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2016 DIGILAW 469 (GUJ)

Bhupatbhai Amrabhai Makwana v. State of Gujarat

2016-02-26

V.M.PANCHOLI

body2016
JUDGMENT: V.M. Pancholi, J. 1. By way of this petition, the petitioner has prayed that the decision taken by the Gujarat Subordinate Service Selection Board-respondent No. 3-herein vide communication dated 1.12.2009 be quashed and set aside, whereby the application of the petitioner has been rejected. 2. Heard learned advocate Ms. Harshal Pandya for the petitioner and learned AGP Mr. Goutam for the respondents. 3. Learned advocate for the petitioner submitted that father of the petitioner who was working as Peon in the office of the Collector, Porbandar since 28.2.1989 died on 9.10.2006 while in service. The petitioner being the eldest son in the family submitted an application on 4.11.2006 for getting compassionate appointment which was forwarded by respondent No. 2 to respondent No. 3. By an order dated 7.2.2008, the said application was rejected on the ground that as per the G.R. dated 10.3.2000, the petitioner did not possess the educational qualification at the time of submitting the application. Representation was, therefore, made by the petitioner wherein he has explained that he had passed the SSC examination in March, 2007. The said representation was forwarded to the respondent No. 3. Thereafter, respondent No. 3 once again by communication dated 20.11.2009, rejected the application of the petitioner on the ground that the petitioner had not acquired minimum educational qualification within six months from the date of death of his father i.e. from 9.10.2006 to 9.4.2007. The petitioner has, therefore, preferred this petition. 4. Learned advocate for the petitioner mainly contended that the petitioner appeared in the SSC examination which was held in March, 2007. However, the result was declared in May, 2007 and therefore the date of SSC examination is required to be considered by the respondent-authorities and not the date of passing of the said examination. She, therefore, submitted that the respondent-authorities have committed an error by rejecting the application of the petitioner and therefore this Court may allow this petition by quashing and setting aside the impugned order and thereby direct the respondents to give compassionate appointment. 5. On the other hand, learned AGP mainly contended that as per G.R. dated 10.3.2000 and subsequent resolution and notification issued by the government, the petitioner was not qualified to be appointed on compassionate ground. 5. On the other hand, learned AGP mainly contended that as per G.R. dated 10.3.2000 and subsequent resolution and notification issued by the government, the petitioner was not qualified to be appointed on compassionate ground. It is pointed out that as per notification dated 16.3.2005, the rules were amended for the recruitment to the post of Class IV whereby it is mandatory for the candidate to have passed Secondary School Certificate Examination and the petitioner was required to obtain the educational qualification i.e. SSC pass within a period of six months from the date of death of his father. However, the petitioner has not cleared the SSC examination within a period of six months from the date of death of his father. Result of the SSC examination of the petitioner was declared in May, 2007 i.e. after a period of six months. Therefore, his application was rightly rejected and therefore the petition be dismissed. 6. Learned AGP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Rakesh Kumar Sharma v. State (NCT of Delhi) and others reported in (2013)11 SCC 58 and State of Gujarat and another v. Chitraben reported in AIR 2015 SC 2878 in support of his contention. 7. I have considered the submissions canvassed on behalf of learned advocates for the parties. From the record, it is revealed that father of the petitioner expired on 9.10.2006 while he was in service as Peon in the office of Collector, Porbandar. The petitioner immediately submitted an application for compassionate appointment on 4.11.2006. However, at that time, he was not having qualification of SSC pass. The petitioner appeared in the SSC examination which was held in March, 2007. However, result of the said examination was declared in May, 2007 i.e. after a period of six months from the date of death of his father. Thus, as per the government resolution as well as notification issued from time to time, the petitioner could not obtain educational qualification for the post of Class IV within the stipulated time limit. The contention of learned advocate for the petitioner is that date of examination is required to be considered for such purpose and not the date of result of the said examination. The contention of learned advocate for the petitioner is that date of examination is required to be considered for such purpose and not the date of result of the said examination. However, contention of learned advocate for the petitioner cannot be accepted in view of the decision rendered by the Hon'ble Supreme Court in the case of Rakesh Kumar Sharma (supra). The Hon'ble Supreme Court in the said case has relied upon the decision rendered by the Hon'ble Supreme Court in another case and observed in paragraph 12 and 21 as under: "12. In U.P. Public Service Commission v. Aplana, this Court, after considering a large number of its earlier judgments, held that eligibility conditions should be examined as on the last date for receipt of applications by the Commission. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications. This Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications, therefore, a candidate, whose result has not been declared up to the last date of submission of applications, would not be eligible. 21. In the instant case, the appellant did not possess the requisite qualification on the last date of submission of the application though he applied representing that he possessed the same. The letter of offer of appointment was issued to him which was provisional and conditional subject to the verification of educational qualification i.e. eligibility, character verification, etc. Clause 11 of the letter of offer of appointment dated 23-2-2009 made it clear that in case character is not certified or he did not possess the qualification, the services will be terminated. The legal proposition that emerges from the settled position of law as enumerated above is that the result of the examination does not relate back to the date of examination. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court." 8. In the case of Chitraben (supra), the Hon'ble Supreme Court has held in paragraphs 8 and 9 as under: "8. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court." 8. In the case of Chitraben (supra), the Hon'ble Supreme Court has held in paragraphs 8 and 9 as under: "8. It is not a matter of dispute, that the Government of Gujarat, in its General Administration Department, issued a notification dated 16-3-2005 laying down eligibility conditions for appointment in different class-IV posts. Insofar as the eligibility for direct recruitment is concerned, the same is stipulated in Rule 3 of the aforestated rules, which is being extracted hereunder: "3. To be eligible for appointment by direct selection to the post mentioned in Rule 2, a candidate shall:-- (i) not be less than 18 years and not more than 25 years of age; (ii) have passed Secondary School Certificate Examination. (iii) Possesses skills relevant to the job as may be prescribed by Government from time to time." (Emphasis is ours) A perusal of Rule 3(ii) indicates, that to be eligible for appointment by direct recruitment against a class-IV posts, the concerned candidate should possess the "secondary school certificate". It is therefore apparent, that eligibility for appointment on compassionate grounds, under resolution dated 10-3-2000, after 16-3-2005 (when the aforesaid notification in respect of recruitment to class IV posts was issued), requires to possess the qualification stipulated therein, i.e., "secondary school certificate" qualification." 9. It is not a matter of dispute, that the respondent has possessed only the qualification of IV standard, and does not possess the qualification of "secondary school certificate" examination, as has been postulated in Rule 3(ii) of the notification dated 16-3-2005. It is therefore imperative for us to conclude, that the respondent was not qualified for appointment against a class-IV posts, when her husband died in harness on 13-6-2006. When the respondent applied for appointment on compassionate grounds on 17-7-2006, it was necessary for her, to fulfil the qualification stipulated in the notification dated 16-3-2005. Since, admittedly the respondent did not fulfil the aforesaid qualification, she was not eligible to claim appointment on compassionate grounds, under the resolution dated 10-3-2000." 9. When the respondent applied for appointment on compassionate grounds on 17-7-2006, it was necessary for her, to fulfil the qualification stipulated in the notification dated 16-3-2005. Since, admittedly the respondent did not fulfil the aforesaid qualification, she was not eligible to claim appointment on compassionate grounds, under the resolution dated 10-3-2000." 9. Thus, it is an admitted fact that the petitioner had not obtained the educational qualification within a period of six months from the date of death of his father and therefore no error is committed by the respondent-authority while rejecting the application of the petitioner. Accordingly, the petition is devoid of merits and hence dismissed. Rule is discharged. No order as to costs.