Gujarat High Court
Kalaji Mafaji Khant vs State Of Gujarat on 17 April, 2026
NEUTRAL CITATION
C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026
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Reserved On : 22/01/2026
Pronounced On : 17/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17519 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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KALAJI MAFAJI KHANT
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS. REENA KAMANI, ADVOCATE FOR MR PH PATHAK(665) for the
Petitioner(s) No. 1
MR. SANJAY UDHWANI, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
1. Heard Ms. Reena Kamani, learned advocate appearing for Mr. P. H. Pathak, learned advocate on behalf of the petitioner and Mr. Sanjay Udhwani, learned Assistant Government Prosecutor appearing for the respondent Nos. 1, 2 and 3.
2. Material facts leading to the present petition, in a nutshell, inter alia, are as under:-
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NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined 2.1 The petitioner's father, who was serving in government service, expired on 07.06.2003 while in harness. Upon his demise, the petitioner sought appointment on compassionate grounds; however, such benefit came to be denied by the competent authorities. Aggrieved thereby, the petitioner preferred Special Civil Application No. 7215 of 2010 before this Court. The said petition was allowed by the learned Single Judge, directing the respondents to consider the case of the petitioner in accordance with the prevailing scheme governing compassionate appointments. The respondents, being dissatisfied with the said decision, preferred a Letters Patent Appeal before the Division Bench; however, the same came to be dismissed, thereby affirming the order of the learned Single Judge.
2.2 It is the case of the petitioner that despite the aforesaid judicial pronouncements, the respondents failed to implement the directions issued by this Court. Consequently, the petitioner initiated contempt proceedings by filing Miscellaneous Civil Application No. 784 of 2011. Pursuant thereto, the respondents issued an order granting Page 2 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined appointment to the petitioner on compassionate grounds. In furtherance of the same, the petitioner was appointed to the post of Safai Kamdar (Class IV), under respondent No. 3, by the Office Order dated 07.05.2011, and joined service with effect from 11.05.2011.
2.3 Thereafter, the respondent No. 3, by order dated 25.03.2013, terminated the services of the petitioner with immediate effect, inter alia, on the grounds that two prohibition cases were registered against the petitioner in the past and that there existed a discrepancy in the petitioner's date of birth. Being aggrieved by the said order of termination, the petitioner caused a legal notice to be issued to respondent No. 3, contending that the impugned action was ex facie illegal, arbitrary, and in violation of the principles of natural justice, as no due procedure as contemplated under law had been followed. The said notice was thereafter forwarded by respondent No. 3 to the Commissioner of Police, Technical Services, Gujarat State, vide communication dated 20.04.2013. According to the petitioner, despite lapse of reasonable time, no effective response or redressal was Page 3 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined forthcoming from the authorities.
3. In the aforesaid circumstances, the petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging the legality and validity of the impugned termination dated 25.03.2013 and seeking appropriate reliefs as prayed for in the petition, inter alia, with the following prayers:-
"A. Your Lordships be pleased to issue an order, writ in the nature of mandamus and/or certiorari or other appropriate writ, order or direction, declaring the action of respondent no.2 & 3 in terminating the service of petitioner vide order at Anex. B as illegal, unjust, arbitrary and violation of Art 14 & 16 of the Constitution of India as well as principles of natural justice and fair play and be pleased to quash and set aside the same and direct the respondents to reinstate the petitioner in service and grant all consequential benefits.
B. Your Lordships be pleased to declare the impugned order of termination of petitioner as punitive and the same is without following due procedure of law and be pleased to quash and set aside the same and direct respondents to reinstate the petitioner in service and grant all consequential benefits as if the order of termination was not issued to petitioner.
C. Rending admission and final disposal of this petition be pleased to suspend further implementation and operation of the order of termination of service of petitioner at Anex. B and direct respondents to take petitioner in service forthwith.
D. Any other and further relief this Hon'ble Court deem fit Page 4 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined and proper in interest of justice."
4. Ms. Reena Kamani, learned advocate appearing for Mr. P. H. Pathak on behalf of the petitioner, has contended that the services of the petitioner came to be terminated by order dated 25.03.2013 on two grounds, namely: (i) an alleged discrepancy in the petitioner's date of birth as recorded in the Birth Certificate vis-à-vis the School Leaving Certificate; and
(ii) the existence of two criminal antecedents, stated to have been registered and proved against the petitioner prior to his entry into service, as reflected in the inquiry report dated 31.07.2011 submitted by the Superintendent of Police, Gandhinagar.
