Satish Kumar Balmiki And Another ... vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 8345 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 2                                                                    AFR
 

 
Case :- SPECIAL APPEAL No. - 331 of 2022
 

 
Appellant :- Satish Kumar Balmiki And Another (In Writ-A 24026 of 2018)
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Medical And Health , Civil Secrt. Lucknow And Others
 
Counsel for Appellant :- Vijay Kumar Srivastava, Shailendra Kumar Dubey
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajnish Kumar,J.

(Per Rajnish Kumar,J.)

1. Heard, Shri Vijay Kumar Srivastava, learned counsel for the appellants-petitioners and Shri Rajesh Tiwari, learned State Counsel representing the State-respondents.

2. The appellants-petitioners have filed this intra-court Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules assailing the validity of the judgment and order dated 20.04.2022, passed by learned Single Judge in a bunch of writ petitions, the leading Writ Petition being Writ-A No.24026 of 2018;Sushil Kumar and others Versus State of U.P. and others, whereby the writ petitions have been dismissed by learned Single Judge providing therein that the dismissal of the petitions shall not preclude the petitioners from participating in any subsequent recruitment for Group 'C' post against the promotion quota provided they fulfill the essential requirement as mandated under Rule 7 of the Promotion Rules, 2014.

3. The appellants-petitioners are working on various class-IV posts in the department of Medical and Health in the office of the opposite party no.3. The appellants-petitioners, in pursuance of the decision of the Government to fill up class-III posts of Junior Assistants by way of promotion from Class-IV employees, applied for promotion by way of selection. The eligibility list dated 17.07.2018 was prepared, in which the names of the appellants-petitioners figured alongwith other candidates in a composite list of 1325 candidates. By means of a letter dated 17.07.2018, the respondents had fixed the date for typing test between 24.07.2018 and 27.07.2018. It was also provided in the said letter that in case due to some unavoidable reason a candidate could not appear on the dates fixed, he may appear on 28.07.2018. In pursuance thereto the appellants-petitioners appeared in the typing test, result of which was declared on 10.08.2018. The appellants-petitioners were not selected. Therefore the appellants-petitioners approached this court by means of Writ Petition No.24026 (SS) of 2018.

4. Learned counsel for the appellants-petitioners submitted that in terms of relevant Service Rules, namely, "The Uttar Pradesh Government Department Ministerial Cadre Service Rules, 2014" (here-in-after referred to as the Rules 2014) read with "The Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001" (here-in-after referred to as the Rules 2001), the appellants-petitioners have been subjected to typing test, but there is no such requirement under the aforesaid Rules, except for the posts of typist or the posts for which typing is essential. However, learned Single Judge rejected the claim of the appellants-petitioners by placing reliance on Rules 2014 read with Rules 2001, which could not have been done.

5. Learned counsel for the appellants-petitioners vehemently argued that the reliance placed by learned Single Judge on Rules 2014 is highly misplaced because as per Rules 2014, only certain provisions of Rules 2001 are to be followed for making promotion by way of selection. It has further been contended by learned counsel for the appellants-petitioners that Rules 2014 only contemplates the knowledge of typing skill for the posts for which the typing is required, hence the respondents could not have held the typing test for all the posts. Submission is that without considering it the learned Single Judge has dismissed the writ petition, therefore the judgment and order passed by learned Single Judge is not sustainable and liable to be set aside.

6. Learned Standing Counsel representing the State-respondents vehemently opposed the submissions of learned counsel for the appellants-petitioners. He submitted that though typing was not an essential qualification under the Rules 2001, but it has been made the essential qualification under Rule 7 of the Rules 2014 for promotion and Rules 2001 are applicable only for the procedural purposes i.e. as to how the selection is to be made and what should be the criteria and minimum speed for typing. Thus he submitted that learned Single Judge has rightly considered the pleadings and the Rules and dismissed the writ petition. It has been thus submitted that there is no illegality or error in the judgment and order passed by learned Single Judge and hence the Special Appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed.

7. We have considered the submissions of learned counsel for the parties and perused the records available on Special Appeal and the Rules 2014 and Rules 2001.

