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2000 DIGILAW 756 (DEL)

HARSUDHA v. DELHI HIGH COURT

2000-09-01

M.K.SHARMA

body2000
Anil Dev Singh ( 1 ) THE appellant was appointed as a Lower Division Clerk in the High Court of Delhi some time in April, 1985. On May 12,1992 she was appointed as Junior Stenographer in adhoc capacity. Thereafter on August 17, 1994 she was appointed as temporary Junior Stenographer on the establishment of this Court. On August 16,1997 the respondents conducted a test for filling up the posts of Senior Stenographer against promotion quota. The appellant appeared in the test but was not selected. On the basis of this test, one Ram Singh, Junior Stenographer was promoted. By means of a circular, being Circular No. 311 dated 14. 10. 1998, the Deputy Registrar (Establishment) invited applications from eligible candidates for filling up vacant posts of Senior Stenographers against 50% promotion quota. The candidates, as on earlier occasion, were required to take the test. Pursuant to the Circular, the appellant applied and appeared in the test, but she was again not selected. Thereafter on March 22,1999 the appellant filed a representation to the first respondent stating that for the 50% of the posts of Senior Stenographers which were to be filed on the basis of "seniority-cum-suitability" (for short the rule ), no test could have been held as it defeated the very purpose of the rule. She requested that she be considered for appointment to the post of Senior Stenographer against promotion quota from the same date from which Ram Singh was appointed The representation of the appellant was turned down on May 20,1999. It appears that some of the Junior Stenographers made a joint representation seeking their promotion to the posts of Senior Stenographers. In response to the joint representation, they were informed vide Memo No. 12041 that one more opportunity was being given to them to appear in the test scheduled to be held on July, 1999. The appellant availed of the fresh opportunity and appeared in the test but she was not able to clear the same and as a consequence thereof, was not promoted as Senior Stenographer. This led to the filing of the writ petition by the appellant. Basically the appellant is aggrieved of the decision of the Selection Committee to hold the test and interview for judging the suitability of the candidates for considering them to the post of Senior Stenographers against promotion quota. This led to the filing of the writ petition by the appellant. Basically the appellant is aggrieved of the decision of the Selection Committee to hold the test and interview for judging the suitability of the candidates for considering them to the post of Senior Stenographers against promotion quota. The writ petition as already noticed, was dismissed by the learned Single Judge. The appellant feeling dissatisfied with the order of the learned Single Judge, has filed the instant Letters Patent Appeal. ( 2 ) THE learned Counsel appearing for the appellant submitted that the appellant is senior-most Junior Stenographer and was the most suitable candidate for being promoted to the post of Senior Stenographer. It was pointed out that the appellant has worked with various officers and Judges to their complete satisfaction and while considering the question of her promotion, only her ACRs ought to have been considered. According to the learned Counsel, the promotion is required to be made on the basis of seniority-cum-suitability criteria which does not admit of holding of a test to determine suitability. It was also canvassed that the respondents were not authorised to prescribe the test outside the rule. The action of the respondents in prescribing the test was arbitrary and without jurisdiction, besides being ultra-vires the rule. ( 3 ) ON the other hand, learned Counsel appearing for the respondents submitted that in order to judge the suitability of the candidates, the High Court has been I consistently holding the test to determine the suitability of the departmental candidates for promotion to the posts of Senior Stenographers. It was also pointed out that the Departmental Promotion Committee/selection Committee constituted in the year 1989 to fill up the posts of Senior Stenographers against promotion quota laid down the guidelines for judging the suitability of candidates for promotion. The Departmental Promotion Committee decided that seniority-cum- suitability be assessed by holding a shorthand and typing test of eligible candidates. ( 4 ) WE have considered the submissions of the learned Counsel for the parties. In order to determine the questions raised by the learned Counsel for the parties, it will be advantageous to set out the relevant rule of promotion which is prescribed in the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972. It reads as under : 855dlt88. HTM19. (P. A. to Deputy Registrar ). 