4.1 It is further submitted that the impugned termination has been effected after the petitioner had rendered more than two years of service, without issuance of any prior notice and in absence of any departmental proceedings, thereby violating the principles of natural justice. It is pointed out that earlier, the petitioner had approached this Court by way of Special Civil Application No. 7215 of 2010, challenging the rejection of his claim for compassionate appointment. The said petition Page 5 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined was allowed, and the respondents were directed to reconsider the petitioner's case in accordance with the prevailing policy. Pursuant thereto, and upon due verification of the petitioner's credentials, the petitioner was granted appointment on compassionate grounds.
4.2 Insofar as the first ground pertaining to discrepancy in the date of birth is concerned, Ms. Kamani submits that the petitioner has unequivocally undertaken not to claim any benefit on the basis of the date of birth mentioned in the School Leaving Certificate and has agreed to be governed solely by the date of birth recorded in the Birth Certificate. An affidavit dated 24.11.2025 to this effect has also been placed on record.
4.3 With regard to the second ground relating to alleged criminal antecedents, it is submitted that at the time of appointment, the petitioner was neither required nor called upon to disclose any past or pending criminal cases. It is contended that had such disclosure been sought, the petitioner would have duly furnished the relevant particulars. Page 6 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026
NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined Ms. Kamani has invited attention to the list of documents required by the department, as reflected at page No. '21' of the paper-book, to demonstrate that no such information was ever requisitioned from the petitioner. The documents required at the stage of appointment are enumerated hereinbelow:
Certificate from the Head of the Department that the dependent member of the deceased is not doing a job/business;
Affidavit;
Certified copy of the death certificate of the deceased;
Inheritance Certificate;
Copy of the Birth Certificate of the dependent
applicant;
Copy of Driving License;
Copy of appointment order for regular appointment;
Certified copy of nomination form as proof that name of
the dependent application has been mentioned as nominee; Certificate of first proposal/application; Certificate of being an employee of the State Government;
Certificate copy of School Leaving Certificate of the deceased;
Copy of the first page of the service book;
Consent form;
Copy of the medical certificate regarding physical
fitness;
Certificate regarding income;
Caste Certificate.
4.4 It is further contended that the two prohibition cases
relied upon by the respondents pertain to the years 2007 and Page 7 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined 2009, which stood concluded on 08.07.2007 and 13.01.2009, respectively, upon imposition of nominal fines of Rs. 50/- and Rs. 100/-. It is submitted that the petitioner was subsequently granted compassionate appointment in the year 2011, i.e., after the culmination of the said proceedings. In such circumstances, it is urged that there was neither any subsisting criminal case nor any occasion for the petitioner to suppress material facts at the time of appointment. It is further pointed out that pursuant to the order dated 20.10.2016 passed by this Court, whereby the respondents were directed to file an affidavit clarifying whether any specific information regarding pendency of criminal cases had been sought from the petitioner at the relevant time, respondent No. 3 failed to indicate any such requirement.
Thus, there exists no case of suppression of facts. 4.5 Learned advocate Ms. Kamani has further submitted that the aforesaid prohibition cases were trivial in nature, arising out of minor lapses or indiscretions, which ought to be viewed with leniency in the overall factual matrix. It is contended that such minor incidents should not operate to the Page 8 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined detriment of the petitioner's employment, particularly in the context of compassionate appointment. In support of this submission, reliance has been placed on the decision of the Hon'ble Supreme Court in Commissioner of Police and Others v. Sandip Kumar, reported in (2011) 4 SCC 644, wherein it has been held as under:-
"8. ............when the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter."
