Punjab-Haryana High Court
Malkiat Singh And Ors. vs Panjab University And Ors. on 23 February, 2007
Author: S.S. Saron
Bench: J.S. Khehar, S.S. Saron
JUDGMENT S.S. Saron, J.
1. Malkiat Singh and others - petitioners are working on Class 'C' posts in the respondent-Panjab University, Chandigarh (University - for short). Their writ petition seeking promotion to Class 'B' posts by way of ad hoc arrangements was dismissed by this Court vide order dated 22.5.2003. The primary grievance of the petitioners in the writ petition was that Class 'C' employees of the University had raised a demand for dispensing with the condition of passing the typewriting test (English) with a minimum speed of 30 w.p.m. as provided by Rule 3(c) of the University Non-Teaching Employees (Terms and Conditions of Service) Rules, 1971 as contained in the Panjab University Calendar Volume - II (Rules - for short). A committee had been constituted by the University to look into the demands of Class 'C' employees. In one of its meetings held on 16.9.1999 the committee proposed an amendment to the aforesaid Rule 3(c) by making an ad hoc arrangement within the quota of Class 'C' employees for consideration for promotion to Class 'B' posts on the basis of seniority provided that the incumbent was atleast a matriculate and had five years' experience in the University. This was with the rider that in case a person appointed on ad hoc basis as Clerk does not qualify the typewriting test (English) within one year from the date of his/her appointment, he/she will be reverted to his/her substantive post and the person selected would join in his/her place. Against the quota of 20% for the in-service Class 'C' posts for promotion as Clerks, the persons mentioned at Sr Nos. 1 to 18 of the seniority list dated 30.8.2001 (Annexure P2) were promoted on ad hoc basis. The petitioners in the writ petition were at Sr Nos. 19 to 22 and 25 to 29 in the said seniority list. It was claimed by the petitioners that they were also liable to be promoted on ad hoc basis in a similar manner as those who were at Sr Nos. 1 to 18 in the aforesaid seniority list had been promoted without the requirement of passing the typewriting test (English). The action of the University in holding the test without first promoting the petitioners was assailed. This Court held that the requirement of passing the typewriting test (English) with a minimum speed of 30 w.p.m. was dispensed with only as an ad hoc arrangement. However, the same continued to be there for the regular process of consideration for appointment as Clerks from amongst Class 'C' employees of the University. Insofar as those candidates who had been promoted from Sr Nos. 1 to 18 out of the seniority list dated 30.8.2001 (Annexure P2), it was stated by the learned Counsel for the University that as soon as regular appointments of Clerks are made from the 20% in-service Class 'C' quota those persons who were appointed as Clerks from the said quota by way of ad hoc arrangement and do not qualify the type test, shall be reverted to their substantive posts.
2. The review applicants are the persons who were promoted on ad hoc basis at Sr No. 1 to 18 of the seniority list dated 30.8.2001 (Annexure P2). It is stated that the judgment passed by this Court on 22.5.2003 is liable to be recalled to the extent the review applicants are being reverted on the basis of the statement made by the learned Counsel for the respondent-University to the effect that as soon as the regular appointments of Clerks are made from the 20% in service Class 'C' quota, these persons who were appointed as Clerks from the said quota by way of ad hoc arrangement and do not qualify the type test etc. shall be reverted to their substantive posts. The said statement it is stated has been made by the counsel for the University at the back of the applicants. Therefore, to the said extent the judgment has proceeded on the premise that those who were appointed on temporary basis under Rule 3(c) have to be reverted if they do not qualify the Typewriting/Computer Data Entry Test within one year of their promotion. On notice of the review application, a reply has been filed on behalf of the University.
3. Mr RD Bawa, Advocate, learned Counsel for the review applicants has submitted that Class - 'C' employees of the Univesity could be promoted against the 20% quota provided that they qualify the Typewriting Test (English) with the minimum speed of 30 w.p.m. or Data Entry (Computer Proficiency including Word Processing) Test. However, as per the decision of the University, a temporary arrangement had been made that they can be promoted to the abovesaid posts of Clerks within their 20% quota if they have the requisite qualification of Matriculate and 5 years experience of service in the University. In terms of the said temporary arrangement, the review applicants were not required to qualify the Typewriting Test. This decision to make promotions on temporary basis against the 20% quota of in service employees without qualifying the test was taken in a meeting of the Committee dated 16.9.1999. It is submitted that though it was provided that the Class 'C' employees could be promoted to Class 'B' posts as a temporary arrangement, however, it was also provided that the persons so appointed as Clerks on temporary basis if they do not qualify the Typewriting Test (English) within one year, they would be reverted to their substantive posts. The said proposal, it is stated, was considered in a meeting held on 26.7.2000 and Clause (ii) which provided for qualifying the Typewriting Test (English) was dropped. Therefore, it is contended that the review applicants are entitled to continue on the posts of Clerks de hors the statement made by the counsel for the respondent-University.
