Madhya Pradesh High Court
Smt. Anupama Tiwari vs The State Of Madhya Pradesh on 11 May, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH: JABALPUR
(Division Bench)
WP No. 14986/2017
Ashwani Kumar Mishra ..... PETITIONER
(Represented by Shri Suyash Mohan Guru, Advocate)
Versus
State of Madhya Pradesh and others ...... RESPONDENTS
(Represented by Shri Amit Seth, Government Advocate for the respondents/State.
Shri Rahul Diwakar, Advocate for respondent-Professional Examination Board.)
WITH
WP No. 1420/2018
Smt. Anupama Tiwari ..... PETITIONER
(Represented by Shri Anvesh Shrivastava, Advocate)
Versus
State of Madhya Pradesh and others ...... RESPONDENTS
(Represented by Shri Amit Seth, Government Advocate for the respondents/State.
Shri Rahul Diwakar, Advocate for respondent-Professional Examination Board.)
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, Judge
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Whether Approved for Reporting: Yes
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Law Laid Down:
Rule 10 the Madhya Pradesh Junior Service (Joint Qualifying) Examination
Rules, 2013 prescribes three conditions for appointment - firstly Higher Secondary,
secondly diploma certificate in computer application and thirdly a speed as typist
(Assistant Grade-III), Steno-typist or Stenographer as per the condition prescribed by the
General Administration Department. Therefore, condition of prescribing certificate from
Science and Technology Department does not contravene the statutory Rules, but is in
terms of the delegation granted to the General Administration Department.
Significant Paragraph Nos. : 20, 21, 24
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Heard/Reserved on : 07.05.2018
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ORDER
(Passed on this 11th day of May, 2018) Per : Hemant Gupta, Chief Justice:
This order shall decide number of writ Petitions and Writ Appeal No.146/2018, as the questions of fact and law involved in these petitions are identical. All the writ petitions pertain to appointment to the posts of Group-
IV particularly of the post of Stenographers. The appointments are to be made on the basis of common test to be conducted as contemplated under the Madhya Pradesh Junior Service (Joint Qualifying) Examination Rules, 2013 (hereinafter referred to as "the Rules").
2. The matters have been placed before this Bench in view of an order dated 02.11.2017 passed by the learned Single Bench of this Court finding a conflict between the two Single Bench judgments in W.P. No.6627/2017 (Alok Singh v. State of M.P. and others) decided by Gwalior Bench of this Court on 04.10.2017 and order dated 05.09.2017 passed by a learned Single Judge of Indore Bench of this Court in W.P. No.7880/2016 (Komal Patel v. General Administration Department and others) and another connected petitions.
3. For the sake of brevity the facts are taken from W.P. No.14986/2017 (Ashwani Kumar Mishra v. State of M.P. and others). The brief facts, leading to the present writ petition, are that an advertisement (Annexure P-5) was published by the Professional Examination Board, Bhopal (for short "the Board") to fill the various posts of Group-IV in various departments by 3 holding a common examination. 381 posts have been advertised for Assistant Grade-III and 127 posts for Stenographers. The petitioner is the aspirant for the post of Assistant Grade-III (Lower Division Clerk). The essential educational qualification for the post of AG Grade -III/ Stenographer, as sought in the said advertisement, is as under:-
"(1) The candidate must have passed Higher Secondary Examination (Old Scheme) or Higher Secondary School Certificate Examination (10+2);
(2) The candidate must have passed Shorthand (Stenography) examination at the speed of 100 words per minute from Madhya Pradesh Shorthand and Typing Examination Council/Board or equivalent recognized Institution or Diploma Certificate in Modern Office Management from a Polytechnic College recognized by AICTE or must have passed equivalent examination from any other Institution as prescribed by State of Madhya Pradesh.
