Punjab-Haryana High Court
Balwant Singh Clerk vs State Of Haryana on 15 February, 2001
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. Balwant Singh petitioner is a Clerk in the office of Deputy Commissioner, Fate-
habad. By virtue of the present writ petition, he seeks quashing of the promotion of private respondents (respondents No. 3 to 7) and to consider the claim of the petitioner for promotion as Assistant'from the date his juniors have been promoted with all consequential benefits.
2. The facts alleged are that the petitioner was appointed as a Clerk on 15.2.1990. He joined his duty on 26.2.1990. As per Haryana Revenue Department District Subordinate (Group-C) Service Rules, 1988 (for short "the Rules"), for promotion to the post of Assistant, the only requirement is that a Clerk should have three years experience in the office of the Deputy Commissioner. As per seniority list, the name of the petitioner figures at serial No. 17 while Gulab Singh, Rajender Singh, Om Parkash, Bhuwnesh Kumar and Sewa Singh have been shown at serial No. 18 onwards. The private respondents, referred to above, have since been promoted as Assistant. The claim of the petitioner is stated to have been ignored on the ground that he has not passed the typing test. As per petitioner, the said criteria so adopted is illegal because he cannot be ignored to be considered for the promotion post when he fulfills the requirements of the statutory rules. When his juniors have been promoted his claim could not have been ignored.
3. In the written reply filed on behalf of respondents No. 1 and 2, it has been pleaded that in the affidavit filed by the petitioner he has made a declaration that three more juniors have since been promoted but they have not been impleaded as parties. It is admitted that the petitioner joined as a Clerk but his locus standi to file the petition is denied. According to the said respondents, the petitioner is required to appear and qualify the Hindi/English type test as per condition No. 7 in the appointment letter. He was not entitled to any increment. He cannot, thus, claim a right of promotion because he has not passed the type test. Furthermore, it has been pointed out that the qualification for passing the type test is as per the instructions of the Chief Secretary dated 27.3.1974 followed by subsequent instructions dated 22.10.1997. As per the said instructions, it is necessary that the Assistant must pass the typing test. It is on this ground that respondents No. 1 and 2 justify the order ignoring the petitioner's claim for promotion.
4. As is apparent from the nature of the pleadings of the parties, the learned Counsel urged that the only qualification prescribed for the promotion as Assistant is that a clerk or a Typist should have three years experience in the office of the Deputy Commissioner. The petitioner fulfills the said qualification and, therefore, his juniors cannot steal a march over the petitioner. The learned Counsel in support of his contention strongly relies upon the decision of this Court in the case of Hardev Singh and others v. State of Haryana and others, 1999(3) SCT 278 (P&H)(DB) : 1999(1) Recent Services Judgements 444, and Naresh Kumar and others v. State of Haryana and others, 1998(2) SCT 368 (P&H): Civil Writ Petition No. 791 of 1998 decided on 24.8.1999. Against this, the respondents argument has been that it was necessary that the petitioner should pass type test before he could earn increment. During the past 10 years, he had not been able to earn any increment and, therefore, he cannot be promoted as Assistant.
5. It is admitted that the private respondents were junior to the petitioner. As per appointment letter copy of which is Annexure P-1, the appointment of the petitioner was made on the recommendations of the Subordinate Services Selection Board, Haryana. It was further made clear that the appointment of the petitioner shall be governed by the Civil Service Regulations and he will have to appear and qualify the Hindi/English Typing Test, otherwise he will not be entitled to any increment. The relevant clauses pertaining to what has been referred to above read as under :-
"(d) You will be governed by the Civil Service Regulations, instructions issued by the Government from time to time and District Subordinate Services Regulations, 1942. Disposal of such cases not enumerated in this letter shall be dealt with in accordance with the orders and instructions issued by the Government from time to time."
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7. After assuming duties you will have to appear and qualify the Hindi/English typing test at a speed of 25/30 words per minute respectively. You will not be entitled to further increment until you qualify the typing test. After you qualify the typing test you will be given increment from the due date but you will not be entitled for the arrears thereto."
6. At this stage, it would be appropriate further to take a note of the Recruitment Rules i.e., the Haryana Revenue Department District Subordinate (Group-C) Services Rules, 1988. The method of recruitment in the case of the Assistant is as under :-
"Rule 9. Method of Recruitment. - (1) Recruitment to any post in the service shall be made :
(g) In the case of Assistant :
By promotion from amongst the Clerk/Steno Typist working in the Deputy Commissioner's office.