4. In response, Mr Anupam Gupta, Advocate, learned Counsel appearing for the University has submitted that no ground is made out for reviewing the judgment passed by this Court on 22.5.2003. It is submitted that in terms of the seniority list of in-service Class 'C' employees, 19 persons were appointed as officiating Clerks by way of ad hoc arrangement to fill in the prescribed 20% quota of Class 'C' employees upto 31.12.2002. The said appointment letters inter alia provided that the appointment was on the condition that the promoted employee would have to qualify the Typewriting Test (English) with a minimum speed of 30 w.p.m. or Data Entry (Computer Proficiency) Test. Their services would be regularized only after they qualify the prescribed test and the seniority would be fixed accordingly. Accordingly, vide circular dated 21.1.2003, it was proposed to conduct the Typewriting Test (English) with the minimum speed of 30 w.p.m. and Data Entry Test (Computer Proficiency including Word Processing) Test for consideration for appointment to the posts of Clerks from the in-service Class 'C' employees after obtaining applications afresh from all the eligible Class 'C' employees. It is submitted that the persons who had not qualified the prescribed test were asked to appear before the Selection Committee constituted by the Vice Chancellor for interview. The recommendations of the Selection Committee were approved by the Vice Chancellor who is the competent appointing authority for the posts of Clerks. In terms of the judgment, the review of which is sought, the Vice Chancellor reverted the officiating Clerks who were promoted from the in service Class 'C' employees against 20% reserved quota under Rule 3(c). The review applicants even after being granted an opportunity to pass the necessary test, except for one either failed to pass the test or did not avail of the opportunity to appear in the requisite test even on the second occasion for which again an opportunity was given. Therefore, it is submitted that the review applicants have no right whatsoever to seek review of the judgment passed by this Court. We have given our thoughtful consideration to the matter. The primary contention that has been raised by the learned Counsel for the review applicants is that the review applicants are entitled to continue on the Class 'B' posts of Clerks even though they do not qualify the necessary Typewriting Test (English) or the Data Entry Test for appointment to the posts of Clerks from amongst the in-service Class 'C' employees. Rule 3(c) reads as under:
3. xxx xxx Provided that for recruitment of Clerks, the percentage of reservation shall be available to the following categories of candidates:
(a) xxx xxx
(b) xxx xxx
(c) In-service Class C employees of the University who are matriculates and have a minimum of 5 years service in the University provided they qualify the type writing test (English) with a minimum speed of 30 w.p.m. or Data Entry (Computer Proficiency including Word Processing) Test.
However, ad hoc arrangement within the quota of Class 'C' employees for the post of Clerks be made on the basis of seniority (i.e. the senior most person in the category of all Class 'C' employees) provided the incumbent is atleast Matriculate and has five years experience in the University.
5. It is, therefore, apparent from a perusal of the Rules that passing of the necessary Typewriting Test (English) with a minimum speed of 30 w.p.m. or Data Entry (Computer Proficiency including Word Processing) Test is an essential condition and requirement of the Rules. In any case, as per the seniority list of in-service Class 'C' employees as prepared in response to the afore-mentioned circular dated 20.4.2001 which was approved by the Vice Chancellor, 19 persons were offered appointment as officiating Clerks by way of ad hoc arrangement to fill in the prescribed 20% quota of Class 'C' employees upto 31.12.2002. The appointment letters issued to these employees inter alia also provided, "that this appointment is on the condition that you will have to qualify the type-writing test (English) with a minimum speed of 30 w.p.m. or Data Entry (Computer Proficiency) test and your service will be regularized only after you qualify the prescribed test and the seniority will be fixed accordingly". Accordingly, vide circular dated 21.1.2003, it was proposed to conduct the aforesaid Typewriting Test (English) and Data Entry Test for the appointment to the posts of Clerks from amongst the in-service Class 'C' employees after inviting applications afresh from eligible Class 'C' employees. The 19 officiating Clerks who were appointed on seniority basis as an ad hoc arrangement were also asked to appear along with other eligible in-service Class - 'C' employees vide circular dated 29.1.2003. The Typewriting Test was held on 24.5.2003 and the Data Entry Test was held on 23.5.2003. This was held after the passing of the order by this Court on 22.5.2003, the concluding part of which reads as under:
...As already noticed the condition of not appearing for the test was dispensed with for the Class - 'C' employees of the University who were promoted as Clerks by way of ad hoc arrangement on the basis of seniority. However, the condition of qualifying the test is applicable for the purpose of making regular recruitments of Clerks from amongst the 20% quota of in service Class C employees, which appointments are to be made on the basis of selection and not seniority as in the case of ad hoc arrangement. The process of consideration for appointment as Clerks in terms of circular dated 21.1.2003 is for regular appointment. In the circumstances the test is being held in accordance with the statutory Rules and there is no infraction of the same. It is well settled that chances of promotion are not conditions of service and are defeasible. The Class C employees of the University are only entitled for consideration for promotion in accordance with the statutory Rules and outside the same they have no right.
