Allahabad High Court
Manjusha Devi vs State Of U.P Thru Prin. Secy. ... on 22 August, 2016
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved
Case :- SERVICE SINGLE No. - 5683 of 2015
Petitioner :- Manjusha Devi
Respondent :- State Of U.P Thru Prin. Secy. Agriculture Lucknow And Ors.
Counsel for Petitioner :- Sharad Pathak
Counsel for Respondent :- C.S.C
Hon'ble Devendra Kumar Upadhyaya,J.
Heard Sri Sharad Pathak, learned counsel for petitioner and learned Standing Counsel representing the State-respondents.
The petitioner, who is a class-IV employee working in the office of District Agriculture Protection Officer, Sultanpur, is aggrieved by the process of selection involving typing test adopted by the respondents for the purposes of making promotion to the post of Junior Clerk/Junior Assistant which is a class-III post on the ground that typing test not being the requirement under the relevant Service Rules for promotion to class-III post of Junior Clerk/Junior Assistant, the petitioner could not have been subjected to it. The petitioner has, thus, challenged the order dated 07.02.2014 by which the promotions of respondent nos.5 to 10 were made against class-III post.
Appointments to the ministerial staff in the Department of Agriculture, State of U.P. are governed by Rules framed under Article 309 of the Constitution of India known as ''Uttar Pradesh Agriculture Department Ministerial Service Rules, 1983' (for brevity ''Rules, 1983'). Recruitment to the various categories of posts in service has been dealt with in Part-III of Rules, 1983, according to which the regional and subordinate offices have the posts of Junior Clerks, Senior Clerks and Head Clerks. According to Rule 5 of Rules, 1983, Junior Clerks are to be recruited in accordance with the provisions contained in the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975. The qualification prescribed for appointment as Junior Clerk has been given in Rule 8 of Rules, 1983, according to which, a candidate for direct recruitment to various posts in service should possess intermediate examination of the Board of High School and Intermediate Education, U.P or an examination equivalent thereto recognized by the Government. Subsequent to promulgation of the Rules, 1983, the State Government notified the Rules known as '' The Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules 2001 (for brevity ''Rules, 2001'). According to Rule 5 of Rules, 2001, recruitment to 20% of the vacancies in the ministerial Group-'C' posts in subordinate office are to be made by promotion through the selection committee. Out of total 20% of the vacancies to be filled in by promotion, 15% posts are to be filled in by making promotion from amongst those substantively appointed Group-'D' employees who have passed High School examination of the Board of High School and Intermediate Education, U.P or an examination equivalent thereto recognized by the State Government and rest of 5% vacancies are to be filled in by way of making promotion from amongst those substantively appointed Group-'D' employees who have passed Intermediate examination of the said Board or an examination equivalent thereto recognized by the State Government.
The claim of the petitioner for being promoted to Group-'C' post is, thus, based on the provisions contained in Rules, 2001 which prescribe quota for making recruitment to Group-'C' post from amongst substantively appointed Group-'D' employees having passed either High School or intermediate examination. The procedure for recruitment by promotion has been provided in Rule 8 of Rules, 2001 which is quoted hereinbelow:-
"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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Total 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 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."
According to the aforequoted provisions contained in Rule 8 of Rules, 2001, recruitment by promotion is to be made on the basis of merit as determined by the marks obtained in the test for selection which includes a written test, interview and evaluation of character rolls. Note-2 appended to Rule 8 of Rules, 2001 provides that in a case where recruitment by promotion is to be made for the post of typist or a post for which Hindi typewriting is essential, a qualifying test of Hindi typewriting also shall be conducted. It further provides that a candidate must have a minimum speed of 25 words per minute in Hindi typewriting to qualify the said test. Thus, test of Hindi typewriting is of qualifying nature, that is to say, it will not be counted for the purposes of determining the merit in terms of the provisions contained in Rule 8 (2) of Rules, 2001.
