Punjab-Haryana High Court
Jai Kanwar vs State Of Haryana And Others on 15 January, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.21630 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: JANUARY 15, 2014
Jai Kanwar
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. Vivek Singla, Advocate,
for the petitioner.
Mr. Sunil Nehra, Sr.DAG, Haryana,
for the State.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court, impugning the clause incorporated in the order dated 4.11.2010, Annexure P-3, where it is mentioned that failure to qualify the type test in the prescribed speed as per the condition imposed in the appointment letter of the petitioner, would render him ineligible for consideration for promotion on the post of Assistant. As per the petitioner, the said condition is unsustainable in the light of the fact that the statutory rules do not provide for passing of such a type test either for the post of Clerk on promotion or for the post of an Assistant.
It is the contention of counsel for the petitioner that the Khurmi Rakesh 2014.01.17 10:36 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.21630 OF 2010 :{ 2 }:
petitioner was appointed as a Peon on 21.1.1981. He was promoted as a Clerk vide order dated 13.7.2000, Annexure P-1. In the said promotion order, conditions imposed were that the promotion would be subject to approval of the Staff Selection Commission, Haryana, and annual increment would be granted to the petitioner only after passing the type test in the prescribed speed, as per the Government instructions. No further rider was imposed in the said order, Annexure P-1. He states that the petitioner, as per his seniority, was entitled for consideration for promotion to the post of an Assistant.
The case of the petitioner was considered alongwith other Clerks for promotion to the post of Assistant/Account Clerk. However, his case was rejected for promotion on the ground that he had failed to qualify the type test in the prescribed speed as per the condition imposed in his promotion order, Annexure P-1. This, as per the counsel for the petitioner, is an observation, dis-entitling him for promotion, which is dehors any statutory requirement. Relying upon the statutory rules known as The Haryana Town & Country Planning Department, Ministerial (Group C) Service Rules, 1983 (for short, "1983 Rules"), which have been appended by the respondents alongwith the reply as Annexure R-5, where Item No.10 deals with the Clerk and the qualifications prescribed are Matric with five years service of Group D employee or Group C employee or combined service as such. Apart from a person being Matric or Higher Secondary or equivalent examination of recognized University, the other two conditions were knowledge of Hindi upto Matric standard and Hindi or English typing at a speed of 25/30 words per minute. This condition is only with regard to Khurmi Rakesh 2014.01.17 10:36 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.21630 OF 2010 :{ 3 }:
the appointment by transfer. However, so far as a candidate, who is promoted to the post of Clerk, the condition of passing the type test has not been prescribed under the statutory rules. Reliance of the respondents upon the Haryana Government circular dated 22.10.1997, Annexure R-6, which mandates passing of the type test for a Clerk for promotion to the higher post, is dehors the statutory rules and in fact violates the same, which cannot be relied upon for denying the benefit to the petitioner. He accordingly prays that the impugned observations in the order dated 4.11.2010, Annexure P-3, be set-aside qua the petitioner and a direction be issued to the respondents to consider the claim of the petitioner for promotion to the post of Assistant from the date his juniors have been promoted and consequential benefits be also granted to him.
On the other hand, counsel for the State has relied upon the instructions dated 22.10.1997, Annexure R-6, to contend that the post of Assistant requires and mandates typing work. As a Clerk, the petitioner has to pass a type test, which was the condition prescribed in the promotion order. The petitioner has failed to pass the type test at the prescribed speed as per the condition of his promotion. Otherwise also, as per the mandate, claim of only those Clerks is to be considered for promotion to the higher post who have passed the type test in consonance with the requirement of the statutory rules and the basis on which the promotion is being sought. He, therefore, contends that non-consideration of the claim of the petitioner for promotion on the ground of he not having passed the type test is in consonance with the requirement of the statutory rules/instructions. He also places reliance on a Division Bench judgement of this Court in the case of Khurmi Rakesh 2014.01.17 10:36 I attest to the accuracy and integrity of this document chandigarh CIVIL WRIT PETITION NO.21630 OF 2010 :{ 4 }:
Balwant Singh Clerk Vs. State of Haryana, 2002 P.L.J. 479, to contend that where a condition has been imposed in the promotion order, mandating passing of the type test and further stating therein that promotion will be governed by the terms and conditions/instructions issued by the competent authority, the claim of the employee deserves to be dismissed on this score in the light of this judgement of the Court. Counsel for the State, thus, prays that the writ petition deserves to be dismissed.
