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2017 DIGILAW 919 (ALL)

RAKESH KUMAR MISHRA v. STATE OF U. P.

2017-04-03

RAJAN ROY

body2017
JUDGMENT Hon’ble Rajan Roy, J.—Heard learned counsel for the parties. 2. This is a writ petition under Article 226 of the Constitution of India seeking a writ of certiorari quashing the order dated 10.3.2017 contained in Annexure 2 by which typing test has been prescribed for selection and appointment to the post of clerk in the Department of Medical and Health, Government of U.P. 3. The contention of learned counsel for petitioner relying upon a decision of this Court dated 26.3.2010 rendered in Writ Petition No. 4150 (SS) of 2006 (Umesh Chandra Srivastava v. State of U.P. and others) was that typing was not essential and had wrongly been prescribed. 4. Learned standing counsel on the other hand placed before the Court the Rules known as U.P. Medical Health and Family Welfare Department (Sub-ordinate Officials) Clerical Cadre Rules, 1994 (hereinafter referred to as ‘1994 Rules’) wherein the requisite eligibility conditions and pre-requisites for selection and appointment to the post in question have been laid down. One of the eligibility conditions as per rule 8(1) for the post of Lower Divisional Clerk is speed of 25 words per minute in Hindi typing. A candidate having knowledge English typing would be given preference. This eligibility condition is prescribed under 1994 Rules for direct recruitment on the aforesaid post. The petitioner herein claims promotion to the said post under the 15% quota prescribed under the Rules known as U.P. Sub-ordinate Offices Ministerial Group-’C’ posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 (hereinafter referred to as ‘2001 Rules’). It is not in dispute that the posts which have been advertised is in the lowest grade Group-’C’ post in the department. 5. On a perusal of 2001 Rules which have been relied upon by the counsel for the petitioner, Note II to Rule 8 of the aforesaid 2001 Rules prescribing the procedure for recruitment by promotion categorically provides that where recruitment by promotion is 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. To qualify this test a candidate must have a minimum speed of twenty-five words per minute in Hindi Typewriting. Thus, even under 2001 Rules, which have been considered by this Court in the judgment of Umesh Chandra Srivastava (supra) if the recruitment by promotion is made for the post of Typist or a post for which Hindi Typewriting is essential, then such a test has to be conducted. 6. In this context it is relevant to refer once again to Rule 8 of 1994 Rules, which is applicable for direct recruitment to the post in question in the department of Medical and Health which categorically provides a typing speed of minimum twenty-five words per minute in Hindi Typing for the post of Lower Divisional Clerk (not a Typist). It is not in dispute that the post in question which is advertised is that of clerk which was earlier known as Lower Divisional Clerk. Thus, Hindi Typing is essential for the post under the special Rules of 1994 applicable to the clerical cadre in Medical & Health Department. Thus, on a conjoint reading of Note II of Rule 8 of Rules, 2001 and Rule 8 of Rules 1994 Hindi Typing test is required to be conducted, accordingly the judgment in Umesh Chandra Srivastava (supra) which is relied by the petitioner does not help his cause as the post in question is one for which Hindi Typing is necessary. 7. Mileage was sought to be drawn by the counsel for the petitioner by the fact that Rules 2001 were in supercession of all existing rules and orders on the subject but this does not take away the the relevance of Rule 8 of the Rules 1994 for ascertaining as to whether Hindi Typing was essential for the post in question in the context of Note II to Rule 8 of Rules 2001 for holding a typing test and is sufficient proof of the same. 8. The Single Judge Bench in Umesh Chandra Srivastava could not consider the special Rules 1994 for Medical & Health Department. Rule 8 of which prescribes Hindi Typing speed of minimum twenty-five words per minute as a minimum eligibility condition i.e. a mandatory requirement. Had it been noticed then the import and application of Note II of 2001 Rules would have been considered. 9. Rule 8 of which prescribes Hindi Typing speed of minimum twenty-five words per minute as a minimum eligibility condition i.e. a mandatory requirement. Had it been noticed then the import and application of Note II of 2001 Rules would have been considered. 9. On a perusal of the Division Bench judgment dated 30.7.2010 rendered in Special Appeal (Defective) No. 477 of 2010 (State of u.P. and others v. Umesh Chandra Srivastava and others) also the Court does not find any reference to special Rules, 1994 therefore, the said judgments do not help the petitioner. Having noticed the relevant Rules this Court cannot shut its eyes to the same specially as even the rules 2001 permit the holding of typing test in respect of a post where Hindi Typing is essential, as in this case as is sufficiently proved by Rule 8 of Rules 1994. 10. The writ petition is dismissed.