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2010 DIGILAW 2063 (PNJ)

Prem Chand v. State Of Haryana

2010-07-20

PERMOD KOHLI

body2010
Judgment Permod Kohli, J. 1. Keeping, in view the controversy involved and with the consent of the counsel for the parties, this petition is disposed of at motion stage. 2. The petitioners were initially engaged as Class IV employees in the year 1973. The next promotion of Class IV employees is to the post of Clerk. The Haryana Government issued instructions vide memo dated 30.3.1973 for laying down the criteria for making promotion to the post of Clerk for Class IV employees. The criteria laid down for such promotion is as under :- "1. He should be matric; 2. He has worked at least two years on a Class IV post; 3. This promotion can be made by the department for six months. If the work of the employee remains satisfactory then his name can be recommended from the Board for regular appointment. But after regular appointment, he should be kept on probation for a period of one year. If his work remains satisfactory during probation period, then his services can be regularized in case regular post is available. If his work is not found satisfactory during probation period, then he should be reverted to his class; 4. There is no compulsion of such employees to pass the examination taken by the Board for appointment as Clerk. 5. If a class IV is promoted to the post of Clerk on ad hoc basis even then he should be given the pay scale of Clerk and he should also be given the increments upto period for which he will work. 6. This promotion will be on the basis of seniority-cum-fitness." 3. The petitioners were promoted as Clerk vide the order dated 2.9.2003. Apart from other conditions, one of the conditions imposed for such promotion incorporated as condition No. 3 is regarding the passing of the type test. The said condition is reproduced here under :- "3. They will have to pass the type test either in English or Hindi at the speed of 30 w.p.m. And 25 w.p.m. respectively within one year. The annual increments will only be allowed from the date of passing the type test and no arrears will be paid for the past period." This condition has been challenged by the petitioners in this writ petition. The annual increments will only be allowed from the date of passing the type test and no arrears will be paid for the past period." This condition has been challenged by the petitioners in this writ petition. 4 The respondents have justified the aforesaid condition, in view of Haryana State Agricultural Marketing Board Service Rules, 1974 (hereinafter referred to as "1974 rules") wherein the criteria/qualification for promotion to the post of Clerk has been laid down which reads as under :- "i) has passed the matriculation examination or equivalent examination of a recognized University/Education Board; ii) Knows typewriting; iii) Has at least one year service in the board/Government offices." The petitioners have not been granted further increments, in view of the condition No. 3 in the promotion order. The petitioners also rely upon the government instructions issued vide Memo No. Admn. V-2006/22422-524 dated 27.3.2006 (Annexure P-4). Vide this memo, exemption was granted for promotion to the post of Auction recorders/Arrival Recorders/Store Keepers/Care Takers/Clerks. 1. It has been contended on behalf of the respondents that since the Rule specifically prescribes knowledge of typing as one of the essential condition for promotion, therefore, knowledge could only be tested by type test to be conducted by the respondents and in view of the essential qualification, condition No. 3 referred to above was incorporated in the promotion order. The controversy in the present case has been settled vide judgment dated 3.9.2001 passed in C.W.P. No. 5566 of 1999 by this court. Considering similar issues of passing of the type test, this court observed as under :- "There is of course a condition in the promotion order Annexure P-3 that "he will have to qualify the type test in Hindi and English at the speed of 25/30 words per minute as per Haryana Government Instructions." By letter dated 2 5.2.1997 (Annexure P-4), the workman has denied increment unless and until he qualifies the departmental type test. The question, therefore, arises for our determination is a simple one; whether the increment can be withdrawn on account of the petitioners not passing the type test. In the written statement, the respondents have reproduced the relevant rules for appointment by direct recruitment. and appointment other than by direct recruitment to the post of Clerks. The question, therefore, arises for our determination is a simple one; whether the increment can be withdrawn on account of the petitioners not passing the type test. In the written statement, the respondents have reproduced the relevant rules for appointment by direct recruitment. and appointment other than by direct recruitment to the post of Clerks. So far as the direct recruits are concerned, the rules make