Harsudha vs Hon'Ble Cj. Of Delhi High Court & ...
2000 Latest Caselaw 440 Del

ORDER

A.K. Sikri, J.

1. Rule.

Petitioner is working as Junior Stenographer in Delhi High Court to which post she was appointed in August 1994. Next promotion is to the post of Senior Stenographer. 3 Years' service as Junior Stenographer is required for a departmental candidate to become eligible of being considered for promotion to the post of Senior Stenographer. She completed 3 years of service in the year 1997. Therefrom she is aspiring to become Senior Stenographer. She had appeared in the shorthand and typing test conducted for this purpose thrice i.e in May 1998, October 1998 and July 1999 but as she failed to qualify the test, she was not given promotion. Next test is going to be held on 13.5.2000. Petitioner does not want to appear in the test and she has filed the present writ petition primarily contending that no such test is required to be held as per the relevant Rule Viz. "Seniority-cum-Suitability". She is the seniormost Junior. Stenographer and her case is that being seniormost, she should be given promotion to the post of Senior Stenographer by adjudging her suitability on the basis of CRs etc. and without taking any shorthand and typing test.

2. It is common case of the parties that it is Delhi High Court Establishment (Appointment & Conditions of Services) Rules 1972 (hereinafter called as the "Rules") which, interalia, lays down the provision for promotion from lower post to higher post in respect of various categories of employees borne on the Establishment of Delhi High Court. Rule 7 of these Rules prescribed mode of appointment which has to be as per Schedule-II attached to these Rules. Schedule-II mentions various categories of posts, minimum qualifications prescribed for appointment to these posts and mode of appointment. For appointment/promotion to the post of PA to Registrar and Senior Stenographer following qualifications and mode of appointment are prescribed as under:-

      PA to Registrar     (a) For members of       (a) 50% of the
                         the Establishment        vacant posts by
                         of the High Court        promotion from 
                         3 years service          categories 19 &
                         in categories 19         20 of Classs-III
                         & 20 if Class-III        mentioned in Schedule 1
                         mentioned in             on the basis of seniority
                         Sch. i cum-suitability.
     Senior Stenographer
     (b) i) For members            (b)(i) 50% of the
     of Establishment of           vacant posts by 
     the High Court in             selection on
     categories 19 &               merit from the
     20 of Class -III              categories
     mentioned in Sch-I            specified in

     of not less than 110          on the basis 
     w.p.m. in Shorthand           of written test
     and 40 w.p.m. in              and interview.
     typewriting.
     (b)(ii) For direct            (b)(ii) By direct
     recruits Graduate             recruitment on the
     with speed of not             basis of written
     less than 110 w.p.m.          test and interview.
     in shorthand and 
     40 w.p.m. in typewriting.

 

3. Mr. Sumit Bansal, learned counsel for the petitioner submitted that as per the aforesaid provision contained in the Rules where post is to be filled on the basis of seniority-cum-suitability, respondents are not permitted to take shorthand and typewriting test for promotion to the post of Senior Stenographer and this submission was founded on the following contentions:-

1) Wherever shorthand & typewriting test in to be taken it is provided in the Rules. For example, in this very Rules, against category b(i) in Column 3 requirement for possessing speed of not less than 110 w.p.m. in shorthand and 40 w.p.m in typing was rescribed. It was also prescribed for direct recruits in category b(ii). Petitioner was to be considered under category (a) as she had 3 years' service and on such test was prescribed in category (a).

2) The petitioner had already qualified the shorthand & typewriting test when she was appointed as Junior Stenographer as is clear from the minimum qualification and mode of appointment required for the post of Junior Stenographer which reads as under:

      PA to Deputy   }   
     Register       }    Graduate with speed      By direct recruitment
                    }    of not less than         on the basis of
                    }    100 words per minute     writing test and
     Junior         }    in shorthand and 40      interview.
     Stenographer   }   words per minute in 
                    }   typewriting.

 

3) As per mode of selection to the post of Senior Stenographer in category (a), only basis was "Seniority-cum-Suitability". petitioner was senior-most, suitability had to be adjudged on the basis of her ACRs etc. and not by shorthand & typewriting test. In support of this submission, the petitioner relied upon the following observation from Apex Court's Judgment in the case of Vidva Ram & Ors. Vs. State of Haryana & Ors. reported in 1995 (4) SLR 319.