Another aspect that requires consideration is as to whether there has been any discrimination or arbitrariness is not promoting the petitioners in a similar manner as the person in the seniority list dated 30.8.2001 (Annexure P2) have been promoted. In this regard Sh Anupam Gupta, Advocate, learned Counsel appearing for the University has made statement at the bar which is to the effect that as soon as the regular appointment of Clerks are made from the 20% in- service Class C quota those persons who were appointed as Clerks from the said quota by way of ad hoc arrangement and do not qualify the type test etc. shall be reverted to their substantive posts. Therefore, the grievance of the petitioners that they are liable to be promoted in a similar manner as the persons at Sr No. 1 to 18 in the seniority list dated 30.8.2001 (Annexure P2) have been promoted or that the University has discriminated against them, is without any merit. No fault can be found in the action o the University in conducting the test in accordance with the Rule 3(c) of Rules for consideration for appointment in the service Class C employees of the University as Clerks.
For the aforesaid reasons there is no merit in this petitionand the same is accordingly dismissed. No cost.
6. It is in pursuance of the abovesaid order that the Vice Chancellor reverted the officiating Clerks who were promoted from the in service Class 'C' employees against the 20% reserved quota under Rule 3(c) of the Rules to their substantive posts in the Class 'C' cadre as they could not qualify the prescribed test w.e.f. the date of the issue of the order dated 19.1.2004. This matter was considered by the Senate of the University in its meeting held on 24.1.2004 vide para 53 of its minutes. It was resolved that the matter regarding reversion of 19 persons from the posts of Clerks to Peons be referred for consideration by a Committee to be constituted by the Vice Chancellor. The Vice Chancellor constituted a Committee under the Chairmanship of Hon'ble Mr Justice SK Jain (Retd). The Committee met on 25.2.2004 to consider the matter. In the deliberations of the Committee, it was resolved that no ad hoc appointment be made and the requisite test as prescribed by Rule 3(c) be held in the first week of June 2004 for Class 'C' employees as per the Rules and these employees be asked to take the test. Further, the list of the successful employees be prepared and appointments be made in accordance with the seniority list. In accordance with the recommendations of the Committee which were approved by the Vice Chancellor, a circular dated 8.3.2004 with the proforma to be filled by the Class 'C' employees was circulated for filling up the posts of Clerks on regular basis against 20% quota from the in-service Class 'C' employees.
7. The circular was also sent to the 19 Class 'C' employees who were allowed to officiate as ad hoc Clerks and were later reverted as they could not qualify the test. The review applicants who applied for the test, except for one, either did not qualify the test or failed to avail the opportunity. Thus, only one out of 18 applicants who applied for review, qualified the test in the special second opportunity afforded to them along with other candidates. Having failed to qualify or avail of the opportunity to appear even on second occasion, it cannot be said that they have not been granted full and adequate opportunity for consideration for promotion to the posts of Clerks. The statutory Rules are to be applied for promotion for filling up the posts. The said statutory Rules cannot be circumvented by any administrative decisions and the review applicants having failed to qualify the requisite test provided by the Rules, cannot be said to be entitled to continue to hold the posts of Clerks by way of ad hoc arrangement. Besides, the appointment letter for appointment on ad hoc basis also provided that their appointment is on the condition that they would qualify the necessary typewriting test and they would be regularized only after qualifying the typewriting test and their seniority would be fixed accordingly. The order of this Court having been implemented by the University and also an opportunity for passing the test having been given to the petitioner, would not warrant any review of the order that has been passed. The statement made by the learned Counsel for the University was to the effect that as and when regular appointments for Clerks are made from the 20% in service Class 'C' quota, those persons who were appointed as Clerks from the said quota by way of ad hoc arrangement and do not qualify the type test etc., shall be reverted to their substantive posts. The said statement was in consonance with the statutory Rules and the letter of appointment of the review applicants.
8. For the foregoing reasons, there is no merit in this review application and the same is accordingly dismissed.