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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION  

CIVIL APPEAL NO. 735   OF 2013

(Arising out of SLP(C) No.25586/2010)

BRIJESH VIPIN CHANDRA SHAH                 Appellant(s)

                    :VERSUS:

STATE OF GUJARAT & ORS.                    Respondent(s)

O R D E R

1. Leave granted.

2. We  have  heard  the  learned  counsel  for  the  

parties and perused the judgment passed by the High  

Court.  

3. The  appellant  herein  was  appointed  on  

compassionate grounds as a Junior Clerk on 25.5.1998  

as the father of the appellant died on 11.3.1996  

while he was in service. It appears that under the  

Gujarat  Non-Secretariat  Clerks,  Clerks-cum-Typist  

(Direct  Recruitment  Procedure)  Rules,  1990,  for  

direct recruitment to Class III post, a candidate is  

required  to  undergo  in-service  training  and  on

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completion of training, is required to appear at the  

post-training examination and has to pass the same  

in maximum three chances. Although the appellant has  

been in service since 25.5.1998, he did not appear  

in the said examination held for recruitment to the  

Class III post till 2003. Thereafter, the appellant  

appeared in the said examination on three occasions  

and on all the three occasions, he was unable to  

clear the examination.  

4. Since  the  appellant  failed  to  clear  the  

examination for recruitment to the Class III post,  

his  services  were  terminated  on  20.11.2004.  The  

appellant challenged the order of termination before  

the High Court of Gujarat and the High Court by  its  

judgment dated 20.2.2009, directed the Government to  

give  one  additional  chance  to  the  appellant  to  

appear  in  the  examination.  The  High  Court  also  

directed that the services of the appellant shall be  

regularised on the post of Junior Clerk if he clears  

the examination in said additional chance.  However,  

even  in  the  additional  chance  given  to  the  

appellant, he was unable to pass the examination.  

The present appeal, by special leave, is directed

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against the aforesaid judgment dated 20th February,  

2009 of the High Court.  

5. Learned  counsel  for  the  appellant  submits  

that the decision taken by the respondents not to  

continue the appellant in service on Class III post  

is very harsh as in the last attempt, the appellant  

failed in the examination only by 7 marks. Learned  

counsel for the appellant, therefore, submits that  

the High Court ought to have directed the appellant  

to be taken into a Class IV post. On the other hand,  

learned counsel for the respondents submits that the  

qualification contained in the Recruitment Rules is  

mandatory and no relaxation is permissible in the  

same.  

6. Having considered the entire matter, we are  

of the opinion that no relaxation could have been  

granted  in  favour  of  the  appellant  in  the  

qualifications which are said to be mandatory for  

recruitment to Class III post.  

7. At  this  stage,  learned  counsel  for  the  

appellant submits that having worked for about 12

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years, the appellant cannot now be rendered jobless.  

Even though he is not entitled to a Class III post,  

he would be certainly entitled to a Class IV post on  

compassionate grounds. He, therefore, prays that the  

appellant may be permitted to continue on Class IV  

post. However, this request is vehemently opposed by  

the  learned  counsel  for  the  respondents  and  he  

submits that once the appellant had been appointed  

on  Class  III  post,  he  cannot  be  considered  for  

regularising his service on a Class IV post.  

8. We  are  of  the  considered  opinion  that  the  

stand  taken  by  the  respondents  is  unnecessarily  

harsh. It must be remembered that the appellant was  

initially appointed on compassionate grounds as his  

father  had  died  while  he  was  in  service.  

Compassionate appointment is made by relaxation of  

the  normal  service  rules  for  providing  immediate  

financial assistance to the family of the deceased  

who  dies  in  harness.  It  is  unfortunate  that  the  

appellant  was  unable  to  pass  the  in-service  

examination so as to enable him to continue on a  

Class  III  post.  But  that  ought  not  to  result  in  

depriving him of service altogether.  

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9. In view of the above, we allow this appeal  

and direct the respondents to appoint the appellant  

on a Class IV post. The appointment of the appellant  

on a Class IV post shall be from the date he was  

initially appointed on Class III post. His seniority  

shall  be  reckoned  from  the  date  of  initial  

appointment.  However,  the  appellant  shall  not  be  

entitled to any back-wages since he has not worked,  

on any of the posts, after the date of termination  

of his services.  

10. In view of the above, the impugned judgment  

passed by the High Court cannot be sustained  and  

the same is set aside. The appeal is allowed.  No  

costs.  

.........................J (SURINDER SINGH NIJJAR)

...........................J (ANIL R. DAVE)

New Delhi; January 18, 2013.