(emphasis supplied)
5. Mr. Sanjay Udhwani, learned Assistant Government Prosecutor (AGP) appearing for the respondents, has submitted that the petitioner was appointed on compassionate grounds with effect from 11.05.2011 on an ad hoc basis, on a fixed salary for a period of five years. It is contended that compassionate appointment constitutes an exception to the general scheme of public employment and stands in deviation Page 9 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined from the mandate of Articles 14 and 16 of the Constitution of India, being intended solely to provide immediate financial assistance to the family of a deceased employee in circumstances of sudden hardship. It is, therefore, urged that such an appointment is in the nature of a concession and does not confer any vested or enforceable right upon the appointee. 5.1 It is further submitted that, in the facts of the present case, the action impugned by the petitioner falls squarely within the domain of the discretionary and reasonable powers vested in the State in its capacity as an employer, and hence does not warrant judicial interference. Mr. Udhwani, learned AGP, in support of this contention, has placed his reliance on the decision of the Hon'ble Apex Court in State of Maharashtra and Another v. Madhuri Maruti Vidhate, reported in 2022 SCC OnLine SC 1327, wherein it has been observed as under:-
"9. While considering the issue involved in the present appeal, the law laid down by this Court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision, this Court in the case of Director of Treasuries in Karnataka v. V. Somyashree, 2021 SCC OnLine SC 704, had occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this Court in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617, Page 10 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined this Court has summarised the principle governing the grant of appointment on compassionate ground as under:--
(i) that the compassionate appointment is an exception to the general rule;
(ii) that no aspirant has a right to compassionate appointment;
(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;
(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy;
(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.
10. As per the law laid down by this Court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Articles 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.
12. Thus, as per the law laid down by this Court in the aforesaid decisions, compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased." Page 11 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026
NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined 5.2 Mr. Udhwani, learned AGP has further submitted that the petitioner's appointment was regulated by the Government Resolution dated 03.03.2005, particularly Condition No. 2 thereof, read in conjunction with Condition No. 9 of the appointment order dated 07.05.2011. It is contended that the petitioner had accepted the aforesaid terms and conditions at the time of appointment without any protest or reservation and has never assailed the same thereafter.
5.3 It is then submitted that the Government Resolution dated 03.03.2005, issued by the General Administration Department, expressly mandates that an appointee must furnish a certificate of good character. Additionally, reliance is placed on Condition No. 4 of the said Government Resolution, which stipulates that the appointment is purely on an ad hoc basis and is liable to be terminated without notice in the event any irregularity or misconduct is detected. Condition No. 4 of the aforesaid Government Resolution reads as under:-
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NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined "4. The appointment will be purely temporary. In the event of serious misconduct or misconduct of a candidate appointed on ad hoc basis, their ad hoc appointment will be terminated without any notice."
5.4 Thereafter, it is submitted by Mr. Udhwani, learned AGP that, pursuant to the verification carried out, a report dated 31.07.2011 was received from the office of the Superintendent of Police, Gandhinagar, indicating that two offences under the Prohibition Act had been registered against the petitioner. It is contended that the petitioner had also admitted his guilt in respect of the said offences before the Court of the learned Additional Senior Civil Judge at Gandhinagar.
5.5 It is further stated that, upon inquiry with the Principal of the concerned Government School and the Talati-cum-
Mantri, Gandhinagar, it was revealed that there existed a discrepancy between the date of birth recorded in the School Leaving Certificate and that reflected in the Birth Certificate of the petitioner. On the basis of the aforesaid material, the respondent authorities formed an opinion that the petitioner had breached the applicable conditions governing his appointment. Consequently, it was determined that the Page 13 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined petitioner's services were liable to be terminated. In light of the above, it is urged that the impugned action of termination is lawful, justified, and in accordance with the governing rules and conditions, and therefore does not warrant any interference.
6. Upon hearing the learned counsel appearing for the respective parties and upon perusal of the material on record, it appears to this Court that the impugned termination of the petitioner's services has been founded on two grounds, namely: (i) an alleged discrepancy in the petitioner's date of birth as reflected in the Birth Certificate vis-à-vis the School Leaving Certificate; and (ii) the registration and establishment of prohibition offences against the petitioner in the years 2007 and 2009.
7. Insofar as the first ground pertaining to discrepancy in the date of birth is concerned, it emerges from the record that, at the time of appointment in the year 2011, the petitioner had furnished all documents as required by the respondent authorities. If the respondents had any reservation Page 14 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined or doubt with regard to the veracity or inconsistency of the said documents, it was incumbent upon them either to undertake due verification at the relevant time or to seek an explanation from the petitioner. However, it is evident that, upon verification of the documents so submitted, the respondent authorities proceeded to issue the appointment order in favour of the petitioner. It is nobody's case that the petitioner has either suppressed any material or has produced any fabricated material.
