Allahabad High Court
Atul Sharma & 14 Ors. {Now S/S} vs State Of U.P. Thru. Prin. Secy. Karmik ... on 6 August, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 20
Case :- MISC. BENCH No. - 1332 of 2015
Petitioner :- Atul Sharma & 14 Ors. {Now S/S}
Respondent :- State Of U.P. Thru. Prin. Secy. Karmik /Niyukti & Anr.
Counsel for Petitioner :- Vimal Kumar,Kamal Kumar Srivastava,Km. Vishwa Mohini,S.K.Verma
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Devendra Upadhyaya
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioners and Sri D.C. Pathak, learned Additional Chief Standing Counsel appearing for the State/respondents.
2. By means of the present petition, the petitioners have prayed for the following reliefs:-
"(i) That the direction or order in the nature of mandamus may kindly be issued commanding the Opp. Parties to consider the promotion of the petitioner under 15%+5% promotion quota on the basis of seniority subject to rejection of unfit according to Rule 15(1) of the Rule 2013 with the condition obtaining speed of 25 word per minute in Hindi typing on compute within one years after promotion and to allow to promotion retrospectively from the date of prior i.e. 28.2.2014 with all consequential benefits.
(ii) That the O.P. No.1 may kindly be directed to issue executive order under the Rule 4(1) of U.P. Government Servant Training Rule 2008 regarding after promotion training in computer typing to group D employee promoted under 15%+5% promotion quota under Rule 15(1) of the U.P. Secretariat Computer Assistant Service Rule 2013.
(iii) That any other writ, order or direction which may be deemed appropriate in the facts and circumstances of Writ Petition may kindly be issued in favour of the petitioner and against the Opp. Parties.
(iv) That the cost of the Writ Petition may kindly be allowed in favour of the petitioner against the Opp. Parties."
3. The case set forth by the petitioners in the writ petition is that they are working in the Secretariat as Class-IV employees. They claim promotion under the 15%+5% promotion quota in terms of the rules known as U.P. Secretariat Computer Assistant Service Rules, 2013 (hereinafter referred to as the 2013 Rules), a copy of which has been filed as Annexure-6 to the writ petition. Rule 5(2)(One) & (Two) of the 2013 Rules provides for promotion to the post of Computer Assistant from substantively appointed Group-D employees who have completed 5 years of service, passed High School/Intermediate or equivalent examination and have minimum Hindi typing speed of 25 words per minute on the computer. It is further contended that Rule 15(1) of the 2013 Rules provides the procedure for promotion which would be as per the provisions of Uttar Pradesh Government Servant (Criterion for Recruitment by Promotion), Rules, 1994 (hereinafter referred to as the 1994 Rules), a copy of which has been filed as Annexure-7 to the writ petition. As per Rule 15(2) of the 2013 Rules, the appointing authority is expected to ask the employees, who fulfill the criteria stipulated in Rule 5(2)(One) & (Two), to participate in the Hindi typing examination on a computer. Thereafter a list of those candidates, who fulfill the criteria of having requisite typing speed would be prepared and would be placed before the Selection Committee along with the service record and if the Selection Committee requires, an interview can also be held. The selected candidates would thereafter be placed in terms of the seniority for their promotion.
4. Learned counsel for the petitioners contends that seniority position of the petitioners has been reflected in detail in a chart prepared in paragraph 2 of the writ petition. It is contended that though Rule 15(1) of the 2013 Rules read with Rule 4 of the 1994 Rules provide for filling up the post of Computer Assistant on the basis of seniority-cum-suitability yet disregarding the said provisions, the respondents have proceeded to promote the juniors of the petitioners whose seniority position has been indicated in paragraph 15 of the writ petition. Thus the claim of promotion of the petitioners is from the date their juniors were promoted with all attendant benefits.
5. Learned counsel for the petitioners contends that initially the respondents proceeded to hold a typing test in terms of the 2013 Rules between 16th to 19th December, 2013 in which the petitioners did not appear. Thereafter a newspaper publication was made on 1.3.2014, a Saturday on which day the Secretariat is closed, informing that a typing test would be held on 2nd March, 2014. It is contended that as petitioners No.8, 9, 14 etc. reside out of Lucknow and publication was made in local newspaper circulated in Lucknow only, as such, the petitioners did not have any knowledge of the said publication and consequently could not appear for the typing test on the said date, whereafter, the respondents proceeded to promote the juniors to the petitioners. It is contended that on the one hand the criteria for promotion on the post of Computer Assistant as provided under the 2013 Rules read with 1994 Rules have not been followed in its entirety by making promotion of the juniors to the petitioners and on the other hand the information regarding holding of the typing test had never been given to the petitioners and thus the petitioners are entitled to be promoted under the promotion quota from the date their juniors have been promoted.
6. Learned counsel for the petitioners further contends that a specific averment has been made in paragraph 17 of the writ petition of the notice for holding typing test having been published in the local newspaper on 1.3.2014 and there being no other notice the petitioner could not appear in the test and consequently, for the fault on the part of the respondents, the petitioners cannot suffer and as such they may be promoted from the date their juniors have been promoted.
