Rajiv Kumar Tiwari And Others vs State Of U.P.And Others
2013 Latest Caselaw 7007 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 49880 of 2012
 

 
Petitioner :- Rajiv Kumar Tiwari And Others
 
Respondent :- State Of U.P.And Others
 
Counsel for Petitioner :- V.K.Singh,G.K.Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioners, who were appointed as Seasonal Assistant Wasil Baqi Navis have sought to be recruited under Rule 5 (Category B) (2) read with 16(1) of U.P. District Offices (Collectorates) Ministerial Service (Second Amendment) Rules, 2011 (hereinafter referred to as "Amendment Rules, 2011") and in pursuant thereto, they were required to undergo typing test, which has been protested by petitioners, by coming to this Court with a prayer that respondents should not compel them (petitioners) to undergo typing test and bye-passing the same, petitioners should be considered for substantive appointment on the post of Assistant Wasil Baqi Navis under Rules, 2011.

2. Heard Sri V.K.Singh, learned counsel for the petitioners and learned Standing Counsel for the respondents.

3. The short question up for consideration is, whether under the Rules, necessity of typing test can be read in the matter of substantive appointment of "Seasonal Assistant Wasil Baqi Navis" (hereinafter referred to as "SAWBN") on the post of "Assistant Wasil Baqi Navis" (hereinafter referred to as "AWBN") against 30% quota introduced by amendment of Rule 5 of U.P. District Offices (Collectorates) Ministerial Service Rules, 1980 (hereinafter referred to as "Rules, 1980") vide amendment made in 2011.

4. The rules, as framed initially, did not contemplate any engagement or appointment of SAWBN. The categories of posts, which are governed by Rules, 1980 are described in rule 5 as category 'A', 'B', 'C' and 'D'. AWBN was placed in category 'A' and two sources of recruitment provided were, 'direct' and 'promotion' of Group 'D' employees. Rule 8, which provides academic qualifications, prescribes following qualifications for the post and Category 'A', which read as under:

As prescribed in the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975:

Provided that in the case of the post of Typist, a candidate must also possess a minimum speed of 36 words per minute in Hindi typewriting :

Provided further that for the post of Teleprinter Operator a candidate must also possess a minimum speed of 40 words per minute in English typewriting."

5. Rule 15 provides procedure for direct recruitment to the post in Category 'A'. It says and said that it shall be in accordance with the procedure laid down in Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975 as amendment from time to time.

6. A substantial amendment was carried out in the Rules 1980 vide Amendment Rules, 2011, published vide notification dated 26th May, 2011. Rule 5 in its entirety has been substituted by a new rule. The post of AWBN though continued to be Category 'A' post but now there are three sources of recruitment, namely 50 per cent by direct recruitment, 30 per cent by selection of SAWBN, who have satisfactorily worked for at least 4 fasli years on the first date of the year in which selection is made. In case non availability of eligible and suitable candidates, vacancies in this quota i.e. SAWBN shall be filled in by direct recruitment. The third source of recruitment is by promotion of Group 'D' employees to the extent of 20 per cent. Rule 8, prescribing educational qualification, has also been substituted and now it reads as under:

Academic Qualification.- A candidate for direct recruitment to the various posts in the service must possess the following qualifications:

Post

Qualification

For the post in Category 'A'

1. 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;

2. Must possess a minimum speed of 25 words per minute in Hindi typewriting."

(emphasis added)

7. Rule 10 provides minimum and maximum age for direct recruitment but sub rule (2) thereof provides that in the case of SWBN, they can be given benefit of relaxation in age to the limit prescribed in clause (ii) of Rule 5 under Category 'A; i.e. to the extent the SAWBN have functioned in the fasli years. The procedure for selection is provided in Rule 16 which has also now been substituted by Amendment Rules, 2011.

8. It is though contended that as per Rule 16, for the purpose of selection of SAWBN to the post of AWBN, only their work and performance as borne out from the record will have to be examined. An inference thus can be drawn that requirement of typing, which is a necessary qualification for direct recruitment, would not apply to SAWBN.

9. Though the argument, at the first flush, appears to be quite attractive but after deeper scrutiny of the scheme rules, I find myself unable to agree with the submission of learned counsel for the petitioner.

10. Rules, 1980, as stood initially or even after Amendment Rules 2011 as such, no where contemplate engagement of any SAWBN. The term 'Seasonal' only demonstrate nature of engagement of a person on a particular post otherwise job requirement of such person on the post concerned, for all practical purposes, would be the same as is required to be done by a regularly appointed person on such post. A SAWBN is a person who has to perform duties of AWBN though nature of appointment would be seasonal i.e. casual, limited for period, and fortuitous. Meaning thereby, one is engaged as seasonal as and when requirement is there. His/her tenure of appointment, therefore, is precarious and intermittent. So far as work is concerned, as and when such person is engaged, he/she can and he would be required to perform some duties of AWBN as is performed by regular appointees.

11. If that be so, the job requirement, duties and other liabilities are same, a person, directly recruited on the post of AWBN, under the Rules, if required to possess a minimum speed of typing, in the promotion quota also from Group 'D' to Group 'C', typing test is one of the requirement in which a Group 'D' employee has to appear and qualify, I find no reason not to read some requirement of proficiency of typing for SAWBN. In fact when a person is engaged as SAWBN, he must have possessed requisite qualification required for direct appointment of AWBN otherwise his engagement on Seasonal basis would be faulty. The appointment of SAWBN on substantive basis as AWBN is treated at par with direct recruitment as is evident from Rule 10 also where minimum and maximum age for direct recruitment is provided in sub rule (1) and (2). The age requirement has been however allowed to be relaxed in case of SAWBN. Meaning thereby, for rule 10(2) read with Rule 5 category A, Column 2 proviso, a SAWBN would not be eligible for substantive appointment as AWBN if he/she would have been overage under Rule 10(1) subject to relaxation as permitted.

12. It is also not in dispute that proficiency in typing is required for the purpose of discharging duties as AWBN, effectively.

13. In these facts and circumstances, and discussion made above, in my view, respondents are well justified in requiring petitioners to appear for typing test.

14. I, therefore, do not find any reason to permit petitioners to be considered for substantive appointment on the post of AWBN without undergoing typing test.

15. The writ petition, therefore, lacks merit.

16. Dismissed.

17. No costs.

Order Date :- 19.11.2013

KA