Punjab-Haryana High Court
Om Parkash vs State Of Haryana And Anr on 11 February, 2015
Author: Deepak Sibal
Bench: Satish Kumar Mittal, Deepak Sibal
CWP No.13682 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.13682 of 2012
Date of decision: 11.02.2015
Om Parkash .....Petitioner
versus
State of Haryana and another ....Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE DEEPAK SIBAL
Present: Ms. Pratibha Yadav, Advocate
for the petitioner.
Mr. Sudeep Mahajan, Addl.A.G. Haryana.
Deepak Sibal, J.
The main challenge in the present writ petition is to the order dated 17.07.2012 (Annexure P-9) through which the petitioner was ordered to be reverted from the post of Clerk to the post of Peon. The ground on which the petitioner was sought to be reverted was that as per the Haryana Financial Commissioner's Office (Group-C) Service Rules, 1998 (hereinafter referred to as the 'Rules'), he was not matriculate with English and that being the requirement under the Rules, the order of reversion was passed.
The facts in brief, which are not in dispute are that the petitioner joined as a Peon in the Office of the Financial Commissioner Haryana on 01.12.1997. He had passed his Matriculation examination on 12.06.1989 and has also done training in the trade of Steno in Hindi. On 01.02.2010, the petitioner was promoted to the post of Clerk, subject to the approval of Haryana Staff Selection Commission, Panchkula. As his promotion was subject to the approval of the JYOTI SHARMA 2015.02.24 14:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13682 of 2012 2 Haryana Staff Selection Commission, on 20.10.2010, the Commission recommended the appointment of other employees but the promotion of the petitioner was not approved.
Resultantly, after issuance of show-cause notice and consideration of the reply filed by the petitioner, the order of reversion dated 17.07.2012 was passed.
It is against this order of reversion that the petitioner has approached this Court through the present petition.
We have heard learned counsel for the parties and with their able assistance, have gone through the record of the case.
Before we proceed further with the matter, it would be appropriate for us to reproduce the relevant Rule under which the petitioner's case was considered and on the basis of which the reversion order was passed.
"7. No person shall be appointed to any post in the Service, unless he is in possession of qualifications and experience specified in column 3 of Appendix B to these rules in the case of direct recruitment and those specified in column 4 of the aforesaid Appendix in the case of persons appointed otherwise than by direct recruitment:
Provided that in the case of appointment by direct recruitment, the qualifications regarding experience shall be relaxable to the extent of 50% at the discretion of the Commission in case sufficient number of Candidates belonging to Scheduled Castes, Backward Classes, Ex-servicemen and Physically Handicapped categories possessing the requisite experience, are not available to fill up the vacancies reserved for them, after recording reasons for so doing in writing.
JYOTI SHARMA 2015.02.24 14:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13682 of 2012 3 APPENDIX B (See Rule 7) Sr. Designation Academic qualifications and Academic qualifications No. of posts experience, if any, for direct and experience, if any, recruitment for appointment other than by direct recruitment 1 to XX XX XX 14. 15. Clerk (i) Matric Ist Division/Higher (i) Matric with English Secondary Second and Hindi; Division/Intermediate Second Division/10+2 (Vocational) (ii) Should pass Second Division/Graduate or departmental written test equivalent; in Hindi and English languages upto Matric (ii) Knowledge of Hindi upto Standard; Matric Standard; (iii) 5 years experience as (iii) should pass the prescribed Restorer, Duplicating test in Hindi or English typing Machine Operator etc. or at the speed of 25/30 words per on any Group D post i.e. minute respectively within a Peon, Chowkidar or period of one year from the Frash etc. or combined; date of appointment, failing which he would not be allowed (iv) Should pass the annual increment(s) till he prescribed test in Hindi passes the prescribed typing or English typing at the
test. On passing the typing test, speed of 25/30 words per he will be allowed due minute respectively increment(s) without arrears. within a period of one year from the date of appointment, failing which he would not be allowed annual increment(s) till he passes the prescribed typing test. On passing the typing test, he will be allowed due increment(s) without arrears;
By transfer or deputation:-
(i) Matric Ist
Division/Higher
Secondary Second
Division/Intermediate
Second Division/10+2
JYOTI SHARMA
2015.02.24 14:09
I attest to the accuracy and
authenticity of this document
Chandigarh
CWP No.13682 of 2012 4
Sr. Designation Academic qualifications and Academic qualifications
No. of posts experience, if any, for direct and experience, if any,
recruitment for appointment other
than by direct
recruitment
(Vocational) Second
Division/Graduate or
equivalent;
(For Ex-servicemen,
Matric or 15 years
service in the Army with
Army Certificate of Class
I;
(ii) Knowledge of Hindi
up to Matric standard;
(iii) Should pass the
prescribed test in Hindi
or English typing at the
speed of 25/30 words per
minute respectively
within a period of one
year from the date
ofappointment, failing
which he would not be
allowed annual
increment(s) till he
passes the prescribed
typing test. On passing
the typing test, he will be
allowed due increment(s)
without arrears;
(iv) 3 years experience as
Clerk.
