Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1702 (ALL)

Shobhit Srivastava v. State of Uttar Pradesh

2023-07-17

J.J.MUNIR

body2023
JUDGMENT : 1. This writ petition has been filed seeking to quash an order dated 28.03.2023 passed by the Officer on Special Duty (Establishment), Kanpur Development Authority, Kanpur to the extent alone that it directs a further typing test to be taken by the petitioners on 12.04.2023 in compliance with an order of the Vice-Chairman of the Development Authority aforesaid. The petitioners have further sought a mandamus to restrain the holding of the scheduled typing test on 12.04.2023 in terms of the impugned order dated 28.03.2023. 2. The petitioners are all Clerks in the employ of the Kanpur Development Authority, Kanpur (for short, 'the KDA') and all of them have been appointed on compassionate ground. The first petitioner Shobhit Srivastava was appointed on 28th January, 2018 whereas the second petitioner Ajay Srivastava was appointed on 30th May, 2017. The third petitioner Abhishek Tripathi was appointed on 20th December, 2017. 3. It is common ground between parties that notwithstanding the petitioners' appointment under the dying in harness Rules, the post held by them requires the petitioners to qualify with a typing speed of 25 words per minute. The aforesaid qualification is essential. In this regard, reference may be made to the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short, 'the Rules of 1974'). These Rules have been amended by the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness (13th Amendment) Rules, 2022 (for short, 'the 13th Amendment Rules), that have been published in the official gazette on 27th December, 2022. Rule 5 of the Rules of 1974 has been amended by the 13th Amendment Rules and it would be gainful to reproduce the amended and unamended Rule 5 in extenso : 2. Rule 5 of the Rules of 1974 has been amended by the 13th Amendment Rules and it would be gainful to reproduce the amended and unamended Rule 5 in extenso : 2. Substitution of rule 5.- In the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974, for existing rule 5(1)(i) set out in column 1 below, the rule as set out in column 2 shall be substituted, namely:- COLUMN 1 COLUMN 2 Existing rule Rule as hereby substituted 5.(1) Recruitment of a member of the family of the deceased- In case a Government servant dies in harness after the commencement of these rules, and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government Service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person- (i) fulfils the educational qualifications prescribed for the post: Provided that in case appointment is to be made on a post for which typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in typewriting, he shall be appointed subject to the condition that he would acquire the requisite speed of 25 words per minute in typewriting well within one year and if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the requisite speed in typewriting and if in the extended period also he again fails to acquire the requisite speed in typewriting, his services shall be dispensed with. Provided further that in case appointment is to be made on a post for which the knowledge of computer operation and typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in computer operation and typewriting, he shall be appointed subject to the condition that he would acquire the 'C.C.C' certificate in computer operation awarded by the DOEACC Society or a certificate equivalent thereto from an Institution recognised by the Government together with the required speed of 25 words per minute in typewriting well within one year and, if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the required certificate in computer operation and the required certificate in computer operation and the required speed in typewriting and if in the extended period also he again fails to acquired certificate in computer operation and the required speed in typewriting, his services shall be dispensed with. 5.(1) Recruitment of a member of the family of the deceased- In case a Government servant dies in harness after the commencement of these rules, and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government Service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules, if such person- (i) fulfils the educational qualifications prescribed for the post: Provided that in case appointment is to be made on a post for which typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in typewriting, he shall be appointed subject to the condition that he would acquire the requisite speed of 25 words per minute in typewriting well within one year and if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the requisite speed in typewriting and if in the extended period also he again fails to acquire the requisite speed in typewriting, then an order will be issued to provide him appointment on the post of class IV. The appointment so granted shall be deemed to be a fresh appointment and shall not be reversion. If he does not join the post of class IV within stipulated time his services will be terminated. The appointment so granted shall be deemed to be a fresh appointment and shall not be reversion. If he does not join the post of class IV within stipulated time his services will be terminated. Provided further that in case appointment is to be made on a post for which the knowledge of computer operation and typewriting has been prescribed as an essential qualification and the dependent of the deceased Government servant does not possess the