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2009 DIGILAW 111 (GUJ)

SANJAY D. PATEL v. STATE OF GUJARAT

2009-02-20

AKIL KURESHI, K.M.THAKER, K.S.RADHAKRISHNAN

body2009
K. S. RADHAKRISHNAN, CJ. ( 1 ) THESE Special Civil Applications have been placed before us on a reference made by the learned Single Judge of this Court after having noticed that the Division Bench of this Court in Letters Patent Appeal (Stamp) No. 1333 of 2005 has expressed the opinion that there has been conflict of views between two decisions of the learned Single judge Bench in the case of Kokilaben H. Pancholi v. Development Commissioner, 1998 (2) GCD 1058 (Guj.) and in the case of Mrs. Vibha Vijya Orpadkar v. State of gujarat and others, Special Civil application No. 9748 of 1993 dated 10. 11. 1993 on the question whether the compassionate appointee is obliged to pass the Post Training Examination as provided under the Gujarat Non-Secretariat Clerks and Clerks-cum-Typist (Training and examination) Rules, 1970 for being appointed as Junior Clerk in service. ( 2 ) LEARNED Judge of this Court in kokilaben H. Pancholi v. Development commissioner, (Supra) took the view that compassionate appointment is being made by relaxation of the normal service rules for providing immediate financial assistance to the family of the deceased who dies in harness. Learned Judge pointed out that appointments are given without going through any process of selection and such appointments need not stand the test of articles 14 and 16 of the Constitution. Learned Single Judge has also opined that post-training examinations are meant only for those persons who are appointed under regular recruitment rules and the compassionate appointment is not made under the normal service rules but under the compassionate appointment scheme, therefore, learned Judge held that merely on the ground that such appointees have not passed post training examination, their services can not be terminated. Learned judge was dealing with the case of widow whose husband had died in harness. It was noticed that widow had put in more than 17 years of service and when her services were about to be terminated, she had approached this Court and the learned Judge taking into consideration the totality of the facts felt that order of termination was bad in law. Matter was taken in appeal by the State government by filing Letters Patent Appeal no. Matter was taken in appeal by the State government by filing Letters Patent Appeal no. 70 of 1998 and the Division Bench of this Court has found no reason to interfere with the order passed by the learned Single judge pointing out that widow had put in more than 24 years of service by that time. ( 3 ) CONTRARY view has been taken by another learned Single Judge of this Court in the case of Mrs. Vibha Vijya Orpadkar v. State of Gujarat and others, (Supra ). Learned Judge also referred to the judgment of the Division Bench of this Court in special Civil Application No. 3754 of 1986 and another decision in Letter Patent appeal No. 372 of 1993 and noticed that there is clear stipulation of the Rules that an appointee has to pass post training examination which according to the opinion of the learned Single Judge is equally applicable to the case of the persons appointed on compassionate ground as well. ( 4 ) IN the aforesaid premises, we are called upon to decide the question as to whether a person who has been appointed as Junior Clerk on regular basis under the compassionate appointment scheme is obliged to pass the post training examination as provided under the Rules for being appointed as Junior Clerk in service. ( 5 ) GUJARAT Non-Secretariat Clerks, Clerk-cum-Typists and Typists (Direct recruitment Procedure) Rules, 1990 have been framed by the Government of Gujarat in exercise of the powers conferred under proviso to Article 309 of the Constitution of india. ( 6 ) RULE 2 (d) defines "post Training examination" means the examination held after training is over for candidates selected as Clerk or a Clerk-cum-Typists as per the appendix 'a' and includes the post training examination for candidates selected as clerk or a Clerk-cum-Typists under the old schemes. ( 7 ) RULE 3 says that every candidate selected for appointment to the post of clerk or Clerk-cum-Typists shall be required to undergo pre-service training which shall include theoretical training for one and half months and practical training for the remaining fifteen days. ( 7 ) RULE 3 says that every candidate selected for appointment to the post of clerk or Clerk-cum-Typists shall be required to undergo pre-service training which shall include theoretical training for one and half months and practical training for the remaining fifteen days. ( 8 ) RULE-4 says on the completion of the training, the candidate shall be required to appear at the post training examination and have to pass the same in not more than three chances (four chances in the case of candidate belonging to Scheduled Castes and Scheduled Tribes), provided that the chances already availed of, under the old scheme, shall be counted as having been availed of under these rules; and where the state Government is satisfied that a candidate could not pass the examination in the last change for the reasons beyond his control or that he failed to pass such examination by a very narrow margin of marks, the State Government may, after recording reasons in writing give such candidate, not more than two additional chances to pass the examination on payment of prescribed examination fee. The grant of extra chances shall not entitle him to be continued in service even as stop-gap-arrangement. His services shall be terminated as required under sub-rule (2) of rule 6. However, when he passes the pre-service training examination within the extra chances, he may be taken back in service as and when vacancy arises. The seniority of such candidate shall be regulated under sub-rule (3) of rule and (3)where a candidate fails to pass the examination in his first or second or as the case may be third chance (fourth chance in the case of candidate belonging to scheduled Castes and Scheduled Tribes candidates), he shall be required to appear in the subsequent examination held after the expiry of 30 days from the date of declaration of the result of the examination in which he tailed, but he shall not be required to undergo the training again. ( 9 ) RULE 5 says that a candidate who has received prescribed training and passed post training examination shall be regularly appointed as a Clerk or as the case