BRIJESH VIPIN CHANDRA SHAH Vs STATE OF GUJARAT .
Bench: SURINDER SINGH NIJJAR,ANIL R. DAVE
Case number: C.A. No.-000735-000735 / 2013
Diary number: 15306 / 2010
Advocates: NARESH KUMAR Vs
HEMANTIKA WAHI
Page 1
1
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
Page 2
2
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
Page 3
3
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
Page 4
4
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.
Page 5
5
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.