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2017 DIGILAW 1155 (ALL)

VED VRAT TYAGI v. STATE OF U. P.

2017-05-01

DEVENDRA KUMAR UPADHYAYA, V.K.SHUKLA

body2017
JUDGMENT : 1. Heard learned counsel for the petitioners-appellants and learned Standing Counsel representing the State opposite parties. 2. The petitioners-appellants, who are working against Group D posts in the Medical & Health Services department has filed this intra court appeal, under Chapter VIII Rule 5 of the High Court Rules, assailing the validity of the judgment and order dated 17.4.2017 passed by the learned Single Judge in Writ Petition (S/S) No. 8169 of 2017 whereby the writ petition filed by the petitioner-appellants has been dismissed by the learned Single Judge. 3. The learned Single Judge while passing the impugned judgment and order dated 17.4.2017 has negatived the submissions made on behalf of petitioners appellants that in terms of requisite service rules, namely the U.P. Government Department Ministerial Cadre Service Rules, 2014 (hereinafter referred to as 2014 Rules') read with the U.P. Subordinate Offices Ministerial Group C posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 (hereinafter referred to as 2001 Rules'), the petitioners appellants could not be subjected to typing test as there is no such requirement under the aforesaid rules. Learned Single Judge while considering the claim of petitioner-appellants rejected the same by placing reliance on 2001 Rules read with the U.P. Medical Health and Family Welfare Department (Subordinate Officials) Clerical Cadre Rules, 1994 (hereinafter referred to as 1994 Rules'). 4. It has been vehemently contended by the learned counsel for the petitioners-appellants that reliance placed by the learned Single Judge while passing impugned judgment and order dated 17.4.2017, on 1994 Rules is highly misplaced for the reason that 1994 Rules have been replaced by a new set up of rules framed under Article 309 of the Constitution, namely 2014 Rules and, as such, the findings being contrary to 2014 Rules cannot be sustained. It has further been contended by the learned counsel for the petitioners-appellants that in fact 2014 Rules contemplate only knowledge of typing which is essential qualification for promotion to Group C posts from amongst the candidates working against Group D posts and the benchmark fixed by the respondents of typing speed of 25 words per minute is neither envisaged by 2001 Rules nor by 2014 Rules, hence, such a course of action taken by the respondents is not tenable. 5. We have perused the record available including 2014 Rules as well as 2001 Rules. 6. 5. We have perused the record available including 2014 Rules as well as 2001 Rules. 6. In term of Rule 7 of 2014 Rules there are two sources of recruitment to the post of Junior Assistant, according to which 80% of such posts are to be filled in by way of direct recruitment whereas 15% posts are to be filled up by way of promotion from amongst substantively appointed Group D employees, having high-school qualification to their credit and 5% posts are to be filled up by making promotions from amongst substantively appointed Group D employees, who have passed the intermediate examination. According to the said Rule 7 of 2014 Rules, apart from qualification of high-school and intermediate, one of the essential qualifications prescribed therein is "knowledge of typewriting". However, the phrase "knowledge of typewriting" occurring in Rule 7 is followed by another phrase "in accordance with the Uttar Pradesh Subordinate Offices Ministerial Group C Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001", that would mean that the phrase 'knowledge of typing' is to be read in consonance with the provisions contained under 2001 Rules. Rule 7 of 2014 Rules is extracted here-in-below; Part-III-Recruitment Source of Recruitment 7. Recruitment to the various categories of posts in then service shall be made from the following resources: 1. Junior Assistant (i) Eighty percent by direct recruitment. (ii) Fifteen percent by promotion from amongst 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 possess the knowledge of typewriting in accordance with the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, as amended from time to time. (iii) Five percent by promotion from amongst substantively appointed Group 'D' employees who have passed the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto and who possess the knowledge of typewriting, in accordance with the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, as amended from time to time. 7. 