Jharkhand High Court
Abhishek Kumar vs National Building Construction ... on 19 January, 2017
Author: H. C. Mishra
Bench: H. C. Mishra, S.N. Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1710 of 2016
Abhishek Kumar ..... ... Petitioner
Versus
1. National Building Construction Corporation Limited,
through its Chairman-cum-Managing Director, New Delhi.
2. Executive Director (HRM),
National Building Construction Corporation Limited, New Delhi.
3. Assistant General Manager,
National Building Construction Corporation Limited,
Zonal Office, Ranchi. ..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE H. C. MISHRA
: HON'BLE MR. JUSTICE DR. S.N. PATHAK
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For the Petitioner : Mr. Siddhartha Ranjan, Advocate.
For the respondent-NBCC : Mrs. Banani Verma, Advocate.
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05/ 19.01.2017Heard learned counsel for the petitioner and learned counsel for the respondent National Building Construction Corporation Limited.
2. The National Building Construction Corporation Limited (hereinafter referred to as the 'NBCC'), published an advertisement in the Employment News dated 23-29 September 2006, inviting applications for different posts, including the post of Senior Stenographer in the category of Scheduled Caste and Visually Handicapped (Partially Blind). As per the advertisement, the qualification for Senior Stenographer was Graduate with speed in English or Hindi shorthand 110 / 100 w.p.m. respectively and typing speed computer 50 / 40 w.p.m. respectively. In other words, the candidates knowing Hindi shorthand were required to have the speed of 100 w.p.m. and the typing speed of computer on 40 w.p.m. The petitioner, being visually handicapped (partially blind), applied for the same and it is an admitted case that the skill test of the petitioner was taken for Hindi shorthand and typing, in which, he passed and he was also selected in the interview and offer of appointment was given to him on 16.1.2008, which has been brought as Annexure-3 to the writ application. In the said offer of appointment, there was a condition imposed in Paragraph-16, which read as follows:-
" You are required to qualify the test in English Shorthand 110 w.p.m. and English typing test on computer 50 w.p.m. within a period of six months of your joining, the Corporation failing which your probation will not be cleared and also annual increment will not be released to you. Probation may be extended -2- further, solely at the discretion of the Management, for a period of six months only, beyond which probation will not be extended."
3. The petitioner gave his joining on 8.2.2008 and was posted as Senior Stenographer in the Zonal Office at Jammu and subsequently transferred on 29.5.2008 to the Office of S.P.G., Jharkhand, Ranchi. The petitioner being not conversant in English shorthand and typing, had to apply from time to time for extension of his probation period in order to pass the English shorthand and typing, and his probation period was also extended from time to time, as he was appearing in the English shorthand and typing tests, but he could not qualify, as per the required proficiency speed test, and ultimately, by order dated 24.9.2013, as contained in annexure-4 to the writ application, his services were terminated.
4. The petitioner challenged the impugned order of his termination in the Central Administrative Tribunal, in O.A. No. 227 of 2013(R), which was adjudicated upon by the Central Administrative Tribunal and by order dated 22nd of April, 2015, the said O.A., was allowed in part, quashing the termination order dated 24.9.2013, which has been brought on record as Annexure-7 to the writ application. The petitioner was directed to be reinstated in service forthwith and be deemed to be continuing in the same condition as he was continuing prior to his termination order. However, it was also directed that the period of probation shall continue so long, as the petitioner failed to clear the proficiency test in English shorthand and typing. The petitioner was not found to be entitled to get any increment and promotion in future until he passed the proficiency test in English shorthand and typing. Being aggrieved by that part of the order of the Central Administrative Tribunal, the petitioner has approached this Court under Article 226 of the Constitution of India.
5. Learned counsel for the petitioner has submitted that the advertisement, issued by the NBCC, clearly stated the qualification for Senior Stenographer as Graduate with required speed in English or Hindi shorthand and typing. It was not prescribed as Graduate with required speed in English and Hindi shorthand and typing. It is submitted by learned counsel for the petitioner that the petitioner applied for the post of Senior Stenographer stating that he was proficient in Hindi shorthand and typing and his skill test was also taken in Hindi shorthand and typing, which he cleared and thereafter he was selected in the interview also and taken in the job. In spite of that, imposing the condition in the offer of appointment that the petitioner was required to qualify -3- the test in English shorthand of 110 w.p.m. and typing test on computer with 50 w.p.m., was absolutely illegal and arbitrary. Learned counsel has accordingly, submitted that the impugned action of the respondent authorities cannot be sustained in the eyes of law and the petitioner is entitled to be allowed to successfully complete the period of probation, entitling him to the admissible increments and due promotions.
6. In support of his contention, learned counsel has placed reliance upon a decision of Delhi High Court in W.P.(C) No. 1583 of 2015 [National Buildings Construction Corporation Ltd. Vs. Moala Jamir], decided on 20th of February, 2015, in which, in a similar manner, in case of a candidate, who was proficient in English shorthand and typing and a condition was imposed upon him to pass the proficiency test in Hindi shorthand and typing and his services were also terminated, the Central Administrative Tribunal, quashed the termination order as also the condition in the offer of appointment, requiring the said candidate to pass the proficiency test in Hindi shorthand and typing. The NBCC challenged the order of the Central Administrative Tribunal by filing the aforesaid writ application in the Delhi High Court, which was dismissed by the Delhi High Court. Pursuant to the said order, the respondent in the said writ application, Moala Jamir, has been declared to have successfully completed the period of probation, by an order dated 26.10.1016, issued by the NBCC, as contained in Annexure-9 to the writ application.
