K.M. Thaker, J.

1. When the petition is called out and taken up for hearing learned advocate for the petitioner is not present, Mr. Swapneshwar Gautam, learned AGP is present.

2. The petition is listed in special cause list for final hearing of old matters. Therefore, the Court is not inclined to adjourn the hearing of this petition on the ground of absence of learned advocate for the petitioner.

3. Heard Mr. Swapneshwar Gautam, learned AGP.

4. In present petition the petitioner has prayed, inter alia, that:-

"14(A) Quashing and setting aside the order dt. 31.7.2002 terminating the services of the petitioner, and to reinstate him with all consequential benefits including backwages."

5. So far as factual background is concerned it has emerged from the record that according to the petitioner he came to be appointed on compassionate ground vide order dated 29.5.1998 as 'Karkun' in the office of the respondent.

5.1 According to the terms of the appointment order dated 29.5.1998 the petitioner was obliged to pass examination in permissible number of attempts (i.e. 3 attempts).

5.2 The petitioner's service came to be terminated vide order dated 31.7.2002 on the ground that the petitioner failed to clear departmental examination in permissible number of attempts.

5.3 The respondent claims that since the petitioner failed to clear the examination in permissible number of attempts, the petitioner was relieved vide order dated 31.7.2002, in light of applicable rules.

5.4 The petitioner felt aggrieved by the said order and filed present petition.

5.5 In this context the petitioner has averred and stated that:-

"5. The petitioner was appointed on compassionate grounds since his father had died while in service. It was a special appointment and not under the Rules knows as Gujarat Non-Secretariat, Clerks, clerk-Typist, Typists (Direct Recruitment Procedure) Rules, 1970. Only those candidates who are appointed under these Rules are required to pass the examination under the Rules known as Gujarat Non-Secretariat Clerks and Clerk-Typists (Training and Examination) Rules 1970. Since the petitioner was not appointed under the above Rules, he cannot be compelled to pass the examination. As held by this Hon'ble Court (Coram: S.K. Keshote, J.) in the case of Kokilaben M Pancholi v. Development Commissioner reported in 1998 (2) GCD 1058, an appointee on compassionate grounds is not required to pass the post training examination....It is true that one of the conditions of appointment of the petitioner was that he has to pass the post training examination. However, such a condition being contrary to law cannot be enforced."

5.6 According to the claim of the petitioner since he was appointed on compassionate ground and his appointment was special appointment and that he was not appointed under and in accordance with the Gujarat Non-Secretariat Clerks and Clerk-typists (Training and Examination) Rules 1970 and that therefore the condition to pass training and examination within prescribed number of attempts could not have been enforced against him and the service could not have been terminated on the ground what he failed to clear the training and examination in permissible number of attempts.

6. So far the requirement contemplated by virtue of clause No. 8 of the appointment order is concerned, the petitioner claims that actually he had not appeared in the examination for 3rd attempts due to unavoidable and compelling circumstances and that therefore he cannot be considered - declared unsuccessful/fail.

6.1 In this context the petitioner has averred and stated that:-

"7. There is no dispute that the petitioner appeared and failed at two chances. So far as the third chance is concerned, the petitioner could not appear at the same due to reasons beyond his control. The examination for the third chance was to be held at Ahmedabad on 20.3.2002 to 22.3.2002 but the same was cancelled probably due to communal riots in Ahmedabad. Thereafter they were notified to