Rajasthan High Court - Jodhpur
Twinkle Singh vs The High Court Of Judicature For ... on 3 March, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:37396-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 7829/2024
1. Twinkle Singh daughter of Shri Dharmendra Singh, aged
about 34 years, resident of Elanza 806, Arihant Adita, Pal
Gangana Road, Jodhpur (Rajasthan)
2. Amit Kumar son of Shri Attar Singh, aged about 41 years,
at present resident of G-134, Sector-5, Kudi Bhagtasani
Housing Board, Jodhpur (Rajasthan)
3. Jatin son of Shri Dinesh Kumar, aged about 33 years,
resident of 5-G-88, Sector-5, Kudi Bhagtasani Housing
Board, Jodhpur (Rajasthan)
4. Hanuman Ram Bhati son of Shri Bhalla Ram, aged about
38 years, resident of 158, Adarsh Nagar, Near Vastu
Nagar, Kudi Bhagtasani Housing Board, Jodhpur
(Rajasthan)
5. Arvind Kumar Khandelwal son of Shri Lalit Kumar, aged
about 35 years, resident of 21E/184, Chopasani Housing
Board, Jodhpur (Rajasthan)
6. Mohammed Zeeshan son of Shri Mohammed Iqbal, aged
about 37 years, resident of 03 Baitul Rida Jai Enclave
Bajrang Vihar, Guda Road Jhalamand Jodhpur (Rajasthan)
7. Arun Kumar Yadav son of Late Shri Onkar Nath Yadav,
aged about 35 years, at present resident of 79, Gandhi
Nagar, Gudha Road, Jhalamand (Rajasthan)
8. Mohit Kumar son of Shri Vinod Kumar, aged about 33
years, resident of 5-G-88, Sector-5, Kudi Bhagtasani
Housing Board, Jodhpur (Rajasthan)
9. Abhishek Kushwaha son of Late Shri Satish Kumar
Kushwaha, aged about 36 years, resident of 4-I-22,
Sector-4, Kudi Bhagtasani Housing Board, Jodhpur
(Rajasthan)
10. Anshul son of Late Shri Darshan Kumar, aged about 33
years, at present resident of 79, Gandhi Nagar, Gudha
Road, Jhalamand (Rajasthan)
----Petitioners
Versus
1. The High Court of Judicature for Rajasthan, through
Registrar General, Jodhpur.
2. The Registrar (Administration), Rajasthan High Court,
Jodhpur.
3. The Registrar (Examination), Rajasthan High Court,
Jodhpur.
(Downloaded on 04/03/2025 at 09:43:29 PM)
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4. Shahenshah Rizvi, at present Junior Personal Assistant,
Rajasthan High Court, care of Registrar General,
Rajasthan High Court, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Lokesh Mathur, Advocate
For Respondent(s) : Ms. Abhilasha Bora with
Ms. Khushbu Choudhary, Advocates
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE KULDEEP MATHUR
JUDGMENT
Reserved on : 03/09/2024
Pronounced on : 03/03/2025
Per, Hon'ble Shree Chandrashekhar, J.
Ten Junior Personal Assistants employed under the
establishment of the Rajasthan High Court at Jodhpur are
aggrieved by the notice issued on 01 st May 2024 by the Registrar
(Examination) requiring them to appear in the Efficiency Test for
promotion to the post of Personal Assistant-cum-Judgment Writer.
According to the petitioners, they cannot be subjected to the
Efficiency Test and their candidature for promotion to the post of
Personal Assistant-cum-Judgment Writer should be considered
applying the criteria of seniority in the rank of the Junior Personal
Assistant.
2. By an order dated 14th May 2024, a co-ordinate Bench of this
Court permitted the High Court to continue with the process of
promotion to the post of Personal Assistant-cum-Judgment Writer.
But there was a rider that the actual promotion shall not be
granted without prior permission of the Court. This Court further
observed that the participation of the petitioners in the Efficiency
[2024:RJ-JD:37396-DB] (3 of 27) [CW-7829/2024]
Test shall not prejudice their rights to contest the matter on
merits.
3. The petitioners have made the following prayers :-
"It is, therefore, respectfully prayed that this Writ Petition
may kindly be accepted and allowed and:-
a) by an appropriate writ, order or direction, notice dated
01.05.2024 (Annex.7) issued by Registrar (Examination), Rajasthan
High Court for holding efficiency test for promotion to the post of
Personal Assistant-cum-Judgment Writer may be quashed and set
aside;
b) by an appropriate writ, order or direction, Rajasthan High Court,
may be directed to not to hold any efficiency test for the petitioners
for considering them for promotion to the post of Personal
Assistant-cum-Judgment Writer;
c) by an appropriate writ, order or direction, Rajasthan High Court
may be directed to promote the petitioners on the post of Personal
Assistant-cum-Judgment Writer relaxing the criteria of efficiency
test;
d) alternatively, by an appropriate writ, order or direction, holding
of efficiency test for Junior Personal Assistants appointed vide order
dated 02.03.2020 on 15.05.2024 under notice dated 09.05.2024
(Annex.10) along with petitioners be declared unreasonable and
unjust and it may be directed that same be held after efficiency test
is held for the petitioners followed by the result thereof qua the
petitioners so also the consequential promotion of the petitioners on
the post of Personal Assistant-cum-Judgment Writer.
e) Any other order or direction, which this Hon'ble Court deems just
and proper be passed in favour of the petitioners;
f) Costs of this petition may kindly be allowed to the petitioners;"
4. The petitioners have pleaded that an advertisement for
appointment on the post of Junior Personal Assistant was
published on 08th September 2015 and a recruitment exercise was
undertaken by the Rajasthan High Court. The final result was
published on 25th February 2016 and ninety-two persons were
offered temporary appointment as Probationer Trainees on the
fixed remuneration of Rs.13,200/- for a period of two years
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subject to the conditions contained in the order dated 15 th March
2016 issued under the signature of the Registrar (Administration).
