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2013 DIGILAW 67 (JK)

Karam Chand v. High Court & anr.

2013-02-04

MANSOOR AHMAD MIR

body2013
1. The petitioner, who is working as Private Secretary in his own pay and grade in the High Court of Jammu and Kashmir, is aggrieved of communication bearing No.705/NG dated 07.04.2012 issued to him by the Registrar General, respondent No. 2 herein, requiring him to appear for shorthand/type test that was scheduled to be conducted on 14.04.2012, and has sought its quashment. He has also sought for a writ of mandamus commanding the respondents to regularise his promotion as Senior Scale Stenographer with effect from 30.1 1.2005 and, thereafter, as Private Secretary with effect from 24.11.2008. The petitioner has also prayed for the consequential benefits. 2. The facts of the case, as urged in the petition are plain and clear. After filing of the writ petition and before the respondents filed their reply affidavit, the petitioner, on 17.07.2012, filed an application, bearing CM No. 2377/2012, seeking to place on record certain documents, which included High Court order No. 857 dated 21.12.2009 (appended as annexure 'B' to the application) prescribing the criteria for evaluation and assessment of candidates for appointment on the posts, inter alia, of Senior Scale Stenographers, and communication No. 1328 dated 08.06.2012 (appended as annexure 'C' to the application) addressed to him by Public Information Officer, High Court of J&K under Right to Information Act, 2009 furnishing to him the information sought by the petitioner. Reference to the facts emerging from these two documents would be made hereunder at the appropriate place. 3. The facts hinging the case of the petitioner are that, having been appointed as Junior Scale Stenographer vide order No. 835 dated 17.03.1997 in the High Court of Jammu and Kashmir, he was temporarily promoted as Senior Scale Stenographer on ad hoc basis vide High Court order No. 535 dated 30.11.2005 subject to his qualifying the shorthand and typing test to be conducted within two months. It is the case of the petitioner that no such test was conducted within the time stipulated in the aforesaid order. Subsequent thereto, vide High Court order No. 667 dated 24.11.2008 he was promoted as Private Secretary in his own pay and grade. Meanwhile, vide order No. 857 dated 21.12.2009, the High Court was pleased to prescribe the criteria for evaluation and assessment of merit of the candidates for appointment, inter alia, as Senior Scale Stenographers. Subsequent thereto, vide High Court order No. 667 dated 24.11.2008 he was promoted as Private Secretary in his own pay and grade. Meanwhile, vide order No. 857 dated 21.12.2009, the High Court was pleased to prescribe the criteria for evaluation and assessment of merit of the candidates for appointment, inter alia, as Senior Scale Stenographers. The order prescribed that such evaluation and assessment shall be made on the parameters of mistakes committed and that ten or less than ten percent mistakes shall be counted as permissible and no latitude shall be given beyond that. 4. It is submitted by the petitioner that vide order No. 926 dated 09.03.2011 the High Court was pleased to constitute a committee headed by the Registrar General with Registrar Judicial, Jammu Wing and Mr. D. K. Maini, Secretary, for holding the Shorthand/Typewriting test for the purpose of regularising the conditional promotion of the petitioner as Senior Stenographer and as also of two Junior Scale Stenographers, namely, M/s Muzarnil Qadir and Pawan Chopra, to the posts of Senior Scale Stenographers. It is stated by the petitioner that though he duly appeared in the test conducted by the Committee but no results thereof were ever declared and, instead, vide the impugned communication, he has been again asked to appear in the test. It is the positive case of the petitioner that in terms of High Court order No. 535 dated 30.11.2005 his promotion as Senior Scale Stenographer was conditioned only subject to his qualifying the test; and that, once he had appeared in the test and qualified the same in terms of the parameters fixed and prescribed by the High Court in terms of order Mo. 857 dated 21.12.2009, there was no reason or justification for respondent No. 2 to have issued the impugned communication requiring him to appear in the test afresh. The Registrar General, in paragraph 11 of his reply affidavit, filed on 03.01.2013, in response has stated as under: "That in reply to para No. 11 of the petition, it is respectfully submitted that vide High Court order No. 667 dated 24.11.2008 the adjustment and promotion of following three officials have been made. The relevant portion of the order is reproduced as under: '7. The relevant portion of the order is reproduced as under: '7. Shri Karam Chanel, Junior Scale Stenographer, already promoted as Senior Scale Stenographer on ad hoc basis subject to clearance of prescribed test, shall work as Private Secretary in his own pay and grade i.e. Rs. 7450-11500, till further orders. 