I have considered the submissions made by counsel for the parties and with their assistance have gone through the records of the case.
The condition, as imposed in the promotion order dated 13.7.2000 reads as under:-
"The above promotions are subject to the approval of Staff Selection Commission, Haryana, Annual increment will be granted only after passing the typing test at prescribed speed as per Government instructions."
A perusal of the above would show that except for the approval of the promotion of the petitioner from the Staff Selection Commission, it is nowhere mentioned that if the petitioner fails to pass the type test at the prescribed speed as per the Government instructions, he would be reverted back to the post of Peon. The only disadvantage would be that the petitioner would not be entitled to the annual increment till he passes the type test at prescribed speed as per the Government instructions. Entry 10 in the 1983 Rules governs promotion of a Group C employee to the post of Clerk, which reads as under:-
Khurmi Rakesh 2014.01.17 10:36 I attest to the accuracy and integrity of this document chandigarh
CIVIL WRIT PETITION NO.21630 OF 2010 :{ 5 }:
10 Clerk (i) Matric or Higher BY PROMOTION
Secondary examination of (i) Matric:
recognised university;
(ii) Five years service of
(ii)Knowledge of Hindi upto Group D employees or
Matric Standard; Group C employees or
(iii) Passed test in Hindi or combined service as such.
English typing at a speed of BY TRANSFER
25/30 words per minute
respectively. (i) Matric or Higher
Secondary or equivalent
examination of
recognised university;
(ii)Knowledge of Hindi
upto Matric Standard;
(iii) Hindi or English
typing at a speed of 25/30
words per minute
respectively.
A perusal of the statutory rules also indicate that there is no condition prescribed for promotion that an employee must have passed Hindi or English typing test at a speed of 25/30 words per minute. This is a condition, which is prescribed for appointment by transfer. The said condition cannot, thus, be imported for an employee, who is seeking promotion under the statutory rules.
The judgement relied upon by counsel for the State in the case of Balwant Singh Clerk (supra) would not be applicable to the facts of the present case as in the said case there was a specific mention in the order of appointment that the petitioner therein would be required to pass the type test to earn increment and further that he will be governed by the statutory/service regulations and instructions issued from time to time. In the light of this, the instructions issued by the Chief Secretary were made applicable and were held to be essential qua the petitioner therein and he was held to be bound by the terms of his appointment letter. Khurmi Rakesh 2014.01.17 10:36 I attest to the accuracy and integrity of this document chandigarh
CIVIL WRIT PETITION NO.21630 OF 2010 :{ 6 }:
However, so far as the petitioner in the present case is concerned, in his order of promotion no such further condition has been imposed. In case of non-passing of type test, the only disadvantage which the petitioner has to face is non-grant of annual increment, which, by any stretch of imagination, cannot be said to be in the absence of any statutory rules, requiring of passing such a test for promotion. The same cannot be made mandatory by the instructions, dated 22.10.1997,Annexure R-6, which have been issued by the respondents. In view of the above, the observations made in the impugned order dated 4.11.2010, Annexure P-3, qua the petitioner cannot sustain and are hereby set-aside.
In view of the above discussion, the present writ petition is allowed. Direction is issued to the respondents to consider the claim of the petitioner for promotion to the post of Assistant from the date his juniors have been promoted and grant him the consequential benefits. This exercise be completed within a period of two months from the date of receipt of certified copy of this order.
January 15, 2014 ( AUGUSTINE GEORGE MASIH )
khurmi JUDGE
Khurmi Rakesh
2014.01.17 10:36
I attest to the accuracy and
integrity of this document
chandigarh