A similar recruitment exercise was undertaken in the year 2020
and fifty-one persons selected for the post of Junior Personal
Assistant were offered appointment as Probationer Trainee vide
order dated 02nd March 2020. In the meantime, the petitioners
completed four years in service and made a representation to the
Registrar General of the Rajasthan High Court seeking promotion
to the post of Personal Assistant-cum-Judgment Writer on the
basis of their seniority. At that time, there were twenty-one
sanctioned posts of Personal Assistant-cum-Judgment Writer out
of which eighteen posts fell vacant which were filled up through
promotion by an order dated 09th October 2020. Under the notice
dated 01st May 2024, thirty Junior Personal Assistants were
provisionally permitted to appear in the Efficiency Test (English)
along with two candidates for the Efficiency Test (Hindi).
Aggrieved thereby, the petitioners made a representation on
01st May 2024 to the Registrar General of the High Court seeking
exemption from appearing in the Efficiency Test. In this
representation, they referred to the previous representation made
in the year 2020 seeking exemption from the Efficiency Test which
was considered by the Hon'ble Committee constituted by the Chief
Justice and twelve Junior Personal Assistants of their batch were
promoted to the post of Personal Assistant-cum-Judgment Writer
by relaxing the Rules. According to the petitioners, they nurtured
legitimate expectation in view of the previous decision of the
Hon'ble Committee to grant exemption from the Efficiency Test
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that the same treatment would be meted out to them in future.
However, their representation dated 01st May 2024 has been
rejected without assigning any reason.
5. This is the case pleaded by the petitioners that the
aforementioned eighteen Junior Personal Assistants were granted
promotion on the basis of their seniority and they were not asked
to appear in the Efficiency Test. They are therefore claiming that
they deserve equal treatment and are entitled for exemption from
the Efficiency Test, else, they would suffer hostile discrimination.
The notice issued by the Registrar (Administration) on 01 st May
2024 is under challenge also on the ground that it would be unfair
to ask the petitioners to compete with the Junior Personal
Assistants who were appointed about four years after them and
are junior to them in the cadre of Junior Personal Assistant. The
petitioners are dissatisfied also for the reason that the Junior
Personal Assistants who were appointed along with them in the
year 2016 and promoted in the year 2020 to the post of Personal
Assistant-cum-Judgment Writer are now competing for promotion
to the post of Senior Personal Assistant-cum-Judgment Writer
whereas they are languishing on the post of Junior Personal
Assistant and are directed to appear for the Efficiency Test. In the
writ petition, the petitioners have projected their grievance in the
following manner :-
"6. That all the petitioners having been appointed in year 2016
completed four years period in year 2020. Thereafter, a
representation in year 2020 was submitted by the petitioners along
with other candidates who were appointed under order dated
15.03.2016 to the Registrar General, Rajasthan High Court, Jodhpur
requesting to hold promotion on the post of Personal Assistant-cum-
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Judgment Writer only on the basis of seniority, exempting the
efficiency test. A true and correct copy of representation submitted
in year 2020 is submitted herewith and marked as ANNEXURE-04.
7. That acceding and accepting the representation submitted by the
petitioners along with other candidates in year 2020, efficiency test
for promotion to the post of Personal Assistant-cum-Judgment
Writer was exempted by the Rajasthan High Court and promotion
order dated 09.10.2020 was issued for the senior most Junior
Personal Assistants falling in the list of candidates appointed under
order dated 15.03.2016. A true and correct copy of order dated
09.10.2020 is submitted herewith and marked as ANNEXURE-05.
8. That therefore, it is apparent that the candidates who were
appointed on the post of Junior Personal Assistant in the same
selection process as that of petitioners were granted promotion to
the post of Personal Assistant-cum-Judgment Writer without having
to undergo efficiency test.
9. That subsequently, Rajasthan High Court, Jodhpur held
recruitment for the post of Junior Personal Assistants in year 2020.
The successful candidates were issued order of appointment dated
02.03.2020 issued by Registrar (Administration), Rajasthan High
Court. A true and correct copy of order dated 02.03.2020 is
submitted herewith and marked as ANNEXURE-06.
10. That the petitioners were shocked and surprised when they
came to know about notices dated 01.05.2024 issued by Registrar
(Examination), Rajasthan High Court, Jodhpur whereby an efficiency
test for promotion to the post of Personal Assistant-cum-Judgment
Writer was scheduled to be held on 15.05.2024. Under the notice
dated 01.05.2024, all the petitioners were instructed to participate
in the aforesaid test. A true and correct copy of notice dated
01.05.2024 containing the list of eligible candidates for efficiency
test, is submitted herewith and marked as ANNEXURE-07.
11. That having come to know about efficiency test scheduled on
15.05.2024, the petitioners immediately submitted a representation
dated 01.05.2024 to Registrar General, Rajasthan High Court. In
the representation, it was stated that earlier they have submitted a
representation in year 2020 for relaxing the condition of efficiency
test which was accepted by Rajasthan High Court and fifteen
candidates were promoted on the post of Personal Assistant cum
Judgment Writer. Further, it was submitted that in the past also,
efficiency test for the post of Personal Assistant has been exempted.
It was therefore, prayed that no efficiency test be held for the
petitioners as well, in order to maintain parity amongst candidates
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of same batch i.e. who were appointed on the post of Junior
Personal Assistant under order dated 15.03.2016. A true and correct
copy of representation dated 01.05.2024 is submitted herewith and
marked as ANNEXURE-08.