12. Shri Muzamil Qadir and Shri Pawan Chopra, Junior Scale stenographers are temporarily promoted as Senior Scale Stenographers in the grade of Rs. 7450-11500, subject to clearance of prescribed test. They shall however work as Private Secretaries in their own pay and grade till further orders.' In order to regularize their promotion as Senior Scale Stenographers on the recommendation of Hon'ble Committee vide High Court order no.926 dated 9.3.2011, a Committee was constituted for holding Shorthand/Typing test. The said Committee has conducted the test of these three officials at High Court Wing Jammu on April 21, 2011 and submitted its report before the Hon'ble Committee constituted for making promotion of High Court staff. The Hon'ble Committee has resolved as under- 'Having regard to performance of three Junior Scale stenographers temporarily promoted as Senior Scale Stenographers, the proposal to the extent of Sh. Pawan Chopra is approved. S/Sh Karam Chand and Muzamil Qadir be asked to appear in the Type/Shorthand test in first week of February, 2012 on the date to be fixed by Registrar General.' The recommendations of the Committee were approved by the then Hon'ble Chief Justice [.] [T]he promotion of Sh. Pawan Chopra as Senior Scale Stenographer, was regularized, as recommended by the Promotion Committee, from the date of his conditional promotion." (Highlighting and underlining supplied) 6. In the aforesaid reply affidavit, the Registrar General however, has maintained a conspicuous silence about the two documents, namely, High Court order No. 857 dated 21.12.2009 and communication No. 1328 dated 08.06.2012 received by the petitioner in response to his application under Right to Information Act, brought on record of this petition by the petitioner vide CM No. 2377/2012 referred to above which was allowed by the Court vide order dated 09.08.2012. 7. Heard learned counsel for the parties and considered the matter. 8. 7. Heard learned counsel for the parties and considered the matter. 8. As is unambiguously axiomatic from the highlighted and underlined portion of the reply of the respondent No. 1 itself, the only condition that was laid in High Court order No. 667 dated 24.11.2008, whereby the petitioner was promoted as Senior Scale Stenographer on ad hoc basis, was that he had to clear the test. This test was conducted in terms of High Court order No. 926 dated 09.03.2011 by a Committee headed by the Registrar General with Registrar Judicial, Jammu wing and Mr. D. K. Maini, Secretary. Prior to the conduct of the test, the High Court issued order No. 857 dated 21.12.2009 which stated that ten or less than ten percent mistakes shall be counted as permissible and no latitude shall be given beyond that. Annexure 'E' to the writ petition is the information received by the petitioner in the shape of communication No. 313 dated 16.02.2012 from the Public Information Officer, High Court of J&K, Jammu, obtained by the petitioner under Right to Information Act. It is revealed therefrom that the petitioner had sought information as to the criteria fixed for the purpose of clearance of departmental test to the post of Senior Stenographer for regularization in which Karam Chand, Private Secretary, Sh. Pawan Chopra, Private Secretary and Muzamil Qadir appeared, as also the percentage obtained by them. In response thereto, the petitioner was informed as under: "High Court order No. 579 dated 24.10.2008 prescribes that promotion to the post of Senior Scale Stenographer is subject to clearance of English Shorthand and Typewriting test with minimum per minute speed of 80 words and 40 words respectively. Accordingly, promotion/adjustment of these officials was made subject to clearance of prescribed test. Regarding criteria fixed for the test, it is submitted that all the three officials were given dictation of passage of (about 400 words) in 5 minutes and thereafter they were asked to type out the matter within 10 minutes. So far as marks secured by the candidates are concerned it is submitted that S/Shri Karam Chand, Pawan Chopra and Muzomil Qadri secured 30, 45 and 35 marks respectively out of maximum of 50 marks." 9. So far as marks secured by the candidates are concerned it is submitted that S/Shri Karam Chand, Pawan Chopra and Muzomil Qadri secured 30, 45 and 35 marks respectively out of maximum of 50 marks." 9. Further, vide another communication, bearing No. 1328 dated 08.06.2012, appended as annexure 'C' to CM No. 2377/2012 allowed by the Court on 09.08.2012, again an information sought and obtained by the petitioner under Right to Information Act, as to the query "number of mistakes committed by the applicant during the test while transcribing shorthand dictation for regularization of Sr. Scale Stenographer, wherein Mr. Pawan Chopra, and Mr. Muzamil Qadir have also participated", the petitioner was informed that "the applicant has committed twenty mistakes". 