Santosh Ji Mishra vs State Of U.P. Thru. Addl. Chief Secy. ...
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Allahabad High Court

Santosh Ji Mishra vs State Of U.P. Thru. Addl. Chief Secy. ... on 16 April, 2025

Author: Rajesh Singh Chauhan

Bench: Rajesh Singh Chauhan

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?AFR 
 
Neutral Citation No. - 2025:AHC-LKO:21351
 
Court No. - 3
 
Case :- WRIT - A No. - 3861 of 2025
 

 
Petitioner :- Santosh Ji Mishra
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Madhyamik Education And 6 Others
 
Counsel for Petitioner :- Pt. S. Chandra,Poonam Narayan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.
 

1. Heard Pt. S. Chandra, learned counsel for the petitioner, Sri Ran Vijay Singh, learned Addl. Chief Standing Counsel for the State-opposite parties no.1, 2 & 3, Sri Ghanshyam Verma, who has filed Vakalatnama on behalf of opposite party no.6 and Sri Ajay Pratap Singh-II, who has filed Vakalatnama on behalf of opposite party no.7. Said Vakalatnamas are taken on record.

2. In view of the proposed order, notices to opposite parties no.4 & 5 are hereby dispensed with.

3. With the consent of learned counsel for the parties, this writ petition is being decided finally at the admission stage.

4. By means of this petition, the petitioner has prayed following main reliefs:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 28.03.2025 passed by the Director of Education (Madhyamik) Uttar Pradesh, Lucknow as contained in Annexure no.1 to this writ petition.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to not create obstruction in working and functioning of the petitioner on the post of clerk of B.P. Inter College, Kudwar, Sultanpur."

5. By means of order under challenge, the Director of Education (Madhyamik) has directed that for filling up the post of Assistant Clerk from Class-IV post, typing test of the candidates/ applicants should be conducted in view of the Government Notification dated 06.01.2022.

6. Pt. S. Chandra has submitted that the present petitioner had filed one writ petition bearing Writ-A No.7291 of 2024, which was decided by this Court directing the competent authority to take appropriate decision in the issue of the petitioner regarding his promotion on Class-III post. The Authorized Controller of the Institution in question passed an order dated 10.10.2024 (Annexure No.4) holding that the candidature of the petitioner is suitable for promotion on the post of Junior Assistant. The District Inspector of Schools, Sultanpur has given approval to the aforesaid order dated 10.10.2024 by means of order dated 22.10.2024 (Annexure No.2). Thereafter, appointment letter was issued by the Authorized Controller of the Institution on 23.10.2024 (Annexure No.3) and the petitioner submitted his joining on the post of Assistant Clerk on the same date i.e. 23.10.2024. Since then, the petitioner has been discharging his duties on the post of Assistant Clerk.

7. Opposite party no.6 preferred a letter dated 11.11.2024 to the Director of Education (Madhyamik) challenging the aforesaid promotion order of the petitioner on the ground that the petitioner is not having knowledge of typing, which is a required qualification, therefore, he could have not been appointed on the post of Assistant Clerk. On such complaint of opposite party no.6, the Director of Education (Madhyamik) called report from the District Inspector of Schools concerned and after considering the report of the District Inspector of Schools and the relevant circular/ rules/ regulations etc., the impugned order dated 28.03.2025 has been passed directing to conduct typing test for making promotion on the post of Assistant Clerk.

8. Pt. S. Chandra has drawn attention of this Court towards Annexure No.8 of the writ petition, which is Chapter-III of the Regulations under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as "the Regulations under the Act, 1921") indicating the conditions of service under Section 16-G of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as "the Act, 1921"). As per Regulation-2 (2) of the Regulations under the Act, 1921, post of Head Clerk/Clerk may be filled up through promotion under 50% promotional quota amongst Clerk and Class-IV employees, who are having prescribed eligibility for the post in question and completed five years of continuous service. Sri Chandra has stated that the petitioner is an eligible person as he is having required qualification and has completed more than five years continuous service. The qualification of the petitioner is Intermediate and is having CCC Certificate as photocopies of the aforesaid certificates have been shown to the Court, which have been enclosed with the writ petition. He has also stated that for making promotion on the post of Assistant Clerk, there is no requirement of typing test.

9. Attention has been drawn towards Annexure No.9 of the writ petition, which is a judgment and order dated 20.07.2010 passed by the Division Bench of this Court in Special Appeal (Defective) No.477 of 2010, State of U.P. & Ors. Vs. Umesh Chandra Srivastava. In the aforesaid judgment, the Division Bench of this Court has categorically indicated that the source of recruitment under Rule 8 (2) of the Recruitment Rules (relating to the Rules which was under consideration before the Division Bench), which provides for procedure for recruitment by promotion, there is no requirement of qualifying typing test. Therefore, the Division Bench directed the Department to consider the claim of the respondent of that appeal for promotion on the basis of marks obtained by the respondent without asking him to pass typing test.

