State Of U.P. And 3 Ors. vs Narendra Kumar Mishra And Anr.
2013 Latest Caselaw 7122 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 
Case :- WRIT - A No. - 42589 of 2013
 
Petitioner :- State Of U.P. And 3 Ors.
 
Respondent :- Narendra Kumar Mishra And Anr.
 
Counsel for Petitioner :- M.S. Pipersenia
 
Counsel for Respondent :- S.N. Tripathi,S.C.
 
Hon'ble Rajes Kumar,J.

Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Y.K. Yadav, learned Standing Counsel appearing on behalf of the petitioner, Shri L.K. Pathak, who appears on behalf of the respondents. 

The respondent has been appointed on the post of 'electrician'  vide appointment letter dated 11.5.89.  There is no dispute that the respondent's service is being governed by the U.P. Labour Department 'Group D' (Technical Employees) Service Rules 1980.

The contention of the respondent is that he was entitled for the promotion on the post of 'Group C' under the Uttar Pradesh  Subordinate Offices Ministerial Cadre, Group C Lowest Cadre Post (Recruitment by promotion)Rules, 2001'. The respondent has filed a Claim Petition No.1666 of 2008 before the Tribunal.  The Tribunal vide order dated 31.08.09 has disposed of the Claim Petition with the direction that whenever the promotion from 'Group-D' to  'Group C'  post would be  made, the respondent's case may be considered. It appears that while disposing of the Claim Petition No.1666 of 2008, one post has been reserved for the respondent.  

In compliance of the aforesaid order of the Tribunal, the respondent was directed to appear in a typing test.  The respondent appeared in the typing test but could not be qualified.  The respondent was again directed to appear in the typing test held on 19.5.11 but the respondent did not appear. 

It appears that the respondent protested the typing examination on the ground that it was required for the promotion on the post of typist and not for any other post of 'Group C'.  Raising the grievances, the respondent filed a representation. However, the representation of the respondent has been rejected vide order dated 25.8.10. 

Being aggrieved, the respondent filed a Claim Petition No.1750 of 2010 which has been allowed vide order dated 5.2.13.  The Tribunal has set aside the order dated 25.8.10 and further issued a direction to the  petitioner to take a fresh examination of all the IVth Class Employees, who have been deprived from promotion on the ground of typing examination and further directed that on the basis of the examination, the respondent may be considered for promotion on the post of Class-III on the basis of merit. 

Learned Standing Counsel submitted that the respondent was appointed as an electrician, which is a technical post and was governed by the 'Uttar Pradesh Labour Department Group D (Technical Employees ) Service Rules, 1980 and is, therefore, not entitled for promotion under the Uttar Pradesh  Subordinate Offices Ministerial Cadre, Group C Lowest Cadre Post (Recruitment by promotion)Rules, 2001'  He further submitted that for the  'Class C' post, in which mainly the post of clerks falls, the typing examination is essential, as in the absence of typing knowledge, they are not able to discharge their functions as a clerk.  Reliance has been placed on the decision of the Division Bench of this Court in the case of Superintending Engineer, Jhansi Lalitpur Circle, P.W.D. Jhansi and others Versus Anoop Kumar Rathore  2010(1) AWC 214.  He further submitted that the respondent has  claimed his promotion under the aforesaid Rules and has claimed his appointment on the basis of the written examination,in the absence of the typing examination and having regard to his claim, the Tribunal vide its earlier order has reserved one post for the respondent and, therefore, the Tribunal has committed an illegality in directing the petitioners to hold a fresh examination of all IVth Class Employees, who claimed their promotion under the Rule 2001 and their claim had been rejected on the ground of typing examination. 

Learned counsel for the respondent submitted that the issue involved is squarely covered by the decision of this Court in the case of  Umesh Chandra Srivastava Vs. State of U.P. & Others  reported in 2011 (1) UPLBEC 131, which has been confirmed by the Division Bench of this Hon'ble Court in the Special Appeal reported in 2011 (1) UPLBEC 384 (State of U.P. & Others Vs. Umesh Chandra Srivastava.        

We have considered the rival submissions.

Relevant rule 5 and 8 of Rule 2001 reads as follows.:-

"(5) Source of recruitment:- Recruitment to twenty percent of the vacancies of the ministerial group 'C' posts of the lowest grade in a subordinate office shall be made by promotion through the Selection Committee from the following sources:

(1) Fifteen per cent from amongst such 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 recognized by the Government as equivalent thereto and who have completed five years service as such on the first day of the year of recruitment.

(2) Five per cent from amongst such substantively appointed Group 'D' employees who have passed the Intermediate Education of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto and who have completed five years service as such on the first day of the year of recruitment.

8. Procedure for recruitment by promotion - (1) For the purpose of recruitment by promotion, there shall be constituted a Selection Committee in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee for posts outside the purview of the Public Service Commission Rules, 1992, as amended from time to time.

Note : Nomination of Officers for giving representation to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of Citizens in the Selection Committee shall be made in accordance with the order made under Section 7 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, as amended from time to time.

(2) Recruitment by promotion shall be made on the basis of merit as disclosed by marks obtained in the test for selection through the Selection Committee constituted under sub-rule (1). The test for selection shall include a simple written test, interview and evaluation of character roll. The maximum marks to be assigned for written test, interview and evaluation of character roll shall be as given below:

(a) Written Test Thirty marks

(b) Interview Ten marks

(c) Evaluation of character roll Ten marks

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Fifty marks

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Note 1 - The written test shall include a single question paper. The question paper shall contain two questions. Each question shall carry fifteen marks. One question shall be on Hindi Essay writing on a simple topic and the other shall be on General Knowledge.