"Para 5: The expression seniority-cum-fitness means that a person who is senior should ordinarily be promoted despite better merit of a junior. The element of competitive consideration or simultaneous consideration of the candidature of all eligible persons is absent when promotion is made on the basis of seniority-sum-fitness. A senior person can be ignored only if he is found unfit. In State of Karala and another Vs. N. H. Thomas and Others. . the Supreme Court observed as under:-

"The principle of equality is applicable to employment at all stages and in all respects namely, initial recruitment promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority. This will not violate Articles 14, 16(1) and 16(2). A rule which provides that given the necessary requisite merit, a member of the backward-class shall get priority to ensure adequate representation will not similarly violate Article 14 or Articles 16(1) and (2). The relevant touchstone or validity is to find out whether the rule of preference secures adequate representation for the unrepresented backward community or goes beyond it."

Para 6: In N. Srinath, M.A. Somashekar, Assistant director, Industries Vs. The State of Mysore and others, 1972 S.L.R. 449, a Division Bench of Mysore High Court has held that when criteria for promotion is seniority-cum-merit the senior most employee should be considered for promotion and if he is otherwise found fir he should be promoted, and only in case of unfitness/unsuitability his junior can be considered for promotion.

Para 7: In so far as this case is concerned, there is no allegation in the written statement that the petitioners are otherwise unfit to be promoted as Clerks. Respondents have been pleaded that the service record of the petitioners is adverse or is otherwise unsatisfactory. Without any such adversity being there, it was not open to respondent No. 2 to supersede the petitioners only on the ground that the petitioners could not clear the test held under his instructions. The holding of a test as a condition for promotion was clearly alien to the scheme of 1977 Rules. Therefore, denial of promotion to the petitioners is liable to be invalidated."

4. Reliance was also placed on Union of India Vs. Dr. P. Rajaram & Ors, reported in 1993 Supp (2) SCC 326 with emphasis on para 19 reading as under:

Para 19: Certainly, these posts were part of authorised strength at the time of initial constitution of the service.

Rule 8: contemplates that any vacancy arising in any one of the grades referred to in Schedule II shall be filled in, as provided in Rule 8(4)(ii). The difference between Rule 4(10)(iii) and Rule 8(4)(ii) is that whereas in the latter the promotion is to be made with reference to a post in the Teaching Specialist, subcadre or the Non-Teaching Specialist sub-cadre on account of any vacancy occurring therein. In a particular specialty, in the case of the former, notwithstanding the fact that one of the 35 floating/common posts may be held by a particular person of a particular speciality, the said post can go to a person not belonging to that speciality, since the Teaching Specialist sub-cadre forms a class by itself which comprises 29 specialists. It is in this context, therefore, that the said posts could not be included in Schedule II, since Schedule Ii conceives of particular posts with reference to particular specialists. It is, therefore, clear that whereas the word 'selection' used in Rule 8(4)(ii) is with reference to inter se merit of persons belonging to a particular speciality with reference to a vacancy occurring in a speciality, the word 'suitability' is not with reference to any particular speciality but with reference to the inter se merit of candidates based on their confidential reports and assessed by the Departmental Promotion Committee belonging to any of the 29 specialists, who would be considered most suitable to be promoted, since the concept of seniority-cum-fitness cannot possibly be applied to a common set of posts without reference to any speciality."

5. Learned counsel for the petitioner also referred to the case of B.V. Sivaixh & Ors. Vs. K. Addanki Babu & Ors. . From this judgment, reliance was put on the following observations:

Para 18: We thus arrive at the conclusion that the criterion of "seniority-cum-merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promote on the basis of seniority-cum-merit:

4) It was also contended that taking of test when it was not prescribed in the Rule amounted to amending the Rules by administrative instructions which was not permissible and in support of this contention, reliance was placed on the judgments of Supreme Court in the case of S. L. Sachdev & others Vs. Union of India and Others reported in AIR 1981 SC 411 and in the case of State of Haryana Vs. Shamsher Jang. shukla & Ors. .

6. On the other hand, Mr. Sanjay K. Kaul, learned senior counsel, appearing for Delhi High Court submitted that the prescribing of qualifying shorthand & typewriting test was strictly. As per the Rule namely "Seniority-sum-suitability". It was emphasised that since that post was of Senior Stenographer who are generally attached to Hon'ble judges. It was permissible for the Delhi High Court to adjudge the suitability of the candidate by taking shorthand & typewriting test. Therefore, it neither amounted to amending the Rules nor violating the Rules. It was also submitted that for a person who was discharging the function of the Senior Stenographer, the efficiency in shorthand & typewriting was a necessary concomitant and therefore, "suitability" was sought to be judged by prescribing that a candidate had to qualify shorthand & typewriting test by which minimum level of efficiency was ensured. It was also submitted that the matter in this respect was considered by Full Court on administrative side as far back as in 1989 when it was decided that "suitability" of the candidate is to be adjudged by taking shorthand and typing test and this practice was invoked for last more than 10 years. In fact petitioner had herself appeared in this test three times. It was a different matter that he could not succeed in any of these attempts, and therefore, as an afterthought she had filed the present writ petition challenging the prescription of holding shorthand & typewriting test. Mr. Sanjay K. Kaul also referred to the judgments of the Apex Court in the case of National Airport Authority Vs. Nilu Sharma & Others, which was also a case for promotion to the post of Stenographer Gr-II and the Rule was identically worded i.e. namely "seniority-cum-suitability". The prescription of shorthand & typewriting test to consider the suitability of the candidate was held to be valid.

