J. Christiyana Bhagyavathi vs The Commissioner of Labour, The Chief Inspector of Factories and The Inspector of Factories

R. Subbiah, J.—This writ appeal is directed against the order, dated30.11.2009 passed in W.P(MD) No. 7988 of 2007 whereby the

learned single Judge dismissed the writ petition filed by the Appellant.

The question that falls for consideration in this writ appeal is whether the termination of service of the Appellant is correct and valid since she

failed to clear her departmental examination during the probation period.

The facts which are necessary to decide the above referred question raised in this appeal are as follows:

a) The Appellant herein appointed as Junior Assistant in the office of the third Respondent on 31.07.1996 on compassionate grounds on account

of the death of her husband. During the period of employment, she was ordered to appear her departmental examination in order to complete her

probation. While the situation stood thus, the Appellant was transferred to the Department of Factories Inspection on 6.9.2000 and hence, she

could not complete her departmental examination as contemplated under Rule 34(a) of the Tamil Nadu Special Rules for Ministerial Posts.

b) She had written the departmental examination on two-times but she could not successfully get through. She was also given an extension under

Rule 28 to complete her departmental examination. But she could not complete the examination within the stipulated period of one year. Hence,

she requested the Respondents to permit her to complete the examination as she was entitled to write the examination for five times as provided in

the rules. But the Appellant request was not considered by the Respondents and finally on 02.01.2007, the second Respondent has passed the

impugned order terminating her service without any prior notice to show cause as to why she should not be terminated for not completing the

departmental examination. Aggrieved over the same, the Petitioner filed the writ petition. The learned single Judge by order, dated30.11.2009

dismissed the writ petition. Hence, the present writ appeal.

Learned Counsel appearing for the Appellant submitted that there is no rule to terminate an employee who has not successfully completed her

departmental examination. The completion of departmental examination is required only for the purpose of promotion in the employment. Hence,

the impugned order passed by the second Respondent is liable to be quashed.

Per contra, the learned Special Government Pleader submitted that under Rule 26 (b)(1) of the Tamil Nadu State and Subordinate Service

Rule, if a probationer fails to acquire the special qualification or to pass the special tests if any, prescribed in the Special Rules or to acquire such

other qualifications as may be declared by the State Government or by the appointing authority with the approval of the State Government to be

equivalent to the said special qualifications or special tests, the appointing authority shall, by order, discharge him from the service unless the period

of probation is extended under Rule 28. He further submitted that under Rule 28 probation can be extended only for a period of five years and not

beyond that. Moreover under Rule 26(b)(ii) of the Tamil Nadu State and Subordinate Service Rule, which states if such a person is appointed by

direct recruitment and has not acquired the test qualification even within the maximum period of five years, his probation shall be terminated. While

that beings, no infirmity could be found in the order passed by the second Respondent in terminating the services of the Appellant for non

completion of departmental test.

We have considered the submissions made on either side and perused the materials available on record.

In view of the submissions made on either side, the question that has to be decided whether the termination of service could be considered as a

proper recourse for no clearance of departmental examination within the stipulated time. The issue involved has already been answered by this

Court in the judgment reported in G. Varadan Vs. The Chief Judicial Magistrate, wherein it has been held as follows:

The Respondent himself has stated in the counter affidavit that the Petitioner was an approved probationer, apart from the fact that under the

order dated 01.07.1971 it is declared that the Petitioner has completed the period of probation. This being the position, Rule 30(c)(i)and (ii) will

have a bearing on the point in controversy. Admittedly, under the order dated01.07.1971 the period of probation of the Petitioner has been

declared as completed. It maybe added that the probation period of the Petitioner was also not extended. If the appointing authority considered

the probationer not suitable for such membership in service he could have discharged from service after giving him a reasonable opportunity of

showing cause against the action proposed to be taken. The Respondent has not taken action under this rule.

In the instant case, absolutely no show cause notice was issued as to why the Appellant has not completed the departmental examination within

the stipulated period. Moreover, in our considered view, the failure to pass the test can only result in non promotion or non sanctioning of

increment/non declaration of probation. Hence, applying the principle laid down in the case referred above, for the reasons stated supra, the

impugned order passed by the second Respondent is liable to be quashed. Accordingly, the same is hereby quashed and the order of the learned

single Judge is set aside. The Respondents are directed to reinstate the Appellant with continuity of service without backwages within a period of

four weeks from the date of receipt of a copy of this order. The writ appeal is allowed. No costs.