JUDGMENT : R.N. Biswal, J. - The Petitioner, a member of Scheduled Caste, joined as a Junior Grade Typist on 4.1.1990, in Orissa Legislative Assembly, Bhubaneswar. As per his case, some posts of Senior Grade Typist including one such post reserved for Scheduled Caste candidate fell vacant in the next year. Petitioner being the only eligible Scheduled Caste candidate ought to have been promoted to the post of Senior Grade Typist with effect from 6.3.1991, but his case was not considered. He made several representations to different authorities including opp. party No. 2, but all ended in fiasco. Ultimately, he filed a writ petition bearing O.J.C. No. 1715 of 1998 before this Court wherein vide order dated 1.5.2001, it was held that the Petitioner's right to be considered for promotion could not be curtailed, if he came within the zone of consideration and accordingly the authorities were directed to consider his case for promotion to the next higher post in consonance with the prevailing Rules and Regulations, which were applicable and were in vogue as well as the subsequent developments. In spite of such direction, opp. party No. 2 did not take the necessary materials into consideration and passed the impugned order, Annexure-1 holding that since the Petitioner had not passed departmental type test his case for promotion could not be considered. Under such circumstances, the Petitioner has preferred the present writ application under Article 226 of the Constitution with a prayer to quash Annexure-1 and to consider his case in accordance with law. 2. As against this, opp. parties in their counter affidavits stated that the direction dated 1.5.2001 of this Court in O.J.C. No. 1715 of 1998 were fully complied with. According to these opp. parties, the then prevailing Rules and Regulations were Rule 3 read with Sl. Nos. 46 and 47 of the Schedule of the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Services) Rules, 1983 (hereinafter called the 1983 Rules) as amended in 1989. As per the said Rules, a Junior Grade Typist, has to pass a departmental type test to be eligible for consideration for the next higher post. Petitioner appeared in the said type test on 8.2.1991 and 11.9.91, but could not succeed and subsequently, he expressed his unwillingness to appear at the test. It is the further case of opp. As per the said Rules, a Junior Grade Typist, has to pass a departmental type test to be eligible for consideration for the next higher post. Petitioner appeared in the said type test on 8.2.1991 and 11.9.91, but could not succeed and subsequently, he expressed his unwillingness to appear at the test. It is the further case of opp. parties that the Petitioner was given provisional promotion to senior grade typist vide order dated 28.11.2008, but as he did not appear in the departmental speed test, he was reverted to his former post. Hence, they pray to dismiss the writ application. 3. Dr. Panda, learned Counsel appearing for the Petitioner submitted that the post of Senior Grade Typist fell vacant in the year 1991. So, opp. party No. 2 ought to have dealt with the case of the Petitioner applying the Rules and Regulations in vogue by then but instead, he applied the Rules which came into force after the vacancy occurred, which is per se illegal. In support of his submission, Dr. Panda relied on the decision of the Apex Court in the case of Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, and two other unreported decisions of this Court in the case of Gayadhar Sahoo v. State (OJC No. 811 of 1990) and Mayadhar Panda v. President of Board of Management, Mayurbhanj Central Cooperative Bank (OJC No. 1926 of 1986). In the case of Y.V. Rangaiah and Ors. (supra), the Apex court held that they had not the slightest doubt that the posts which fell vacant prior to amended Rules would be governed by the old Rules not by the new Rules. Following the said Supreme Court decision, this Court in the case of Gayadhar Sahoo (supra) held that in as much as the process for filling up the vacancy which occurred prior to 3.6.88 had commenced before Rule 8(2)(b) was substituted by Rule 8(3), the process was to be completed and the vacancy was to be filled up following the provisions contained in Rule 8(2)(b) and not by following the provisions contained in Rule 8(3). Similarly, in the case of Mayadhar Panda (supra), this Court again held that vacancy occurring prior to the amended Rules would be governed by the old Rules and not by the amended Rules. Dr. Similarly, in the case of Mayadhar Panda (supra), this Court again held that vacancy occurring prior to the amended Rules would be governed by the old Rules and not by the amended Rules. Dr. Panda then submitted that in the present case since the vacancy occurred in January 1991, the relevant Rules in vogue by that time would only be applicable. Then he drew our attention to Rule 7-B, which was inserted in 1983 Rules in the year 1992, and was in force during the relevant time. The said Rule reads as follows: The incumbents directly recruited to the post of Reporter, Junior Assistant, Junior