(3) In terms of the Circular No. C 3-15/2014/1/3, Bhopal issued by General Administration Department, Madhya Pradesh on 26.02.2015 for the post of Subedar (Sub-Inspector) (Ministerial) Stenographer, the earlier Circular dated 01.07.2013 of the General Administration Department prescribing the qualification of Computer Typing instead of Hindi Typing Examination Certificate stands substituted to qualify Computer Proficiency Certification Test-CPCT conducted by Science and Technology Department instead of VYAPAM in respect of certification (Score Card) of Computer efficiency and Hindi Typing pass."
4. The challenge in the writ petition is to the condition of Computer Proficiency Certification Test (hereinafter referred to as "CPCT") on the ground that test is not contemplated under the Madhya Pradesh Junior Service (Joint Qualifying) Examination Rules, 2013 framed in terms of proviso to Article 309 of the Constitution of India . In fact, such condition is said to be contrary to the statutory Rules so framed. Therefore, the circular 4 issued by the State of Madhya Pradesh on 26.02.2015 supplants the statutory Rules and thus, such condition of qualifying CPCT is not legally permissible.
5. Learned counsel for the petitioner contends that it is only in cases where the Rules framed under Article 309 of the Constitution of India are silent on any particular point that the Government can fill up that gap and supplement the Rules by issuing administrative instructions and not otherwise. In support of such argument, learned counsel has placed reliance upon the decision of the Supreme Court reported as (1979) 2 SCC 150 (The District Registrar Palghat and others v. M.B. Koyakutty and others).
6. The Learned Counsel for the petitioner rely upon the decision of the Supreme Court reported as (2007) 2 SCC 491 (Punjab Water Supply & Sewerage Board v. Ranjodh Singh and others) to contend that the recruitment of employees is governed by statutory rules framed under Article 309 of the Constitution of India, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be illegal and without jurisdiction. The relevant extract of the said decision to which our attention has been invited, reads as under:-
"14. Once it is held that the terms and conditions of service including the recruitment of employees were to be governed either by the statutory rules or rules framed under the proviso to Article 309 of the Constitution of India, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be illegal and without jurisdiction. In A. Umarani vs. Registrar, Cooperative Societies & Ors. [(2004) 7 SCC 112], a Three Judge Bench of this Court has opined :
(SCC p. 126, para 45) 5 "45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
It was further held : (SCC pp. 126-27, para 49) "49. It is trite that appointments cannot be made on political considerations and in violation of the government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employees. (See Municipal Corpn., Bilaspur v. Veer Singh Rajput, (1998) 9 SCC 258)."
7. Learned counsel for the petitioner has vehemently argued that the executive orders cannot be made or given effect in violation of what is mandated by the Rules. In this context, he has invited our attention to the Supreme Court judgment reported as (2010) 12 SCC 538 (State of Madhya Pradesh and others v. Yogendra Shrivastava). The relevant extract from the judgment is reproduced as under:-
"12. The Rules made under Article 309 of the Constitution clearly provided that the concerned employees (medical officers) were entitled to NPA @ 25% of pay, in addition to the pay in the pay scale. In fact, it formed part of the pay scale. Consequently, whatever was the basic pay, 25% thereof had to be paid as NPA. Whenever the benefit of increments in the pay- scale, or revision in pay scale were extended, NPA also got correspondingly increased so that NPA always remained as one fourth of the basic pay. This is the interpretation that has been put forth by the Tribunal and upheld by the High Court and we find no reason to interfere with the same.
13. The contention that the executive orders issued from time to time or the appointment letters issued in accordance with such executive orders will prevail over the Rules cannot be accepted. When there is conflict between the Statutory Rules and executive orders, the statutory Rules will prevail (See : K. Dayananda Lal vs. State of Kerala - 1996 (9) SCC 728, T. N. Housing Board vs. N. Balasubramaniun - 2004 (6) SCC 85, State of Karnataka vs. K.G.S.D. Canteen Employees Welfare 6 Association - 2006 (1) SCC 567 and Punjab National Bank vs. Astamija Dash - 2008 (14) SCC 370). Executive orders cannot be made or given effect in violation of what is mandated by the Rules. If appointment letters provides for payment of NPA which is not in consonance with Rules, they can be corrected or set right by Tribunals/courts."