12. That it is worthwhile to note that the Junior Personal Assistants
who were granted appointment along with petitioners under order
dated 15.03.2016 and were promoted to the post of Personal
Assistant by order dated 09.10.2020 are now been considered for
promotion to the post of Senior Personal Assistant-cum-Judgment
Writer. The Registrar (Examination) Rajasthan High Court has also
issued notice dated 01.05.2024 whereby an efficiency test has been
scheduled for promotion to the post of Senior Personal Assistant-
cum-Judgment Writer. The said notice contains list of eligible
candidates for efficiency test. A bare perusal of the list shows that
the Personal Assistants-cum-Judgment Writer who were issued
promotion orders under order dated 09.10.2020 are now being
considered for the post of Senior Personal Assistants. A true and
correct copy of notice dated 01.05.2024 is submitted herewith and
marked as ANNEXURE-09."
6. On the other hand, the respondents have highlighted the
powers of the Chief Justice of the High Court under Article 229 of
the Constitution of India and taken a stand that relaxation in the
Rules cannot be claimed as a matter of right. They have taken the
position that Rule 30 of the Rajasthan High Court Staff Service
Rules, 2002 (in short, 'Staff Service Rules') gives power to the
Chief Justice to grant relaxation in age or experience and, that,
exemption from Efficiency Test was previously granted by the
Chief Justice by exercising that power to relax the Rules. In the
affidavit-in-opposition, the respondents have taken the following
stand :-
"5. That thus, the Hon'ble Chief Justice has absolute power under
Article 229, read with Rule 5(2) with respect to prescribing conditions
of recruitment and service of the employees of the High Court by way
of general or special Orders. One such example of the exercise of the
said power is the (general) Order Dated 5th December 2002 which
[2024:RJ-JD:37396-DB] (8 of 27) [CW-7829/2024]
lays down the methods of appointment and conditions of service for
various employees of the High Court. That the Hon'ble Chief Justice
also on several occasions specifies by general orders, any other
methods of recruitment/promotion or conditions of service (either in
addition to or deviating or relaxing any special/general order in the
nature of Order of 2002) of the employees as they deem fit in
particular situation, while exercising their power provided under
Article 229 & Rule 5 is meant to facilitate the smooth working of the
system and the institution.
That in continuation of the same, Rule 30 of the Rules of 2002 further
extends this power of the Hon'ble Chief Justice as follows:
"30. POWER TO RELAX THE RULES: In exceptional cases where the
Chief Justice is satisfied that operation of the Rules relating to age or
regarding requirement of experience for recruitment causes undue
hardship in any particular case or where the Chief Justice is of the
opinion that it is necessary or expedient to relax any of the provisions
of these Rules with respect to age or experience of any person he
may by orders dispense with or relax the relevant provision of these
rules to such extent and subject to such conditions as he may
consider necessary for dealing with the case in a just and equitable
manner, provided that such relaxation shall not be less favorable than
the provisions already contained in these Rules.
That 'experience' has been defined in Rule 2(ix) follows: "Experience"
wherever prescribed in these Rules as a condition for promotion
within service from one category to another or to senior posts, in the
case of a person holding lower posts eligible for promotion to higher
post shall include the period for which the person has continuously
worked on such lower posts after substantive appointment in
accordance with these Rules or in accordance with the Rules or orders
superseded by these Rules."
6. That thus, if the Hon'ble Chief Justice is of the opinion that it is
necessary/expedient, he may relax the Rules of 2002 with respect to
age or requirement of experience. The power to relax any special or
general order passed under the exercise of the Rules of 2002 is also
implicit in the said power under Rule 30. It may be submitted that
Rule 30 gives power to Hon'ble Chief Justice to grant relaxation in
age or experience only. There is no express or implied power to grant
exemption from appearing in efficiency Test. The exemption or
relaxation from appearing in the efficiency Test which was granted in
October 2020 was an exceptional exercise, may be because the High
Court administration was not in a position to hold efficiency Test in
the wake of spread of COVID-19. It is submitted that relaxation of the
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Rules cannot be claimed as a matter of right. That, thus, it is
established that while the Order of 2002 prescribes for certain
recruitment/promotion and service conditions, any deviation from
them is also within the powers of the Hon'ble Chief Justice. However,
such a deviation cannot be claimed by the employees as a matter of
right.
10. That, though the previous promotion orders from the post of
Junior Personal Assistant to the post of Personal Assistant cum
Judgment Writer had been issued following a few specific orders by
the Hon'ble Chief Justice, solely adopting the criteria of seniority cum
merit, without conducting the efficiency test, but that cannot be used
as a precedent for future promotions. That furthermore, any
insistence by the Petitioners for granting promotions solely on the
basis of seniority cum merit and to completely by pass the
requirement of seniority cum efficiency cannot be sustained for the
very reason that there is no inherent independent right that the
Petitioners possess for the same.
11. That furthermore, any past practice with regard to relaxation in
prescribed rules cannot be used a precedent afterwards. The
requirement of seniority cum efficiency eligibility criterion has
assumed more importance in the modern era where knowledge and
efficiency in the speed of dictation, error free typing and use of
computers and electronic systems has become a necessity. That this
fact itself is enough to explain the need of efficiency test on
15.05.2024. That no rightful parity can be sought in this respect with
those persons who are either seniors or especially from the same
batch of the Petitioners who have been allowed the benefit of
relaxation because the same was done owing to the urgent
requirement of filling up certain vacancies. That it may be said that
the hesitation, resistance and objection of Petitioners in facing the
efficiency the test suggests their fear or apprehension of either
under-performance or not being up to the mark/standards required to
be met for the posts being held by them and also the promotion
being sought by them.