7. Learned counsel for the petitioner further contends that the respondents are acting in a discriminatory manner inasmuch as various employees were given training on computers so as to enable them to have the requisite typing speed in terms of the 2013 Rules but no such training was ever given to the petitioners.
8. On the other hand, Sri D.C. Pathak, learned Additional Chief Standing Counsel, on the basis of averments contained in the counter affidavit, argues that admittedly the rules pertaining to the post of Computer Assistant i.e. a Class-III post gives the eligibility which the petitioners possess but the eligibility also provides for a Hindi typing speed of 25 words per minute on computer. In order to assess the suitability of the petitioners and other eligible Class-IV employees, a typing test was initially held between 16th to 19th December, 2013 in which the petitioners did not appear. Subsequently, as there were other posts lying vacant, as such a notice was published in the daily newspaper on 1.3.2014 for holding the typing test on 2.3.2014 and a notice in this regard was also pasted on the Notice Board of the Secretariat. Specific averment to the said effect has been made in paragraph 16 of the counter affidavit dated 26.11.2018. However, the petitioners failed to appear in the said typing test and consequently they failed to fulfill the criteria of having Hindi typing speed of 25 words per minute and in those circumstances, as the petitioners did not fulfill the eligibility criteria, the other persons who had the requisite speed in typing were promoted on the post of Computer Assistant. It is further contended that juniors to the petitioners having appeared in the typing test and fulfilled the criteria for promotion on a Group-C post and the petitioners having failed to appear in the typing test, consequently the petitioners cannot be promoted with effect from the date their juniors have been promoted. However, learned Additional Chief Standing Counsel fairly conceded that as and when the promotion from Class-IV post to Class-III post, in this case on the post of Computer Assistant, takes place, the petitioners, if found eligible, would be considered.
9. As regards non giving of training to the petitioners, as has been argued by the learned counsel for the petitioners, learned Additional Chief Standing Counsel submits, on the basis of averments contained in the personal affidavit dated 1.5.2019 filed in pursuance to the order of this Court dated 29.3.2019, that giving of such training was not a requisite condition in terms of the rules and the persons were chosen randomly for such training. Even otherwise, the petitioners are expected to fulfill the qualification of having such typing speed as provided under the 2013 Rules on their own accord.
10. In rejoinder, learned counsel for the petitioners reiterates that so far as the notice in the newspaper dated 1.3.2014 is concerned, as most of the petitioners reside outside Lucknow, they did not see the notice. However, the specific averment of notice for holding the typing test having been pasted on the Notice Board of the Secretariat as indicated in paragraph 16 of the counter affidavit, has not been denied while submitting reply to the said specific averment in paragraph 13 of the rejoinder affidavit.
11. Heard learned counsel for the parties and perused the record.
12. From a perusal of pleadings on record, it comes out that in terms of the 2013 Rules read with 1994 Rules, a Class-IV employee who has rendered 5 years of service and has High School/Intermediate or equivalent qualification and also possesses Hindi typing speed of 25 words per minute is to be promoted to a Class-III post, in this case Computer Assistant. The typing test was initially held between the dates 16th to 19th of December, 2013 in which the petitioners admittedly failed to appear. Thereafter, for holding the typing test though a notice was published in the daily newspaper on 1.3.2014 by the respondents as specifically averred in paragraph 16 of the counter affidavit and a notice was also pasted on the Notice Board of the Secretariat yet again the petitioners failed to appear in the said typing test. If, for the sake of argument, it is assumed that few of the petitioners reside outside Lucknow and consequently did not see the notice in the newspaper yet once the notice was pasted on the Notice Board of the Secretariat, as specifically stated by the respondents in paragraph 16 of the counter affidavit and the said fact having not been denied by the petitioners in paragraph 13 of their rejoinder affidavit where the averments made in paragraph 16 of the counter affidavit have been replied to, the presumption would be that despite knowledge of holding of typing test, the petitioners deliberately did not appear. Moreover, though specific averment has been made in paragraph 17 of the writ petition of the petitioners No.8, 9, 14 etc. are residing in district Raebareli and thus having no knowledge of the notice as published in the newspaper on 1.3.2014 it being a Saturday yet a perusal of the address of the petitioners No.8, 9 and 14 which is indicated in the writ petition, indicates that all the aforesaid petitioners have indicated the residential address at Lucknow. Thus, it is prima facie apparent that a false averment has been made in paragraph 17 of the writ petition for which the petitioners are cautioned. As such, taking into consideration Rule 15 of the 2013 Rules, it cannot be said that the petitioners were having the requisite typing speed in Hindi on the computer which is a sine qua non for promotion of a Class-III post more particularly when they did not appear in both the typing tests which were held for determining the requisite typing speed. Thus, no fault can be found in case the juniors to the petitioners have been promoted on a Class-III post and the petitioners have not been promoted.