20. (Junior Stenographer ). In order to determine the questions raised by the learned Counsel for the parties, it will be advantageous to set out the relevant rule of promotion which is prescribed in the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972. It reads as under : 855dlt88. HTM19. (P. A. to Deputy Registrar ). 20. (Junior Stenographer ). " ( 5 ) THUS from the reading of the aforesaid rule, P. A. to Deputy Registrar and Junior Stenographer who have three years service as P. A. to Deputy Registrar and Junior Stenographer, can be considered for promotion to the post of Senior Stenographer on the basis of seniority-cum-suitabuity. The question is how to judge suitability. While the appellant claims that the suitability can be judged only on the basis of ACRs, the respondents contend that suitability of a candidate for the promotional post in question will not be known without holding a shorthand and typing test. It cannot be disputed that a Senior Stenographer who is required to work with Judges of this Court, must be possessed of high degree of skill. His/her suitability wilt depend upon his/her speed and accuracy in shorthand and typing. Keeping this in view, the Departmental Promotion Committee laid down the requirement of a test. In this regard the Selection Committee comprising of two Judges of this Court made the following two separate observations on September 19,1989: " (1) How will suitability be know without holding atleast a minimum qualifying test. (2) Let a test regarding speed in typing and shorthand of eligible candidates be held first. " ( 6 ) IT was in accordance with the views of the Selection Committee that the candidates for promotional post of Senior Stenographer were being subjected to shorthand and typing test. We see nothing arbitrary in the holding of the test to determine the suitability of a candidate for the job in question. The Senior Stenographers are expected to be proficient and accurate while taking dictation and some degree of precision is expected of them in their typing work. In case the degree of precision is low, judicial work is bound to suffer. The concept of suitability postulates that the person to be appointed should be possessed of skill, ability and proficiency in his/her job. In case the degree of precision is low, judicial work is bound to suffer. The concept of suitability postulates that the person to be appointed should be possessed of skill, ability and proficiency in his/her job. If a test is prescribed to measure skill, ability and proficiency of the candidates it undoubtedly serves the purposeof the rule and no fault can be found with the same. The rule does not prevent the Authorities from devising a method to judge and measure the suitability of the candidates for the post in question. Therefore, subjecting a candidate to a test to judge his/her suitability is not outside the rule . Besides the procedure adopted to test the suitability does not admit of any arbitrariness, rather it reduces the possibility of the same. Since the test to determine skill, speed and accuracy of candidates in shorthand and typing is not arbitrary, it cannot be interfered with. ( 7 ) THE performance of the appellant in the three tests was as, follows: ( 8 ) THUS from the aforesaid table, it is apparent that the appellant committed mistakes far in excess of the number of permissible mistakes. ( 9 ) AFTER the arguments were concluded and the judgment was reserved, the : appellant filed a copy of the counter-affidavit submitted by the respondents in C. W. P. No. 4349 /92 (Mrs. Madhu Singhal and Others v. Hon ble the Chief Justice and Another ). It appears that the appellant wants to rely on the fact that on January 27, 1990 a shorthand test was held for the post of PA to the Registrar for which seven candidates including one Shri Sunil Kukreja appeared. The affidavit shows that the Selection Committee recommended Shri Sunil Kukreja for appointment as PA to the Registrar even though he had 8. 5% mistakes in the shorthand test. It seems to us that though Shri Sunil Kukreja may have been wrongly appointed at that point of time, the appellant cannot take advantage of the lapse, if any, which occurred in the year 1990. If the example of Kukreja is to be followed, a similar wrong will have to be repeated consciously in the case of the appellant. Surely two wrongs cannot make a right. If this principle. is ignored it will amount to perpetuating and encouraging the illegality. Besides, Kukreja s case was not even cited in the writ petition. If the example of Kukreja is to be followed, a similar wrong will have to be repeated consciously in the case of the appellant. Surely two wrongs cannot make a right. If this principle. is ignored it will amount to perpetuating and encouraging the illegality. Besides, Kukreja s case was not even cited in the writ petition. The respondents, therefore, had no opportunity to clarify the position. ( 10 ) IN the circumstances, it appears to us that the learned Single Judge was entirely right in dismissing the writ petition. Therefore, no intervention is called for. ccordingly, the appeal fails and is hereby dismissed.