12. That furthermore, any objection of the Petitioners for facing the
efficiency test along with the persons of their junior batch is also not
tenable. This is so firstly because they have not raised any challenge
either to the Rules of 2002 or the Order of 2002 which prescribes for
conducting the efficiency test. There is no bar in the same for holding
a common efficiency test because it is merely a condition/standard to
be met. The promotion is granted not solely on the basis of efficiency.
Rather, the criteria for the same s seniority cum efficiency as per
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Clause 15 and that too only for filling up 25% of the total vacancies in
a cyclic manner. The rest of the 75% vacant posts are prescribed to
be filled up according to seniority cum merit. That if the Petitioners
are successful in the efficiency test along with their juniors, then their
seniority would play a part in determining their promotion. If on the
other hand, they are unsuccessful, it will still not defeat their
promotional avenues, because irrespective of that, they would still be
able to get a promotion to the remaining 75% of the posts on the
basis of seniority cum merit.
13. That it is important to note that the requirement of 'seniority cum
efficiency' in Clause 15 is to promote talent, which is also in the best
interest of the system, especially owing to the nature of their posts."
7. Mr. Lokesh Mathur, the learned counsel for the petitioners
contended that the notice dated 01 st May 2024 for holding the
Efficiency Test for promotion to the post of Personal Assistant-
cum-Judgment Writer is arbitrary and the petitioners are subjected
to hostile discrimination. The learned counsel submitted that the
exemption from Efficiency Test granted in the year 2020 for
promotion to the post of Personal Assistant-cum-Judgment Writer
was not an isolated event rather it was a regular feature and such
orders of exemption from Efficiency Test were also passed in the
past. In this context, the learned counsel for the petitioners
referred to the order of promotion to the post of Personal
Assistant-cum-Judgment Writer issued on 30th March 2022 in
favour of Sunil Solanki who was holding the post of Junior
Personal Assistant but was not asked to undergo the Efficiency
Test. Per contra, Ms. Abhilasha Bora, the learned counsel for the
respondents contended that the powers of the Chief Justice under
Article 229 of the Constitution of India read with Rule 5 of the
Staff Service Rules are intended at facilitating the smooth working
of the establishment of the High Court and the Chief Justice has
[2024:RJ-JD:37396-DB] (11 of 27) [CW-7829/2024]
ample power to deviate from or relax any condition of the
recruitment or promotion.
8. The history of the high Constitutional post of the Chief
Justice of High Court goes back to the Charter of 1774
establishing the Supreme Court of Calcutta which was replaced by
the High Courts established under the High Courts Act, 1861.
Later on, the Letters Patent was granted on 14 th May 1862 to the
Calcutta High Court and that was amended in the year 1919.
Under the Letters Patent, the Chief Justice of the High Court of
Judicature at Fort William in Bengal was vested with the powers to
appoint as many such clerks and other ministerial officers as were
necessary for the administration of justice. The Letters Patent
further conferred authority on the Chief Justice to decide the
salary of all and every officer and clerk to be approved by the
Governor General-in-Council. These powers of the Chief Justice of
the High Court were preserved under section 106 of the
Government of India Act, 1915 and under section 241 of the
Government of India Act, 1935. Even after independence, the
powers and the status of the Chief Justice of the High Court are
maintained under Chapter X of the Constitution of India.
9. Article 216 of the Constitution of India provides that every
High Court shall consist of a Chief Justice and he shall be the
authority under Article 229 of the Constitution of India to appoint
officers and servants of the High Court. Clause 2 of Article 229 of
the Constitution of India provides that the conditions of service of
the officers and servants of a High Court shall be prescribed by
the Rules made by the Chief Justice of the High Court or by some
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other Judge or officer of the Court authorized by the Chief Justice
to make Rules for the said purpose subject to the approval of the
Governor of the State in cases of fixation of salaries, allowances,
leave or pensions of the officers and servants of the High Court.
The administration of the High Court vests in the Chief Justice is
also discernible from the expression employed in Article 229 of the
Constitution which uses the word "Chief Justice" whereas Article
235 which envisages control over the sub-ordinate Courts uses the
word "High Court". In "M. Gurumoorthy v. Accountant General
Assam & Nagaland & Ors."1 the Hon'ble Supreme Court observed
that the unequivocal purpose and obvious intention of the framers
of the Constitution in enacting Article 229 were that in the matter
of appointment of the officers and servants of a High Court it is
the Chief Justice or his nominee who is to be the supreme
authority. The Hon'ble Supreme Court further held that Article 229
has distinct and different scheme and contemplates full freedom
to the Chief Justice in the matter of appointments of the officers
and servants to the High Court and their conditions of service.
10. As to the appointment of the Junior Personal Assistants and
Personal Assistant-cum-Judgment Writers, this is common ground
that an elaborate procedure has been laid down by the order of
Hon'ble the Chief Justice of the Rajasthan High Court in exercise
of the powers under Rules 4, 5, 7 and 22 of the Staff Service
Rules. The relevant provisions under Part-II of the Staff Service
Rules provide that the recruitment to the post of Junior Personal
Assistant (English or Hindi) shall be made by direct recruitment
1 [1971] 2 SCC 137.
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after holding a competitive examination. The qualification
prescribed for the post of Junior Personal Assistant is Graduation
or its equivalent examination from any University recognized by
the Government. Clause 14 which deals with the procedure for
selection provides that a candidate shall be required to pass the
examination in Group A (for English) or Group B (for Hindi) and he
also must compulsorily pass the computer test under Group C.