13. Another aspect of the matter is that one of the reliefs sought for by the petitioner is for their retrospective promotion in terms of the 2013 Rules with effect from 28.2.2014. The reason why the promotion has been sought from 28.2.2014 is that their juniors whose details have been indicated in paragraph 18 of the writ petition, had been promoted with effect from 28.2.2014. However, none of the said junior persons have been impleaded as a party in the present petition. The Hon'ble Supreme Court in the case of State of Rajasthan vs. Ucchab Lal Chhanwal reported in (2014)1 SCC 144 in a similar matter, where the promotion was sought to be claimed with effect from the date juniors were promoted, has held that as the juniors have not been impleaded as a party the persons who are senior in the promotional cadre are bound to become junior regard being had to their seniority position in the feeder cadre and that no order can be passed behind the back of the said persons that shall adversely affect them. For the sake of convenience, relevant observations of the Hon'ble Supreme Court in the case of Ucchab Lal Chhanwal (supra) are reproduced below:-
"10. .... On a perusal of the writ petition, the order of the writ court and that of the Division Bench we notice that there were specific averments that juniors placed at serial numbers 9, 10 and 11 in gradation list had been promoted vide order dated 20.8.1997. They have not been arrayed as parties. Needless to emphasize, in the event the order passed by the High Court is affirmed, the persons who are seniors to the respondents in the promotional cadre are bound to become junior regard being had to their seniority position in the feeder cadre. It is well settled in law that no order can be passed behind the back of the person that shall adversely affect him.
11. In this context, we may refer with profit to the decision in Vijay Kumar Kaul and others v. Union of India and others wherein it has been held thus: -
"Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant."
12. After so stating this Court referred to the decision in Indu Shekhar Singh v. State of U.P. wherein it has been held thus: -
"37. .....'56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority."
13. In Public Service Commission v. Mamta Bisht this Court while dealing with the concept of necessary parties and the effect of non- impleadment of such a party in the matter when the selection process is assailed observed thus: (SCC pp. 207-08, paras 9-10) "9. ... in Udit Narain Singh Malpaharia v. Board of Revenue, wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called ''CPC') provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Sarguja Transport Service v. STATE.)
10. In Prabodh Verma v. State of U.P. and Tridip Kumar Dingal v. State of W.B., it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties."
13. In J.S. Yadav v. State of Uttar Pradesh and another it has been held as follows:-
"31 No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice."
14. In the case at hand the dispute relates to promotion which will have impact on inter se seniority. The learned counsel for the respondents assiduously endeavoured to convince us that they are agitating the grievance with regard to their promotion and it has nothing to do with the persons junior to them who had been promoted. Despite the indefatigable effort, we are not persuaded to accept the aforesaid proponement, for once the respondents are promoted, the juniors who have been promoted earlier would become juniors in the promotional cadre, and they being not arrayed as parties in the lis, an adverse order cannot be passed against them as that would go against the basic tenet of the principles of natural justice. On this singular ground the directions issued by the writ court as well as the Division bench pertaining to grant of promotion to the respondents are quashed....."
14. When the facts of the instant case are tested on the touchstone of law laid down by the Hon'ble Supreme Court in the case of Ucchab Lal Chhanwal (supra), what clearly comes out is that though the petitioners are claiming their promotion on a Class-III post with effect from 28.2.2014 and the ground is that the juniors as indicated in paragraph 18 of the writ petition have been promoted with effect from the said date yet none of the juniors have been impleaded as a party, as such no relief can be granted to the petitioners for their promotion with effect from 28.2.2014 i.e. the date when their juniors have been promoted.
15. As regards the ground taken by the learned counsel for the petitioners that the petitioners were not given training, this Court had called for a personal affidavit of the respondent No.2 vide order dated 29.3.2019 in pursuance to which the personal affidavit has been filed. From a perusal of the said personal affidavit, it clearly comes out that the respondents were not obliged to have held a training for the petitioners in order to enable them to achieve the requisite speed in Hindi typing. It is expected that in case an employee is required to have a particular qualification then he has to achieve the same on his own and not depend upon the Department for such training in the absence of any rule or obligation on the part of the Department to hold such training. The Court is fully satisfied with the personal affidavit filed by the respondent No.2.
16. In view of the aforesaid discussions, in case the respondents have proceeded to assess the suitability of various persons even junior to the petitioners working on Class-III post and fulfilling the criteria as per the 2013 Rules read with 1994 Rules, there cannot be any claim of the petitioners for their promotion from the date of their juniors when admittedly they failed to appear in both the typing test. Thus the relief as prayed for by the petitioners in this regard is rejected.
17. However, the fact of the matter remains that the petitioners claim themselves to be eligible in terms of the 2013 Rules. The typing speed of the petitioners is to be assessed by the respondents under the 2013 Rules and thus in case the petitioners possess the requisite qualification and qualify the typing test, there does not appear to be any occasion for the respondents for not considering the case of the petitioners for promotion.
18. Accordingly, the writ petition is disposed of with a direction to the respondent No.2 to consider the case of the petitioners for promotion strictly in accordance with the 2013 Rules in case the petitioners are eligible and pass a reasoned and speaking order in this regard. Let such consideration be made within a period of three months from the date of receipt of a certified copy of this order.
Order Date :- 6.8.2019 Rakesh (Abdul Moin, J.)