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1987 DIGILAW 34 (HP)

OM LAL CHAUHAN v. HIGH COURT OF HIMACHAL PRADESH THROUGH REGISTRAR

1987-06-04

P.D.DESAI, R.S.THAKUR

body1987
JUDGMENT P. D Desai, C. J.— The petitioner is an employee on the establishment of the judicial courts of the Sessions Division, Solan and Sirmaur. He passed his B. A. examination with English, Political Science and Geography and M. A. examination with Geography as his subjects. He was initially appointed as Clerk in the month of March, 1981 and is presently holding the post of Reader to the Sub Judge, First Class, Kandaghat, District Solan. He stands at Serial Number 28 in the seniority list of Class III officials (Clerical grade) of Solan and Sirmaur Sessions Division. 2. A test for appointment in the higher post of Translator was held in the month of October, 1986. The petitioner had desired to appear in the test but he was informed vide letter, dated September 23, 1986, Annexure P-4, that he did not fulfil the requisite eligibility qualification, namely, graduation with Hindi as an elective subject and that, therefore, he could not be allowed to take the test. Pursuant to the test held accordingly the fourth respondent was appointed as Translator by an order, dated December 24/26, 1986, Annexure P-6, by the District & Sessions Judge, Solan and Sirmaur Districts at Nahan. 3. In the present petition, the petitioner challenges the appointment of the fourth respondent. 4. The Rules for recruitment to the Subordinate Services attached to the Civil Courts were framed by the High Court of Punjab under section 35 (3) of the Punjab Courts Act, 19:8 (hereinafter referred to as "the Rules") and they have continued to remain in force as amended from time to time Rule II deals with the ministerial officers and provides that the officers specified in the said rule shall form a joint cadre together with such other officers as the High Court may from time to time direct. Translators and Assistant Translators are specified amongst the ministerial officers under the said rule and the said posts are classified as high grade posts. Rule VI Sub-rule (1) provides, inter alia, that appointments by promotion to the higher grades of the ministerial establishment should "ordinarily" be made by seniority from lower grades, provided the official who would thus receive promotion possesses the prescribed educational qualifications and is other wise fit to perform the duties of the post to which he will be promoted for which purpose tests may be imposed. The first proviso to the said sub- rule requires that permanent vacancies in the grade of Rs. 75-5-125 (present scale : Rs. 570-1080) shall be filled by rotation as follows : (i) by selection on merit out of graduates who have at least two years experience in the work of the office and if no suitable graduate, who fulfils this condition is available, by the appointment of an outsider provided he is normally a resident within the jurisdiction of the District & Sessions Judge and (ii) and (iii) by normal promotion, that is, by the appointment of the next senior man, whether graduate or non-graduate, subject to his fitness. The second proviso to the said sub-rule provides that the rotation may be modified in very exceptional cases when the direct appointment of a graduate would mean the costing of a man, who had been officiating quasi-permanently in the post concerned for an appreciable period. Sub-rule (2) is not relevant for the purposes of the present case. 5. The vacancy in the post of Tranlator on the present occasion being of a permanent nature was required to be filled-in in accordance with these rules. According to the petitioner, no special educational qualification is prescribed so far as promotion to the said post is concerned and the only requirement is that of holding a test to judge the fitness and suitability. 6. At Annexure P-5 are the instructions issued by the High Court on December 29/21, 1981, to all the District and Sessions Judges in Himachal Pradesh. The material part of these instructions reads as follows :—- "It has come to the notice of the High Court that incompetent persons are working and are also being appointed as Translator. It appears that whenever the post of a Translator falls vacant" persons already employed as Clerks etc. are given the job of Translator(s). It is directed that in future a test for translator be held before appointing anyone as a Translator. The test should include translation from English to Hindi and Urdu and from the latter to the former. Sufficiently long passages must be given for the test which should last at least for tow hours. It should also be seen that a person to be appointed as Translator should atleast be a Graduate with Hindi as an elective subject.” 7. The test should include translation from English to Hindi and Urdu and from the latter to the former. Sufficiently long passages must be given for the test which should last at least for tow hours. It should also be seen that a person to be appointed as Translator should atleast be a Graduate with Hindi as an elective subject.” 7. It is not in dispute that the petitioner is not a graduate with Hindi as an elective subject. Under the circumstances, in view of the High Court instructions abovementioned, he was considered ineligible for promotion to the post of Translator and was not permited to appear at the test vide Annexure P-4, 8. The first submission made on behalf of the petitioner was that the High Court instructions, Annexure P-5, are altra vires, since they purported to lay down an eligibility qualification which is not prescribed in the statutory rules. We are not impressed by this argument. It is competent to the High Court in the exercise of powers vested in it by Article 235 of the Constitution and section 18 (3) of the Himachal Pradesh Courts Act, 1976 to prescribe the eligibility qualifications for appointments in the ministerial posts in the civil courts in the State. The question, therefore, of the impugned instructions being altra-vires does not arise since they have to be regarded as statutory in character and as adding to or supplementing the existing Rules and as prescribing the eligibility qualification for the specific post of Translator on the establishments of the subordinate Courts. Be it stated that the instructions were issued by the High Court in light of certain unsatisfactory appointments in the post of Translator having come to its notice and they were, therefore, justified in the larger interests of the judicial administration. The instructions have also a direct nexus with the job requirement since most of the translation work involved in the subordinate Courts pertains to translation of the documents from English to Hindi or Hindi to English. It cannot be gainsaid, therefore, that the requirement of adequate knowledge of Hindi is material and that a person who is a graduate with Hindi as an elective subject would be able to discharge the functions and duties of the post far more satisfactorily than any other person. 9. It cannot be gainsaid, therefore, that the requirement of adequate knowledge of Hindi is material and that a person who is a graduate with Hindi as an elective subject would be able to discharge the functions and duties of the post far more satisfactorily than any other person. 9. True it is that section 18 (3) of the Himachal Pradesh Courts Act, 1976, requires the prior approval of the Government for such rulers. However, in view of the fact that under Article 235 of the Constitution the control over the subordinate Courts including the Staff of those Courts vests in the High Court, the section will have to be read down to mean that the prior approval of the Government would be necessary only where financial implications are involved and not otherwise. In other words, if such rules concern salaries, allowances, leave or pension they may require the prior approval of the Government but if they relate to matters such as prescription of eligibility qualifications, norms or standards or procedure for appointment etc. the prior approval of the State Government is not a pre-condition to be satisfied and the appointments will be required to be made subject to such prescription. 10. The second submission was that the petitioner ought to have been allowed to appear at the test in view of the fact that he was holding a post in the feeder cadre and under Rule VI promotion was ordinarily to be made by seniority from the lower grade. The submission overlooks the requirement of the same rule which prescribes that the official to be considered for promotion must, inter alia, possess the prescribed educational qualification. Since the petitioner was lacking in the educational qualification prescribed by the High Court as aforesaid, his claim solely on the basis of the seniority is irrelevant. 11. These were the only two submissions made at the bearing of the petition and since there is no merit in them the writ petition is summarily rejected. Petition dismissed