required proficiency in computer operation and typewriting, he shall be appointed subject to the condition that he would acquire the 'C.C.C' certificate in computer operation awarded by the DOEACC Society or a certificate equivalent thereto from an Institution recognised by the Government together with the required speed of 25 words per minute in typewriting well within one year and, if he fails to do so, his general annual increment shall be withheld and a further period of one year shall be granted to him to acquire the required certificate in computer operation and the required certificate in computer operation and the required speed in typewriting and if in the extended period also he again fails to acquired certificate in computer operation and the required speed in typewriting, then an order will be issued to provide him appointment on the post of class IV. The appointment so granted shall be deemed to be a fresh appointment and shall not be reversion. If he does not join the post of class IV within stipulated time his services will be terminated. 4. A perusal of the first proviso to the pre-amended Rules shows that in case of appointment made under the Rules of 1974 to a post for which typewriting has been prescribed as an essential qualification, a dependent of the deceased government servant, who did not possess the required proficiency in typewriting, would be conditionally appointed, subject to acquisition of the requisite typing speed of 25 words per minute within one year. If he failed to do that, his general annual increment would be withheld and a further period of one year granted to acquire the requisite typewriting speed. If within the extended period of one year, the compassionate appointee failed to acquire the requisite speed in typewriting, his services would stand determined. 5. If he failed to do that, his general annual increment would be withheld and a further period of one year granted to acquire the requisite typewriting speed. If within the extended period of one year, the compassionate appointee failed to acquire the requisite speed in typewriting, his services would stand determined. 5. Under the amended Rule 5(1)(i), the time period of one year to acquire the requisite speed in typewriting remains unchanged and in the event of failure, the extended period of one year to acquire the necessary typewriting speed also remains unchanged. It is, however, upon a failure within the extended one year that consequences have changed. Earlier, it would lead to determination of the compassionate appointee's service, whereas now the compassionate appointee would be offered a fresh appointment on a Class-IV post. 6. So far as the present case is concerned, there could be some issue whether the unamended Rule 5 would apply in the petitioners' case or their rights would be governed by the 13th Amendment Rules. But, on facts that controversy does not arise. The reason is that it is common ground between parties that each of the petitioners after their respective appointments under the Rules of 1974 did not possess the requisite proficiency in typing or the prescribed speed of 25 words per minute. It is also common ground that all the three petitioners took the typewriting test for the first time in the year 2019 in accordance with Rule 5(1)(i) and failed it. All the petitioners, therefore, had a further year to acquire the necessary proficiency in typewriting. The petitioners took the typing test a year later, that is to say, a second time on 25.08.2022 and passed it along with four other similarly circumstanced appointees. In this connection, the attention of the Court has been drawn by the learned Counsel for the petitioners to the impugned order dated 28.03.2023. The order has been issued by the Officer on Special Duty (Establishment), KDA. In the first part of the order, a declaration of result of the second typing test for the petitioners, besides four others, is carried. It clearly says that in the typing test held on 25.08.2022, seven Clerks had passed it, including the three petitioners here. There is no objection to the order dated 28.03.2023 to this extent; nor can it be. 7. It clearly says that in the typing test held on 25.08.2022, seven Clerks had passed it, including the three petitioners here. There is no objection to the order dated 28.03.2023 to this extent; nor can it be. 7. In the later part of the order, it is mentioned that the Vice-Chairman of the KDA in terms of his approval order dated 10.03.2023 has directed that the employees who have passed the examination would undergo a typing test under the supervision of the Secretary on 12.04.2023 at half past twelve in the afternoon. The venue would the KDA's Computer Department, located on the third floor. The order appoints two Officers of the KDA as Invigilators, to whom it is addressed. It is this part of the order requiring the petitioners to undergo a typing proficiency test for a third time that the petitioners impugn. 8. The submission of the learned Counsel for the petitioners is that Rule 5 of the Rules envisages only two typing test for an appointee under the Rules of 1974, if he does not initially possess the requisite proficiency and speed of 25 words per minute. If he fails the first, he has the second and last chance a year afterwards of failing the first test to achieve the requisite speed and retain his appointment. Here, the petitioners have passed the second test and no third test is envisaged under the Rules of 1974, either before the amendment, or after the 13th Amendment. The petitioners have for a fact passed the second test held to determine their proficiency on 25.08.2022, the result whereof was declared on 28.03.2023. There is, thus, according to the petitioners no occasion for the KDA to hold a third test to verify their proficiency. 