Stenographer, Junior Typist, Research Asst. and such other posts as may be ordered by the Secretary shall pass a departmental examination or speed test, as the case may be, in order to make themselves eligible for sanction of the third increment. According to Dr. Panda, this Rule would govern the case of Petitioner but not Rule 7-B(i), which came into force on 3rd December 1992. Rule 7-B(i) reads as follows: The incumbents recruited to the post of Junior Assistant., Junior Grade Stenographer, Junior Grade Typist, Research Assistant and such other posts as may be ordered by the speaker shall pass a departmental examination or speed test as the case may be, in order to make themselves eligible for promotion to the next higher post. 4. As per Rule 7-B quoted above, a Junior Grade Typist is required to pass speed test to make himself eligible for earning 3rd increment. Since there is nothing to show that one has to pass departmental speed test to come under the zone of consideration for promotion, Dr. Panda contended that the opp. parties ought not have insisted upon passing of the speed test by the Petitioner. 5. Mr. Mishra, learned Addl. Govt. Advocate did not challenge the proposition of law that the Rules and Regulations prevalent during the time of occurrence of the vacancies would govern the field and not the subsequent amended Rules. But according to him, the prevailing Rule was Rule 3 read with Sl. Nos. 46 and 47 of the schedule of the 1983 Rules as amended in the year 1989. But according to him, the prevailing Rule was Rule 3 read with Sl. Nos. 46 and 47 of the schedule of the 1983 Rules as amended in the year 1989. As per those provisions, the Petitioner is required to appear at the departmental speed test to be eligible for promotion to the post of Senior Grade Typist and in fact, he appeared on 8.2.91 and 21.9.91 but could not succeed. Rule 3 and Sl. Nos. 46 and 47 of the schedule of the 1983 Rules as amended in 1989 read as follows: Rule 3-Classification and composition- The Secretariat service shall consists of the categories of posts belonging to different class as specified in Column (2) of the schedule of these rules and such other posts as may be created in the Secretariat from time to time. Sl. No. 46. Senior Grade Typist: By promotion from among Junior Grade Typist having requisite qualification and speed in type writing. Sl. No. 47. "Junior Grade Typist: By direct recruitment, with requisite speed provided that in order to become eligible for promotion to higher grade and also to earn 3rd increment he shall have to pass a departmental speed test in type writing. Sl. No. 47 quoted above, shows that in order to become eligible for promotion to the higher grade and also to earn 3rd increment, a Junior Grade Typist shall have to pass a departmental speed test in type writing. But Sl. No. 46 which deals with method of recruitment of Senior Grade Typists does not specifically indicate that a Junior Grade Typist has to pass speed test in order to become eligible for the higher post 6. Learned Addl. Govt. Advocate submitted that a combined reading of Rule 3 and Sl. Nos. 46 and 47 of the schedule of the said 1983 Rules as amended in the year 1989 clearly indicate that a Junior Grade Typist has to pass a departmental speed test in order to make himself eligible for promotion to the post of Senior Grade Typist. In the present case, since the Petitioner could not pass the departmental speed test, he has rightly been not given promotion to the post of Senior Grade Typist. 7. Rule 7-B was inserted in 1983 Rules vide G.A. Dept Notification No. 29808/Gen/SRO No. 688/1989 dated 22.9.1989. In the present case, since the Petitioner could not pass the departmental speed test, he has rightly been not given promotion to the post of Senior Grade Typist. 7. Rule 7-B was inserted in 1983 Rules vide G.A. Dept Notification No. 29808/Gen/SRO No. 688/1989 dated 22.9.1989. Since the Petitioner joined in the post of Junior Grade Typist on 4.1.1990 and some posts of Senior Grade Typists fell vacant in the year 1991, the said Rule would be applicable to the case of the Petitioner. Rule 7-B of the 1983 Rules does not indicate that a Junior Grade Typist has to pass the departmental speed test to become eligible for promotion to the post of Senior Grade Typist. On the other hand, it shows that a directly recruited Junior Typist cannot be eligible for earning 3rd increment, unless he passes the departmental speed test. The submission of learned Addl. Govt. Advocate is silent in this regard. As stated earlier, as per Sl. 47 of the schedule of the 1983 Rules, in order to become eligible for promotion to the higher grade and also to earn 3rd increment, a Junior Grade Typist has to pass departmental speed test in type writing, which is quite inconsistent with Rule 7-B. The 1983 Rules were amended in 1992 and Rule 7-B(1) was inserted therein, which reads as follows. The incumbents recruited to the post of Junior Assistant, Junior Grade Stenographer, Junior Grade Typist, Research Assistant and such other posts as may be ordered by