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Gujarat High Court · body

2017 DIGILAW 1048 (GUJ)

Fakir Mamad Ibrahim Belim v. State of Gujarat

2017-06-08

K.M.THAKER

body2017
JUDGMENT : 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. 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 be held from 22.4.2002 to 24.4.2002 at Ahmedabad. The petitioner was serving at Bhachau in Kutch District and hence he was required to come to Ahmedabad for appearing at the examination. However, on those days there were communal riots at Ahmedabad. Thereafter they were notified to be held from 22.4.2002 to 24.4.2002 at Ahmedabad. The petitioner was serving at Bhachau in Kutch District and hence he was required to come to Ahmedabad for appearing at the examination. However, on those days there were communal riots at Ahmedabad. The petitioner being a Muslim having a beard, and hence easily identifiable as such would have risked his life if he came to Ahmedabad. Therefore, by the letter dated 22.4.2003, the petitioner informed the Mamlatdar, Bhachau, under whom he has serving, that due to above reasons it was not possible for him to attend the examination at Ahmedabad and he requested that this should not be considered as chance.....By the letter dated 23.4.2002, the Mamlatdar, Bhachau, informed the Deputy Collector, Training Centre, Ahmedabad, that it was not possible for the petitioner to attend the examination at Ahmedabad....The Resident Deputy Collector, Kutch, by the letter dt. 18.5.2002 informed Respondent No. 2 that due to the above reasons the petitioner could not appear at the third chance and hence he sought guidance as to whether the services of the petitioner should be terminated..... The aforesaid Deputy Collector, Training Centre, Ahmedabad, by the letter dated 3.5.2002 sent the case papers of the petitioner to respondent No. 2 for further action regarding "third chance".... Despite this the services of the petitioner came to be terminated by the impugned order dated 31.7.2002 on the ground he has failed at the third chance." 7. In light of the said facts the petitioner has challenged impugned order. 8. As mentioned above when the petition is called out and taken up for hearing, learned advocate for the petitioner or the petitioner is not present. Therefore no one has addressed any submission in support of the petition. 9. Mr. Gautam, learned AGP justified the order on the ground that when the petitioner accepted the appointment order he also accepted all terms and conditions of the appointment order and therefore the petitioner cannot subsequently claim that since he was appointed on the ground of compassionate, the requirement prescribed by the rules would not be applicable to him. 9.1 According to learned AGP when the petitioner consciously accepted the terms and conditions of the appointment order, the said condition would apply to the petitioner and he cannot seek any exemption. 10. 9.1 According to learned AGP when the petitioner consciously accepted the terms and conditions of the appointment order, the said condition would apply to the petitioner and he cannot seek any exemption. 10. I have considered the submissions by learned AGP and the material available on record and impugned order. 11. At the outset it is necessary to mention that the petition came to be admitted vide order dated 3.2.2004 i.e. before 13 years and during past 13 years any affidavit opposing either factual details mentioned by the petitioner or the contentions raised by the petitioner is not filed by the respondent State. 11.1 So far as the claim by learned AGP on the ground that though petitioner's appointment was made on compassionate ground since the petitioner accepted the terms and conditions of the appointment order, the requirement to pass examination as prescribed by clause No. 8 of the appointment order would be binding to the petitioner is concerned, it is countered by the petitioner on strength of decision in case of Kokilaben. Harshadrai Pancholi v. Development Officer 1998 (2) GCD 1058 wherein the Court observed, inter alia, that:- "7. The facts which are not in dispute are that the petitioner has been given appointment on 4-1-1981 and for all these years i.e. 17 years and 10 months she is in service. Now she may have three or four years left in service. If we go by the facts her age would have been not less than +50 years in all circumstances. Compassionate appointments are made or given in Government service as well as in panchayat service under Government Resolution. The service rules which have been framed under Article 309 of the Constitution of India for Government service and under the provisions of the Panchayat Act for the Panchayat service nowhere contain any provision for giving appointment on compassionate ground. Appointment on compassionate grounds are being given for the purpose of providing immediate financial assistance to the family where the only bread winner thereof has expired. These appointments are given without going through any process of selection. Though the provision for compassionate appointment may not stand the test of Articles 14 and 16 of the Constitution, still it has been taken to be reasonable restriction on the fundamental rights of the citizens, i.e. equal opportunity to compete for public employment. These appointments are given without going through any process of selection. Though the provision for compassionate appointment may not stand the test of Articles 14 and 16 of the Constitution, still it has been taken to be reasonable restriction on the fundamental rights of the citizens, i.e. equal opportunity to compete for public employment. The counsel for the respondent, except the terms contained in the appointment order and one Resolution, has failed to show any other provision which specifically provides that all compassionate appointments are subject to all the rigors of service conditions which are to be there in respect of appointees who have been recruited under the recruitment rules. Even a person who has been given appointment on compassionate ground is not required to be placed on probation i.e. his appointment is not on probation. Probation is one of the important service conditions and the object behind it is to see the performance of the candidate to retain him in service. During the period of probation normally a candidate has to undergo all these examinations. The distinction which is there in the appointments on compassionate ground and the appointments in the regular way under the Rules is to be taken to its logical conclusion, meaning thereby, so that the purpose for which appointments have been may not be frustrated at a subsequent stage. To be clear I may explain that once compassionate appointment is given it cannot be taken away at a later point of time under the pretext of non-fulfilling certain service conditions. When these appointments are not subject to selection and probation, then I fail to see what for a further condition of passing of pre-service training examination has to be put. If we go by the facts of the present case it will speak for its own story as to under what circumstances this poor lady has passed her life and how much burden she is carrying. The counsel for the respondent fairly admitted that so far as the performance of the petitioner as junior clerk is concerned there is no complaint. Then how far it is justified to enforce the condition of passing pre-service training examination by this lady and enforcing it to the extend that non-passing thereof has resulted in termination of her services. 