7. Referring to 2001 Rules, it may be noticed that Rule 8 provides the procedure for making recruitment by way of promotion, according to which such promotion has to be made on the criteria of merit to be considered by the Selection Committee. Merit for the said promotion has to be considered in accordance with the examination to be conducted by the Selection Committee which comprises of written examination, interview and evaluation of character roll. 8. Rule 8 (2) of 2001 Rules contains two notes and according to note 2, where recruitment is to be made against the post of typist or against a post where knowledge of Hindi typing is essential, a test in Hindi typing shall be conducted by the Selection Committee which will be of qualifying nature. Note 2 appended to Rule 8 (2) of 2001 Rules is extracted herein below; **fVIi.kh & tgka inksUufr }kjk HkrhZ Vadd ;k fdlh in ftlds fy, fgUnh Vad.k vko';d gks] dh tk jgh gS] ogka fgUnh Vad.k dh ,d vgZrk ijh{kk Hkh vk;ksftr dh tk;sxh] tSlk] le; & le; ij ljdkj }kjk fofgr dh tk;A ;g ijh{kk vfgZr djus dks fdlh vH;FkhZ dh fgUnh Vad.k esa iPphl 'kCn izfr feuV xfr gksuh vko';d gSA** 9. If the submission of learned counsel for the petitioners-appellants is examined on the basis of provisions contained in 2014 Rules read with referred 2001 Rules, it is crystal clear that though 2014 Rules provide that 'knowledge of typing' is essential qualification, however, 2001 Rules specifically provides what will be the benchmark to ascertain eligibility of a candidate for promotion from Group D post. According to Note 2, as extracted here-in-above, occurring in Rule 8 (2) of 2001 Rules, for promotion to the post of typist or to a post where knowledge of Hindi typing is essential, a test of Hindi typing has to be organized/conducted which is qualifying in nature and in that test a candidate has to perform/acquire speed of 25 words per minute in Hindi typing test. Thus, if the submission made by the learned counsel for the petitioners-appellants, in the backdrop of the aforesaid discussions, are examined by us in the light of the 2014 Rules read along with 2001 Rules, same are not found to be tenable. 10. Thus, if the submission made by the learned counsel for the petitioners-appellants, in the backdrop of the aforesaid discussions, are examined by us in the light of the 2014 Rules read along with 2001 Rules, same are not found to be tenable. 10. At this juncture, learned counsel for the petitioners-appellants has stated that learned Single Judge while passing the impugned judgment and order dated 17.4.2017 has completely ignored the provisions of 2014 Rules and has rather relied upon 1994 Rules. 11. If the submission of learned counsel for the petitioners-appellants is examined that learned Single Judge has completely ignored 2014 Rules, what we find is that the legal position which emerges is that any candidate working as Group D employee seeking his promotion to Group C post where knowledge of Hindi typing is essential, has to be subjected to typing test, where he is required to obtain the minimum speed of 25 words per minute for making him eligible. As already observed above, the typing test is conducted not for the purpose of preparing the merit, it is only for determining the eligibility. Knowledge of Hindi typing with minimum speed of 25 words per minute is an essential qualification to make a candidate eligible for participation in the selection for promotion to Group C post. 12. Learned counsel for the petitioners-appellants has drawn attention of the Court to a Government Order dated 3.1.2013 and to impress upon the Court it has been submitted that in fact the said Government Order relaxes the condition of requirement of typing speed of 25 words per minute in Hindi. 13. We are unable to agree in this regard with the learned counsel for the petitioners-appellants for the reason that Government Order dated 3.1.2013 is not a Government Order as envisaged either in Rule 17 of 2001 Rules or in Rule 29 of 2014 Rules which empowers the State Government to relax the conditions of service, if any such condition of service causes undue hardship in any particular case. 14. For the aforesaid reasons, while observing that 1994 Rules would not cover the field as on today as far as promotion to Group C posts is concerned, we are not at all inclined to interfere in the judgment and order dated 17.4.2017 passed by the learned Single Judge. 15. Special appeal sans merit and is dismissed accordingly.