Clause 14 lays down a procedure also for conducting the
stenography test, evaluation of prescribed sheets, marking of
mistakes, etc. The relevant provisions under the Staff Services
Rules which deal with the recruitment to the post of Junior
Personal Assistant are reproduced hereunder :-
"(14) JUNIOR PERSONAL ASSISTANT.- Recruitment to the post of
Junior Personal Assistant (English) or Junior Personal Assistant
(Hindi) shall made by direct recruitment after holding a Competitive
Examination.
(a) Educational Qualification:
(i) Candidate must be a graduate of any university established by
Law in India or its equivalent examination from any university
recognized by the Government for the purpose; and
(ii) Must have basic knowledge of computer
(b) Mode of Selection: The competitive examination for the post of
Junior Personal Assistant shall consist of the subject given in two
alternative Groups A and B. A candidate shall be required to pass
the subject group of the post applied and required to pass the
Group C compulsorily.
Group A
Jr. Personal Duration Speed of Marks
Assistant (English) Dictation
English Shorthand 8 Minutes 80 words 100
per Minute
Transcription and typing of 60 Minutes --
Dictated passage in English on
computer.
Group B
Jr. Personal Duration Speed of Marks
[2024:RJ-JD:37396-DB] (14 of 27) [CW-7829/2024]
Assistant (Hindi) Dictation
Hindi Shorthand 8 Minutes 70 words 100
per Minute
Transcription and typing of 70 Minutes --
Dictated passage in Hindi on
computer.
Group C
Computer : There will be speed test on computer
Speed : Minimum speed should be 8000 depressions per hour on
computer. Data will have to be fed in Hindi or English Language or
in dual language i.e. English and Hindi
The test will be in two papers consisting Speed & Efficiency carrying
50 Marks each."
(c) Method of Conducting Stenography Test -
(1) The test will be called Shorthand speed assessment test
(2) Before dictating the final Shorthand passage to the candidates a
trial passage containing 200-250 words should be dictated at the
same speed at which the final passage is intended to be dictated.
The trial passage need not be transcribed and will not taken into
account while marking.
(3) After a lapse of two three minutes, of the dictation of trial
passage, the final passage should be dictated by the same person
keeping in view the uniformity of speed which can be achieved by
marking the passage after every 80-100 words as the case may be.
(4) After the passage is dictated, five minutes time should be
allowed to the candidates for reading the dictated passage.
(5) The candidates should be required to transcribe the passage on
Computer. The trial passage, the shorthand sheets and transcription
sheets should be attached together. All the three sheets should bear
the name. date. Roll No. of the candidate.
(d) Method of Evaluation of Transcribed sheets.- (1) The mistakes
shall be counted as full or partial mistakes, as the case may be.-
(a) The following should be counted as full mistakes.-
(1) Omission of words or figure.
(2) Substitution of wrong word or figure.
(3) Misspelling.
(4) Two partial mistakes will be equal to one full mistake.
(b) The following should be counted as partial mistakes.-
(1) Error or Omission in punctuation.
(2) Wrong use of capital or small letters.
(3) Wrong indentation of paragraph.
(2) The margin of 5% mistakes, may be allowed. If the mistakes/
omissions are more than 5% of the dictated passage, the excess
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number of mistakes over 5% shall be deducted from the total
number of words dictated and the speed will be calculated.
Example.-
(1) If the mistakes in a dictated passage of 1000 words in 10
minutes are 50, (5% of 1000) by giving a margin of 5% the speed
shall be calculated to be 100 words per minute
(2) If the mistakes in a dictated passage of 1000 words are 100, the
margin in 50 words (5 percent of 1000) the excess 50 words (1000-
50=950) words.
This shall be divided by the time by 10 minutes. It comes to
950/10=95 words per minute."
11. The post of Personal Assistant-cum-Judgment Writer is filled
up by promotion through two different modes. Clause 15 under
Part-II of the Staff Service Rules provides that 25% posts of the
Personal Assistant-cum-Judgment Writer shall be filled up on the
recommendation of a Committee on the criteria of seniority-cum-
efficiency and 75% posts shall be filled up on the basis of
seniority-cum-merit from amongst the Junior Personal Assistants.
It is further provided that there shall be an Efficiency Test to
adjudge the suitability of the candidates for promotion against
25% quota for promotion to the post of Personal Assistant-cum-
Judgment Writer and those posts shall be filled up on the basis of
seniority-cum-efficiency. Clause 15 further provides that the
qualifying examination shall be held only to test the ability of the
candidates in shorthand speed. It is also indicated therein that the
shorthand speed for English should be 95 words per minute and
for Hindi 75 words per minute. Furthermore, the "Note" appended
to Clause 15 indicates that the shorthand dictation for 5 minutes
should be transcribed within 45 minutes. Clause 15 of the Staff
Service Rules which contains the relevant provisions for promotion
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to the post of Personal Assistant-cum-Judgment Writer provides as
under :-
"(15) PERSONAL ASSISTANT CUM JUDGEMENT WRITER.-
Recruitment on the posts of the Personal Assistant cum
Judgement Writer shall be made by promotion to 25% posts on
the recommendation of a Committee nominated by the
Appointing Authority adjudging suitability of the candidates on
the criteria of seniority-cum-efficiency and 75% on the basis of
seniority-cum-merit from amongst the Junior Personal
Assistants.
The ratio of 1:3 on the basis of seniority-cum-efficiency
and seniority-cum-merit shall be vacancy based and the
selection shall be made by rotation i. e. the first vacancy shall be
filled in on the basis of seniority-cum-efficiency and second,
third and fourth vacancies shall be filled in on the basis of
seniority-cum-merit.