8. Rules 2014 have been framed under Article 309 of the Constitution of India and in supersession of all existing Rules and Orders on the subject. Rule 7 of Rules 2014 provides three sources of recruitment for the post of Junior Assistant, which is a class III post; 80% of said posts are to be filled in by way of direct recruitment, 15% of the posts are to be filled in by way of promotion from amongst the substantively appointed Group 'D' employees having High School or equivalent qualification and who possess the knowledge of typewriting and 5% posts are to be filled up by making promotion from amongst substantively appointed Group 'D' employees, who have passed the Intermediate or equivalent examination and who possess the knowledge of typewriting. Accordingly apart from qualification of High School and Intermediate or equivalent qualification, one of the essential qualifications prescribed therein is "knowledge of typewriting" for promotion from Group 'D' post. The words "knowledge of typewriting" are followed by "in accordance with the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 as amended from time to time", which would mean that the knowledge of typewriting has to be read in consonance with the provisions contained in Rules 2001.

9. Rule 7 (1) of the Rules 2014, relevant for consideration in this appeal, is extracted here-in-below:-

"7. Source of recruitment- Recruitment to the various categories of posts in the service shall be made from the following sources:

(1) Junior Assistant-(i) Eighty percent by direct recruitment.

(ii) Fifteen percent by promotion from amongst 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 possess the knowledge of typewriting, in accordance with the Uttar Pradesh Subordinate Offices Ministerial 'Group 'C' Post of the Lowest Grade (Recruitment by Promotion) Rules, 2001, as amended from time to time.

(iii) Five percent by promotion from amongst substantively appointed Group 'D' employees who have passed the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto and who possess the knowledge of typewriting, in accordance with the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, as amended from time to time."

10. Rule 18 of Rules 2014 provides that recruitment by promotion for the post of Junior Assistant in the service shall be made in accordance with the provisions of the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001 as amended from time to time. The conjoint reading of the Rules 7(1) and Rule 18 of Rules 2014 clearly indicates that the essential qualifications for promotion from Group 'D' post is High School/Intermediate or equivalent thereto and knowledge of typewriting and for testing the knowledge of typewriting and procedure for selection as prescribed under the Rules 2001, would be applicable. Rule 18 of Rules 2014 is extracted here-in-below:-

"18. Procedure for recruitment by promotion for the post of Junior Assistant- Recruitment by promotion to the posts of Junior Assistant in the service shall be made in accordance with the provisions of the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, as amended from time to time."

11. Rule 5 of Rules 2001 provided the source of recruitment for promotion, under which 15% posts were to be filled in from the substantively appointed Group 'D' employees who possess the High School or equivalent qualification and 5% posts from the substantively appointed Group 'D' employees who possess the Intermediate or equivalent. The procedure for recruitment for promotion is provided in Rule 8 of Rules 2001. In terms of Sub-rule (1) of Rule 8 for the purpose of recruitment by promotion a Selection Committee has to be constituted in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee for the posts outside the purview of the Public Service Commission Rules, 1992. Sub Rule (2) provides that the 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) and the test for selection shall include a simple written test, interview and evaluation of character roll. The maximum marks for all the three have also been provided. Note-2 to Sub-rule (2) of Rule 8 provides that 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 and to qualify this test a candidate must have a minimum speed of twenty-five words per minute in Hindi Typewriting. As such as per Rule 8(2)-Note-2 where recruitment by promotion is to be made against the post of Typist or against a post for which Hindi Typewriting is essential, a test in Hindi typing shall be conducted by the Selection Committee, which is to be of qualifying nature. Note-2 appended to Rule 8 (2) of Rules 2001 is extracted here-in-below:-

"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."

12. When we examine the contention of learned counsel for the appellants-petitioners in the backdrop of the provisions contained in Rules 2014 read with Rules 2001, it is crystal clear that though knowledge of typewriting was not an essential qualification under Rules 2001 for promotion to all Group 'C' posts from Group 'D' posts, but the same has been made an essential qualification under Rules 2014, which is to be tested as per the procedure prescribed under Rules 2001, which specifically provides as to what will be the benchmark to ascertain the eligibility of a candidate for promotion to Group 'C' post from Group 'D' post. According to Note 2, as extracted here-in-above, appended to Rules 8 of Rules 2001, for promotion to the post of Typist or to a post where the knowledge of Hindi typewriting is necessary a test of Hindi typing is to be organized and conducted which is qualifying in nature and in that test a candidate has to perform/acquire speed of 25 words per minute in Hindi Typing test. Thus, under the backdrop of the aforesaid Rules on being examined the submissions of learned counsel for the appellants-petitioners and the respondents, we find that the submissions of learned counsel for the appellants-petitioners are not tenable.