Note 2 - Where recruitment by promotion is being 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.

(3) The Selection Committee shall conduct the test of eligible candidates under sub-rule (2). After the marks obtained by the candidates in the said test have been tabulated, the Selection committee shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes and Scheduled Tribes in accordance with rule 6, prepare a list of candidates in order of merit as disclosed by marks obtained by them in the said test and recommends such number of candidates by marks obtained by them in the said test and recommends such number of candidates as, on the basis of the result of the said test have come up to the standard fixed by the Selection Committee in this respect. If two or more candidates obtain equal marks the candidate obtaining higher marks in the written test shall be placed higher in the list. In case two or more candidates obtain equal marks in the written test also, the candidate senior in age shall be placed higher in the select list. The Selection Committee shall forward the list to the appointing authority."

We do not find substance  in the argument of learned counsel for the petitioner that the respondent's appointment was as electrician, which is technical post and was governed by U.P. Labour Department Group D  (Technical employees) Service Rules 1980, therefore, he is not entitled for promotion under Rule 2001.  Rule 2001 applies to all the employees, who falls under the category of Group D,  whether they are on technical post or non-technical post.  The respondent, admittedly, falls under the Category of Group D.  Therefore, he is entitled for promotion under the Rule 2001.

We are of the view that the issue involved in the present writ petition is squarely covered by the Division Bench of this Court in the case of State of U.P. & Others Vs. Umesh Chandra Srivastava Supra wherein  Rule 5 and Note  2 to sub-Rule(2) of Rule 8 of Rule 2001 have been considered, which is under consideration before us.  On consideration of the aforesaid rules, the  Division Bench of this Court held as follows. :-

"6. The matter was heard at length yesterday and adjourned for today to enable the State to show any recruitment rules, by which the respondent herein is required to pass the typing test.  Learned Counsel has today produced a rule, namely, the Public Works Department Ministerial Establishment Rules, 1965, and our attention is invited to Part-II of the said Rules, which relates to Cadre.  Recruitment to the post of Lower Grade Clerk has been shown as by direct recruitment based on the result of competitive examination.  Apart from that, there is nothing, insofar as passing a typing test.  At any rate, we are not concerned with that aspect, as in the instant case, Rule 5(1) of the Recruitment Rules in the matter of promotion has specifically carved out a quota of 20 percent for Group 'D' employees while making recruitment to ministerial group 'C' posts.  The said quota has further been divided into two categories of 15 percent and 5 percent as set out in sub-rule (2) of Rule 5  of the Recruitment Rules.  That is the source of recruitment.  Under Rule 8(2) of the Recruitment Rules,  which provides for procedure for recruitment by promotion, there is no requirement of qualifying typing test.  

7. It is, therefore, clear that insofar as the recruitment by promotion from Group 'D' post to Group 'C' post is concerned, once a candidate has the essential qualification and meets the other requirements as set out in Rule 8 of the Recruitment Rules, such candidate shall be eligible for selection to Group 'C' post without appearing or passing the typing test.

8. In the light of that, the appellants are directed to consider the claim of the respondent for promotion on the basis of the marks obtained by him without asking him to pass the typing test.  The entire exercise will be completed not later than three months from today."

We have also considered the decision of this Court in the case of Superintending Engineer, Jhansi Lalitpur Circle, P.W.D. Jhansi and others Versus Anoop Kumar Rathore  2010(1) AWC 214.   The said decision does not apply to the present case and is clearly distinguishable in as much as the U.P. Sub-ordinate Officers Ministerial Staff Direct Recruitment (Rules) 1985 was under consideration and the appointment was by way of direct recruitment on the post of junior clerk ,wherein on consideration of the aforesaid Rules, it has been held that as per Rule 23(5) Hindi typing is essential qualification.

Respectfully following the decision of  Division Bench of this Court in the case of State of U.P. & Others Vs. Umesh Chandra Srivastava Supra, we are of the view that for the purposes of promotion from Class 'D' to Class 'C' under Rule 5 read with Rule 8  typing is only essential  for the post of 'Typist' and not for any other post of Group 'C',  and as such, we direct the petitioner to  take examination of the respondent as required under the Rule 8 of Rule 2001 and to consider his promotion on the post  on merit without asking the respondent to undergo for typing test.  Further, we are of the view that a direction given by the Tribunal asking the petitioner to take the examination of Class IV employees, who have applied for promotion under the aforesaid Rules and their claim has been denied on the ground of typing test may be held, is not sustainable.  Such Class IV employees have not contested the matter and, therefore, the entire process of selection could not be re-opened.   One post has already been kept reserved for the respondent, in which the respondent alone can be considered for  promotion and, therefore, we set aside that part of the order of the Tribunal directing the petitioner to hold the examination of all Class IV employees, who have  been deprived on the ground of typing test and the claim of the respondent may only be considered for promotion on the basis of merit. 

The petitioner is directed to hold the examination of the respondent within a period of six months from the date of presentation of a certified copy of the order in accordance to Rule 8 of Rule 2001 and in case the respondent succeed in the said examination/test, he may be granted promotion.

In the result, the writ petition is allowed in part as stated above.

Order Date :- 26.11.2013

L.F./1