8. Reliance has also been placed upon the Supreme Court judgment reported as (2011) 11 SCC 136 (Ajaya Kumar Das vs. State of Orissa and others) to contend that whatever be the efficacy of the executive orders or circulars or instructions, the statutory Rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace orders or circulars or instructions nor can they replace the statutory Rules. The Rules made under Article 309 of the Constitution of India cannot be tinkered by the administrative instructions or circulars. The relevant extract of the said decision reads as under:-
"14. Neither the Circular dated June 18, 1982 nor the subsequent Circular dated March 19, 1983 modifying the earlier Circular dated June 18, 1982 can override the statutory provision contained in Rule 74(b) of the Code if it results in reduction of pay of the employee on promotion. That Orissa Service Code has been framed under Article 309 of the Constitution of India is not in dispute. It is well settled that Statutory Rules framed under Article 309 of the Constitution can be amended only by a Rule or Notification duly made under Article 309 and not otherwise. Whatever be the efficacy of the Executive Orders or Circulars or Instructions, Statutory Rules cannot be altered or amended by such Executive Orders or Circulars or Instructions nor can they replace the Statutory Rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative Instructions or Circulars."
9. Learned counsel for the petitioner has also placed reliance upon the Supreme Court judgment reported as (2016) 16 SCC 95 (Raminder Singh v. State of Punjab and another) wherein it is held that any prescription of a condition in advertisement which is de hors the Rules is bad in law. 7
10. On the other hand, learned counsel for the State argued that the Rules i.e. M.P. Junior Service (Joint Qualifying) Examination Rules, 2013 were amended on 16.02.2015 published in M.P. Gazette (Extraordinary). As per the amended condition, a candidate is required to have qualified Higher Secondary Examination (10+2) and should possess a diploma/certificate in Computer Application from a recognized University. There is additional requirement of possessing a proficiency certificate of Hindi Typing on computer at the speed of 30 words per minute from the Government recognized institute, whereas, in respect of Stenographer, the candidate must have passed English or Hindi Shorthand Examination at the speed of 100 words per minute from any recognized Institution or Council and for Steno- typist. A candidate must have a speed of 80 words per minute in English or Hindi shorthand as recognized by the General Administration Department from time to time. Therefore, there are two separate conditions i.e. one is of passing diploma or certificate in Computer Application from a recognized University and there is also a requirement of possessing proficiency certificate in Hindi Typing on computer at the speed of 30 words per minute from a Government recognized institute, whereas for Stenographer, the speed exhibited in English or Hindi shorthand is 100 words per minute and for Steno-typist the candidate must have speed of 80 words per minute in English or Hindi shorthand. Thus, it is contended that the petitioners are possessing diploma or certificate in Computer Application but to test the typing speed on computer, Computer Proficiency Certification Test has been introduced, which is in terms of the statutory Rules itself. 8
11. The posts for which the petitioners are the candidates are Group-IV posts as per the Rules. After the amendment in the Rules on 16.02.2015, the relevant conditions for joint examination as published in the official Gazette read as under:-
"Rule 4 - Recognition of Departmental Recruitment Rules. - All the provisions which have been added in these rules but not incorporated by all the departments in their respective departmental recruitment rules, shall be amended and be incorporated by all the departments in their respective recruitment rules and shall be deemed to have been amended accordingly till the same are not incorporated by the various departments in their respective recruitment rules.
7. Service Group. - The service group for different posts for which the examination shall be conducted are as given in the table below, namely:-
TABLE No. Service Group Cadre of the Post/Designation Class (1) (2) (3) (4) *** *** ***
4. Group "IV" Assistant Grade-3 Stenotypist/ Stenographer/ [Higher JuniorStenotypist/IT Operator/Computer Secondary Operator/Data Entry Operator/Tracer/ (10+2) Level] Patwari/Ameen/ Registration Clerk/ Electrician/Rokadia (Cashier)/Store Keeper/ III Record Clerk/Record Keeper/ Cashier/Private Secretary/Training Officers/ Industrial Training Institute and other equivalent Cadres/post.
