[Cites 13, Cited by 0]
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
undefined
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
==========================================================
Approved for Reporting Yes No
==========================================================
KALAJI MAFAJI KHANT
Versus
STATE OF GUJARAT & ORS.
==========================================================
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
==========================================================
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:-
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
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
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
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
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.
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
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
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
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,
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."
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:-
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
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
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
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."
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
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
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