Submission of learned counsel for the petitioner is that the post against which the petitioner is seeking promotion is the post of Junior Clerk and not that of Clerk-cum-Typist, as such for the post in question Hindi typewriting is not essential. He has further stated that in any event it is only knowledge of Hindi typewriting which the petitioner possesses and subjecting her to any test, since has not been envisaged either in Rules, 2001 or in Rules, 1983, action of the respondents cannot be justified as the same is contrary to the provisions contained in the aforesaid Rules.
In support of his submission, learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of State of U.P. and others vs. Umesh Chandra Srivastava, delivered on 20.07.2010 in Special Appeal (D) No.477 of 2010. He has also relied upon a judgment of Hon'ble Single Judge in the case of Udai Pratap Singh vs. State of U.P. and others, delivered on 18.08.2015 in Writ Petition No.5415 (S/S) of 2014, which is based on the judgment of the Division Bench of this Court in the case of Umesh Chandra Srivastava (supra). Learned counsel for the petitioner has also relied upon yet another Division Bench judgment of this Court in the case of Sanjeev Sharma vs. State of U.P. and others, rendered on 22.07.2010 in Special Appeal No.485 of 2010. Lastly, Sri Pathak, learned counsel for petitioner has relied upon a judgement of Hon'ble Supreme Court in the case of Dr. Vijay Laxmi Sadho vs. Jagdish, reported in (2001) 2 SCC, 247 and contended that this Court is bound by earlier decision of Hon'ble Single Judge and that in case of disagreement, the matter should be referred to a larger Bench.
Opposing the submission made by learned counsel for the petitioner, learned Additional Chief Standing Counsel has submitted that the arguments made by learned counsel for petitioner are not tenable in view of what has been prescribed by State Government in the government order issued on 23.08.2011 in respect of recruitment to be made in the clerical cadre in the Department of Agriculture which prescribes that the educational qualification for the post of Junior Clerk and Junior Assistant shall be intermediate along with CCC certificate granted by the DOEACC. He has further stated that this government order also provides that the candidate aspiring for recruitment to the post of Junior Clerk and Junior Assistant should have minimum typing speed of 25/30 words per minute. Learned Additional Chief Standing Counsel has relied upon enclosure-2 appended to the government order dated 23.08.2011 which is extracted hereinbelow:-
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Reliance has been placed by learned Additional Chief Standing Counsel on the judgment of Hon'ble Supreme Court rendered on 26.08.2011 in the case of State of Punjab and others vs. Jagdish Kaur, Civil Appeal No.2897 of 2006. He has also placed reliance on yet another judgment of Hon'ble Supreme Court delivered on 05.08.2008 in the case of Dhananjay Malik and others vs. State of Uttranchal and others, Appeal (Civil) No.1771 of 2008.
Having considered the arguments made by learned counsel for the respective parties, I am unable to agree with the submissions made by learned counsel for the petitioner for the reasons which are to follow.
It is true that Rules, 1983 do not prescribe knowledge of Hindi typing as essential qualification for the post of Junior Clerk as Rule 8 of the said Rules provides that a candidate for direct recruitment to various posts in service must have passed intermediate examination of Board of High School or Intermediate Education or equivalent examination. However, what is relevant at this juncture is to examine the provisions contained in Rules, 2001. As stated above, Rule, 8 of Rules, 2001 prescribes the procedure for promotion. Note-2 appended to Rule 8 (2) of Rules, 2001 in clear terms provides that in a case where promotion is to be made for the post of typist or for a post for which Hindi typewriting is essential, a qualifying test of Hindi typewriting shall be conducted, though test of Hindi typewriting is of a qualifying nature. It also provides that test of Hindi typewriting shall be as prescribed by the State Government from time to time. Note-2 appended to Rules, 2001 has to be read with the provisions contained in Government Order dated 23.08.2011, according to which the minimum qualification for direct recruitment to the post of Junior Clerk/Junior Assistant in the Department of Agriculture is intermediate with CCC certificate in computer operation. In addition to intermediate and qualification of computer operation, the candidate should have the knowledge of Hindi/English typewriting with a minimum speed of 25/30 words per minute. Thus, the prescription as required by Note-2 appended to Rule 8 (2) of Rules, 2001 is available in the Government order dated 23.08.2011.
