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Allahabad High Court · body

2018 DIGILAW 1161 (ALL)

MANOJ KUMAR GIRI v. STATE OF U. P.

2018-05-09

IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ali, J.—Heard learned counsel for the petitioner and the learned Standing Counsel for the State respondents. 2. Brief fact of the case is that the petitioner was granted appointment on the Class-IV post of Marketing Assistant in the department of Food and Civil Supplies, U.P. on 27.5.2003. Taking into consideration his work and conduct the petitioner was granted promotion on the post of Junior Clerk vide order dated 6.7.2010. The promotion order contains two distinct and separate conditions; first in case the work and conduct of the employee is not found satisfactory reduction on original post and second being not found passed in the typing test within a period of six months then the promoted employee would not be entitled for annual increment. 3. The petitioner after grant of promotion on the post of Junior Clerk was transferred from Regional Headquarter Faizabad to Amethi Centre in district Chhatrapati Shahuji Maharaj Nagar vide order dated 14.7.2010. In the year 2011 annual increment was due to be made available to the petitioner. He appeared in the Hindi typing test and he did not attain the required typing speed of 25 words per minute. Thereafter he was again permitted to appear in the Hindi typing test after the expiry of three months and he again failed in the said test. 4. The work and conduct of the petitioner has been found satisfactory on the promoted post of Junior Clerk and he had been awarded “Excellent” entry in the inspection by the District Magistrate. The petitioner, due to non-success in the typing test, has been reverted back on Class-IV post under the order dated 5.7.2012. This order is under challenge in the present writ petition, wherein, after hearing the parties this Court was pleased to pass an order on 18.7.2012 staying the effect and operation of the order reverting the petitioner, and the petitioner continued to discharge his work on the post of Junior Clerk and has been paid salary. 5. Assailing the said order learned counsel for the petitioner submitted that the order of reversion takes notice of Rule 8(1) of the U.P. Food & Civil Supplies (Supply Branch) Ministerial Service Rules, 1979 and on that basis the petitioner has been reverted on Class-IV post from the post of Junior Clerk. 6. 5. Assailing the said order learned counsel for the petitioner submitted that the order of reversion takes notice of Rule 8(1) of the U.P. Food & Civil Supplies (Supply Branch) Ministerial Service Rules, 1979 and on that basis the petitioner has been reverted on Class-IV post from the post of Junior Clerk. 6. Learned counsel for the petitioner submitted that Rule 8(1) of 1979 Rules pertains to the direct recruitment and the said rule is not applicable to the case of the petitioner in granting promotion to the post of Junior Clerk. Therefore, passing of Hindi typing test with the speed of 25 words per minute is not required. He further submitted that the promotion of the petitioner has been made under the U.P. Subordinate Offices Ministerial Class Group “C” lowest category (Recruitment through promotion) Rules, 2001, which does not require typing in Hindi for the grant of promotion to the post of Junior Clerk. He next submitted that as per the promotion order dated 6.7.2010 in case the promoted employees are not able to get the speed of 25 words per minute in Hindi typing within six months, then they would not be given annual increments. Therefore, in case petitioner was not able to get required speed of 25 words per minute in Hindi typing at best he could have been denied annual increment in his pay scale. 7. Per contra learned counsel for the respondent, by filing counter-affidavit and supporting the reasons for passing the impugned order, submitted that under the promotion order itself it was provided that the petitioner shall get the speed of 25 words per minute in Hindi typing within six months but the petitioner was not able to get said speed. Therefore, his promotion has been cancelled, which does not suffer from any infirmity or illegality. His next submission is that the requirement of Hindi typing for the post of Junior Clerk is essential qualification. Therefore, due to non fulfillment of required essential qualification in Hindi typing, the petitioner has been revered on Class-IV post. 8. I have considered the submission made by the learned counsel for the parties and perused the material on record. Rule 8 of the U.P. Food & Civil Supplies (Supply Branch) Ministerial Service Rules, 1979 lays down as under: “8. Therefore, due to non fulfillment of required essential qualification in Hindi typing, the petitioner has been revered on Class-IV post. 8. I have considered the submission made by the learned counsel for the parties and perused the material on record. Rule 8 of the U.P. Food & Civil Supplies (Supply Branch) Ministerial Service Rules, 1979 lays down as under: “8. Academic qualifications for direct recruitment.—(1) A candidate for direct recruitment to the post of Clerk-cum-Typist must have the qualification prescribed in the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975, and possess a speed of at least 25 words per minute in Hindi Type writing. (2) A candidate for the post of Stenographer (Ordinary Grade) must 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 must have a good working knowledge of Hindi in written Devanagri Script. He must also possess a speed of at least 80 words per minute in Hindi Shorthand and 30 words per minute in Hindi Typewriting.” 