9. This Court granted time to the KDA to file a counter affidavit on 05.07.2023 and a return has been filed today, which is taken on record. 10. By consent of parties, this Court has heard the matter. 11. Heard Mr. Rajesh Dwivedi, learned Counsel for the petitioners, Mr. Anand Prakash Paul, learned Counsel appearing for respondent Nos. 2 and 3 and Ms. Monica Arya, learned Additional Chief Standing Counsel appearing on behalf of the respondent No.1. 12. 10. By consent of parties, this Court has heard the matter. 11. Heard Mr. Rajesh Dwivedi, learned Counsel for the petitioners, Mr. Anand Prakash Paul, learned Counsel appearing for respondent Nos. 2 and 3 and Ms. Monica Arya, learned Additional Chief Standing Counsel appearing on behalf of the respondent No.1. 12. In Paragraph No.4 of the counter affidavit, it is admitted that the petitioners though could not clear the proficiency test in typing in the first attempt, but they did pass it in the second attempt. In Paragraph No.5, it is said that approval to the petitioners' appointment was granted by the Vice-Chairman, presumably on the petitioners passing the typing test in the second instance, but subsequently upon complaints received from certain Department Heads under whom the petitioners are working with regard to their typing skills, it was found necessary that a verification be done. It is on this account that the order dated 28.03.2023 was issued requiring all candidates, who cleared the examination, to appear in what the respondents describe as “a conformity routine typing test” to be held on 12.04.2023. It is also averred in Paragraph No.3 that out of the seven candidates, who cleared the proficiency test in the second attempt, three alone have preferred this writ petition, whereas the other four have submitted to the impugned order and taken the test a third time. It is also averred that under the Rules once the candidate clears the test, he cannot be asked to appear for a further skill test, but that does not debar the Authority to take action against employees, who are found to be totally incompetent in their work. More or less, Mr. Paul has made submissions in conformity with the stand taken in the counter affidavit, which he has put across to the Court in more lucid words. 13. Upon hearing learned Counsel for the parties, this Court is of opinion that the KDA have neither the right nor jurisdiction to hold a third test whether a candidate appointed under the Rules of 1974, passes or fails the typing proficiency test held in the second instance. Rule 5(1)(i) of the Rules of 1974, both pre-amended and post amendment contemplate only two tests for a compassionate appointee, who does not have the requisite skill and speed of 25 words per minute in typewriting. Rule 5(1)(i) of the Rules of 1974, both pre-amended and post amendment contemplate only two tests for a compassionate appointee, who does not have the requisite skill and speed of 25 words per minute in typewriting. The first test, an appointee, with this shortcoming, must take at the end of one year of his appointment, and failing that, he must take the second test in the following, year after improving his skills. If he passes the skill test in the second instance, there is no further authority left with the KDA to ask him to undergo a typing skill or proficiency test a third time. After all, the second test was held by the KDA and the petitioners were found successful in the said test. It is not even that the KDA having held the second test it binds them with the result in some manner of an estoppel. The crux of the matter is that passing the typing skill test in the second instance under Rule 5(1)(i) closes the chapter under the Statute once and for all. There is no jurisdiction, as already said, with the KDA to hold a third test to verify or confirm the result of the second. Even if they did hold it and found the petitioners not upto the mark, it would be of no consequence. 14. This position of the law, Mr. Paul could not very seriously dispute. However, he said that for poverty of skill in typewriting, action could be taken against the petitioners. The taking of action if permissible under the service rules for inefficiency of an employee is another matter. It has nothing to do with his appointment. The issue here is about the validity of the compassionate appointment given to the petitioners and with them passing the typewriting proficiency test in the second instance, their appointment cannot be put in jeopardy. If that cannot be done, there is no point about the KDA holding a third test for ascertaining the typewriting proficiency or the petitioners’ typing speed, who have already passed the necessary test in accordance with Rules of 1974. Mr. Paul could not bring to this Court's notice any authority taking a contrary view on principle. 15. In this view of the matter, this petition succeeds and is allowed. Mr. Paul could not bring to this Court's notice any authority taking a contrary view on principle. 15. In this view of the matter, this petition succeeds and is allowed. The impugned order dated 28.03.2023 to the extent it directs the holding of a typing skill test for a third time is quashed. The respondents are restrained by a mandamus from holding a typing test in future for the purpose of determining the validity of the petitioners' appointment. 16. There shall be no order as to costs.