Learned counsel for the petitioner has stated that knowledge of Hindi/English typewriting with the minimum speed of 25/30 words per minute is applicable only in case of direct recruitment and not in the case of promotion.
The said submission is highly misconceived for the reason that the appendix-2 appended with the Government Order dated 23.08.2011 provides that 15% posts shall be filled in from amongst such class-IV employees who are having High School qualification and have knowledge of typing and 5% vacancies are to be filled in from amongst those class-IV employees who are intermediate and have knowledge of typing.
Learned counsel for the petitioner has, however, submitted that a class-IV or Group-'D' employee having knowledge of typing is one thing and subjecting such an employee to a test is the other. His submission, thus, is that it may be correct that appendix-2 appended to the government order dated 23.08.2011 may require knowledge of typing to be possessed by Group-'D' employee for his promotion but the same does not require subjecting such an employee to typing test and since in the instant case, the petitioner was subjected to typing test and was required to possess the skill of Hindi typewriting with a minimum speed of 25 words per minute, as such the entire procedure adopted by the respondents is not tenable being contrary not only to the Rules but also to the provisions contained in Government Order dated 23.08.2011.
The aforesaid submission has been considered. However, on a closure scrutiny, the same deserves rejection which is hereby rejected.
The prescriptions available in appendix-2 appended to the Government Order dated 23.08.2011 clearly stipulate that only those Group-'D' employees shall be considered for promotion who have knowledge of typing. As to whether a Group-'D' employee has the knowledge of typing or not can be tested only if such an employee is subjected to typing test. The minimum skill to be acquired by the Group-'D' employee in Hindi typing for making him/her eligible for promotion can always be judged and for judging as to whether Group-'D' employee has the knowledge of Hindi typing if the authorities have fixed the bench mark of speed of 25 words per minute in Hindi typing, the same cannot be faulted with.
It is also noticeable that Rule 8 and Note-2 appended to Rule 8 (2) of Rules, 2001 provides that Hindi typewriting test is qualifying in nature. This means that for the purposes of preparation of merit, the marks obtained or evaluation based on test of Hindi typewriting is not to be taken into account in the instant case as well. However, what the respondents have done is that they have subjected the Group-'D' employees to test of Hindi typewriting and have prescribed the speed of 25 words per minute to declare a Group-'D' employee to be qualified in Hindi typewriting, that is to say, to judge as to whether a Group-'D' employee has knowledge of Hindi typewriting, a criteria has been fixed by the respondents that only those Group-'D' employees can be said to have knowledge of Hindi typewriting who have a speed of 25 words per minute in Hindi typing. In view of this, submission made by learned counsel for the petitioner that the Government Order only prescribes that Group-'D' employee seeking promotion should only have the knowledge of Hindi typing and they cannot be subjected to test of Hindi typing is misconceived and thus is not accepted.
The judgment rendered by the Division Bench of this Court in the case of Umesh Chandra Srivastava (supra) pertained to recruitment process to be adopted for making promotion of Group-'D' employees to Group-'C' post in Public Works Department. In the said case despite time having been granted to learned counsel representing the State, no such rules or government order was produced before the Court by which the Group-'D' employees were required to pass the typing test. In the instant case, the requirement of passing typing test by Group-'D' employees seeking promotion to Group-'C' post in the Department of Agriculture has been prescribed by the Government Order dated 23.08.2011. So far as the Public Works Department is concerned, either there is no such prescription available in Rules or in any Government Order or the same were not shown or produced before the Division Bench in the case of Umesh Chandra Srivastava (supra). The judgment rendered by Hon'ble Single Judge in the case of Udai Pratap Singh (supra) is based on Division Bench judgment of this Court in the case of Umesh Chandra Srivastava (supra). However, it may be mentioned that the judgment rendered by Hon'ble Single Judge in the case of Udai Pratap Singh (supra) related to the Transport Department and in the said case also, no such government order or rules containing provisions similar to the provisions contained in appendix-2 appended to Government Order dated 23.08.2011 were produced. The other judgment of Division Bench of this Court relied upon by learned counsel for the petitioner in the case of Sanjeev Sharma (supra) is also based on the judgment dated 20.07.2010 passed in Special Appeal (D) No.477 of 2010 i.e. case of Umesh Chandra Srivastava (supra).