10. It be seen that the criteria prescribed vide High Court order No. 857 dated 21.12.2009 made it clear that ten or less than ten per cent mistakes shall be counted as permissible. From the aforesaid facts, it becomes clear that while transcribing the dictation comprising 400 words, the petitioner had committed 20 mistakes. It does not need any high standard mathematical knowledge to calculate the percentage of mistakes thus committed by the petitioner, 20 mistakes in 400 words are equivalent to only 5% mistakes. The percentage of mistakes, thus committed by the petitioner in the test in question comes within the permissible limits, as prescribed by the High Court in terms of order No. 857 dated 21.12.2009. Thus, he had cleared the test subject to which his promotion as Senior Scale Stenographer had been made. Therefore, there was and is no reason or justification to require him to undergo any further test. 11. The Registrar General in paragraph 11 of his reply affidavit has further disclosed that the three member committee headed by the Registrar General, which held the test in question, had submitted its report, to the Hon'ble Committee constituted for making promotion of High Court Staff which Committee resolved that the petitioner and Muzamil Qadir be asked to appear in another test. It is not understandable how the matter came to be placed before the Hon'ble Committee constituted for making promotions of High Court staff when the petitioner stood already promoted by the competent authority subject to the only condition of clearance of the test and the order promoting him did not lay down any such condition that such clearance would be subject to the decision of any promotion Committee over and above the criteria prescribed by order of the Lord Chief Justice. Further, the order promoting the petitioner as Senior Scale Stenographer on ad hoc basis did not contemplate, authorize or permit the placement of the result of the test or the report of the test-holding committee before any such Promotion Committee by the Registrar General. Such a course adopted by the Registrar General obviously is without any authority or jurisdiction and, consequently, void and inconsequential. So is the decision of such Committee and the consequent communication addressed to the petitioner, which is the subject matter of challenge herein. 12. No doubt, as per the reply filed by the Registrar General, the decision of the Hon'ble Promotion Committee is stated to have been approved by the Lord Chief Justice, but, at the same time, it becomes clear that such approval of the Lord Chief Justice has been obtained withholding the relevant and material facts from Hon'ble the Chief Justice. It is not the case of the respondents that the criteria laid down by order of Hon'ble the Chief Justice vide High Court order No. 857 dated 21.12.2009 was altered, modified or changed at the time the petitioner appeared in the test. On the other hand, it is established by the facts brought on record that as on the date of the test, the aforesaid High Court order held the field and, therefore, the petitioner having committed only 5% mistakes in the test, he fulfilled the criteria of qualifying the test, inasmuch as the order prescribed that 10 per cent mistakes shall be deemed as permissible. 13. Further, annexure 'E1 appended to the writ petition, which is the information furnished to the petitioner under Right to Information Act, discloses that a total of 400 words were dictated during the course of the test, and the total marks allocated were 50. Thus, by the process of conversion, 400 words were allocated 50 marks, i.e., 12.5 marks per hundred words. Thus, by the process of conversion, 400 words were allocated 50 marks, i.e., 12.5 marks per hundred words. As indicated above, petitioner had committed 20 mistakes in all. That means, out of 400 words, he had correctly transcribed 380 words. What methodology was adopted to award him only 30 marks out of 50 allocated marks is neither clarified by the respondents, nor is the same discernable from Annexure 'E' appended to the petition, supposed to be the criteria adopted by the Hon'ble Promotion Committee. In any case, the petitioner having committed only 5% mistakes, has fulfilled the criteria laid down vide High Court order dated 21.12.2009. 14. In view of the above, the impugned communication issued to the petitioner, being unreasonable and unjustifiable, is arbitrary and, accordingly, untenable and liable to be quashed. 15. In view of the above, this petition is allowed. The impugned communication is quashed. The petitioner is held to have cleared the test subject to which his promotion as Senior Scale Stenographer was made on ad hoc basis. Consequently, the petitioner is held to be entitled to regularization retrospectively with effect from the date he was promoted on the said post with all the consequential benefits. 16. Disposed of along with CMPs. 17. Registry shall communicate the order to the learned Registrar General.