Provided that no Junior Personal Assistant shall be eligible
for promotion to the post of personal Assistant-cum-judgement
Writer unless he has put in minimum 4 years service on the post
of Junior Personal Assistant.
Provided further that in case of non-availability of suitable
candidates from amongst the existing Junior personal Assistant
on the establishment of the High Court the posts shall be filled in
either by mode of transfer or deputation of suitable candidates
from the Personal Assistants of Subordinate Courts or Senior
Junior Personal Stenographer/ Personal Assistants of the
Government Department of Rajasthan.
EFFICIENCY TEST
The suitability of the candidates for promotion against
25% posts of Personal Assistant cum Judgement Writers which
are to be filled in on the basis of criteria of seniority-cum-
efficiency, shall be adjudged on the basis of qualifying
examination to be held to test the ability of the candidates in
Shorthand speed.
QUALIFYING TEST
I. Shorthand (English) 95 words per minute
Or
(Hindi) 75 words per minute
Note: 5 minutes dictation given in Shorthand shall be
transcribed within 45 minutes."
[2024:RJ-JD:37396-DB] (17 of 27) [CW-7829/2024]
12. The substantive appointment to a post means an
appointment made under the provisions of the Staff Service Rules
to a substantive vacancy after due selection by any of the
methods of recruitment prescribed under the Rules and includes
an appointment as a probationer followed by the confirmation in
service on completion of the probation period. Rule 2(i) of the
Staff Service Rules defines "Appointing Authority" to mean Chief
Justice or a Judge or a Committee of Judges or any other Officer
who may be specially empowered by the Chief Justice to exercise
the powers and perform functions of the Appointing Authority.
According to the respondents, the Chief Justice of the High Court
possesses absolute power to prescribe the conditions for
recruitment of the employees under the establishment of the High
Court by issuing a general or special order and, in exercise of such
power, the Chief Justice of the High Court of Rajasthan issued a
general order on 05th December 2002 under which the mode and
manner of the appointment and service conditions of the
employees under the establishment of the High Court have been
laid down. This is the stand taken by the respondents that the
Chief Justice has power to relax any Rule under the Staff Service
Rules if it is necessary or expedient to do so and the Chief Justice
can grant relaxation in age or as to requirement of experience. It
is stated that the exemption from appearing in the Efficiency Test
granted by the Chief Justice in October 2020 was an exceptional
exercise of such powers and that cannot be referred to by the
petitioners as precedent to claim relaxation in the Rule as a
matter of right for their promotion. However, the petitioners claim
[2024:RJ-JD:37396-DB] (18 of 27) [CW-7829/2024]
that such statement was far from the truth and just a ruse to deny
parity to the petitioners inasmuch as the test for direct
recruitment was conducted for the Chauffeurs for the
establishment of the Rajasthan High Court and Drivers for the
Rajasthan State Judicial Academy and the Rajasthan State Legal
Services Authority, etc. vide notice dated 06th November 2020.
13. The relevant provisions under Rule 30 of the Staff Service
Rules read as under :-
"30. POWER TO RELAX THE RULES: In exceptional cases where the
Chief Justice is satisfied that operation of the Rules relating age or
to experience regarding requirement of for recruitment causes
undue hardship in any particular case or where the Chief Justice is
of the opinion that it is necessary or expedient to relax any of the
provisions of these Rules with respect to age or experience of any
person he may by orders dispense with or relax the relevant
provision of these rules to such extent and subject to such
conditions as he may consider necessary for dealing with the case in
a just and equitable manner, provided that such relaxation shall not
be less favorable than the provisions already contained in these
Rules."
14. A government employee is appointed following the
recruitment Rules and can only insist that the provisions in the
recruitment Rules as to leave, salary, promotion, etc. should be
followed and cannot make a grievance against the action of the
respondents who intend to follow the Rules. Under the Staff
Service Rules, the promotions are ordinarily made according to
seniority but subject to the requirement of Efficiency Test for
promotion against 25% posts of Personal Assistant-cum-Judgment
Writers. The Efficiency Test is conducted to assess ability of the
candidates in shorthand speed and that is only a qualifying
examination. As to the requirement of qualifying examination
[2024:RJ-JD:37396-DB] (19 of 27) [CW-7829/2024]
under the Staff Service Rules, the aspiring Junior Personal
Assistants are supplied sufficient and clear information that the
qualifying shorthand test in English requires 95 words per minute
and in Hindi 75 words per minute. This is also provided in the
Rules that 5 minutes' dictation given in shorthand would have to
be transcribed within 45 minutes. Pertinently, Rule 22 which lays
down the general rule of promotion starts with the expression
"subject to the requirement of efficiency" and provides that
promotion shall ordinarily be made according to seniority. By the
amendment through Notification dated 24th July 2004, a provision
for special promotion to an official was incorporated for
recognizing merit irrespective of the grade to which the employee
may belong or to his seniority within his grade. Proviso to Rule 3
provides that the Chief Justice may from time to time leave
unfilled or held in abeyance or abolish or allow to lapse any vacant
post, permanent or temporary, without thereby entitling a person
to any claim or may after obtaining the sanction of the Governor
of State create any post permanent or temporary as may be found
necessary. Rule 5 provides that the recruitment to a post or
category of posts specified in the second column of Schedule-I
shall be made through (a) direct recruitment or (b) promotion or
(c) transfer from Subordinate Court or Offices of the Government.
By an amendment through the Notification dated 18 th July 2019,
the previous provision of holding a preliminary examination was
deleted and holding of screening test has been left at the
discretion of the Chief Justice.