10. Pt. S. Chandra has drawn attention of this Court towards Annexure No.11 of the writ petition, which is a Government Order dated 04.01.2017 providing the qualification for promotion on the post of Junior Assistant from Class-IV post. As per the aforesaid Government Order, the qualification for direct recruitment under 50% quota would be Intermediate, having CCC Certificate issued from DOEACC and knowledge of typing in Hindi/ English having speed of 25/30 words per minute. For 50% promotional quota, it has been indicated that the candidate must possess the qualification prescribed for direct recruitment and must have five years experience in continuous service. Pt. S. Chandra has stated that since for the post of Assistant Clerk, there is no need to have typing test and the petitioner is having qualification of Intermediate and CCC Certificate issued from DOEACC, therefore, he was fully eligible to be promoted on the post of Assistant Clerk. As per him, considering the aforesaid fact, the Authorized Controller has rightly proposed for his promotion on the post of Assistant Clerk and the District Inspector of Schools has rightly approved that promotion of the petitioner and pursuant to that exercise, the petitioner has been discharging his duties on the post of Assistant Clerk w.e.f. 23.10.2024. Further submission is that the qualification prescribed under the Government Notification dated 06.01.2022 is for direct recruitment, not for the promotional posts. Pt. S. Chandra has further submitted that the Director of Education (Madhyamik) has no power to pass the impugned order. Therefore, by means of impugned order dated 28.03.2025 issuing direction to conduct the typing test is absolutely illegal, unwarranted and uncalled for.

11. Per contra, learned counsels for the opposite parties have stated that as per Chapter-III of the Regulations under the Act, 1921 relating to Section 16-G of the Act, 1921 i.e. condition of service, which has been categorically indicated under Regulation 2 of the Regulations under the Act, 1921 that class IV employee may be promoted on the post of Assistant Clerk, if he is having qualification for that post and has completed five years continuous service. The eligibility for promotion has been prescribed in the Government Order dated 04.01.2017 wherein it has been categorically indicated that Class-IV employee may be promoted on Class-III post if he is having all qualification prescribed for the direct recruitment and is having five years experience of continuous service. Since the qualification prescribed for the direct recruitment is the candidate must be having qualification of Intermediate, CCC Certificate issued from DOEACC and his typing speed in Hindi/English must be 25/30 words per minute as well as he is having five years experience in service. Since the petitioner has not stated in his petition that he is having typing speed in Hindi/English @ 25/30 words per minute, therefore, he is lacking such qualification. Further, if the petitioner is having CCC Certificate from DOEACC and he is having typing speed in Hindi/English @ 25/30 words per minute, he should not have hesitant in appearing in typing test, which has been directed by the Director of Education (Madyamik) inasmuch as the Director is only following the procedure so prescribed and upheld by this Court in some cases.

12. Learned counsels for the opposite parties have also stated that by way of amendment through notification dated 06.01.2022, such qualification has been added under Regulation 101 of the Regulations framed under the Act, 1921. They have also stated that the judgment so cited by the learned counsel for the petitioner would not be applicable in the present case inasmuch as under the Rules so referred before the Division Bench, admittedly, there was no requirement of qualifying the typing test but in the present case, typing test is a mandatory qualification in terms of Government Order dated 04.01.2017 as well as vide notification dated 06.01.2022.

13. Learned counsels for the opposite parties have placed reliance upon the judgment and order dated 22.11.2018 passed by this Court in Writ-A No.23580 of 2018, Sudhanshu Tyagi Vs. State of U.P. and 4 Others, wherein similar controversy has been adjudicated and this Court upheld the validity of Government Order dated 04.01.2017. Paragraphs no.14 to 18 of the judgment in re; Sudhanshu Tyagi (supra) are being reproduced herein below:-

"14. The issue, however, has to be examined from a different perspective. Section 9 of the U.P. Intermediate Education Act, 1921 confers power upon the State Government to issue necessary instructions in the manner contemplated in the Act itself. Section 9(4) of the Act is relevant for the present purposes and is reproduced hereafter:-

" 9(4). Whenever, in the opinion of the State Government, it is necessary or expedition to take immediate action, it may, without making any reference to the Board under the foregoing provisions, pass such order or take such other action consistent with the provisions of this Act as it deems necessary, and in particular, may by such order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly."

