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2005 DIGILAW 937 (PNJ)

Subash Chand, Restorer, Punjab & Haryana High Court v. Punjab & Haryana High Court Through Its Registrar

2005-09-05

HARJIT SINGH BEDI, VINEY MITTAL

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Judgment Harjit Singh Bedi, J. 1. This Letters Patent Appeal has been filed by the unsuccessful petitioner against the judgment of the learned Single Judge dated 24.3.1998. The appellant-writ petitioner joined service as a Restorer on 7.3.1988 whereas respondent Nos. 2 and 3 joined as such on 25.8.1988 and 19.8.1989 respectively. It is the admitted position that in the seniority list, Annexure P-1, the appellant has been shown at Sr. No. 88 whereas the private respondents have been shown at Sr. Nos. 91 and 116. As per Rule 19 of the High Court Establishment (Appointment and Conditions of Service) Rules, 1973 (hereinafter referred to as "the Rules"), a provision has been made for promotion of Restorers to the post of Clerks with 10% of the posts of Clerks kept reserved for this purpose. Amongst other criteria, the restorers were required to pass a type writing test in English at a speed of 30 w.p.m. The type writing test was held by the High Court on 6.11.1993 and in all fifteen candidates appeared, out of which, 8 candidates including the appellant qualified the test. The High Court accordingly promoted the first four candidates to the post of Clerks as per their merit on the basis of their seniority against the available vacancies of November-December, 1993. The appellant thereupon made a representation dated 6.11.1993 that as he had passed the type writing test, his case for promotion to the post of Clerk should also be considered. It appears that since two posts of Clerks had in the meanwhile become available to be filled in from amongst Restorers another type writing test was held on 29.4.1995. Respondent Nos. 2 and 3 qualified the test on which the High Court vide order dated 19.5.1995, Annexure P-3, promoted the said respondents as Clerks. The order, Annexure P-3, was challenged by the appellant in the writ petition. The appellant pleaded before the learned Single Judge that he ought to have been promoted in preference to respondents 2 and 3 and he had qualified the type wring test on 6.11.1993 whereas the respondents 2 and 3 had qualified the same on 29.4.1995. 2. The High Court in its written statement took the plea that as per Rule 19.4, promotion was to be made from amongst Supervisors/Restorers provided they qualified the type writing test as stipulated in Sub-rule (ii) of Rule 19.4. 2. The High Court in its written statement took the plea that as per Rule 19.4, promotion was to be made from amongst Supervisors/Restorers provided they qualified the type writing test as stipulated in Sub-rule (ii) of Rule 19.4. It was further pleaded that it had been an unbroken practice in the High Court to invite applications for promotion to the posts of Clerks and all promotions which were to be made during a calender year, were made out of candidates, who possessed the educational qualifications, experience and had passed the type writing test, and that the list pf selected candidates lapsed at the end of each calender year in which the applications had been invited. It was further pleaded that the circular letter, Annexure R-1 dated 23.2.1995 had been issued by the office calling upon the eligible restorers to submit their applications and to take the type writing test in English, and that the appellant had made no response to Annexure R-l whereas respondents Nos. 2 and 3 had taken the test and after having qualified therein had been promoted as Clerks. 3. Before the learned Single Judge it was argued that as the type writing test had been cleared by the appellant on 6.11.1993, there was no necessity for him to pass the test a second time. This plea was rejected by the learned Single Judge vide judgment dated 24.3.1998 holding that the. list of eligible candidates lapsed every year and as such, each set of promotions being a separate one, a candidate was required to clear the type test each time he sought promotion. The writ petition was accordingly dismissed leading to the filing of the present Letters Patent Appeal. 4. Mr. Vinod Sharma, the learned Counsel for the appellant, has once again argued before us that as the appellant had cleared the type writing test on 6.11.1993, there was absolutely no reason to call upon him to clear the test yet again and that in any case, certain employees, who had not qualified the test, had been promoted by the High Court and the appellant being senior should not have been left out. A reference has also been made at the stage of the appeal to the amendment made in Rule 19.4 on 15.11.1995 whereby a 3rd proviso has been introduced providing for the preparation of a panel from those candidates, who had cleared the test and it has been argued that in view of the amendment, the appellant having cleared the test should be deemed to have been put on the panel for promotion. 5. We find no merit in either of the pleas. Rule 19.4 before its amendment is reproduced below: 19(4). 10% of the vacancies in the cadre of clerks during a calendar year may be filled up by promotion from amongst the Supervisors/Restorers working in this Court possessing the following qualification/experience: (i) Graduate of a recognized University with 2 years service as Supervisor/Restorer on the establishment of this Court. OR (ii) Matriculation of a recognized University/Board or its equivalent with five years service as Supervisors/Restorers on the establishment of this Court. Provided that the eligible Supervisors/Restorers shall have to qualify the typewriting test in English at the speed of 30 w.p.m. before promotion as Clerk. Provided that all the physically incapable candidates who produce the Medical Certificate from the Civil Surgeon of the District to which he/she belongs certifying that he she is physically incapable of type-writing shall be exempted from qualify the aforesaid type-writing test. Provided further that no Supervisor or Restorer shall be considered to have qualified the test, if he commits more than 10% mistakes. 6. It will be seen that each set of promotions is a composite one and that after appointments have to be made on the basis of eligibility and on the passing of a type-writing test and on the requisite number of posts being filled, the selection list would lapse at the years end and any subsequent promotion process would be a new and distinct one. We are, therefore, clearly of the opinion that each time a candidate seeking promotion prior to the amendment of 15.11.1995, would have to undergo the process of qualifying the type-writing test afresh. This is clearly borne out from Rule 19.4. We are, therefore, clearly of the opinion that each time a candidate seeking promotion prior to the amendment of 15.11.1995, would have to undergo the process of qualifying the type-writing test afresh. This is clearly borne out from Rule 19.4. We also find that it was for the first time that the High Court itself thought it fit to provide for a panel from amongst qualified candidates, who could be given promotions, and this procedure was introduced by the amendment made in Rule 19.4 on 15.11.1995, making a provision for a panel of qualified candidates. 7. We have also been informed that the appellant had appeared in the type-writing test held in the year 1997 and had failed to clear the same. 8. We accordingly find no merit in the appeal. Dismissed.