9. On perusal of the aforesaid rule 8(1) it is evident that the same does not applicable to the case of promotion. It is specific and applicable to the candidate who has been selected by way of direct recruitment. Therefore, the submission advanced by the learned counsel for the petitioner has substance. 10. From the perusal of the order of promotion of the petitioner it is crystal clear that he was granted promotion on the post of Junior Clerk and his promotion was not on the post of Clerk-cum-Typist. Therefore, the impugned order passed by the respondent by denoting Rules of 1979, being not applicable to the case of the petitioner, is not justifiable in law. 11. Rule 8 of Rules of 2001 specifies that whenever promotions are made on the post of Typist or on the post, which requires knowledge of typing, qualifying examination in the typing would be held, as would be prescribed by the Government from time to time. In regard to the post held by the petitioner on the promotion there was no requirement of knowledge of typing nor the petitioner has been allocated the work of typing. Therefore, reversion of the petitioner on the ground of his being unsuccessful in typing test is against the rules as well as the condition of the promotion order. 12. In regard to the post held by the petitioner on the promotion there was no requirement of knowledge of typing nor the petitioner has been allocated the work of typing. Therefore, reversion of the petitioner on the ground of his being unsuccessful in typing test is against the rules as well as the condition of the promotion order. 12. Due to non-qualifying of the typing test the petitioner had not been granted annual increment as per the condition laid down in the order of promotion and on the other hand in wholly illegal and arbitrary manner the order of reversion has been passed. Therefore, the order of reversion is not sustainable in law. 13. The question, as to whether specific rules meant for a particular department existing, prior to coming to the force general rules, having overriding effect, would govern the field or not, has been settled by the Hon’ble Supreme Court in the case of S. Prakash and another v. K.M. Kurian and others, (1999) 5 SCC 624 , relevant paragraph 17 of which is quoted hereunder : “17. In our view, the aforesaid submission is without any substance. As discussed above, Rule 5 of the General Rules is enacted to govern the Special Rules with regard to the method of recruitment in cases when appointments are by direct recruitment and by transfer in any substantive vacancies in permanent cadre. The language used in Rule 5 is clear and unqualified. The intention of the legislature of adding Note (3) is also clear and is added to fill in the existing lacuna in the method of recruitment provided in the Special Rules. As stated above, for appointment to Category 3, i.e., to the post of Agricultural Income Tax Officers and others, the method of appointment only provides that 20% of successive substantive vacancies shall be filled or reserved to be filled by direct recruitment and the remaining vacancies are to be filled or reserved to be filled by transfer. On what basis the substantive vacancies are to be determined was not provided and therefore that lacuna is filled up by the aforesaid Note (3) in Rule 5. In any case, even if there is a repugnancy or inconsistency, the law is settled to the effect that the general rule later in time prevails over the earlier special rule if it clearly and directly supersedes the special rule. In any case, even if there is a repugnancy or inconsistency, the law is settled to the effect that the general rule later in time prevails over the earlier special rule if it clearly and directly supersedes the special rule. It is also well-settled that the special rule can be altered, abrogated or repealed by the general rule by an express provision. In the present case, the language of Note (3) specifically makes it applicable to the General Rule stating “whenever” the ratio or percentage is fixed for different methods of recruitment, the method prescribed therein would apply. So the word “whenever” would cover the Special Rule prescribing ratio or percentage of appointment between the direct recruit and by transfer and the rule-making authority has specifically provided that the ratio or percentage for the vacancies is to be computed on the basis “not to the vacancies existing at that time,” but on the basis of the cadre strength. Hence, there is no question of repugnancy between Rule 5 Note (3) and the method of appointment provided in the Special Rules.” 14. The proposition laid down in case of S. Prakash and another (Supra) has been followed by the Hon’ble Supreme Court in the subsequent judgment rendered in the case of Prasad Kurien and others v. K.J. Augustin and others, (2008) 3 SCC 529 . 15. The Hon’ble Supreme Court in the case of R.S. Raghunath v. State of Karnataka and another, (1992) 1 SCC 335 , has held that the special law prevails over general law with one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law. In view of the law laid down by the Hon’ble Supreme Court in the aforesaid cases, the contention advanced by the learned counsel for the State that the order of reversion, which is impugned in the writ petition, is passed under Rule 8(1) of Rules, 1979 is not acceptable.vThe Rule 8(1) of 1979 Rules governs the selection by way of direct recruitment and is not applicable in the case of the petitioner. 16. In view of the above, the impugned order vitiate in law and is liable to be set aside. Accordingly, the impugned order dated 5.7.2012 is hereby set aside. The writ petition succeeds and is allowed.