15. The power of the State Government is broad and comprehensive so as to include passing such order or to take such other action consistent with the provisions of this Act, as it may deem necessary, and by passing an order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly. The power conferred in the State, therefore, by virtue of sub rule (4) of Rule 9 could be pressed for tracing source of power in issuing the Government Orders dated 23.8.2016 and 4.1.2017. It has also been noticed that the procedure and the qualification for promotion to a Class-III post is, otherwise, not specifically provided for in the Regulation. The State Government, therefore, would be well within its competence to prescribe the qualification as also the procedure to be followed for effecting promotion from Class-IV post to Class-III post. Such exercise of power is otherwise not shown to be inconsistent with the provisions of the Act of 1921. Moreover, the power under Section 9(4) of the Act includes the power to modify or rescind or make a Regulation. In such circumstances the argument of inconsistency with the Regulations cannot be pressed on behalf of petitioner to resist the govt. orders dated 23.8.2016 and 4.1.2017 as well as consequential actions thereunder. The Government Orders dated 23.8.2016 and 4.1.2017 although are challenged but no valid reasons or grounds have been put forth on account of which any interference would be warranted, once the power to issue such direction is traced to statute and is otherwise not irrational or discriminatory.

16. The only grounds pressed on behalf of the petitioners to challenge the Government Orders are that:

(i) The statutory regulations have not been amended despite a clear stipulation made in the Government Order itself;

(ii) The Government Orders run counter to the statutory Rules of 2014 which stands adopted by virtue of Regulation 2(1) of the Regulations framed under Chapter-III.

17. So far as amendment in regulation is concerned, the same is merely a ministerial act and would not be a ground to interfere with the Government Order, particularly as there exists no provision in law, where under the decision taken under Section 9(4) of the Act needs to be incorporated by amending Regulations itself. No statutory obligation in that regard has been placed before the Court. The argument advanced in that regard, therefore, cannot be accepted.

18. The second ground urged on behalf of the petitioner also can not be sustained in view of the clear power available to the State to amend the regulations, by virtue of Section 9(4) of the Act. The Statute confers power upon the State Government to amend or alter the regulation or to make regulations. Any provision in the regulations, therefore, cannot be relied upon to challenge the specific invocation of authority under the Act itself or an order passed thereunder. Therefore, no inconsistency is found in the Government Order vis-a-vis Regulation 2(1) of the Regulations. For all such reasons, the challenge laid to Clause-2 of the Government Order dated 4.1.2017, fails."

14. Having heard learned counsel for the parties and having perused the material available on record as well as the judgment so cited by the learned counsel for the parties, I am of the considered opinion that by means of impugned order dated 28.03.2025, the direction of the Director to conduct the typing test for filling up the post of Assistant Clerk under the promotional quota is absolutely proper as the same has been issued in terms of the Government Order dated 04.01.2017 and notification dated 06.01.2022.

15. The judgment so cited by the learned counsel for the petitioner would not be applicable in the present case inasmuch as in that case the Rules so referred were not having any provision where the requirement of qualifying the typing test was mandatory whereas in the present case, such qualification is mandatory. In the Government Order dated 04.01.2017, it has been categorically indicated that the post under promotional quota for Class-III post would be filled up from the candidates, who are having qualification prescribed for the direct recruitment candidates and are having five years experience and requirement of typing test is mandatory for the direct recruitment candidates. The aforesaid condition has been inserted under the Regulation through amendment issued vide notification dated 06.01.2022 and the exercise in the present case for the petitioner had been undertaken after 06.01.2022. Admittedly, no typing test was conducted when the promotion of the petitioner on Class-III post was proposed by the Authorized Controller and this aspect was overlooked by the District Inspector of Schools while granting approval on 22.10.2024. Besides, this Court in re; Sudhanshu Tyagi (supra) has upheld the Government Order dated 04.01.2017 and that judgment and order has not been challenged as yet, therefore, as on today, that judgment and order has attained finality, so I am following the judgment and order passed by the Coordinate Bench in re; Sudhanshu Tyagi (supra). If the petitioner is having sound knowledge of computer as he is having CCC Certificate from DOEACC, he should not be hesitant in appearing in typing test.

16. It is needless to say that if the petitioner appears in typing test in terms of the impugned order dated 28.03.2025, no prejudice shall be caused to him for the reason that he challenged the impugned order dated 28.03.2025 passed by the Director of Education (Madhyamik), U.P., Lucknow and other qualifications of the petitioner e.g. his experience, length of service etc. would be considered properly. However, I am not inclined to interfere with the impugned order dated 28.03.2025 passed by the Director of Education (Madhyamik), U.P., Lucknow.

17. Accordingly, this writ petition is dismissed.

18. No order as to costs.

[Rajesh Singh Chauhan,J.]

Order Date :- 16.4.2025

RBS/-