2017 (1) TMI 1835 - HC - Indian Laws

Termination of services - entitlement to be allowed to successfully complete the period of probation - qualification requirements for the post of Senior Stenographer - HELD THAT - 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 in advantageous 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 '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. 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 passed by the Central Administrative Tribunal, 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. This writ application is accordingly, allowed.

Summary

Issues:
Interpretation of qualification requirements for the post of Senior Stenographer, imposition of conditions for passing English shorthand and typing tests, legality of termination based on failure to meet proficiency test requirements, applicability of conditions in offer of appointment, entitlement to increments and promotions, comparison with a similar case adjudicated by the Delhi High Court.

Detailed Analysis:

1. Interpretation of Qualification Requirements:
The National Building Construction Corporation Limited (NBCC) advertised for the post of Senior Stenographer with specific qualification criteria, including speed in English or Hindi shorthand and typing. The petitioner, a visually handicapped individual, applied based on proficiency in Hindi shorthand and typing, which he successfully demonstrated during the skill test. The advertisement did not mandate proficiency in both English and Hindi shorthand and typing, indicating separate posts for English and Hindi stenographers.

2. Imposition of Conditions for Passing English Shorthand and Typing Tests:
Upon receiving the offer of appointment, the petitioner was required to pass English shorthand and typing tests within six months, failing which probation would not be cleared. The petitioner's probation was extended multiple times as he attempted to meet the English proficiency requirements but ultimately failed. The condition imposed by NBCC was deemed arbitrary and illegal by the court.

3. Legality of Termination Based on Failure to Meet Proficiency Test Requirements:
Subsequent to failing the English proficiency tests, the petitioner's services were terminated by NBCC. The Central Administrative Tribunal partially allowed the petitioner's appeal, directing reinstatement but continuing the probation until English proficiency was achieved. The High Court found the termination order and the conditions imposed to be unjust and arbitrary.

4. Applicability of Conditions in Offer of Appointment:
The respondent argued that the petitioner accepted the offer with full knowledge of the conditions. However, the court noted that the petitioner, being in a disadvantaged position, had no real choice but to accept the terms. The court held that NBCC, as a State entity, should not impose unreasonable conditions without a valid basis or established practice.

5. Entitlement to Increments and Promotions:
The Central Administrative Tribunal's order restricting the petitioner from receiving increments and promotions until passing the English proficiency test was set aside by the High Court. The court emphasized the unjust nature of such conditions and directed NBCC to grant the petitioner all consequential benefits upon successful completion of probation.

6. Comparison with a Similar Case Adjudicated by the Delhi High Court:
The petitioner's case was compared to a similar case where the Delhi High Court ruled in favor of the employee, allowing successful completion of probation despite failing proficiency tests in a second language. The High Court, following this precedent, granted similar relief to the petitioner, quashing the conditions imposed by NBCC and directing completion of probation with full benefits.

In conclusion, the High Court allowed the writ application, setting aside the illegal and arbitrary conditions imposed by NBCC, and directing the corporation to recognize the petitioner's successful completion of probation with all consequential benefits.