SANJAY D PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE Special Civil Applications have been placed before us on a reference made by the learned Single Judge of this Court after having noticed that the Division Bench of this Court in Letters Patent Appeal (Stamp) No. 1333 of 2005 has expressed the opinion that there has been conflict of views between two decisions of the learned Single judge Bench in the case of Kokilaben H. Pancholi v. Development Commissioner, 1998 (2) GCD 1058 (Guj.) and in the case of Mrs. Vibha Vijya Orpadkar v. State of gujarat and others, Special Civil application No. 9748 of 1993 dated 10. 11. 1993 on the question whether the compassionate appointee is obliged to pass the Post Training Examination as provided under the Gujarat Non-Secretariat Clerks and Clerks-cum-Typist (Training and examination) Rules, 1970 for being appointed as Junior Clerk in service.

(2.) LEARNED Judge of this Court in kokilaben H. Pancholi v. Development commissioner, (Supra) took the view that compassionate appointment is being made by relaxation of the normal service rules for providing immediate financial assistance to the family of the deceased who dies in harness. Learned Judge pointed out that appointments are given without going through any process of selection and such appointments need not stand the test of articles 14 and 16 of the Constitution. Learned Single Judge has also opined that post-training examinations are meant only for those persons who are appointed under regular recruitment rules and the compassionate appointment is not made under the normal service rules but under the compassionate appointment scheme, therefore, learned Judge held that merely on the ground that such appointees have not passed post training examination, their services can not be terminated. Learned judge was dealing with the case of widow whose husband had died in harness. It was noticed that widow had put in more than 17 years of service and when her services were about to be terminated, she had approached this Court and the learned Judge taking into consideration the totality of the facts felt that order of termination was bad in law. Matter was taken in appeal by the State government by filing Letters Patent Appeal no. 70 of 1998 and the Division Bench of this Court has found no reason to interfere with the order passed by the learned Single judge pointing out that widow had put in more than 24 years of service by that time.

(3.) CONTRARY view has been taken by another learned Single Judge of this Court in the case of Mrs. Vibha Vijya Orpadkar v. State of Gujarat and others, (Supra ). Learned Judge also referred to the judgment of the Division Bench of this Court in special Civil Application No. 3754 of 1986 and another decision in Letter Patent appeal No. 372 of 1993 and noticed that there is clear stipulation of the Rules that an appointee has to pass post training examination which according to the opinion of the learned Single Judge is equally applicable to the case of the persons appointed on compassionate ground as well.