.
( 4 ) BY order dated 2nd November, 2001 made by the Superintending Engineer, R and B Circle, Ahmedabad, the petitioner was appointed as a Clerk in Class-III service of the State Government on compassionate grounds on the terms and conditions mentioned therein. Since his appointment as a Clerk, under the Gujarat Non-Secretariat Clerks, and Clerk-cum-Typists (Training and Examination) Rules, 2001 framed under Article 309 of the Constitution of India, the petitioner was required to take the pre-service training and pass the post-training examination. Accordingly, the petitioner took the said training given by the SPIPA. However, he failed to pass the post-training examination within the specified chances. It appears that the last of the said chances was availed of by the petitioner in the month of October, 2005. The result thereof was declared by the SPIPA under the impugned Notification dated 19th April, 2006. Under the said Notification, the concerned heads of the department were instructed to discharge the examinees from service who had failed to pass the said examination at the last available chance. Undoubtedly, the petitioner is one of such examinees who had availed of the last chance and had failed at the said examination. It is pertinent to note that the petitioner does not challenge the result declared by the SPIPA where the petitioner has been declared to have failed nor the appointing authority has discharged the petitioner from service. It is mere apprehension of his discharge from service which has brought the petitioner before this Court. As such, the petition is premature and is not maintainable. Nevertheless, the petition is heard and decided on merits.
( 5 ) MR. RATHOD has submitted that the petitioner, having been appointed on compassionate grounds, is not required to undergo any training nor he is required to pass the post-training examination. Under the terms and conditions of his appointment also he was not required to pass such examination. The petitioner s service, therefore, cannot be terminated for his failure to pass the post-training examination. In support thereof, he has relied upon the judgment of this Court in the matter of Kokilaben Harshadrai Pancholi v/s. Development Commissioner and others [1998 (2) GCD 1058 (Guj)] particularly paragraph 9 thereof. He has submitted that the said judgment has been confirmed by the Division Bench in Letters Patent Appeal No. 70/1998 by order dated 30th November, 2004.
( 6 ) HE has also submitted that other similar matters have been entertained by this Court and the concerned petitioners have been protected by interim relief. In view of the diverse opinions, one of such matters has been referred to the Larger Bench by order dated 20th February, 2006 made by the learned Single Judge (Coram: Jayant Patel, J.) in Civil Application No. 1790/2006. As the matter is at large before the Larger Bench, this petition should be entertained and ad-interim relief should be continued.
( 7 ) THE petition is contested by Mr. Hasurkar. Mr. Hasurkar has submitted that the matter at issue is no more res integra. The matter has been decided by this Court earlier as far back as in the year 1996 and is followed time and again. The orders of the learned Single Judge have been confirmed by the Division Bench. The judgment in the matter of Kokilaben (supra) has been held to be per incurium in Special Civil Application No. 21363/2005. The order made on Special Civil Application No. 21363/2005
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