*** *** ***
9. Conduct of the examination - (1) The examination shall be conducted as prescribed by the Board through offline or online system between the months of January to march every year.
(2) The examination for 4 groups mentioned in Rule 7 above shall be conducted separately for each cadre/post based on the curriculum finalized by the Board for different parts.
9(3) The plan for joint qualifying examination shall be as given in the table below, namely:-
S. Group Total Total Details of question papers
No. No. Marks
question
paper
(1) (2) (3) (4) (5)
*** *** ***
4. Group "IV" 01 100 General Knowledge
(Higher General Hindi
Secondary General English 100
(10+2) Level. General Mathematics Marks
General Aptitude
General Computer
Knowledge
*** *** ***
10. Conditions of Eligibility as Educational/Technical/Professional Qualifications. - (1) It shall be mandatory for the candidate to hold the educational/technical/professional qualification as per the provisions of Departmental Recruitment Rules of the demanding department, on the date of submission of his application. Such qualifications shall necessarily be mentioned in the Requisition Form of the department sent to the Board by the demanding department. The following educational qualification shall be mandatory for the examination of different groups of the posts, namely:-
*** *** ***
Hindi English
lewg pkj& ¼d½ vH;fFkZ;ksa us gk;j lsds.Mjh ijh{kk Group-IV - (a) Candidates mush have ¼10$2½ mRrh.kZ dh gks rFkk muds ikl ekU;rk izkIr passed Higher Secondary Examination and fo'ofo?kky; ls dEI;wVj ,Iyhds'ku esa must have diploma in Compute i=ksif/[email protected] i= gks] lkFk gh dEI;wVj ij 30 Application/Certificate from the recognized 'kCn izfr fefuV dh xfr ls 'kklu }kjk vf/kd`r University, with proficiency in Hindi laLFkk ls izkIr fgUnh esa Vk;fiax dh n{krk izek.k i= Typing on Computer at a speed of 30 words gks- vk'kqfyfid ds fy, vH;FkhZ us fdlh ekU;rk per minute; from any Institute recognized izkIr laLFkk vFkok ifj"kn~ ls vaxzsth vFkok fgUnh 'kh? kzys[ku ijh{kk 100 'kCn izfr fefuV dh xfr ls by the Government for Stenographer, the mRrh.kZ dh gks vkSj LVsuksVk;fiLV ds fy;s vH;FkhZ ds candidate must have passed English or ikl lkekU; iz'kklu foHkkx }kjk le;≤ ij Hindi Shorthand Examination at a speed of ;Fkk ekU; vaxzsth vFkok fgUnh 'kh?kzys[ku esa 80 'kCn 100 words per minute from any recognized 10 izfr fefuV dh xfr gks- Institution/Council; and for Steno-typist the candidate must have a speed in English or Hindi shorthand of 80 words per minute as recognized by the General Administration Department from time to time.
12. The English authoritative version of relevant Rule 10 of Group IV
(a) of the amended Rules is not the correct translation. In fact the use of word "with" is incorrect. He correct word should have been "and". Therefore, Hindi version of the said Rule has been quoted above whereas the correct translation of the said Hindi version of the Rule is being given as under:-
"Group. IV-(a). - The candidate must have passed Higher Secondary Examination (10+2) and should possess a Diploma/Certificate in Computer Application from a recognized University, and also possess Hindi Typing Proficiency Certificate on Computer at speed of 30 words per minute from the institute recognized by the Government. For Stenographer, the candidate must have passed English or Hindi Shorthand Examination at a speed of 100 words per minute from any recognized Institution/Council and for Steno-typist, the candidate must have speed of 80 words per minute in English or Hindi shorthand as recognized by the General Administration Department from time to time."