7. Placing reliance upon the aforesaid decision of the Delhi High Court, and the consequential order issued by the NBCC, in favour the aggrieved employee, learned counsel for the petitioner has submitted that the petitioner is also entitled to the same relief. Learned counsel has accordingly, submitted that the impugned action by the respondent authorities cannot be sustained in the eyes of law.
8. Learned counsel for the respondent NBCC, on the other hand, has opposed the prayer and submitted that even though it is admitted that the petitioner has proficiency in Hindi shorthand and typing, but at the time of giving the offer of appointment, the specific condition was imposed in Para-16, requiring the petitioner to pass the English shorthand and typing also, within the period of six months of his joining, failing which, his probation period was not to be extended. It is also submitted that the petitioner has accepted the said offer with open eyes, and he also appeared in the skill test for English shorthand and typing, but he failed to pass the same and at his request, his -4- probation period was extended from time to time, but he could pass the said test, in spite of taking several attempts, and accordingly, his services were ultimately terminated. Learned counsel for the NBCC has submitted that there is no illegality in imposing the condition upon an employee for passing the proficiency test in shorthand and typing in other language also, and in any event, no objection was raised by the petitioner with respect thereto at the time of his joining. Learned counsel has further submitted that in obedience to the orders, passed by the Central Administrative Tribunal, the petitioner has already been taken in the services, but he has to remain in probation period, until he clears the proficiency test in English shorthand and typing as well.
9. Having heard learned counsels for both the sides and upon going through the record, we find that the advertisement, that was issued by the respondent NBCC for the post of Senior Stenographer, prescribed the qualification to be Graduate with the speed in English or (not and) Hindi Shorthand 110 / 100 w.p.m. respectively and typing on computer with 50 / 40 w.p.m. respectively. This clearly stipulated that the respondent NBCC was having the separate posts for Hindi Sr. Stenographers and English Sr. Stenographers. Admittedly, the skill test of the petitioner was taken in Hindi shorthand and typing, which the petitioner cleared and he was also subsequently selected in interview and was given the appointment letter. In that view of the matter, there was no occasion for imposing the condition that the petitioner must pass the proficiency test in English shorthand and typing also, and in our considered view, imposition of this condition was absolutely arbitrary action on the part of the NBCC. A detailed counter affidavit has been filed on behalf of the NBCC, but it is not the case of the NBCC, nor there is any averment in the entire counter affidavit, that it is the normal practice in the NBCC that all the Sr. Stenographers are required to pass the proficiency tests in shorthand and typing in both the languages, after being appointed. The submission of learned counsel for the respondent NBCC that the petitioner had accepted the offer of appointment knowing full well about the condition, cannot put the petitioner in an inadvantageous position, inasmuch as, the petitioner admittedly was searching for his bread and butter, and he was not in the equal footing with the NBCC for negotiation. He was offered the appointment letter with that condition, and he had no option but to accept the same, otherwise the only consequence that was to follow, was that the petitioner, who is a visually handicapped (partially blind) person, had to loose his job. The NBCC is a -5- 'State' within the meaning of Article-12 of the Constitution of India, and it was not expected from it to impose such arbitrary and unreasonable conditions, unless it is the case of the NBCC, that it is the normal practice in the NBCC that all the Sr. Stenographers are required to pass the proficiency tests in shorthand and typing in both the languages, which fact is neither pleaded nor argued. Indeed, it appears that this was not the pleading of the respondent NBCC even in W.P.(C) No. 1583 of 2015 [National Buildings Construction Corporation Ltd. Vs. Moala Jamir] decided by the Delhi High Court, pursuant to which, the respondent in the said writ application, Moala Jamir, has been declared to have successfully completed the period of probation, by the order issued by the NBCC, as contained in Annexure-9 to the writ application. We are of the considered view that the petitioner is also entitled to the same relief.
10. In view of the foregoing discussions, we hold that the imposition of the condition in paragraph 16 of the offer of appointment dated 16.1.2008, as contained in Annexure-3 to the writ application, requiring the petitioner to qualify in the test in English shorthand and typing as well, is absolutely illegal and arbitrary and cannot be sustained in the eyes of law, which we hereby, quash. The impugned order dated 22nd of April, 2015 passed by the Central Administrative Tribunal in the in O.A. No. 227 of 2013(R), only so far as it directs that the period of probation of the petitioner shall continue and he shall not be entitled to get any increment and promotion in future so long as he fails to clear the proficiency test in English shorthand and typing, is also hereby, set aside. The respondent NBCC is directed to forthwith pass the consequential order declaring the petitioner to have successfully completed the period of probation with all consequential benefits, if there is no other reason for denying this benefit to the petitioner.
11. This writ application is accordingly, allowed with the directions as above.
( H. C. Mishra, J.) (Dr. S.N. Pathak, J.) Amitesh/-