Punjab-Haryana High Court
Ashwani Kumar And Others vs State Of Haryana And Others on 29 May, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P. No.312 of 2011 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Writ Petition No.312 of 2011
Date of decision: May 29,2012
Ashwani Kumar and others
...............petitioners
V.
State of Haryana and others
.................respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Dr. Sushil Gautam, Advocate for the petitioners.
Mr. Harish Rathee, Sr.D.A.G. Haryana for their
respondents.
AUGUSTINE GEORGE MASIH,J.(ORAL)
Petitioners have approached this Court praying for issuance of a writ of mandamus direction the respondents to give benefit of annual increment from the date the petitioners were promoted as Clerks. This claim is made by the petitioners relying upon the judgment passed by this Court in C.W.P. No.5566 of 1999 titled as Prithvi Raj V. State of Haryana and others decided on 3.9.2001 (Annexure P/1).
Counsel for the petitioners contends that the petitioners were promoted from the posts Class IV to the posts of Clerks on 27.09.1994, 15.6.2001, 15.6.2001 and 30.6.2006 respectively. A C.W.P. No.312 of 2011 2 condition was imposed in their promotion orders that they would not be entitled to the increment unless they pass the type test and in any case they were mandated to pass the same within a period of one year. He contends that this condition which has been imposed in the orders of promotion is not sustainable under the law on the basis of the judgment passed in Prithvi Raj's case (supra). He on these basis contends that the present writ petition deserves to be allowed and a direction may be issued to the respondents to grant the petitioners annual increment which they are entitled to on completion of one year service from the date of their promotion.
Counsel for the respondents on the other hand submits that this condition in the promotion orders is not through an executive instruction but as a result of the statutory rules. Rule 9 Clause (J) of the Haryana Revenue Department District Subordinate ( Group-C Service) Rules,1988 provides that the appointment to the post of Clerk would be 80% by direct recruitment and 20% by promotion from amongst the Class IV and Class III employees of the service having scales less than those of Clerks and are otherwise eligible in accordance with the instructions issued by the Government from time to time. The promotion shall be made on the basis of seniority-cum- merit. Appendix B of the said Rules lays down the conditions for promotion and according to the said appendix as per clause (iii) whoever is promoted to the post of Clerk is to pass departmental type test in Hindi or English at the speed of 25/30 words per minute respectively, which test has to be passed within a period of one year form the date of appointment failing which annual increment shall not C.W.P. No.312 of 2011 3 be allowed till he qualifies the test. On qualifying the test annual increment shall be released with retrospective effect from the dates these may otherwise be due but no arrears shall be paid for the past period. He on these basis contends that the statutory rules so provide and,therefore, the petitioners cannot claim the benefit of grant of increment without passing typing test . He further submits that the judgment in Prithvi Raj's case (supra) would not be applicable to the case of the petitioners as in the said case there were no statutory rules mandating passing of the typing test for the promotees and requirement was merely knowledge of Hindi and English type-writing. He accordingly prays for dismissal of the present writ petition.
Counsel for the petitioners has further submitted that the similarly placed employees have been granted the benefit of increment vide order dated 26.10.2006 ( annexure P/3) and order dated 27.9.2007 (Anneuxre P/4). He on these basis contends that the petitioners cannot be discriminated against.
I have considered the submissions made by the Counsel for the parties and with their assistance have gone through the record of the case.
It is not in dispute that the statutory rules governing the service of the petitioners are Haryana Revenue Department District Subordinate (Group-C Service)Rules,1988. Rule 9 Clause (J) of the said Rules provides for the mode of recruitment to the post of Clerk. As per said Rule 80% appointment are to be made through direct recruitment and the remaining 20% by promotion form amongst the C.W.P. No.312 of 2011 4 Class IV and Class III employees of the service having scales less than those of Clerks. Petitioners were promoted to the posts of Clerks. The eligibility for promotion to the post of Clerk is provided in Appendix B of the Rules. The said Appendix dealing with the case of promotion reads as follows:
"In case of promotion
(i) Matric
(ii) Five years experience as Group-C or Group-D Employees
(iii) to pass departmental type test in Hindi or English at the speed of 25/30 words per minute, respectively within a period of 1 year from the date of appointment failing which annual increment shall not be allowed till he qualifies the test. On qualifying annual increment shall be released with retrospective effect from the dates these may otherwise due but no arrears shall be paid for the past period."
As per the above, it is mandated by the statutory rules that a promotee is to pass departmental type test in Hindi or English at the speed of 25/30 words per minute respectively. It is to be done within a period of one year from the date of promotion failing which annual increments are not to be granted to the promotee till he qualifies the typing test. Since admittedly the petitioners have not passed the type test till date, non-grant of the increment to the petitioners is according to the statutory rules governing the service and,therefore, cannot be faulted with. Judgment relied upon by the petitioners for C.W.P. No.312 of 2011 5 claiming the benefit of annual increment i.e. in Prithvi Raj's case ( supra), would not be applicable to the case of the petitioners as in the case which was being dealt with by the Division Bench on this Court, the statutory rules governing the case of the promotees for promotion to the post of Clerk only required knowledge of Hindi or English type-writing. There was no test prescribed under the statutory rules and in those circumstances the Court had proceeded to hold that vide condition incorporated in the promotion order, which is in violation of the statutory rules, the promotee cannot be denied the annual increment. This judgment having no application to the case in hand, the reliance on the said judgment would not be in any manner furthering the case of the petitioners.
In view of the above, having no merit in the present petition, the same stands dismissed.
May 29, 2012 ( AUGUSTINE GEORGE MASIH ) sks JUDGE