Unless otherwise provided all appointments by promotion shall be made on the basis of seniority-cum-merit and no person shall be entitled to promotion on the basis of seniority alone as a matter of right.
Appendix B Sr. No. Name of the post Academic qualification and experience, if any, for appointment other than by direct recruitment.
5.
Assistant Three years experience as Clerk/Steno Typist in the Deputy Commissioner's office.
A perusal of the aforesaid clearly shows that it was one of the conditions of service is that the petitioner had to pass the type test, otherwise he will not earn any increment and further that he will be governed by the Civil Service Regulations and instructions issued from time to time. The instructions as such have been issued and the latest instructions in this regard have been mentioned in the letter from the Chief Secretary to Government, Haryana, to all the Heads of Department dated 22.10.1997. The relevant portion of the letter reads as under :
"I am directed to refer to the subject noted above and to say that instances have come to the notice of Government that clerks who were promoted as Assistant or on some other higher post without passing the prescribed departmental type test which is an essential qualification for the post of Clerk in terms of Service Rule applicable to them or Government instructions No. 1411-2GSI & 74/6961, dated 27.3.1974, as the case may be, create in- efficiency in the office work. Over the years there has been utter laxity in the observance of rules regarding promotion to higher posts from the post of Clerk. The essential pre-requisite of passing a test in typewriting has been given to go-bye. This has resulted in creeping inefficiency and delay in disposal of work."
7. Reliance on behalf of the petitioner on the decision in the case of Hardev Singh and others (supra) is totally misplaced. In the said case, certain persons had been so promoted as Assistants. Thereafter, the government had demoted them. This court held that the instructions dated 22.10.1997 cannot have retrospective operation and, in any case, cannot be applied to persons who had already been promoted to the rank of Assistants. It was held as under :-
"After hearing learned Counsel for the parties, we find force in the submission of the learned Counsel for the petitioners. The 1974 rules, which were amended on November 3, 1981, could not be made applicable to petitioners No. 1 and 3, who were promoted as Clerks prior to the amendment of the Rules i.e. November 3, 1981. Such condition of passing the type test could not be imposed on the Clerks who already stood appointed. So far as the other petitioners are concerned, the only condition that was put in their promotion orders was that they would not be given increments till they pass the type test after one year of their promotion. The petitioners got promotion subject to that condition. It will be too late in the day now to say that their promotions were not in conformity with the Rules. The condition of type test will be deemed to have been relaxed in the case of the petitioners under Rule 18 of the Rules. Apart from that, under Rule 9(d) of the Rules, there is no condition that an Assistant must pass the type test. The only condition envisaged is that a person should have three years service as laid down in Rule 9(d) of the Rules."
It is clear from the nature of the controversy that this Court felt that the instructions cannot be made retro-
spective in operation and, in any case, they will be deemed to have been relaxed. The facts were totally different in the case of Hardev Singh and others (supra) and it will have little application in the present case.
8. In the case of Naresh Kumar and others (supra) almost identical was the position. Herein also, certain person had been promoted as Assistants. It was held that the instructions dated 22.10.1997 run counter to the statutory rules for the post of Assistant. The person so promoted, therefore, was held not entitled to be reverted.
9. Reverting back to the facts of the present case, it is clear that it was one of the conditions imposed in the appointment letter that the petitioner has to pass the type test, otherwise he will not be entitled to any increment. It was further one of the conditions imposed that the petitioner will be governed by the Civil Service Regulations and the instructions issued from time to time. The instructions issued, thus, would be part of the service contract. The petitioner has not challenged this clause in the appointment letter and, therefore, respondent Nos. 1 and 2 had a right to consider and adjudge as to whether the petitioner should be promoted or not. After all, efficiency of a person in this regard cannot be ignored. These are certain factors which are always taken note of before a person can be promoted.
10. For these reasons, we dispose of this writ petition with a direction that even if the petitioner is eligible to be considered for the post of Assistant, respondents No. 1 and 2 would take all the relevant factors note of before taking a decision to promote him includ-ing that he has not passed the type test. The parties are left to bear their own costs.
11. Order accordingly.