the Speaker shall pass a departmental examination or speed test as the case may be, in order to make themselves eligible for promotion to the next higher post. So, since 1992 it became incumbent upon a Junior Grade Typist directly recruited as such to pass a departmental speed test to become eligible for promotion to the next higher post. 8. The Schedule of the 1983 Rules deals with the method of recruitment. Serial No. 46 of the said Schedule envisages that the Senior Grade Typist shall be recruited by promotion from among Junior Grade Typist having requisite qualification and speed in writing. In this context learned Counsel for the Petitioner submitted that the Petitioner faced the type test while appearing for the examination for Junior Grade Typist so, he is not required to give the same test for promotion. Learned Addl. In this context learned Counsel for the Petitioner submitted that the Petitioner faced the type test while appearing for the examination for Junior Grade Typist so, he is not required to give the same test for promotion. Learned Addl. Government Advocate, on the contrary, submitted that Serial No. 47 stipulates that the Junior Grade Typist would be selected by direct recruitment with requisite speed provided that in order to become eligible for promotion to the higher grade and also to earn 3rd increment, he shall have to pass a departmental test in typewriting. 9. Learned Counsel for the Petitioner, relying on the decision in the case of Union of India (UOI) and Others Vs. Priyankan Sharan and Another submitted that a proviso cannot travel beyond the provision to which it is a proviso. It carves out an exception to the main proviso to which it has been enacted as a proviso and to no other. Serial No. 47 which deals with recruitment of Junior Grade Typists envisages that such a post can be filled up by direct recruitment with requisite speed. The proviso- "provided that in order to become eligible for promotion to higher grade and to earn 3rd increment, he shall have to pass a departmental speed test in typewriting" travels beyond the provision to which it is a proviso. 10. Furthermore, as stated earlier, as per Rule 7-B, which was inserted to the 1983 Rules on 22.9.1989, and as such was in vogue during 1991 when the posts of Senior Grade Typist fell vacant, is silent with regard to passing speed test for promotion to the Senior Grade Typist. But, as per the proviso to Serial No. 47, a Junior Grade Typist is required to pass speed test to be eligible for promotion to next higher grade, which is inconsistent with Rule 7-B. While dealing with such a situation the Apex Court in the case of Union of India and Ors. v. Priyanka Sharan and Anr. (supra) quoted the following words from the decision Grey v. Pearson 6 HL C. 61 The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further. In the present case, there is inconsistency between Rule 7-B in one hand and Serial Nos. 46 and 47 on the other. Moreover, as stated earlier, the 1983 Rules were amended in 1992, wherein Rule 7-B (1) was inserted which provides that a Junior Grade Typist is required to pass a departmental speed test to be eligible to the next higher post on promotion. So, it appears that it was not the intention of the Legislature, till Rule 7-B (1) was inserted in 1983 Rules by way of amendment in the year, 1992 that a Junior Grade Typist has to pass departmental speed test to be eligible for promotion to the Senior Grade Typist. As such, the proviso to Serial No. 47 is in excess of the provision contained in Sl. No. 46 of the Schedule. So, the opp. party no 2 erred in Annexure-1 holding that the Petitioner could not come under the consideration zone for promotion to the Senior Grade Typist only because he could not qualify himself in the departmental speed test. 11. Learned Counsel for the Petitioner further submitted that opp. party No. 2 and his predecessor deliberately withheld the promotion of Petitioner, as such they should be directed to give exemplary compensation. 12. Section 7-B read with Serial Nos. 46 and 47 of the Schedule creates confusion even to judicial mind as to whether a Junior Grade Typist is required to qualify himself in a departmental speed test to be eligible for promotion to the higher grade. So, only because the opp. party No. 2 did not allow promotion to the Petitioner as he did not qualify in the departmental type test, he cannot be saddled with penalty. 13. Therefore, under such facts and circumstances the writ petition is allowed and Annexure-1 is hereby quashed. The Petitioner is not required to pass departmental speed test in type writing to come under the consideration zone for promotion to Senior Grade Typist. If the Petitioner is otherwise found suitable for promotion to the post of Senior Grade Typist, his case shall be considered for promotion in the light of discussion made above and if he is promoted, the promotion order shall be effective from the date when his juniors were promoted. The entire exercise shall be completed within a period of three months hence. No cost. Final Result : Allowed