Dabakato vs Deputy Commissioner and Others

By making this application under Article 226 of the Constitution of India, the petitioner has approached this Court seeking issuance of appropriate writ/writs setting aside and quashing the order, dated 25.8.2001, whereby her service has been terminated.

In a nutshell, petitioner''s case may be narrated as follows : the petitioner belongs to Adi tribe of Arunachal Pradesh. She hay studied upto 12th standard under the National Open School and holds diploma in type-writing with the speed of 33 words per minutes (hereinafter referred to as "wpm"), In pursuance of an advertisement, dated 15.10.1999, issued by the respondent No. 1, namely, Deputy Commissioner, Upper Siang district, inviting applications for the posts of LDC under the establishment of Deputy Commissioner''s Office, Upper Siang district, the petitioner applied and after she came out successfully in the written test she had to undergo typing test and also viva voce and, upon being selected, she was, vide order, dated 14.3.2000, appointed as a LDC subject to completion of probation period of one year commencing from the date of joining of the service. The petitioner completed her probationary period of service in April, 2001. Thereafter, by order, dated 30.4.2001 (Annexure 6 to the writ petition), the petitioner was directed along will some others to appear in a typing test, on 4.5.2001, on the ground that they could not attain the minimum typing speed of 30 wpm at the time of their interview. Upon the typing test so held, it was alleged that the petitioner''s typing test was unsatisfactory and she was, vide order, dated 8.5.2001, asked to improve her typing speed. On alleged failure of the petitioner to make any improvement in the subsequent typing test held on 24.5.2001, her service was terminated, vide order, 24.5.2001, aforementioned passed by the respondent No. 2 purportedly in exercise of powers under Sub-rule (1) of Rule 5 of CCS (Temporary Services) Rules, 1995, on the ground that despite being offered three opportunities she could not qualify herself in the typing test within the period of probation as per the Recruitment Rules. It is this order, which the petitioner seeks to get set aside and quashed on the ground, inter alia, that she holds diploma in typewriting with the speed of 33 wpm and it was only after she had succeeded in attaining the minimum qualifying requirement of 30 wpm that she had been appointed and, hence, termination of her service is arbitrary, it is stigmatic in nature and the same needs to be set aside and quashed.

The respondents have contested this case by filing affidavit-in opposition, their case being, briefly stated, thus: Despite having been accorded three opportunities to improve her typing speed, the petitioner could not, as per standard fixed in the relevant Recruitment Rules, attain the typing speed of 30 wpm. In the typing test, which was held along with the interview, the petitioner could type out only 22 wpm, but is per the relevant Recruitment Rules, namely, Arunachal Pradesh Establishment (Establishment) Class III (Upper Division Clerk & Lower Division Clerk) Recruitment Rules, 1977, the prescribed typing speed is 30 wpm for APST candidates for being eligible for recruitment to the post of LDC. As per the Recruitment Rules, an APST candidate, who types up to 20 wpm. may be appointed on probation for a period of six months, but on or before completion of the said probationary period, the candidate concerned shall have to qualify the minimum typing speed of 30 wpm, failing which the probationary appointment of the candidate to the post of LDC shall be terminated. Since the petitioner could type out 20 wpm during the recruitment test, she was appointed, on probation, for a period of one year as LDC along with all other candidates appointed on probation. The petitioner was directed to appear in confirmatory typing test on 4.5.2001, but the petitioner could type out only 13 wpm, whereupon a letter was issued, on 8.5.2001, directing the petitioner to improve her typing speed by, at least, 20 wpm by another seven day. The second typing test was conducted on 14.5.2001, but the petitioner could type out only 14 wpm. Consequently, the petitioner was asked, vide an order passed, on 14.5.2001, to improve her typing speed by 25 wpm within the next 7 days or else, her service was liable to be terminated. The third and final typing speed was held on 22.5.2001. Even in this test, the petitioner failed, because of her similar performance. The respondent No. 2 was left with no other option, but to terminate the service of the petitioner in pursuance of Sub-rule (1) of Rule 5 of me CCS (Temporary) Services Rules, 1965. The petitioner was, thus, given more than ample opportunity to improve her typing speed, which was an essential requirement for appointment as LDC under the relevant Recruitment Rules, but the petitioner failed to attain the qualifying speed in the typing test. Her service was, therefore, legally and validly terminated. ''

I have carefully perused the materials on record including the impugned order. I have heard Mr. T. Pertin, learned counsel for the petitioner, and Mr. B. L. Singh, learned Senior Government Advocate, appearing on behalf of the respondents.

Challenging the said order of termination, Mr. Pertin has submitted that proficiency in typing is not essential inasmuch as the duties and responsibilities of the post of LDC does not depend on proficiency in typing and, hence, the alleged failure of the petitioner to attain the minimum typing speed of 30 wpm could not have been a ground for termination of her service. It is also submitted by Mr. Pertin that the petitioner had already undergone a typing test at the time of interview and she had qualified in the said test and, hence, in this view of the matter, the petitioner was not required to undergo any further typing test. It is further submitted by Mr. Pertin that there is no report to show that the performance of the petitioner as LDC was not satisfactory and, hence, her alleged failure to attain typing speed could not have been made a valid ground for termination of her service as a probationer.

Mr. Pertin has contended that the impugned termination order leaves a stigma on the petitioner''s carrier as a probationer and her service could not have been terminated without giving opportunity of hearing against the accusation that she was not capable of attaining a minimum qualifying speed of 30 wpm.