13. The General Administration Department has issued a circular No.C 3-15/2014/1/3 dated 26.02.2015. The said circular contemplates that in earlier circular dated 01.07.2013, the condition of Hindi Typing was done away with but instead, the Computer Typing with speed of 30 words per minute was made compulsory. The said condition has now been modified that the score card issued by the Science and Technology Department instead of Board (VYAPAM) in respect of Computer efficiency and Hindi Typing pass shall be accepted.
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14. Another Circular No.C 3-5/2016/1-3 was issued by the General Administration Department, State of Madhya Pradesh on 27.07.2016 (Annexure P-6 to W.P. No.1420/2018 (Smt. Anupama Tiwari v. State of M.P. & others) whereby one year's Computer Operator and Programming Assistant (COPA) certificate issued by National Council for Vocational Training (NCVT) or State Council for Vocational Training (SCVT) was found to satisfy the conditions enumerated at Serial No.2 and 3(5) of the Circular dated 01.07.2013. The petitioner in W.P. No.1420/2018 relies upon a certificate issued by National Council for Vocational Training granting the petitioner National Certificate in Modular Employable Skills (Annexure P-7 to the said writ petition). Thus, it is contended by the writ petitioner that she is eligible for appointment against Group-IV posts but her candidature has been rejected on the ground that she has not produced CPCT certificate.
15. Learned counsel for the petitioner referred to a Notification dated 3.2.2018 whereby the qualifications for the post of Assistant Grade-III were amended while amending the Madhya Pradesh Secretariat Service Recruitment Rules, 1976 (for short "1976 Rules"). As per said amendment, passing of computer proficiency certification test (CPCT) certificate (Score card) held by Science and Technology department with a speed of 20 words in Hindi and 30 words in English per minute is required apart from other qualifications in the said Rules. Similarly, the qualifications for the post of Steno-typist including the passing of Computer proficiency certification test (CPCT) certificate (Score card) held by Science and Technology department with a speed of 20 words in Hindi and 30 words in English per minute and Certificate of Hindi shorthand with a speed of 80 words per minute from 12 recognised Institution/Council. The qualifications for the post of Stenographer including passing of Computer proficiency certification test (CPCT) certificate (Score card) held by Science and Technology department with a speed of 20 words in Hindi and 30 words in English per minute and Certificate of Hindi shorthand with a speed of 100 words per minute from recognised Institution/Council.
16. In the light of the respective arguments, a short question to be examined is whether the condition of qualification of Computer Proficiency Certification Test violates the statutory Examination Rules or is supplementing the statutory Rules.
17. Indore Bench of this Court in Komal Patel (supra) held that executive instructions will not supersede the recruitment Rules framed by the State Government, therefore, the qualification prescribed under the recruitment Rules are the only qualifications required for a particular post. On the other hand, Gwalior Bench in Alok Singh (supra) held that the circular dated 26.02.2015 is valid as there is no prohibition in the Rules that the qualification as are recommended by the General Administration Department cannot be made applicable.
18. The learned Single Bench of this Court while hearing the present petition on 02.11.2017 referred the matter to Larger Bench finding conflict with the two Single Bench Judgments of this Court.
19. There is no dispute about the proposition as laid down by the Supreme Court in Ajaya Kumar Das (supra) that the statutory Rules cannot be altered or amended by the executive orders or circulars, as such orders or circulars cannot replace the statutory Rules. The Rules framed under the 13 proviso to Article 309 of the Constitution of India cannot be tinkered by circulars or instructions. However, the fact required to be examined is whether the condition prescribed of qualifying CPCT certificate contravenes the conditions of eligibility as mentioned in the Rules as amended on 16.02.2015. The condition when restated read as under -
"(1) a candidate must have passed Higher Secondary Examination (10+2);
(2) should possess a diploma/certificate in Computer Application from the recognized University (3) Candidate is also required to produce proficiency certificate of Hindi Typing on computer at the speed of 30 words per minute from the Government recognized institute;
For Stenographer, the candidate must have passed English or Hindi Shorthand Examination at the speed of 100 words per minute from any recognized Institution or Council;
For Steno-typist, the candidate must have speed of 80 words per minute in English or Hindi shorthand as recognized by the General Administration Department from time to time."