[2024:RJ-JD:37396-DB] (20 of 27) [CW-7829/2024]
15. This is not correct to say that the petitioners are subjected to
hostile discrimination by asking them to qualify in the Efficiency
Test for promotion under 25% quota to be filled up on the basis of
seniority-cum-efficiency. The petitioners have admitted that they
were among the Junior Personal Assistants who made a
representation in the year 2020 for exemption from the Efficiency
Test. The order granting such exemption by the Chief Justice was
applied uniformly and the petitioners were themselves beneficiary
of that order of exemption. This is a matter of record that the
petitioners lost their chance for promotion to the post of Personal
Assistant-cum-Judgment Writer on account of their lower rank in
the seniority list whereas some of their batchmates could make it.
There is therefore no question of parity that can be claimed by the
petitioners with their own batchmates who got promotion as the
Personal Assistant-cum-Judgment Writer. There can be no manner
of doubt that if the Chief Justice has exercised the discretion in
good faith and not in violation of any law, a writ shall not lie on a
specious plea that it could have been exercised differently. The
Chief Justice of the High Court is the supreme authority in the
matters of appointment of the officers and servants of the High
Court and the Constitution of India recognizes that no other
person except the Chief Justice should have domain in the internal
administration of the High Court. Like the President or the
Governor, a writ of mandamus cannot be issued by the writ Court
to the Chief Justice of the High Court while exercising the powers
under Article 226 of the Constitution of India. It would be highly
improper if the High Court issues a direction to the Chief Justice of
[2024:RJ-JD:37396-DB] (21 of 27) [CW-7829/2024]
the High Court to exercise his discretionary powers to relax the
Rules and exempt the petitioners from Efficiency Test. We
therefore hold that the petitioners cannot seek a direction for
granting them exemption from the Efficiency Test.
16. For the sake of fullness, we would indicate that the pleadings
in the writ petition are completely vague and it is not even
pleaded that at what position the petitioners are in the seniority
list. No details of the Junior Personal Assistants senior to the
petitioners are given and the writ petition is completely silent as
to why the Chief Justice should exercise the powers under Rule 30
relaxing the condition of Efficiency Test. In our opinion, it would
not be in the public interest that the employer deviates from the
conditions of service on mere representation by a few employees.
The High Court in exercise of jurisdiction under Article 226 of the
Constitution of India shall have no powers to issue a direction to
the High Court not to follow its own Rules.
17. This is a general proposition that a writ of mandamus can be
granted only in a case where there is a statutory duty imposed
upon the respondent authority and that statutory obligation was
not discharged. It must therefore be shown that there is a legal
right in the aggrieved party and a corresponding legal duty
imposed upon the respondent authority the performance of which
can be claimed in a Court of law. The rule is that mandamus shall
not lie where the duty is discretionary and the party upon whom
the duty rests has exercised his discretion reasonably and within
his jurisdiction, that is, upon facts sufficient to support his action 2.
2 The Law of Extraordinary Legal Remedies by Forest G. Ferris and Forest G. Ferris Jr.
[2024:RJ-JD:37396-DB] (22 of 27) [CW-7829/2024]
In "State of Kerala v. A. Lakshmikutty & Ors."3 the Hon'ble
Supreme Court held that a writ of mandamus is not a writ of
course or a writ of right but is a discretionary remedy which can
be claimed only by a person who can demonstrate that he has a
legal right to insist on the performance of a public duty by the
public authority. A prerogative writ like mandamus cannot be
demanded ex debito justitia. In "Bihar Eastern Gangetic
Fishermenco-Operative Society v. Sipahi Singh & Ors."4 the
Hon'ble Supreme Court observed that the chief function of a writ
is to compel performance of the public duty prescribed by a
statute and to keep the subordinate tribunals and officers
exercising public function within the limits of their jurisdiction. It
was further held that in order that mandamus may issue to
compel the performance to do something, it must be shown that
there is a statute which imposes a legal duty and the aggrieved
party has legal right under the statute to enforce its performance.
In "Dr. Rai Shivendra Bahadur v. the Governing Body of the
Nalanda College, Bihar Sharif & Ors."5 the Hon'ble Supreme Court
observed as under :-
"5. A great deal of controversy was raised before us as to
whether the Statutes framed by the University under Section 20
of the University of Bihar Act have or have not the force of law
and whether a writ under Article 226 of the Constitution can
issue against the Governing Body of the College i.e. whether the
appellant has a legal right to the performance of a legal duty by
the respondents. In order that mandamus may issue to compel
the respondents to do something it must be shown that the
Statutes impose a legal duty and the appellant has a legal right
under the Statutes to enforce its performance. It is, however,
3 [1986] 4 SCC 632.
4 [1977] 4 SCC 145.
5 AIR 1962 SC 1210.
[2024:RJ-JD:37396-DB] (23 of 27) [CW-7829/2024]
wholly unnecessary to go into or decide this question or to
decide whether the Statutes impose on the Governing Body of
the College a duty which can be enforced by a writ of mandamus
because assuming that the contention of the appellant is right
that the College is a public body and it has to perform a public
duty in the appointment of a Principal, it has not been shown
that there is any right in the appellant which can be enforced by
mandamus. According to the Statutes all appointments of
teachers and staff have to be made by the Governing Body and
no person can be appointed, removed or demoted except in
accordance with Rules but the appellant has not shown that he
has any right entitling him to get an order for appointment or
reinstatement. Our attention has not been drawn to any article
in the Statutes by which the appellant has a right to be
appointed or reinstated and if he has not that right he cannot
come to court and ask for a writ to issue. It is therefore not
necessary to go into any other question."
18. Notwithstanding some defects in the pleadings, the joint
Efficiency Test for promotion to the post of Personal Assistant-
cum-Judgment Writer is such a contentious issue that requires
examination by this Court. The grievance projected by the
petitioners is that their chances of promotion would diminish if the
Junior Personal Assistants who were appointed through a different
recruitment exercise at a later point in time are permitted to
participate in the same exercise for promotion under 25% quota
as provided under Clause 15 of Part-II of the Staff Service Rules.