7. After considering the respective contentions of both the parties, I am of the opinion that the present writ petition warrants to be dismissed inasmuch as the High Court is within its right to take shorthand & typewriting test within the framework of the relevant rule itself and prescribing of such a test would fall within the expression "suitability".

8. Simply put, the Rule in question is "seniority-cum-suitability". It is not seniority alone but suitability has also to be seen. Naturally , this suitability has to be for the post which the petitioner is aspiring to get. For a Senior Stenographer judging the suitability by testing her efficiency in shorthand & typewriting test is nothing but proper. Ordinary meaning of the word 'suitability" as per the dictionary is appropriateness, aptness, appositeness, fitness, commensurateness, feasibility, usefulness, accepted, expedience etc. Thus the word 'suitability" embraces within itself the traits of capability, aptness and competence. Once this suitability is also the relevant consideration along with seniority, it is for the employer to prescribe the manner in which the suitability of a candidate for a particular post is adjudged. The argument of the petitioner therefore that in order to see the suitability, the employer should only see the confidential reports of the petitioner may not be correct, of course it is open to the employer to adjudge the suitability based on confidential reports for assessment by DPC which may be one of the modes of adjudging suitability as mentioned in the case of UOI Vs. Dr. P. Rajaram & Ors. (supra). However if the High Court has thought it fit to adjudge the suitability by testing the candidate for his/her efficiency in shorthand & typewriting test, keeping in view the consideration that it is the job which is to be done by the petitioner, no fault can be found with such procedure adopted. It is for the employer to prescribe a particular procedure for adjudging the suitability and so long as that procedure is not arbitrary or not based on irrelevant consideration/criteria, it is not open for the petitioner to challenge the same. petitioner is a Junior Stenographer. However on becoming senior stenographer, such person is attached to the Judges and there may be a see change in the quality of work to be performed by such person on becoming Senior Stenographers. In view of this, if the Full Court in its wisdom had decided to adjudge the suitability by means of test in shorthand & typewriting so that proficiency/accuracy in shorthand & typewriting test is adjudged, such a method adopted is in consonance with the Rule. According to instructions contained in Chapter 53 of Swamy's Complete Manual on Establishment and Administration Part-IV, Paragraph 5, each Departmental Promotion Committee should decide its own method and procedure for objective assessment of the suitability of the candidates. Since the Junior Stenographers are attached to Joint. Registrars/Deputy Registrars, they are now exposed to the work in the Court which require high degree of proficiency/accuracy in shorthand/typewriting. Accordingly, the D.P.C. constituted in 1989 to fill up a post on the basis of seniority-cum-suitability laid down the guidelines that suitability of the candidates for promotion to the post of P.A. to Registrar cannot be assessed without holding at least a minimum qualifying test to determine their skill, speed and accuracy in shorthand and typing.

9. In this respect, following averments made in the counter affidavit filed on behalf of the Delhi High Court are worth quoting.

"The job of a Stenographer is technical in nature and requires high degree of shorthand and typing skill. The Senior Stenographers have to work with Hon'ble Judges of this Court and must have speed and accuracy in shorthand and typing. In view of the nature of the job, "suitability" for promotion can only the judged and determined by testing the speed and accuracy in shorthand and typing. The test which is impugned in the petition, was held to determine the "suitability" of the eligible departmental candidates for promotion to the post of Senior Stenographer. Determination of 'suitability' of the departmental candidates by testing their speed and accuracy in shorthand and typing is an objective, fair and reasonable method."

