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2017 DIGILAW 1046 (ALL)

MUKESH KUMAR v. STATE OF U. P.

2017-04-19

MANOJ KUMAR GUPTA

body2017
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Heard counsel for the petitioner and learned standing counsel for the State-respondents. 2. The petitioner has been working on a class IV post in Zila Gramya Vikas Abhikaran, Lalitpur, which is a society registered under the Societies Registration Act, 1860. There are no statutory rules framed in regard to the conditions of service of the employees of the society. They are governed by a circular issued by the Government on 17.3.1994. Paragraph 2 (10) thereof provides that where the circular does not make provision for any particular matter, the provision contained in the Rules and Regulations governing the service conditions of the employees of the State, would be applicable. The parties are ad idem that the promotion of the employees of the Society from class IV post to class III post would be governed by Rule 22 of Group-D Employees Service Rules, 1985 and Government Order dated 18.3.2011. Under the Rules, the criteria of promotion in respect of all the posts is seniority subject to rejection of unfit. The promotion is to be made from amongst the eligible candidates of the department by the selection committee consisting of three members. The Government Order dated 18.3.2011 contemplates 15% quota for promotion of class IV employees to Class III. 3. A Selection Committee was constituted on 17.12.2014 for selecting the candidates for promotion to class III post. It considered the candidature of petitioner, who is the senior most, alongwith that of Makkhan Lal and Banshi Lal, who were at serial No. 2 and 3 respectively in order of seniority. The Selection Committee held a typing test, in which petitioner scored a typing speed of 10.8 words per minute while that of Makkhan Lal was 5.1 words per minute and Banshi Lal was 17.1 words per minute. Banshi Lal filed Writ-A No. 62507 of 2015 seeking a mandamus that he having scored the highest typing speed should be promoted. In the writ petition filed by Banshi Lal, a counter-affidavit was filed in which the respondents themselves placed reliance on Rule 22 and stated that a Selection Committee has been constituted by them for examining the claim of the incumbent for promotion on the post of clerk. In the writ petition filed by Banshi Lal, a counter-affidavit was filed in which the respondents themselves placed reliance on Rule 22 and stated that a Selection Committee has been constituted by them for examining the claim of the incumbent for promotion on the post of clerk. The Court noticing the aforesaid stand taken by the respondents in the counter-affidavit disposed of the writ petition by order dated 2.12.2015 with direction to the Selection Committee to submit its report within one month. It was left open to Banshi Lal to challenge the report of the Selection Committee, if it is adverse to him. 4. The Selection Committee, thereafter, conducted selection proceedings and made recommendation for promotion of the petitioner, being the senior most class IV employee, having adequate knowledge of typing. However, the Chief Development Officer, who is the Director of the Project, passed an order dated 18.3.2016 holding that the Selection Committee exceeded its power in making recommendation in favour of the petitioner, although by order of the Writ Court dated 2.12.2015, it was authorised to make recommendation only in regard to the claim set up by Banshi Lal. Aggrieved by the said order, the petitioner approached this Court by way of Writ-A No. 14920 of 2016. The writ petition filed by the petitioner was allowed by judgement and order dated 12.4.2016. This Court held that under Rule 22, the Selection Committee was required to consider the claim of all eligible persons in accordance with the Rules and based on such recommendation, the authority concerned has to pass appropriate orders. Consequently, the order dated 18.3.2016 was set aside and the matter was remitted back to the authorities for passing a fresh order. In pursuance thereof, the Chief Development Officer has now passed the impugned order dated 27.5.2016, whereby it has been held that the petitioner having typing speed of less than 25 words per minute, is not eligible for promotion. Aggrieved thereby, the instant writ petition has been filed. 