8. Subsequently, the petitioner, by way of a further affidavit dated 24.11.2025, has categorically stated that the date of birth recorded in the Birth Certificate may be treated as final and has no objection to the said date being reflected in the service record and has expressly waived any claim or advantage that may otherwise accrue on the basis of the date of birth mentioned in the School Leaving Certificate. It is also pertinent to note that judicial pronouncements have consistently recognized that, in cases of inconsistency between documents relating to date of birth, the entry in the Birth Certificate prevails. In this regard the Hon'ble Apex Page 15 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined Court in the case of CIDCO v. Vasudha Gorakhnath Mandevlekar, reported in (2009) 7 SCC 283, has held as under:-
"18. The Deaths and Births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent."
9. The same stand is taken by this Court in the case of Tanisha Manoj Agarwal Through Her Natural Guardian Father Manoj Sagarmal Agarwal v. Central Board Of Secondary Education, reported in 2018 (0) AIJEL-HC 239751, wherein it was held as under:-
"8. In the aforesaid factual aspects of the matter, if the aforesaid decisions rendered by the Hon'ble Supreme Court upon which the reliance is placed by learned advocate for the petitioner is considered, the Hon'ble Supreme Court has held that the deaths and births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act and the same would prevail over an entry made in the school register particularly, in absence of any proof that same was recorded at the instance of the guardian of the child. In the present case, as observed hereinabove, from the original birth certificate which is shown during the course of hearing by the learned advocate for the petitioner, the date of birth recorded in the birth certificate issued by the competent authority is 18.1.2001 and therefore there is a presumption with regard to correctness of the said certificate issued by the competent authority."Page 16 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026
NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined
10. Insofar as the second issue regarding the prohibition cases registered against the petitioner is concerned, it has been brought to the notice of this Court that, at the time of appointment in the year 2011, the petitioner was not required to disclose details of any criminal cases, whether pending or concluded. A perusal of the documents requisitioned by the department, as reflected at page No. '21' of the petition, indicates that no such information was sought from the petitioner. It is observed that, had such disclosure been specifically mandated and the petitioner had nonetheless failed to furnish the same, the matter would stand on a different footing. However, in the facts of the present case, the material on record prima facie suggests that there was no suppression or concealment of relevant information on the part of the petitioner.
11. Applying the ratio laid down by the Hon'ble Supreme Court in Sandip Kumar (supra) as a guiding principle, it is evident that the prohibition cases in question, pertaining to the years 2007 and 2009, stood concluded on 08.07.2007 and 13.01.2009, respectively, upon imposition of nominal fines of Page 17 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined Rs. 50/- and Rs. 100/-. In such circumstances, this Court is of the view that a lenient approach is warranted, as the offences in question do not involve moral turpitude of a grave degree so as to disentitle the petitioner from service. Accordingly, the said incidents ought not to operate as an impediment to the petitioner's employment.
12. In light of the aforesaid discussion, and upon an overall consideration of the material on record in the backdrop of the applicable legal principles, this Court finds that the petitioner is entitled to be restored to the position held prior to the issuance of the impugned termination order. However, it is clarified that the petitioner shall not be entitled to derive any benefit on the basis of the date of birth recorded in the School Leaving Certificate, in view of the categorical undertaking furnished by him in the affidavit dated 24.11.2025. For all intents and purposes, the date of birth as recorded in the Birth Certificate shall be treated as final and binding.
13. Consequently, the present petition succeeds. The impugned order of termination dated 25.03.2013 is hereby Page 18 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026 NEUTRAL CITATION C/SCA/17519/2013 CAV JUDGMENT DATED: 17/04/2026 undefined quashed and set aside. The respondents are directed to reinstate the petitioner in service with all consequential benefits, as if the order of termination had never been passed. Rule is made absolute to the aforesaid extent.
(D.N.RAY,J) BINA SHAH Page 19 of 19 Uploaded by BINA SHAH(HC00353) on Mon Apr 20 2026 Downloaded on : Mon Apr 20 21:29:55 IST 2026