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SCA/627819/1993 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6278 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
CHANDUBEN
CHHAGANBHAI WAGHELA - Petitioner
Versus
SECRETARY
FINANCE DEPARTMENT & 4 - Respondents
=====================================================Appearance
:
MS VINITA S VINAYAK for the
Petitioner.
MR J.K.SHAH, AGP for the
Respondents.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 20/03/2009
ORAL
JUDGMENT
1. By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed for an appropriate writ, order and/or
direction quashing and setting aside the action of respondent No.1 in
informing respondent No.2 to terminate the services of the petitioner
on the ground that the petitioner has not passed the pre-service
training examination within stipulated permissible chances.
2. The
petitioner came to be appointed as Junior Clerk on compassionate
ground in the year 1989. As per condition no.12 of the appointment
order, the petitioner was required to pass pre-service training
examination within prescribed period and chances. It is an admitted
position that the petitioner has not passed the pre-service training
examination within the permissible chances and, therefore, services
of the petitioner is sought to be terminated, against which, the
petitioner has preferred the present petition under Article 226 of
the Constitution of India.
3. It
is the contention on behalf of the petitioner that as per Government
Resolution dated 16th December,1991, the petitioner is
entitled to one additional chance to appears in the examination. It
is further submitted that as per Government Resolution dated 17th
May,1989, over and above that additional fourth chance to appear in
the examination, the employees appointed on compassionate grounds may
also be given one more grace chance, so that they can clear
pre-service training examination, as required under the Rules.
Therefore, it is submitted that so long as the petitioner is
appointed on compassionate ground, the petitioner is entitled to two
more chances so as to clear pre-service training examination. The
petitioner is not required to be terminated and while in service the
petitioner should be given additional grace chance. Now, the above
controversy to give the additional grace chance, continuing the
employee in service is not res-integra. Identical question came to be
considered by the learned Single Judge of this Court in the case of
Kalpeshkumar Babubhai Patel V/s. State of Gujarat and others
reported in 2007(2) GLR 1577. Relying upon the said
decision and other decisions, even this Court has recently held in
the decision dated 18th February,2009 passed in Special
Civil Application No.13372 of 2008, that once the employee is
appointed on compassionate ground, has to clear pre-service training
examination within permissible chances and though such employee might
be entitled to additional grace chance, such additional grace chance
can be availed sitting at home and such an employee cannot pray that
all the additional grace chances should be exhausted. It is reported
that decision taken by this Court has been confirmed by the Division
Bench of this Court recently.
4. In
view of the above and for the reasons stated in the judgment and
order dated 18th February,2009 passed in Special Civil
Application No.13372 of 2008 and other allied matters, the present
petition deserves to be dismissed and the same is accordingly
dismissed. Rule is discharged. Interim relief, granted earlier, shall
stands vacated forthwith. No costs.
[M.R.SHAH,J]
*dipti
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