20. The proficiency certificate has distinct requisite parameters for appointment to the post of Assistant Grade-III, Steno-typist and Stenographers but, the proficiency certificate is required is that recognised by the General Administration Department from time to time. The Rules have contemplated speed of typing and/or shorthand required for different posts but the manner to determine the speed was left to be decided by the determined by the General Administration department. Therefore, the Circular of General Administration Department dated 26.2.2015 that CPCT certificate is required in the manner contemplated is in fact in terms of the authority granted to the General Administration Department in the Rules. 14
21. The possession of diploma/certificate in Computer Application from a recognized University does not make the petitioners eligible for appointment to Group-IV posts. There is third condition as well that is required to be satisfied i.e. for Lower Division Clerk/Typist, Hindi Typing with speed of 30 words per minute; for Stenographer, with speed of 100 words per minute and for Steno-typist, with speed of 80 words per minute as fixed by the General Administration Department from time to time. Therefore, the condition of speed has been fixed in the statutory Rules, what was left to be determined is that the Institution which can be recognized for the purposes of eligibility under the Rules. Thus, the circular dated 26.02.2015 is in terms of the statutory Rules framed and does not supplant any condition of the statutory Rules which will render the circular dated 26.02.2015 as violative of the statutory Rules. As such the condition of Computer Proficiency Certification Test is in terms of the Rules as the Institute to determine the speed prescribed n the Rules is in fact possessed by the candidates.
22. The certificate produced by the petitioner in W.P. No.1420/2018 (supra) issued by the National Council for Vocational Training is not in respect of speed in either typing, shorthand or in the field of steno-typist. The certificate obtained by the petitioner is to the effect that the candidate can write, edit and print documents using MS-Word and Excel, do tabulation of data and prepare presentations using MS Power Point and use Internet and E-mail. There is no certificate of the speed either in Hindi with 30 words per minute speed; Shorthand - Hindi or English at speed of 100 words per 15 minute or speed of 80 words per minute for Steno-typist in English or Hindi shorthand.
23. Similarly, in W.P. No.14986/2017 (supra), the petitioner has produced a certificate issued by Shorthand and Typing Examination Council, Directorate of Public Instructions, Madhya Pradesh but the certificate is that he has qualified Hindi Typing Examination with speed of 25 words per minute.
24. A candidate has to satisfy the condition of speed as mentioned in Clause 10 (a) of the Rules as reproduced above. But the determination of such speed is dependent upon a certificate obtained from an Institute recognized from the General Administration Department. Therefore, the condition of certificate from Science and Technology Department is not a condition which contravenes the statutory Rules but, is in terms of the delegation granted to the General Administration Department.
25. The judgment of Indore Bench of this Court in Komal Patel (supra) is not the correct enunciation of law. The judgment of Gwalior Bench in Alok Singh (supra) is based upon the condition in the circular dated 26.02.2015 which was treated to be part of the Rules, which is also not correct reading of the Rules.
26. The petitioners have referred to the Madhya Pradesh Secretariat Service Recruitment Rules, 1976 as amended on 3.2.2018 in respect of requirement of speed in Hindi typing, shorthand for the post of Assistant Grade-III, Steno-typist and for Stenographer.
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27. If the appointments are required to be made to the post governed by 1976 Rules, it is open to the appointing authority under the said Rules to make appointments to the post of Assistant Grade-III, Steno-typist and Stenographers in the interest of administration as per the amended Rules. But, the basic argument that the condition of computer proficiency test contravenes the Rules is not tenable.
28. In view of the statutory Rules extracted above and the interpretation of such Rules, we find that the condition of Computer Proficiency Certification Test does not contravene the statutory Rules and is a valid condition.
29. The question of law being answered, the writ petitions be posted for hearing as per roster.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
S/Anchal
Digitally signed by
ANCHAL KHARE
Date: 2018.05.11
12:58:01 +05'30'