8. The counsel for the respondent fairly admitted that so far as the performance of the petitioner as junior clerk is concerned there is no complaint. Then how far it is justified to enforce the condition of passing pre-service training examination by this lady and enforcing it to the extend that non-passing thereof has resulted in termination of her services. 8. It is not a case where by putting service for 17 years with the department the petitioner has been relieved of the burden which had come on her shoulder on the death of her husband. Still the condition of the family would not have improved to the extent where the petitioner could have afforded to accept termination of her services. The way and at the stage where her husband departed, burdening the shoulder of the petitioner with the responsibility of 4 daughters and one son, at the time when she may be of the age of 40 years, and in addition to that she has to discharge all other domestic duties, and looking to the facts whether it is expected of the petitioner to pass all these examinations? If a person is in his or her young age it is understandable that he or she may pass the examination before a particular age. After the age of 40 or 50 years it is difficult for a person to pass the examination. What for the examinations are to be passed is another important question. As it is born out from the record of the special civil application, examinations are meant for maintaining efficiency in service. Efficiency is also brought in by experience. If the case of compassionate appointment made by relaxation of service conditions, I fail to see any justification in putting the condition by the respondents of passing of pre service examination by the petitioner. Otherwise it will result in giving benefits by one hand and taking away the same by another hand. Compassionate appointments are given to a needy person, by relaxation of general service conditions and recruitment rules. 9. Taking into consideration the totality of the facts of this case I am of the opinion the rules, reference to which has been made above, no where provides that this category of employees are also required to pass the examination. These examinations are meant only for those persons who have been appointed under regular recruitment rules. 9. Taking into consideration the totality of the facts of this case I am of the opinion the rules, reference to which has been made above, no where provides that this category of employees are also required to pass the examination. These examinations are meant only for those persons who have been appointed under regular recruitment rules. Appointment of the petitioner, which was made on compassionate ground, is not made under the said service rules, but it has been made under Government Resolution. So specifically those rules were not made applicable to this category of employees. Even if there is some resolution of the Government which provides for passing of the examination by these persons, then it cannot be said to be reasonable and justified. Compassionate appointees should not be subjected to any service conditions, non-fulfilment of which results in termination of the service. However, that does not mean that their services may not be dispensed with in all circumstances. Their services can certainly be dispensed with where it is found that their work is not satisfactory or they have committed some misconduct. But only on the ground of non-passing of pre-service training examination services of such persons cannot be terminated. It is true that the petitioner has been given appointment subject to the condition of passing the aforesaid examination, but these are unilateral conditions imposed on the petitioner. In view of the facts aforesaid these conditions cannot be taken to a condition of appointment of the petitioner. It seems to be a case where order of appointment on compassionate ground has also been given in the same format in which appointments are given to the candidates who have been selected by process of selection under the rules. 10. Lastly I have been given out that there is certain relaxation in the condition of passing pre-service training examination by the employees, and that illustration is of the employees who have crossed the age of 45 years. If we go by the resolution in that regard, then the day on which the petitioner's services were terminated, she may have crossed the age of 45 years, or in any eventuality today she has certainly crossed that age. It is true that for the last three years the petitioner has continued in service because of the interim relief of this court. It is true that for the last three years the petitioner has continued in service because of the interim relief of this court. What is the age of the petitioner now can be taken into consideration for the purpose of saying whether her termination is necessary only on the ground of her not passing the pre-service training examination and more so when admittedly she has not given any chance of complaint so far as performance of her duties as junior clerk are concerned." 11.2 In light of the observations in the said judgment further discussion or deliberation with reference to the contention raised by the learned AGP is not necessary. 11.3 Even if it is presumed that the learned AGP is justified in his contention, then also the facts mentioned by the petitioner in paragraph No. 7 and the contention raised in light of the said facts would still stare in face of the respondent State inasmuch as the petitioner claimed and asserted that he could not appear and he had not appeared in the examination for 3rd attempt. The petitioner has also asserted that he could not appear on account of unavoidable circumstances. He has also asserted that the examination for 3rd attempt was notified to be held from 20.3.2002 to 22.3.2002 however, said test was cancelled. 