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2015 DIGILAW 2472 (ALL)

Udai Pratap Singh v. State of U. P.

2015-08-18

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. 1. Heard Sri Akhilesh Kumar Srivastava, learned counsel for petitioner, Sri K.K. Shukla, learned State counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 11.09.2014 (Annexure No. 1) passed by Regional Transport Officer, Lucknow Region, Lucknow thereby directing the petitioner to appear in a typist test for considering his case for promotion from Class -IV to Class-III post. 3. Learned counsel for petitioner submits that the petitioner who is working on Class-IV post under Regional Transport Officer, Lucknow Region, Lucknow, submitted his candidature for promotion on Class-III post which is to be done as per Rule 5 of the U.P. Transport Department Ministerial Service Rules, 1980 (hereinafter referred to as the 'Rules, 1980') read with Rule 18 of the Said Rules which provides that 10% (now 20%) Class-III posts consisting Junior Clerk/Asst. Cashier/Cashier Grade II/Typist are to be filled up by way of promotion from Class-IV posts of the department. However, Regional Transport Officer, Lucknow Region, Lucknow has issued order dated 11.09.2014, thereby directing the petitioner to appear in a typing test on 26.09.2014. 4. Accordingly, it is submitted by learned counsel for petitioner that a per Rules, 1980, there is no requirement for appearing in a typing test for promotion from Class-IV post to Class- III post, hence the order dated 11.09.2014 is beside being without jurisdiction, in contravention to the Article 14 of the Constitution of India because in pas the persons who are working on Class-IV post, namely, Ramesh Chandra Misra, Mohd. Salman, Nand Lal, Siya Ram Yadav, Puueshwar Ram, Purshottam Pandry and Uma Shankar have been promoted to Class- III post (Junior Clerk) without undergoing typing test. 5. Sri K.K. Shukla, learned State counsel while rebutting the contention as raised by learned counsel for petitioner submits that in view of the provisions as provided under Rule 18 of Rules, 1980 as well as Rule 8 (Note -I and Note -II) of U.P. Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion Rules, 2001 (hereinafter referred to as the Rules, 2001), it is mandatory for appearing in a typing test for the purpose of promotion from Class-IV post to Class-II post, hence there is no illegality or infirmity in the impugned order which is under challenge in the present case. 6. 6. After hearing learned counsel for parties and going through the record, it is necessary to go through the provisions as provided under Rule 5(1) of U.P. Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001: "5. Source of recruitment. - Recruitment to twenty percent of the vacancies of the ministerial group 'C' posts of the lowest grade in a subordinate office shall be made by promotion through the Selection Committee from the following sources: - (1)Fifteen percent from amongst such substantively appointed group 'D' employees who have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognised by the Government as equivalent thereto and who have completed five years service as such on the first day of the year of recruitment." And Rule 18 of Rules, 1980, reads as under: - "18. Procedure for recruitment by the promotion - (1) Recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit through the Selection Committee as constituted under Rule 15 for the posts at the Headquarters. (2) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority, and place it before the Selection Committee along with their character rolls and such other record, pertaining to them as may be considered proper. (3) The Selection committee shall consider the cases of candidates on the basis of records, referred in sub-rule (2) and if it considers necessary it may interview the candidates also. (4) The Selection Committee shall prepare a list of selected candidates arranged in order seniority and forward the same to the appointing authority. " And under Rule 8 of U.P. Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 8. Procedure for recruitment by promotion - (1) For the purpose of recruitment by promotion, there shall be constituted a Selection Committee in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee for posts outside the purview of the Public Service Commission Rules, 1992, as amended from time to time. Procedure for recruitment by promotion - (1) For the purpose of recruitment by promotion, there shall be constituted a Selection Committee in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee for posts outside the purview of the Public Service Commission Rules, 1992, as amended from time to time. Note : Nomination of Officers for giving representation to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of Citizens in the Selection Committee shall be made in accordance with the order made under Section 7 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, as amended from time to time. (2) Recruitment by promotion shall be made on the basis of merit as disclosed by marks obtained in the test for selection through the Selection Committee constituted under sub-rule (1). The test for selection shall include a simple written test, interview and evaluation of character roll. The maximum marks to be assigned for written test, interview and evaluation of character roll shall be as given below: (a) Written Test Thirty marks (b) Interview Ten marks (c) Evaluation of character roll Ten marks ------------- Total Fifty marks ------------- Note 1 - The written test shall include a single question paper. The question paper shall contain two questions. Each question shall carry fifteen marks. One question shall be on Hindi Essay writing on a simple topic and the other shall be on General Knowledge. Note 2 - Where recruitment by promotion is being made for the post of Typist or a post for which Hindi Typewriting is essential, there shall be conducted a qualifying test of Hindi Typewriting also, as prescribed by the Government from time to time. To qualify this test a candidate must have a minimum speed of twenty-five words per minute in Hindi Typewriting. (3) The Selection Committee shall conduct the test of eligible candidates under sub-rule (2). To qualify this test a candidate must have a minimum speed of twenty-five words per minute in Hindi Typewriting. (3) The Selection Committee shall conduct the test of eligible candidates under sub-rule (2). After the marks obtained by the candidates in the said test have been tabulated, the Selection committee shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes and Scheduled Tribes in accordance with rule 6, prepare a list of candidates in order of merit as disclosed by marks obtained by them in the said test and recommends such number of candidates by marks obtained by them in the said test and recommends such number of candidates as, on the basis of the result of the said test have come up to the standard fixed by the Selection Committee in this respect. If two or more candidates obtain equal marks the candidate obtaining higher marks in the written candidates obtain equal marks, the candidate obtaining higher marks in the written test shall be placed higher in the list. In case two or more candidates obtain equal marks in the written test also, the candidate senior in age shall be placed higher in the select list. The Selection Committee shall forward the list to the appointing authority." Note-2 Sub-Rule-2 of Rule 8 read with Rule 5(1) of U.P. Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, come up for consideration before a Division Bench of this Court in Special Appeal Defective No. 477 of 2010 (State of U.P. And others Vs. Umesh Chandra Srivastava) and by order dated 20.07.2010, it has been held as under (relevant portion): - "This special appeal has been preferred by the State and its instrumentalities against the order of the learned Single Judge dated 26.03.2010, by which the learned Judge has allowed the petition filed by respondent, original petitioner, and has directed the appellants herein to consider his claim for promotion to Group 'C' post in accordance with the provisions of the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 (hereinafter referred to as the 'Recruitment Rules'). The respondent herein is a Class-IV employee. Rule 5 (1) of the Recruitment Rules reads as under: - "5. Source of recruitment. The respondent herein is a Class-IV employee. Rule 5 (1) of the Recruitment Rules reads as under: - "5. Source of recruitment. - Recruitment to twenty percent of the vacancies of the ministerial group 'C' posts of the lowest grade in a subordinate office shall be made by promotion through the Selection Committee from the following sources: - (1)Fifteen percent from amongst such substantively appointed group 'D' employees who have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognised by the Government as equivalent thereto and who have completed five years service as such on the first day of the year of recruitment." It is, thus, clear that Group 'D' employees (Class-IV) are entitled for promotion to 20 percent of the vacancies in the ministerial group 'C', if they have passed the High School Examination of the Board of High School and Intermediate Education of Uttar Pradesh or an examination recognised by the Government as equivalent thereto and have completed five years service as such on the first day of the year of recruitment. There is no dispute that the respondent employee has necessary qualification to be considered for recruitment by promotion to a ministerial group 'C' post in the service of the State. In this appeal, on behalf of the appellant State, what is sought to be contended is that the respondent ought to have also passed the typing test and he having not passed the said test, is not eligible to be considered for promotion to a ministerial group 'C' post. Learned counsel has relied on Note 2 to sub-Rule (2) of Rule 8 of the Recruitment Rules, which reads as under: - "Note 2 - Where recruitment by promotion is being made for the post of Typist or a post for which Hindi Typewriting is essential, there shall be conducted a qualifying test of Hindi Typewriting also, as prescribed by the Government from time to time. To qualify this test a candidate must have a minimum speed of twenty-five words per minute in Hindi Typewriting." The Note only provides for a situation where in the event, the recruitment is made for the post of Typist or a post for which Hindi Typewriting is essential, a qualifying test has to be conducted for Hindi Typewriting as prescribed. To qualify this test a candidate must have a minimum speed of twenty-five words per minute in Hindi Typewriting." The Note only provides for a situation where in the event, the recruitment is made for the post of Typist or a post for which Hindi Typewriting is essential, a qualifying test has to be conducted for Hindi Typewriting as prescribed. The matter was heard at length yesterday and adjourned for today to enable the State to show any recruitment rules, by which the respondent herein is required to pass the typing test. Learned counsel has today produced a rule, namely, the Public Works Department Ministerial Establishment Rules, 1965, and our attention is invited to Part-II of the said Rules which relates to Cadre. Recruitment to the post of Lower Grade Clerk has been shown as by direct recruitment based on the result of competitive examination. Apart from that, there is nothing, insofar as passing a typing test. At any rate, we are not concerned with that aspect, as in the instant case, Rule 5 (1) of the Recruitment Rules in the matter of promotion has specifically carved out a quota of 20 percent for Group 'D' employees while making recruitment to ministerial group 'C' posts. The said quota has further been divided into two categories of 15 percent and 5 percent as set out in sub-rule (2) of Rule 5 of the Recruitment Rules. That is the source of recruitment. Under Rule 8 (2) of the Recruitment Rules, which provides for procedure for recruitment by promotion, there is no requirement of qualifying typing test. It is, therefore, clear that insofar as the recruitment by promotion from Group 'D' post to Group 'C' post is concerned, once a candidate has the essential qualification and meets the other requirements as set out in Rule 8 of the Recruitment Rules, such candidate shall be eligible for selection to Group 'C' post without appearing or passing the typing test. In the light of that, the appellants are directed to consider the claim of the respondent for promotion on the basis of the marks obtained by him without asking him to pass the typing test. The entire exercise will be completed not later than three months from today. With the above directions and observations, the appeal is dismissed." 7. In the light of that, the appellants are directed to consider the claim of the respondent for promotion on the basis of the marks obtained by him without asking him to pass the typing test. The entire exercise will be completed not later than three months from today. With the above directions and observations, the appeal is dismissed." 7. The same view was further reiterated by a Division Bench of this Court in Special Appeal No. 485 of 2010 (Sanjeev Sharma Vs. State of U.P. And others), wherein it has been held that there is no requirement for typing test for promotion to the post of Clerk which belongs to Class-II category while promoting a person from Class-IV (group -D) as per Note-I to Rule 8 of U.P. Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001. 8. Accordingly, the impugned order dated 11.09.2014 passed by the Regional Transport Officer, Lucknow Region, Lucknow thereby directing the petitioner to appear for a typing test before a Committee in order to consider his case for promotion from Class-IV post to Class- III post in the matter in question is contrary to law, liable to be set aside. 9. For the foregoing reasons, the impugned order dated 11.09.2014 (Annexure No. 1) passed by Regional Transport Officer, Lucknow Region, Lucknow is set aside and the competent authority is directed to consider the case of the petitioner for promotion from Class-IV post to Class- III post in accordance with the observations as made hereinabove as well as Rules known as U.P. Transport Department Ministerial Service Rules, 1980. 10. With the above observations and direction, the writ petition is allowed.