This is the case of the petitioners that by permitting the Junior
Personal Assistants who were appointed in a different financial
year to claim promotion against the vacancies occurring even prior
to their appointment, the High Court has acted contrary to the
Rules for promotion on the post of Personal Assistant-cum-
Judgment Writer as provided under Clause 15. To counter this
stand, the respondents have taken a position that there is no bar
[2024:RJ-JD:37396-DB] (24 of 27) [CW-7829/2024]
under the Rules for holding a common Efficiency Test because
such test is merely a standard (benchmark). According to the
respondents, this benchmark is required to be fulfilled by the
candidates seeking promotion under 25% vacancy in the cadre of
Personal Assistant-cum-Judgment Writer and, that, the promotion
is not made solely on the basis of the Efficiency Test rather the
criteria is seniority-cum-efficiency. Moreover, even if the
petitioners fail in their attempt to qualify the Efficiency Test that
would not compromise their promotional avenue and they would
still be able to get promotion under the remaining 75% posts on
the basis of seniority-cum-merit.
19. As understood in service jurisprudence, the chances of
promotion are not the conditions of service and are defeasible. A
government employee cannot claim promotion as a matter of right
and he can only be considered for promotion according to the
extant Rules. Notwithstanding the provision that the Efficiency
Test is only qualifying in nature and the Junior Personal Assistants
shall be granted promotion according to their seniority, holding of
a common Efficiency Test without segregating the vacancies
available for the appointees of different financial years would be
unfair, improper and shall cause prejudice to the candidates like
the petitioners. This is the power of the Appointing Authority
under Rule 6 to determine the actual number of vacancies as on
01st April every year occurring during the financial year. This is
further provided under Rule 6(c) that if a post is to be filled in
through more than one method as prescribed in the Rules or
Schedule-I then the apportionment of vacancies determined under
[2024:RJ-JD:37396-DB] (25 of 27) [CW-7829/2024]
Clause (a) to sub-rule (1) to each such method shall be done
maintaining the prescribed proportion for the overall number of
posts already filled in. Under Rule 6(2), the Appointing Authority
shall also determine the vacancies of earlier years, yearwise,
which were required to be filled in by way of promotion if such
vacancies were determined and filled earlier in the year in which
year they were required to be filled in. This is also very clear that
the method of recruitment on the post of Personal Assistant-cum-
Judgment Writer under Clause 15 is unambiguous. It provides that
the Junior Personal Assistants shall be called in the ratio of 1:3 for
promotion on the basis of seniority-cum-efficiency and seniority-
cum-merit as well. It is further provided that the first vacancy out
of the total posts available shall be filled in on the basis of
seniority-cum-efficiency and then the second, third and fourth
vacancy shall be filled in on the basis of seniority-cum-merit. Most
importantly, 2nd proviso to Clause 15 provides that in case of non-
availability of suitable candidates from amongst the existing Junior
Personal Assistants in the establishment of the High Court the
posts shall be filled in either by mode of transfer or deputation of
suitable candidates from the Personal Assistants of subordinate
Courts or Personal Stenographers/Personal Assistants of the
Government Department of Rajasthan.
20. The scheme of promotion under Clause 15 does not
contemplate permitting the Junior Personal Assistants recruited in
two different recruitment years to appear together in the
Efficiency Test vying for promotion against the vacancies which
occurred even prior to their appointment. This is well known that
[2024:RJ-JD:37396-DB] (26 of 27) [CW-7829/2024]
there may be large number of employees in the cadre but the
number of vacancies for promotion could be limited. Under Clause
15 read with Rule 8, the petitioners shall have a right to seek
promotion on the basis of seniority-cum-efficiency against 1/4 th of
the total number of vacancies in the cadre of Personal Assistant-
cum-Judgment Writer occurring prior to the recruitment of Junior
Personal Assistants in the year 2020. But any vacancy remaining
unfilled under this quota cannot be made available to the
candidates appointed in the year 2020 until the entire batch of
2016 is called for the Efficiency Test as per the Rules. Therefore, a
chance to get selected under 25% vacancy on the basis of the
Efficiency Test shall be extended to others who were appointed in
the same financial year along with the petitioners. In the event
that some posts of the Personal Assistant-cum-Judgment Writer
remain vacant then such posts shall be filled up either by mode of
transfer or deputation of suitable Personal Assistants of sub-
ordinate Courts or Personal Stenographers/Personal Assistants of
the Government Department of Rajasthan. We therefore hold that
the Junior Personal Assistants appointed in the year 2020 or
thereafter cannot seek promotion to the post of the Personal
Assistant-cum-Judgment Writer competing with the batch of 2016
against the vacancies that occurred prior to 02 nd March 2020.
However, we are not inclined to go back in the past and disturb
the previous promotions. One of the reasons for this hands-off
decision is that there is no specific challenge to the promotion
granted vide order dated 09th October 2020.
[2024:RJ-JD:37396-DB] (27 of 27) [CW-7829/2024]
21. We were informed that in view of the order dated 14 th May
2024 the Efficiency Test was conducted but the final result was not
published. The respondents shall now publish the result and
promotions shall be granted only in the manner as indicated
hereinabove.
22. In view of the foregoing discussions, the prayer made at
Clause (d) is allowed and this writ petition succeeds to the
aforementioned extent.
23. D.B. Civil Writ Petition No.7829 of 2024 is allowed in the
manner and to the extent indicated hereinabove.
(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J
AjaySingh/-
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