The court held that the delay in conducting a required typing test was attributable to the department, not the petitioner, warranting modification of service confirmation date.

Order :

1. Petitioner herein seeks modification of an order dated 28.11.2013 (Annex.14) passed by Additional Director (Admin.) Medical and Health Services, Rajasthan, to extent that her services be treated as confirmed from 06.08.2012 instead of 08.04.2013 and further seeks consequential benefits arising therefrom.

2. Briefly speaking relevant facts as pleaded in the petition are as follows:

2.1. The petitioner was initially appointed vide order dated 06.08.2010 to the post of Lower Division Clerk on compassionate grounds and joined her services. Thereafter, upon completion of her probation period on 06.08.2012, she submitted a representation to the respondents requesting that her typing test be conducted, as required for regularization under the Rajasthan Compassionate Appointment Rules, 1996. The said test was to be cleared within a period of two years i.e. during probation period;

however, the respondents on their own never conducted the test during these two years. She repeatedly approached the respondents for the test, but to no avail.

2.2. Subsequently, the respondents conducted the typing test on 03.04.2013, and at the first instance, the petitioner cleared the test. Her services were confirmed vide order dated 28.11.2013 (Annex.14) w.e.f. 08.04.2013. Thereafter, she approached the competent authority, stating that her services should have been confirmed w.e.f. 06.08.2012, i.e., on the completion of her 2-year probation period, instead of 08.04.2013. However, no action has been taken by the respondents. Hence, this petition.

3. The stand taken in the reply is that according to the appointment order, the petitioner was required to pass the Computer Type Test within two years, to be conducted by the department. The petitioner applied for the examination. Initially, a typewriter test was conducted, but following the circular dated 19.08.2010 and order dated 06.09.2010 from the Department of Personnel, Government of Rajasthan, the Computer Type Test was introduced. Due to this, the establishment of the Computer Lab, along with the finalization of the syllabus, rules, and procedures, was delayed by the state government. As a result, the petitioner's application was returned. After the procedures were finalized, the examination began in April 2013, and the petitioner was allowed to appear. She passed the test, and the respondents issued a certificate to her on 08.04.2013.

4. In the aforesaid backdrop, I have heard the rival contentions.

5. At the very outset, I am constrained to observe that the stand taken by the respondents is completely lopsided. They assert that since the petitioner did not clear the type test within 2 years, as envisaged under the applicable service rules, her services were not confirmed upon completion of the probation period. No doubt, it was incumbent upon the petitioner to pass the requisite test, but the shoe seems to be on the other foot in the present case. The petitioner was willing and available throughout to be subjected to the aforesaid test, but it is the department that failed to conduct the test within the stipulated period of 2 years.

6. In fact, the department has candidly admitted that the test could not be conducted because the syllabus, along with other rules, was still under preparation. As and when the syllabus and rules were finalized, the test was conducted on 03.04.2013, and the petitioner cleared it on the very first attempt, though, of course, after a period of 3 years.

7. Therefore, I am of the view that the department cannot attribute the delay in the clearance of the test to the petitioner, as the conceded position is that the test was not conducted due to delays on the part of the department.

8. In fact, it would be apposite to reproduce relevant Paras No.2 and 3 of the reply, which are as below:

“2. That as per appointment order, the petitioner should have pass the Computer Type Test within two years from the date of appointment which would be conducted by the replying respondent. The