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2010 DIGILAW 1285 (PNJ)

Bharat Bhushan v. Chandigarh Administration

2010-03-25

JASBIR SINGH, JITENDRA CHAUHAN

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Judgment Jitendra Chauhan, J. 1. The present writ petition is directed against the order dated 11.6.2009 (Annexure P-1), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity `the Tribunal), where by the order dated 25.5.2006 promoting respondent No. 4, Vishnu Dutt from the post of Peon to the post of Clerk on the basis of the result of typing test conducted by respondent No. 2, has been upheld by dismissing OA No. 366-CH of 2006 filed by the petitioner and others. 2. The brief facts of the case as discernible from the Original Application are that the petitioner Bharat Bhushan alongwith two others Makhan Singh and Amarjeet Singh had been working as Group `D employees with respondent No. 2 since 24.7.1996, 10.2.1999 and 23.6.1999, respectively. All of them possess qualification of 10+2. As per the policy/circular, 15% of the posts of Clerks are to be filled up by group `D employees having 5 years regular service in the cadre; possessing matriculation qualification with speed of 30 w.p.m. in English type writing with maximum age of 45 years. It has been further averred that the respondent-Department decided to fill up one post out of two posts lying vacant by way of promotion from Group `D employees against 15% quota. It was not intimated whether that post falls within the reserved category or not. Initially the test was scheduled to be conducted on 22.3.2006 but was deferred on various dates and finally the typing test was conducted on 12.4.2006. The result of the same was not disclosed and the junior most amongst them, i.e., respondent No. 4 was promoted vide impugned order, Annexure A-1. 3. It was further averred in OA that the test was conducted by Shri Surjit Singh, Stenography Instructor of Central Crafts Institute, who miscalculated the mistakes in the typing test and deducted double marks which is against the instructions. It is further stated that as per the Government instructions in the event of non-qualifying of the typing test and non-finding the Group `D employees otherwise eligible for promotion, their regularization can be deferred or the increments of the employee can be stopped till he qualifies the typing test or crosses the age of 45 years, since there is an exemption from qualifying typing test after 45 years. It is further averred that respondent No. 4 has been selected only as a result of favoritism and on account of his higher speed in typing test. There is no provision in the rules that if a junior employee obtains higher speed in type writing, then he can supercede his senior. Promotion to a post is made on seniority-cum-fitness basis and, therefore, the right of the senior cannot be frustrated on this account. 4. Before the Tribunal, the respondent took the stand that the selection was carried out as per rules. The respondent No. 4 fulfilled the requirement of acquiring speed of 30 w.p.m. in typing and the applicants failed to achieve the same. Further stand of the respondent was that in fact only five candidates had applied for the post in question. Out of these five persons, the four persons appeared in the typing test. The candidates were given independent type-writers and a common printed matter to type it within a specified time of 5 minutes. The test was conducted under the supervision and control of an independent agency, i.e., Government Central Crafts Institute for Women, Sector-11, Chandigarh, represented by Shri Surjit Singh, Group Instructor Stenography Trade, (Head of the Department of Stenography). As per the record, the typing speed of the petitioner was 25.60 w.p.m., whereas the typing speed of others was found to be 16.80 and zero, whereas speed of respondent No. 4 was found to be 34.40 w.p.m. In this manner only respondent No. 4 qualified the typing test as specified in the Punjab State Service Rules and Instructions applicable to Chandigarh Administration and accordingly, he was promoted to the post of Clerk. 5. Learned counsel for the petitioner submits that neither any criteria for conducting the typing test had been fixed by Directorate of Ayurveda, Yoga and Naturopathy, Unani, Siddha & Homeopathy (AYUSH) nor it was announced that the promotion of Group `D employees as a clerk is a selection post. It has been noted by the Tribunal that as per copy of the rules produced by the respondents, the post in question is a selection post and nothing contrary could be established by the applicants before the Tribunal. The Tribunal held that once it is taken to be a selection post, the relative merit of the candidates is to be determined, among other things, on the basis of performance in the typing test. The Tribunal held that once it is taken to be a selection post, the relative merit of the candidates is to be determined, among other things, on the basis of performance in the typing test. The type test was conducted under the supervision of an independent agency and in the absence of any proof of malafide, it has to be presumed that the selecting agency conducted the test in a fair and prescribed manner. It was also observed by the Tribunal that the recruitment process is not a condition of service and, therefore, it is within jurisdiction of the respondents to decide to adopt some criteria for the purpose of recruitment. 6. We have heard the learned counsel for the petitioner and perused the record. 7. The Tribunal has dealt with all the questions raised by the petitioner. Admittedly, respondent No. 4 secured higher speed in the typing test, which was conducted by an independent agency. Though, the allegation of malafide has been leveled but nothing has been placed on record to substantiate the same. All the issues raised by the petitioner before the Tribunal were responded to in a very elaborate manner. Once it is established that the post in issue is a selection post, it is the prerogative of the respondent to adopt any criteria to select the best suitable person. The petitioner cannot dictate to the respondents that a particular mode as suggested by him should be adopted for conducting the promotional test. 8. In view of the above, we find no illegality or perversity in the order of the Tribunal. Accordingly, the present writ petition is dismissed. Petition dismissed.