13. A Division Bench of this court, in which one of us (Mr.Justice Devendra Kumar Upadhyaya), was a member in Special Appeal No.173 of 2017; Ved Vrat Tyagi and 15 others Versus State of U.P. and two others considering the provisions of Rules 2014 read with Rules 2001, in regard to the identical issue, held as under:-

""If the submission of learned counsel for the petitioners-appellants is examined on the basis of provisions contained in 2014 Rules read with referred 2001 Rules, it is crystal clear that though 2014 Rules provide that 'knowledge of typing' is essential qualification, however, 2001 Rules specifically provides what will be the benchmark to ascertain eligibility of a candidate for promotion from Group D post. According to Note 2, as extracted hereinabove, occuring in Rule 8 (2) of 2001 Rules, for promotion to the post of typist or to a post where knowledge of Hindi typing is essential, a test of Hindi typing has to be organized/conducted which is qualifying in nature and in that test a candidate has to perform/acquire speed of 25 words per minute in Hindi typing test. Thus, if the submission made by the learned counsel for the petitioners-appellants, in the backdrop of the aforesaid discussions, are examined by us in the light of the 2014 Rules read alongwith 2001 Rules, same are not found to be tenable." 

14. We also notice that under Rules 2001 the definition of Ministerial Group 'C' post of the Lowest grade is given in Rule 4(f), which is extracted below:-

"(f) 'Ministerial Group 'C' Posts of the Lowest Grade' shall refer to the Ministerial group 'C' posts of the lowest scale of pay, excluding the posts belonging to the Stenographer cadre, Accounts cadre or the posts of technical nature in the subordinate offices which are filled both by direct recruitment and by promotion and which are outside the purview of the Public Service Commission, Uttar Pradesh;"

15. According to the aforesaid definition in Rules 2001,the Ministerial Group 'C' post of the lowest grade excludes the posts belonging to the Stenographer cadre, Accounts cadre or the posts of technical nature in the subordinate offices. However, under the Rules 2014 Ministerial Group 'C' post of the Lowest Grade has not been defined and the definition of 'Service' has been given under Rule 5 ((i), according to which 'Service' means the Uttar Pradesh Government Department Ministerial Cadre Service. The same is extracted below:-

"(i) 'service' means the Uttar Pradesh Government Department Ministerial Cadre Service;"

16. In view of above, Rules 2014 does not have any such classification of Group 'C' posts and Stenographer etc. as was in Rules 2001. In this view also the submissions of learned counsel for the appellants-petitioners that the "knowledge of typewriting" is required for the post of Stenographer or the post for which Hindi typing is essential only, is misconceived and not tenable and now the "knowledge of typewriting" is essential for promotion from Group 'D' employees.

17. After considering the Rules, learned Single Judge has categorically held that the Rule 7 of the Promotion Rules 2014 provides that typing is essential qualification mandated for promotion and the criteria/speed as prescribed in Rules 2001 has been incorporated in promotion Rules 2014 only to the extent of Hindi typewriting, therefore, the reference of promotion Rules 2001 is for a limited purpose i.e. typing speed and in so far as the essential qualification for promotion is concerned the promotion Rules 2014 is unambiguous by mandatorily providing that typing knowledge is an essential qualification.

18. We are in agreement with the findings recorded by the learned Single Judge for the reasons stated above. We do not find any illegality or error in the judgment and order dated 20.04.2022 passed by the learned Single Judge in the Bunch of writ petitions, leading being writ -A No.24026 of 2018. The Special Appeal is misconceived and lacks merit.

19. The Special Appeal is, accordingly, dismissed. No order as to costs.

(Rajnish Kumar,J.)    (Devendra Kumar Upadhyaya,J.)
 
Order Date:28.07.2022
 
Banswar