10. It is also stated in the counter affidavit that way back in August 1989 it was decided that suitability cannot be assessed without holding at least a minimum qualifying test to determine their skills, speed and accuracy in shorthand & typewriting test. The counter affidavit further explains the events which took place thereafter and ultimately on the basis of such decisions, the Senior Stenographers are promoted for last number of years, on the basis of departmental test in para 15 of the counter affidavit under the caption "background facts". The respondents have further stated as under:

Para 15: It is further submitted that High Court has been consistently following the same procedure and tests have been held to determine the suitability of the departmental candidates for promotion to the post of P.A. to Registrar/Senior Stenographer. The petitioner has given the test but on account of her poor performance, has not been found suitable for promotion as Senior Stenographer. The promotion is to be made on the basis of seniority-cum-suitability and seniority alone is not sufficient for promotion. In view of the job requirement the decision taken to hold practical test as a means to determine suitability of the departmental candidates for promotion as P.A. to Registrar/Senior Stenographer is fair and reasonable. It is further submitted that S/Shri R. K. Pahuja, Ram Singh, Anil Kr. Arora, Ms. Neelam, Sh. Shamim Ahmed, Ms. Meena Bhardwaj and Raj Kr. Rawat all were promoted in the promotion quota after qualifying the shorthand and typing test. Senior Stenographers are attached with the Hon'ble Judges and by the time they become eligible for promotion to the post of Private Secretary they gain sufficient experience and acquaint themselves with the functioning of the Court and duties of Private Secretary".

11. In the counter affidavit, it is also explained that in the 3 attempts made by the petitioner, after she appeared in the test, she failed and the mistakes committed by her in the shorthand are 17% and in typing as high as 14-16% as against permissible limit of 3% for both the tests. If such persons are promoted only on the basis of seniority (and adjudging the suitability in the manner in which petitioner wants and without undergoing the test) it would affect the efficiency of the Courts also which are heavily dependent upon the Stenographers.

12. In fact the judgment of Supreme Court in the case of National Airport Authority (supra) clinches this issue as that was the case where similarly worded Rule was interpreted by the Court and the promotion was also in the cadre of Stenographers. It can therefore be said that the facts of that case and the Rule involved were almost identical as in the present case.

The contention raised by the concerned employee (respondent in the appeal before the Supreme Court) was almost identical as can be seen from para 5 of the judgment which is quoted below.

Para 5: Her main contention before the High Court was that the post of "Private Secretary" was required to be filled up by promotion of Stenographers Grade I on the basis of seniority-cum-suitability and as she was the seniormost Stenographer Grade I, she ought to have been promoted to that post. It was her contention that Respondent 9 was not in the cadre of Stenographer Grade I and, therefore, was not eligible for consideration and much less, for appointment as "Private Secretary". The High Court held that "undisputed till before 1994 the post of Personal Secretary was to be filled in by promotion from amongst the Stenographers in Grade I on the basis of seniority-cum-suitability. It further held that "Undisputedly further, Respondent 9 was not in the cadre of Grade I Stenographers ...." and therefore NAA was not justified in bypassing the claim of Nilu Sharma "under the guise of introducing a device of selection" Taking this view, the High Court allowed her petition."

This contention of the respondent was replied and the Supreme Court accepted the stand of the appellant that selecting the suitable person from amongst Stenographers Grade I. The written test and Viva Voce could be prescribed as the criterion.

13. Once I have taken the view that such a test can be prescribed within the expression "suitability" all the arguments advanced by the petitioner fall in the pale of insignificance. The judgments cited by the petitioner also would not be of any help to the petitioner. First of all, the Rule interpreted in all these judgments was different. It was either "seniority-cum-fitness" or "seniority-cum-merit" Moreover, as I have already observed above, it is not necessary that suitability is to be adjudged only from confidential reports of assessment by DPC. That may be one of the modes of assessing suitability. But cannot be treated as only mode for assessing suitability. Moreover how this suitability is to be assessed is left to the employer keeping in view the nature of duties of a particular post for which the candidate is considered for promotion/appointment and so long as the criteria is not arbitrary, is relevant and has nexus with the nature of duties attached to such a post, Courts cannot strike down such a criteria. Petitioner is also not right in contending that wherever test is to be taken it is to be specifically in the Rules and in the absence of specific provision to this effect, no test can be taken. A perusal of the Rules would show that prescription of such a test is provided in column 3 of Schedule-II with heading "minimum qualifications prescribed for appointment to the post "(see S.No.12, 13, 17 & 18). Thus that is the minimum qualification for the post. What is the mode of appointment is prescribed in column 4 and for S.No.12 & 13. Column 4(a) ( which is relevant for our purposes) prescribes the mode by stating "on the basis of seniority-cum-suitability". Once candidate is found suitable on the basis of his/her efficiency in shorthand & typewriting test, it is the seniority which would play paramount role. Candidate has to just qualify the test. Those who qualify would get appointed to the post of Senior Stenographers on the basis of their seniority. It is not that after taking the test any merit list is going to be prepared on the basis of marks obtained in the said test. Therefore seniority has its own role which is given due weightage while applying the principle of seniority-cum-suitabililty. It is seniority subject to suitability and suitability is proved by the candidate by qualifying the shorthand and typing test.

The writ petition is therefore devoid of any merit and is hereby dismissed. Rule stands discharged.

No order as to costs.