may be a Clerk-cum-Typist. ( 9 ) RULE 5 says that a candidate who has received prescribed training and passed post training examination shall be regularly appointed as a Clerk or as the case may be a Clerk-cum-Typist. ( 10 ) RULE 6 says that a candidate who fails to receive the prescribed training or fails to pass the post training examination as required under these rules, he shall not be eligible for appointment as a regular Clerk or Clerk-cum-Typist. ( 11 ) RULE 7 provides that a candidate who has passed the post training examination within three chances and fourth chance in case of scheduled castes and scheduled : tribes and who has joined the service within the prescribed time limit allowed, shall get seniority from the date of joining the service and the inter-se seniority of such candidate shall be determined in accordance with their rank in the competitive examination held by the Gujarat Subordinate Service Selection board. ( 12 ) QUESTION raised is whether a compassionate appointee is also required to : pass the post training examination under the rules. Compassionate appointment scheme specifically states that no concession such as exemption from Pre-service departmental Examination or in service departmental Examination or any other concession in service matter shall be granted to the compassionate appointees. Government Resolution dated 19. 11. 1997, however, gives special concession to: widows of the deceased government servants appointed on compassionate ground who fail to pass pre training examination within specific chances. Government in their wisdom made special concession in regard to widow appointed on compassionate ground which in our view cannot be extended to persons like petitioners. Government Resolution dated 10. 03. 2000 specifically says once the appointment is made on compassionate ground such employee is put at par with the other Government employee 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. In the compassionate appointment scheme itself it is clearly provided that no concession or any such exemption from pre-service examination or in service examination or any other examination in service matter shall be granted to compassionate appointee. The compassionate appointment scheme therefore in its entirety applies to the persons who have been appointed under the Scheme. In the compassionate appointment scheme itself it is clearly provided that no concession or any such exemption from pre-service examination or in service examination or any other examination in service matter shall be granted to compassionate appointee. The compassionate appointment scheme therefore in its entirety applies to the persons who have been appointed under the Scheme. Above is the view taken by the learned Judge as well as Division Bench of this Court. Reference may be made to the judgments in the cases of Dharmendra B. Sidhpura v. State of Gujarat and Ors. , 1998 (2) G. L. H. 878, Bharatkumar Shivabhai jadav v. Deputy District Development officer, Kheda and others, 1996 (2) GLH 646 which was also affirmed by the Division bench in Letters Patent Appeal No. 788 of 1996, Kalpeshkumar Babubhai Pate I v. State of Gujarat, 2007 (O) GLHEL-HC 217400 : 2007 (2) GLR 1577 : 2007 (15)GHJ 184 . We, therefore, fully endorse the view that the compassionate appointee is also bound to pass post training examination provided under the Gujarat Non-Secretariat clerks, Clerk-cum-Typists and Typists (Training and Examination) Rules, 2001 for regularly being appointed as Junior Clerk in service. ( 13 ) LEARNED counsel for the petitioners submitted that petitioners' services should not be brought to an end merely on the ground that they have not passed the examination and ultimately if this Court holds that they are bound to pass examination for being regularly appointed as Junior Clerk, their case may be considered for appointment in Class-IV category. ( 14 ) WE find difficult to accept this contention. Petitioners have opted to be considered and appointed on the post of junior Clerk and having failed to clear examination inspite of getting three chances, petitioners cannot contend that they should be considered for Class-IV posts. Petitioners could not point out any such provision under the Compassionate Appointment scheme for being considered for appointment to the Class-IV cadre on failure to clear pre-service training examination meant for Junior Clerk. If petitioners' contention is accepted, in that case, the authority will have to entertain several such claims which will not be in the interest of smooth functioning of the administration. If petitioners' contention is accepted, in that case, the authority will have to entertain several such claims which will not be in the interest of smooth functioning of the administration. Such contention was in fact raised before the learned Single Judge in special Civil Application No. 5883 of 2001 which was negatived and appeal was preferred by the petitioner therein being letters Patent Appeal No. 726 of 2002 which was dismissed by the Division bench. Against which, Special Leave petition No. 16972 of 2003 was preferred, which was also dismissed by the Hon'ble supreme Court. ( 15 ) WE are, therefore, of the view that having failed to clear post -service training examination for appointment on the post of junior Clerk, a claim of appointment on the class-IV post cannot be entertained. We fully endorse the view of the Division bench in Letters Patent Appeal No. 726 of 2002. ( 16 ) HAVING thus concluded the question of law, in Special Civil Application no. 15091 of 2004, we are informed that the petitioner, while he was protected by the interim order passed by this Court, was given an additional chance to appear in the examination and he has already cleared the test. So far as he is concerned, the issue has become one of the academic interest. In view of passing the test, his service would be regularized. In case of petitioner of special Civil Application No. 15354 of 2004, taking into consideration the fact that the petitioner has continued in service as junior Clerk for number of years and his service was protected by an order in view of different judicial pronouncements on the issue, it would be appropriate to direct the government to give him one last additional chance to appear in the examination. It is made clear that if he clears the examination in such an additional chance, his service will be regularized on the post of Junior clerk. The Special Civil Applications and civil Application are disposed of. Application disposed of.