Reacting to the above submissions made on behalf of the petitioner, Mr. Singh, learned Sr. Govt., Advocate, has submitted that the typing test is one of the criteria for selection of LDC under the relevant Recruitment Rules and the records reveals that the petitioner could net attain the requisite qualifying speed in typing at the time of the selection test and even after about one year of her appointment, when the petitioner repeatedly failed to attain typing speed of even 21 wpm. The respondent No. 2 had no option, but to terminate her service as a probationer.

Having heard learned counsel for the parties and upon perusal of the materials on record, what attracts my eyes is that though the petitioner, initially, contended in her writ petition that she had attained the minimum qualifying speed of 30 wpm, when the test was held for the purpose of recruitment, yet when the respondents clearly mentioned in their affidavit-in-opposition that the petitioner had, even in the typing test held at the time of recruitment, failed to attain the qualifying speed of 30 wpm, the petitioner did not, I notice, dispute these assertions in her affidavit-in-reply. Situated thus, there can be no escape from the conclusion that at the time, when the typing test for the purpose of recruitment was held, the petitioner had railed to attain the speed of 30 wpm and, hence, the mere fact that she is holding a diploma, which shows that she had attained the typing speed of 30 wpm can be of no avail to her, particularly, when she was repeatedly given opportunities to improve her typing speed. In other words, the petitioner, undisputedly, failed to attain the qualifying speed in typing.

It is of utmost importance to note that under Rule 4 of the relevant Recruitment Rules, one of the qualifying tests is typing speed test, which carries as much as 150 marks and this typing test forms parts of the written test. It is, thus, clear that attaining of specified typing speed of 30 wpm is one of the essential requirements for qualifying to be considered for selection of LDA and, hence, there can be no escape from the conclusion that if one is not proficient in typing in accordance with the standard that has been fixed under the relevant recruitment rules, he/she could not have been legally recruited. However, Rule 5 of the said Rules lays down that an indigenous Arunachal Pradesh tribal candidate, who can type and if he attains the typing speed or 20 wpm, he may be appointed on probation for a period of six months, but on or before the completion of the probation period of six months, he has to qualify with the minimum typing speed of 30 wpm, failing which the probationary appointment shall be terminated. In the instant case, the petitioner, during the recruitment test, could type out only 22 wpm and accordingly, she was appointed to the post of LDC, on probation, for one year. Hence, it cannot be said that the petitioner could not have been directed to appear in another typing test to determine if she had attained the qualifying speed in typing.

Be that as it may, what is of utmost importance to note is that the specific assertion of the petitioner in the writ petition is that she completed her probationary period of one year in the month of April, 2001. This assertion of the petitioner made in para 7 of her writ petition has not been disputed by the respondents.

In view of the fact that the probation period of the petitioner was not extended any further, she shall be deemed to have been confirmed as LDC on expiry of the said period of probation, notwithstanding her failure to attend the requisite speed in typing. In fact, the relevant recruitment rules speak of probations only in respect of APST candidates, who fail to qualify in typing test as aforesaid, and this probation period is of six months. Since the recruitment rules do not provide for extension of the probation period nor is there any material on record indicating that the probationary period could have been extended, it logically follows that on the expiry of the period of six months'' probation and, at the most, on the expiry of one year, as in the instant case, the petitioner must be deemed to have been confirmed and she could not nave been discharged from the service as a probationer. When a person appointed, initially, on probation is allowed to continue in service beyond the maximum permissible period of probation without any specific order of confirmation, he/ she must be deemed to have been confirmed, I am guided to adopt this view from the law laid down in State of Punjab Vs. Dharam Singh, and reiterated by the Apex Court in the State of Gujarat Vs. Akhilesh C. Bhargav and Others,

Though Mr. Pertin has submitted that notwithstanding the fact that the petitioner was on probation, the termination of her service on the ground that she had not attained the qualifying speed of typing is stigmatic in nature and she could not have been discharged from service on such a ground without holding appropriate enquiry or, at least, without giving opportunity of hearing, suffice it to mention here that the settled position of law is that a person on probation can be discharged for unsatisfactory work and conduct and this would not amount to stigma. If any authority is required, reference may be made to the Constitution bench decision of the Apex Court in the The State of Orissa and Another Vs. Ram Narayan Das, and followed by the Apex Court in State of Gujarat v. Akhilesh C. Bhargav (supra).

Coming, however, to the question as to whether the petitioner''s service could have been terminated at all, what is of utmost importance to note is that though it has not been contended before me, on behalf of the petitioner, that her service could not have been terminated after completion of one year of probationary period, the fact remains that the petitioner could not have been legally discharged from service by means of the impugned order on the ground that she could not satisfy the condition of her probationary appointment. If the service of the petitioner is to be terminated, the same may be done only after holding regular departmental proceedings against her and on proving her inability to render satisfactory service as LDC. I am guided to adopt this view from the law laid down in Akhilesh C. Bhargav (supra).

In the result and for the reasons discussed above, this writ petition party succeeds. The impugned order of termination of petitioner''s service is hereby set aside and quashed. The petitioner''s service is restored and the petitioner shall be deemed to have remained in service treating the impugned termination order as non est in law. This, I must hasten to add, shall not be taken to have debarred the appointing or disciplinary authority from taking action against the petitioner as may be permissible in law after initiating regular disciplinary proceeding.

With the above observations and directions, this writ petition shall stand disposed of.

No order as to costs.