11.4 The petitioner has also claimed that he had informed the Mamlatdar, Bhachau about the circumstances and that it will not be possible to attend the examination. From the details mentioned by the petitioner it appears that the Mamlatdar, Bhachau had informed the Deputy Collector vide letter dated 23.4.2002 that the petitioner will not be able to attend the examination. 11.5 From the facts and circumstance mentioned by the petitioner, which cannot be denied by the respondent, it appears that before passing order dated 31.7.2002 the respondent State did not take into account the said fact and without considering the said fact the concerned authority passed order dated 31.7.2002 on the ground that the petitioner did not clear the examination in 3rd attempt. 11.6 The order dated 31.7.2002 is completely silent so far as petitioner's claim and assertion about his intimation to the effect that he would not be able to appear in the examination. It comes out from the order that the petitioner's intimation was not was taken into consideration by the concerned authority before passing order dated 31.7.2002. 11.6 The order dated 31.7.2002 is completely silent so far as petitioner's claim and assertion about his intimation to the effect that he would not be able to appear in the examination. It comes out from the order that the petitioner's intimation was not was taken into consideration by the concerned authority before passing order dated 31.7.2002. Since any material, much less, any affidavit, controverting the assertion in paragraph No. 7 of the petition is not placed on record, this Court has to accept the factual assertion by the petitioner in the petition. 11.7 Besides this, as mentioned above, from the order dated 31.7.2002 it comes out that without taking into account petitioner's communication and/or Mamlatdar's communication to the Deputy Collector (about petitioner's inability to appear in 3rd attempt) the authority treated the petitioner as "failed" in 3rd attempt. 12. Actually the authority did not even inquire and did not verify the fact i.e. whether the petitioner had actually attended and appeared in the examination/test and whether he had actually availed 3rd attempt, or not and the authority declared him unsuccessful without verifying relevant fact. This aspect is clear from the convenient silence maintained by the respondents in response to the petitioner's claim that he had not appeared in the test. 12.1 The respondents have not placed any material on record to establish that the petitioner had actually appeared in the test and he failed to clear the test and that it was petitioner's 3rd attempt when he failed to clear the test. 12.2 In absence of material to support the claim or presumption that petitioner had appeared in the test and he had availed 3rd attempt the authority reached to the conclusion and they declared that he failed to clear the test. Thus, the order is passed without application of mind and without considering relevant fact. 13. The respondent State has failed to place on record the details as to whether the petitioner had actually appeared in the 3rd attempt and the details of the result of the petitioner. 14. Under the circumstances, the bald and unsubstantiated claim that the petitioner had actually availed 3rd attempt cannot be accepted. It has emerged that the order dated 31.7.2002 is passed without application of mind and without considering the facts asserted by the petitioner and without granting opportunity of hearing to the petitioner. 14. Under the circumstances, the bald and unsubstantiated claim that the petitioner had actually availed 3rd attempt cannot be accepted. It has emerged that the order dated 31.7.2002 is passed without application of mind and without considering the facts asserted by the petitioner and without granting opportunity of hearing to the petitioner. 14.1 Under the circumstances the said order cannot be sustained. 15. From the details mentioned in the petition it appears that by now the petitioner must have reached or crossed age of 45 years. 16. Under the circumstances any practical or fruitful purpose would not be served even if the respondent were to be directed to reconsider the case after taking into account the facts stated by the petitioner. 16.1 In that view of the matter, having regard to the fact that the service of the petitioner was not terminated for any other reason or on any other ground e.g. on ground of lack of efficiency, indiscipline, misconduct and his service came to be terminated only on one ground - for only one reason i.e. that he failed to clear the examination in three attempts and in view of the fact that the authority passed the order on said ground without even verifying the factual aspect viz. that the petitioner had actually appeared in the test and had availed 3rd attempt or not, the impugned order deserves to be set aside and it would be appropriate to direct the respondent to reinstate the petitioner. 17. It is also pertinent that before passing impugned order the respondent also ignored to address the issue viz. whether non-appearance at the examination can be termed or treated as "fail". The authority passed impugned order without addressing said aspect. This aspect also establishes that impugned order is passed without application of mind. 18. In light of foregoing discussion and for the reasons mentioned above following order is passed:- "(a) Impugned order is set-aside. (b) If the petitioner has not reached age of superannuation, then he shall be reinstated. (c) In view of peculiar facts and circumstances of the case the petitioner shall not be entitled for backwages. (d) However, his service shall be treated continuous for all purposes and his seniority shall also be maintained. The petitioner shall be denied only backwages and not other benefits." With the aforesaid clarifications, the petition is partly allowed. (c) In view of peculiar facts and circumstances of the case the petitioner shall not be entitled for backwages. (d) However, his service shall be treated continuous for all purposes and his seniority shall also be maintained. The petitioner shall be denied only backwages and not other benefits." With the aforesaid clarifications, the petition is partly allowed. The impugned order dated 31.7.2002 is quashed and set aside. Rule is made absolute to the aforesaid extent.