CHANDUBEN CHHAGANBHAI WAGHELA Vs. SECRETARY FINANCE DEPARTMENT

JUDGEMENT

(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.