The provisions contained in appendix-2 appended to Government Order dated 23.08.2011 are applicable in case of recruitment in the Department of Agriculture and it is this Government Order which distinguishes the present case from the cases which have been cited by learned counsel for the petitioner i.e. the judgment in the cases of Umesh Chandra Srivastava (supra), Udai Pratap Singh (supra) and also in the case of Sanjeev Sharma (supra).
The Hon'ble Supreme Court in the case of State of Punjab and others vs. Jagdish Kaur (supra), has dealt with a similar issue and concluded that in absence of statutory rules on any subject the relevant government order would hold the field.
The facts in the case of State of Punjab and others vs. Jagdish Kaur (supra) were that the Group-'D' employees were claiming promotion against class-III post without having passed the typewriting test in Punjabi with a minimum speed of 30 words per minute. The Hon'ble High Court of Punjab and Haryana held that condition of qualifying in typing test in Punjabi was illegal, unreasonable and arbitrary. The finding of High Court was primarily based on the provisions of Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 and Hon'ble High Court in the said case observed that in the service rules, the requirement of qualifying typewriting test in Punjabi with a minimum speed of 30 words per minute was for direct recruitment but there was no such requirement for promotion from class-IV to class-III posts. The Hon'ble Supreme Court, however, reversed the finding recorded by the High Court in the said case noticing that the statutory service rules framed under Article 309 of the Constitution of India did not provide for promotion from class-IV as a mode of recruitment to class-III post and hence, there was no question of finding any provision dealing with eligibility criteria for promotion from class-IV to class-III posts in the said service rules. The Hon'ble Supreme Court relied upon the Government circular dated 24.08.1993 wherein it was clearly prescribed that a provision for a qualifying test in Punjabi typewriting which should be equal to the one prescribed by Subordinate Services Selection Board for filling up class-III posts by promotion from amongst class-IV employees. The Hon'ble Supreme Court also noticed that the aforesaid Government Order was subsequently amended by another circular dated 27.10.1998 increasing the quota for promotion from 10% to 15% only however, retaining the qualification of Punjabi typewriting as prescribed in earlier government order. It is in the background of the aforesaid facts that the Hon'ble Supreme Court in the case of State of Punjab and others vs. Jagdish Kaur (supra) has held that the requirement of qualifying test in Punjabi typewriting with the minimum speed of 30 words per minute is manifestly a criterion for promotion from class-IV to class-III post. The Hon'ble Supreme Court also held that in absence of statutory rules on any subject the relevant government order would hold the field.
If the facts of the present case are analyzed in the light of what has been held by Hon'ble Supreme Court in the case of State of Punjab and others vs. Jagdish Kaur (supra), it becomes clear that though neither Rules, 1983 nor Rules, 2001 prescribe for a qualifying test in Hindi typewriting (however, Note-2 appended to Rule 8 (2) of Rules, 2001 does prescribe for conducting qualifying test of Hindi typewriting for recruitment by promotion to a post for which Hindi typewriting is essential) but the government order dated 23.08.2011, which has been issued in respect of recruitment to be made by promotion of Group-'D' employees to Group-'C' post in the Department of Agriculture, State of U.P., clearly prescribes in appendix-2 appended thereto that such Group-'D' employee desirous of promotion should have the knowledge of typewriting.
As observed above, to test as to whether a candidate possesses knowledge of typewriting, the criteria of minimum speed of 25 words per minute in Hindi typewriting can be fixed by the respondents and if such criteria is uniformly applied to all the candidates, no wrong can be attributed to the same.
For the reasons disclosed above and also keeping in view the dictum of Hon'ble Supreme Court in the case of State of Punjab and others vs. Jagdish Kaur (supra), the writ petition, in my considered opinion, fails which is resultantly dismissed.
However, there will be no order as to costs.
Order Date :- August 22, 2016
Renu/-