it mandatory that they shall have to pass a test in Hindi and English typing at the speed of 25/30 words per minutes respectively with in a period of one year of their appointment. So far as appointment other than by direct recruitment is concerned (which is to be considered in the present case as the petitioner in this case is a promote) the requirement is knowledge of Hindi and English type writing. This is the basis difference between the requirements for the direct and promotee. When the rules does not insist that the petitioner should pass typing test for getting his increment/s released, of course for the post of a Clerk, the type test can be said to be necessary but for the reasons best known to the respondents, the rules have made distinction for the promotees in this regard. Annexure P-2 is a letter from the Chief Secretary to all the Heads of Departments. It is dated 30.3.1973, of course, before the publication of the rules which came into existence in the year 1983. According to the letter, there is no compulsion of such employee to pass the examination taken by the Board for appointment as clerk. There is no provision that a type test should be passed by the promotee clerk. In view of the above reasons, we find that the respondents cannot insist on the petitioners passing type test. Moreover, the condition in the appointment order regarding his passing type test is also redundant and has no effect in view of the specific rules which do not provide for the type test." 5. Learned counsel for respondents submits that there are distinct sets of rules for the employees of the Head Office and the Field Staff. The petitioners allegedly belong to the Head Office and thus judgment may not apply. Learned counsel for the petitioners has brought to my notice the statutory rules, namely, Haryana State Agricultural Marketing Board Service Rules, 1974 relied upon by the respondents in the reply. The petitioners allegedly belong to the Head Office and thus judgment may not apply. Learned counsel for the petitioners has brought to my notice the statutory rules, namely, Haryana State Agricultural Marketing Board Service Rules, 1974 relied upon by the respondents in the reply. Rule 10 deals with the method of recruitment and r eads as under :- "10. Method of recruitment - Recruitment to the service shall he made in the manner specified in Column 4 of Appendix-B to these rules." Appendix-B attached to the said rules prescribes the following qualifications for the employees of Head Office and for the Field Staff :- Head Office Staff Serial No. Designation of Posts Academic Qualification and experience for direct recruitment. Academic Qualifications & experience if any for appointment other than by direct recruitment Method of recruitment 20 Clerk (i) has passed the matriculation examination or its equivalent or its equivalent examination of a recognised University/Education Board; and (i) has passed the matriculation equivalent examination of a recognised University/Education Board; (i) By direct appointment or Knows type-writing (ii) Knows type-writting (ii) by transfer or deputation or (iii) at least one year service in the Board/Government office (iii) by selection from employees below the rank of Clerk in the service of the Board. Filed Staff Serial No. Designation of Posts Academic Qualification and experience for direct recruitment Academic Qualifications & experience if any for appointment other than by direct recruitment Method of recruitment 41. Clerk Auction Recorder/Care Taker of Market Committee Should have passed the Matriculation examination of a recognized University/Education Board with knowledge of tying (i) 80 per cent by direct recruitment; (ii) 20 per cent by promotion from Class IV employees of the Market Committees having one years service and who are matriculates, seniority-cum- merit." As a matter of fact from the perusal of the aforesaid two items, it appears that the rules are almost para materia and the similar rule has been considered in judgment dated 3.9.2001 passed in C.W.P. No. 5566 of 1999 passed by this Court. In view of the above circumstances, the condition No. 3 stipulated in the order dated 2.9.2003 (Annexure P-2) which has no statutory backing is not sustainable and is liable to be quashed. Consequently, this petition succeeds and the condition No. 3 stipulated in the order dated 2.9.2003 (Annexure P-2) is hereby quashed. In view of the above circumstances, the condition No. 3 stipulated in the order dated 2.9.2003 (Annexure P-2) which has no statutory backing is not sustainable and is liable to be quashed. Consequently, this petition succeeds and the condition No. 3 stipulated in the order dated 2.9.2003 (Annexure P-2) is hereby quashed. The respondents are directed to release the increments in favour of the petitioners from the date the same have been withheld on account of non passing of type test. It is made clear that there is no necessity of passing type test for the petitioners for release of all the consequential benefits in future also.