Brijesh Kumar Bhoi S/o Shri Balulal Bhai v. State of Rajasthan through, the District Collector, Banswara (Raj. )
2018-01-17
PUSHPENDRA SINGH BHATI
body2018
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ORDER : Pushpendra Singh Bhati, J. Petitioner has preferred this writ petition under Article 226 of the Constitution of India praying for the following relief’s :- "1. That the impugned order dated 22.02.2010 may kindly be quashed and set aside. The writ petition may kindly be allowed with all consequential benefits. 2. That the petitioner may be declared entitled to be continuing in the services by way of providing him an additional chance to acquire the qualification of the typing test. 3. That it may kindly be declared the provision of the rule 9 of the rules 1996 bad, illegal and ultra vires to the mandate of constitution of India whereby the authority has given a power to terminate the services of an employee without having been initiate the departmental enquiry followed by disciplinary proceedings. 4. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner." 2. Brief facts as noticed by this Court are that petitioner's father Shri Balu Lal died while in service on 31.01.2006, the petitioner sought compassionate appointment and was granted the same on 21.04.2006. The services of the petitioner have been terminated on 22.02.2010 for the reasons that he could not pass the type test within a period of 3 years. 3. Learned counsel for the parties agree that the matter is squarely covered by the judgment passed by this Court in Saurabh Mathur v. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 3270/2016), decided on 08.01.2018. The judgment reads as follows :- "1. The petitioner by way of filing this petition is claiming the following relief’s :- "(a) By an appropriate writ, order or direction, the termination order dated 05.2.2016 (Annex.10) passed by the respondent no.3 may kindly be declared illegal and the same may kindly be quashed and set aside. (b) By an appropriate writ, order or direction, the respondents may kindly be directed to provide adequate opportunity to the petitioner to appear in typing test and to qualify the same.
(b) By an appropriate writ, order or direction, the respondents may kindly be directed to provide adequate opportunity to the petitioner to appear in typing test and to qualify the same. (c) By an appropriate writ, order or direction, in alternate the respondents may kindly be directed to consider candidature of the petitioner for reappointment in any of the equivalent post in Class-III or Class-IV for which he is otherwise eligible with all consequential benefits including continuity of service. (d) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. (e) Writ petition filed by the petitioner may kindly be allowed with costs." 4. The petitioner's father expired while in service whereupon the petitioner was granted compassionate appointment on the post of LDC in IGNP Department vide order dated 10.4.1998. The petitioner was subsequently absorbed in the office of Superintendent, Central Jail, Bikaner vide order dated 25.11.2000. The petitioner was then posted as UDC in District Jail, Nagaur vide order dated 05.12.2000. The respondents thereafter imposed a condition upon the petitioner to clear type-test, which was required for the post on which he was discharging his duties. The petitioner did not appear in type-test repeatedly whereupon explanation was called from him on vide order dated 01.10.2015 (Annex.9) regarding his not qualifying the type-test, on which, petitioner gave his explanation that due to heavy workload initially and thereafter due to opportunity being not given by respondents the petitioner could not appear in type-test. The respondents being dissatisfied with the response terminated services of petitioner on 5.2.2016. 5. Counsel for the petitioner argued that the petitioner has consistently served from 1998 for a period of almost 18 years and there is no other adverse entry, allegation or any charge of unsatisfactory service. Counsel for the petitioner further stated that the nature of appointment was compassionate appointment, as such, the respondents ought to have been more liberal by either giving opportunity to the petitioner to clear the type-test or considering him suitable for a lower post instead of passing harsh order terminating his services and has relied upon Division Bench judgment of this Court (Jaipur Bench) given in the case of Piyush Saxena v. The Secretary, Labour and Services Department, Secretariat, Jaipur & Ors.
(D.B. Civil Special Appeal Writ No. 903/2012, decided on 10.1.2013). The relevant portion of the judgment reads as follows :- "We do not find any error in order passed by the learned single Judge upholding the order of dispensing with the service from the cadre of LDC. However, as regards alternative submission that if the appellant was not found eligible to hold or continue on the post of LDC which was initially offered to him, at least, the department was under obligation to examine as to whether he could be adjusted against any other equivalent post of Class III or the post in lower cadre of Class IV to which he was eligible and passing of the order of termination without examining his reemployment against the other post including the cadre post of Class for Class IV, in our considered view, cannot be held to be justified and while upholding the order of termination from the cadre of LDC as held by the learned Single Judge, we are o the view that the department was under obligation to consider the mater and pass appropriate order regarding adjustment of the appellant on the corresponding post in the cadre of Class III or IV for which the petitioner holds eligibility or to any other post, to which he was eligible for under the Scheme of the Rules of 1996. Consequently, the appeal is partly allowed and the respondents are directed to consider candidature of the appellant for reappointment in any of the equivalent post in Class III or Class IV for which he is eligible and he will be entitled for notional benefits but not the actual pecuniary benefits for the period he has not worked. Necessary orders may be passed by the department within a period of three months to ensure compliance of this order." 4. Learned counsel for the respondents opposed the submissions. 5. This Court is of the view that petitioner was given compassionate appointment in 1998 and since then petitioner was sincerely discharging duties to the satisfaction of respondents, thus, a sympathetic view towards him should have been taken in not clearing type-test. The respondents are directed to consider candidature of petitioner for his continuance on any of the post in Class III or Class IV for which the petitioner may be eligible without clearing type-test.
The respondents are directed to consider candidature of petitioner for his continuance on any of the post in Class III or Class IV for which the petitioner may be eligible without clearing type-test. The petitioner shall be entitled for notional benefits on such post from the date he is discharging his services i.e. 1998. The said consideration shall be made within a period of three months from today. 6. With the aforesaid observations the writ petition stands disposed of. " 6. In light of the afore-quoted judgment, the writ petition is disposed of in the same terms.