5. Learned counsel for the petitioner submitted that the criteria for promotion is seniority subject to rejection of unfit. It is urged that there was no adverse entry nor any adverse material against the petitioner to adjudge him unfit for the post in question. It is submitted that under the service rules there is no provision for conducting typing test. 5. Learned counsel for the petitioner submitted that the criteria for promotion is seniority subject to rejection of unfit. It is urged that there was no adverse entry nor any adverse material against the petitioner to adjudge him unfit for the post in question. It is submitted that under the service rules there is no provision for conducting typing test. It is further submitted that the typing test which is prescribed, is for persons who are to be directly recruited. In relation to the persons who are to be promoted, only knowledge of typing is required with no specified typing speed as in the case of direct recruit. It is submitted that the selection committee, which conducted the selection, having found that the petitioner having adequate knowledge of typing, the third respondent erred in refusing to promote the petitioner on the ground that he does not have a typing speed of 25 words per minute. Learned standing counsel appearing on behalf of the State-respondents placed reliance on Government Order dated 18 March 2011 in contending that a person should possess the typing speed of 25-30 words per minute for being considered for promotion to class III post. He therefore submitted that there is no illegality in the impugned order. 6. I have considered the submissions made by learned counsel for the parties and perused the record. 7. The Government Order dated 18 March 2011 lays down the procedure, according to which various posts in the clerical cadre are to be filled up. In relation to the post of Junior Assistant, the Government Order stipulates as under: Øe inuke iqujhf{kr osru lajpuk es HkrhZ gsrq fu/kkZfjr vgZrk@izfdz;k osru cS.M 1 2 3 4 5 dfu"B lgk;d : 6200&20200 2000 80 izfr'kr lh/kh HkrhZ }kjk vgZrkA b.VjehfM;V ds lkFk&lkFk dEI;wVj lapkyu dk Mks;d lkslkbVh }kjk iznRr lh0lh0lh0 izek.k i= vFkok ljdkj }kjk ekU;rk izkIr laLFkk ls led{k Lrj dk izek.ki= dze'k% 25@30 'kCn izfr feuV dh Vad.k xfrA 15 izfr'kr prqFkZ Js.kh ds ,sls dkfeZdksa ls inksUufr }kjk tk gkbZLdwy gks rFkk Vad.k Kku j[krs gksaA 05 izfr'kr prqFkZ Js.kh ds ,sls dkfeZdksa ls inksUufr }kjk tks b.Vj ehfM;V gks rFkk Vad.k Kku j[krs gksA 8. Thus, for a candidate, who is to be appointed by direct recruitment, the requirement is that apart from possessing the requisite educational qualification specified, he should also possess typing speed of 25-30 words per minute. Thus, for a candidate, who is to be appointed by direct recruitment, the requirement is that apart from possessing the requisite educational qualification specified, he should also possess typing speed of 25-30 words per minute. However, while considering the candidature of a class IV employee for promotion, the requirement is that he should be High School and should have knowledge of typing. The rule does not specify any speed which a class IV employee should have, before he could be considered for promotion. Thus, the Government Order makes a conscious distinction in the procedure for direct recruitment and promotion. Had the intent been that for promotion, a candidate should, like in case of direct recruit, have a typing speed of 25-30 words per minute, the same provision could have been incorporated in the Government Order, as in the case of direct recruit. However, all that is required for a class IV employee is knowledge of typing and not the speed of 25-30 words per minute. 9. It was always open to the appointing authority to prescribe the criteria to adjudge as to whether a candidate seeking promotion possesses requisite knowledge of typing or not but in the opinion of the Court, the said criteria could not be the same which is prescribed for a direct recruit. A candidate seeking promotion from class IV post cannot be adjudged on the same yard stick as is applicable to a direct recruit. It is for the said reason that while the Government Order prescribed the typing speed for adjudging the candidate seeking appointment directly but only a knowledge of typing is all that is required in case of a promotee. 10. Rule 22 contemplates constitution of a selection committee for considering eligible candidates for promotion. Concededly, in the instant case, a three members selection committee had considered the petitioner as well as other candidates and found the petitioner having requisite knowledge of typing. Since, he is the senior most person and there was no adverse material against him and therefore, having regard to the criteria of promotion i.e., seniority subject to rejection of unfit, the selection committee had recommended the name of the petitioner for promotion. The selection committee contemplated under the rules was an expert body and its opinion should have been given due respect. The selection committee contemplated under the rules was an expert body and its opinion should have been given due respect. The Chief Development Officer erred in applying the criteria laid down for direct recruitment in negating the claim of the petitioner for promotion. Accordingly, the impugned order dated 27.5.2016 cannot be sustained and is hereby quashed. 11. The writ petition is allowed. The matter is remitted back to the third respondent for passing a fresh order within a period of one month from the date of production of a certified copy of this order in the light of observations made above. No order as to costs.