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2015 DIGILAW 395 (RAJ)

Nitin Choudhary v. State of Rajasthan

2015-02-11

PRAKASH GUPTA, SUNIL AMBWANI

body2015
JUDGMENT : Hon'ble AMBWANI, ACTG. CJ., J.—We have heard learned counsel appearing for the appellant and learned Additional Advocate General appearing for the State-respondents. 2. An application has been filed to vacate the interim order dated 16.12.2014, on the ground that false and misleading facts have been stated, obviously, to get an order for giving him another chance to appear in the Type Test. On 16.12.2014, an order was passed in this Special Appeal, arising out of the judgment of learned Single Judge dismissing the writ petition, on the ground that the petitioner failed to clear the type test, despite four opportunities given to him, and thus, no sympathetic view can be taken, to allow him to clear the Type Test, which was the condition of his appointment. 3. The appellant was appointed on compassionate ground as Lower Division Clerk, on the death of his father, who was in service of the respondent as Land Surveyor, with the condition that he will pass the Type Test within three years. The first Type Test was scheduled on 7.5.2010, which he did not take, as according to him, he was assigned for survey work in the Census. In the second Type Test to be held on 14.7.2011, he could not participate, as he has not filled up the form correctly. In the third Type Test scheduled for him on 25.4.2012, he stated that he was on leave in connection with religious rites of the death of her maternal grandmother, who had raised him, and in the four Type Test, which he failed to pass, he stated that a few days before, the State Government had changed the Rules, and that, instead of Type Test, a Computer Test was organized. 4. Learned Single Judge did not find favour with the explanation given for not clearing the Type Test, and having failed in the fourth attempt, found that the compassionate appointment may not be allowed to continue on sympathies, when the appellant failed to avail the opportunity of clearing the Type Test, four times. 5. Learned Additional Advocate General states that on the first occasion, he was not given any assignment in Census, upto 7.5.2010. His first survey report was dated 15.5.2010. 5. Learned Additional Advocate General states that on the first occasion, he was not given any assignment in Census, upto 7.5.2010. His first survey report was dated 15.5.2010. In the second attempt, he deliberately did not fill up the form correctly to avoid the Test, and on the third occasion on 25.4.2012, his maternal grandmother had died on 16.4.2012, after which he remained absent, and applied for leave in the month of July 2012. He should have organized his affairs in a manner to appear in the Type Test, to save his appointment, instead of attending to the religious rites, and on the fourth occasion on 20.6.2013, he failed in the Type Test. The excuse that the Rules were changed a few days before the Type Test, cannot be accepted, as under the new Rules, Computer Test had to be cleared by him, and in any case, the compassionate appointment could not be extended, beyond the limits to allow him fifth chance to appear in the Type Test. It is submitted that the explanation given by the appellant, based on wrong facts, was accepted by the Division Bench, in passing the interim order, which the appellant does not deserve. 6. We have gone through the facts and circumstances placed before us, and do not find any error in the judgment of learned Single Judge. The appellant's appointment on compassionate ground, was with a condition that he clear the Type Test within three years. The period of three years has since expired in February 2014. His services were terminated, as he had failed to clear the Type Test, for which fourth chance was given to him on 20.6.2013. 7. We have considered the entire circumstances, and find that in fact the appellant had been avoiding the Type Test, and finally, when he appeared in the Type Test, he failed. The excuses given by him on the first three occasions, were not found acceptable by learned Single Judge, and the failure in the Type Test, which is alleged to have occasioned on the change of Rules, also does not appear reasonable, as now all the work in the offices is performed on computers. 8. If there is any arrears of salary, which are payable to the appellant, prior to the date of his termination dated 31.12.2013, same shall be paid over to him within a period of three months. 9. 8. If there is any arrears of salary, which are payable to the appellant, prior to the date of his termination dated 31.12.2013, same shall be paid over to him within a period of three months. 9. The Special Appeal is devoid of any force, and is accordingly dismissed. The interim application is disposed of.