From the above reproduced Rule and Appendix, it is clear that for promotion to the post of Clerk, an employee who has passed Matric with English and Hindi is eligible. It is not in dispute that the petitioner has passed his Matriculation examination in which he studied the subjects of English and Hindi. Once the petitioner has been declared to have passed the Matriculation examination with the subjects of English and Hindi, according to us, the requirement under the JYOTI SHARMA 2015.02.24 14:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13682 of 2012 5 Rule for the purpose of promotion is satisfied. The certificate given by the Board of School Education Haryana (Annexure P-1) clearly shows that the petitioner had passed his matriculation examination in Second Division. This was irrespective of the fact that he had not obtained pass marks in the subject of English. The requirement of the Rule is only that an employee should have passed his Matriculation examination and while doing his Matric, English and Hindi should be there as two subjects. Requiring, the petitioner to have passed in the subject of English, in addition to passing the Matriculation examination, would be adding words to the Rule, which as per the settled law of statutory interpretation is not permissible, particularly when the Rule in unambiguous.
The action of the respondents in reverting the petitioner is also discriminatory. The petitioner had given several examples wherein the respondents had promoted several Class-IV employees to the post of Clerk who had also while failing in the subject of English had passed the Matriculation examination. The petitioner had specifically pleaded the case of one Raj Kumar, who was promoted to the post of a Clerk on adhoc basis and then regularized in the year 2000. He had not passed English but otherwise, had passed his Matriculation examination like the petitioner. This fact has been admitted by the respondent-State. In fact, counsel appearing on behalf of the State admitted that aforesaid Raj Kumar was promoted on officiating basis on 9.10.2000 and only after getting advice from the Chief Secretary to Government, Haryana, the service of the said Raj Kumar were regularized as a Clerk.
Similarly, the petitioner has pleaded that one Durga Dass, who was a Chowkidar was promoted to the post of Clerk on 16.10.2000. He also was identically situated like the petitioner. So far as the, Durga Dass's case is concerned, the same has also been admitted by the respondent-State. JYOTI SHARMA 2015.02.24 14:09 I attest to the accuracy and authenticity of this document Chandigarh CWP No.13682 of 2012 6
The record reveals that another employee namely Rajesh Kumar Jaspal was promoted as a Clerk on 01.12.2009. He had failed in English but had passed his Matriculation examination. In his case, the Staff Selection Commission, Haryana, granted approval on the ground that he had passed 10+2 examination in which English was also a subject. This fact has also been admitted by the respondent-State.
In view of the above facts, we have no doubt in our minds that action of the State in reverting the petitioner is grossly discriminatory. It is, thus, violative of the Articles 14 and 16 of the Constitution of the India.
It may further be noticed that the petitioner joined as a Peon on 1.12.1997 and after putting in more than 12 years of unblemished service, he was promoted to the post of Clerk. His reversion order was stayed by this Court at the time of preliminary hearing. Moreover, as on date, the petitioner has served the department as a Clerk for over five years. We are informed that the service record of the petitioner is unblemished.
In view of the above, the present writ petition is allowed. Resultantly, the impugned order dated 17.07.2012 (Annexure P-9) is set aside with all consequential benefits.
(SATISH KUMAR MITTAL) (DEEPAK SIBAL)
JUDGE JUDGE
11.02.2015
Jyoti 1
JYOTI SHARMA
2015.02.24 14:09
I attest to the accuracy and
authenticity of this document
Chandigarh