State Of Punjab & Ors vs Jagdish Kaur

STATE OF PUNJAB & ORS. ... APPELLANTS

VERSUS

JAGDISH KAUR ... RESPONDENT

WITH

CIVIL APPEAL NO.4134 OF 2006

STATE OF PUNJAB & ANR. ... APPELLANTS

VERSUS

HARJINDER SINGH ... RESPONDENT

J U D G M E N T

Aftab Alam,J.

1. These two appeals, at the instance of the State of Punjab and its

officials, are directed against orders passed by the Punjab and Haryana High

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Court by which it knocked down the requirement of passing typing test in

Punjabi at the speed of 30 words per minute (w.p.m.) as an eligibility

criterion for promotion from class IV to class III posts in the State

Government service.

2. Jagdish Kaur, the respondent in Civil Appeal No.2897 of 2006 was

appointed as a Peon in the Government High School Vairwal, Tehsil Tarn

Taran, District Amritsar, on February 21, 1978. Her appointment was made

on compassionate grounds following her husband's death in harness on

January 14, 1977. At the time of her appointment, she had passed

matriculation examination in 3rd division. After joining the service, she

passed the Senior Secondary School Examination from the Punjab School

Education Board in 2nd division in the year 1992. According to her case,

after passing the plus two examination, she became eligible for promotion to

a class III post and she, accordingly, moved the concerned authorities for her

promotion. However, getting no favourable response from them, she

approached the Punjab and Haryana High Court in CWP No.11758 of 2003

seeking appropriate reliefs.

3. Harjinder Singh, respondent No.1, in Civil Appeal No.4134 of 2006,

similarly joined as a Peon in the department of technical education on April

7, 1992. He was a matriculate at that time. According to his case, another

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person, namely, Baldev Singh, who was junior to him in class IV, was given

promotion to a class III post in supersession of his claim. He too, therefore,

moved the Punjab and Haryana High Court in CWP No.729 of 2004 seeking

a direction to the concerned authorities to promote him to a class III post.

4. The writ petition filed by Jagdish Kaur was allowed by order passed

by a Division Bench of the High Court on February 20, 2004. Later on the

writ petition of Harjinder Singh came up before another Division Bench of

the court and following the order passed in the case of Jagdish Kaur that too

was allowed by order dated July, 1, 2005.

5. Following the order passed by the High Court, Harjinder Singh was

given promotion and is working on a class III post since then. In the case of

Jagdish Kaur, however, this Court stayed the operation of the impugned

order of the High Court while issuing notice on April 18, 2005. As a result

she continues to work on the class IV post.

6. Before the High Court, the case of the State was that the two writ

petitioners (respondents in the two appeals before this Court) could only be

considered for promotion in their turn on the basis of seniority. Moreover,

they were not eligible for promotion from class IV to class III posts since

they had not passed the typewriting test in Punjabi with the minimum speed

of 30 w.p.m. The High Court did not take any objection to denial of

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promotion on the basis of seniority but went on to examine the requirement

of passing the typing test in Punjabi as a condition for promotion to a class

III post. It came to find that the condition of qualifying in typing test in

Punjabi was illegal, arbitrary and unenforceable and, consequently, held and

directed as follows:-

"Accordingly, the instant petition is allowed. The action of the

authorities in requiring members of Class IV service to possess

Punjabi typewriting test as a pre-condition for promotion to the

post of Clerk is held to be illegal. The claim of the petitioner

for promotion to the post of Clerk shall now be considered by

re-determining her eligibility without insisting upon the earlier

pre-condition having to pass the typewriting test in Punjabi. In

case the petitioner is otherwise qualified, her claim shall be

considered for promotion to the post of Clerk, without any

further delay. If she is found suitable, she shall be promoted to

the post of Clerk, with effect from the date, persons junior to

her were promoted as such. The aforesaid exercise be carried

out and completed within three months from today."

The finding of the High Court is primarily based on the provisions of the

Punjab Civil Services (General and Common Conditions of Service) Rules,

1994 (in short "1994 Rules"). The High Court observed that in the statutory

rules, the requirement of qualifying the typewriting test in Punjabi with a

minimum speed of 30 w.p.m. was for direct recruitment to a class III post

but there was no such requirement for promotion from Class IV to class III

posts. In this regard the High Court made the following observations:-

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"In the present case also, in the absence of any statutory

provision to the contrary, the Punjab Civil Services (General &

Common Conditions) Rules, 1994 (hereinafter referred to as the

1994 Rules), would be relevant to determine the controversy in

hand. Under the 1994 Rules, the rule making authority laid

down the requirement of qualifying the typewriting test in

Punjabi with a minimum speed of 30 words per minute within

one year of the date of the direct recruitment. The 1994 Rules

did not lay down such a pre-condition/stipulation for

appointment by promotion to the post of Clerk. The

inference, that is liable to be drawn from the conditions

delineated under the 1994 Rules, is that while qualifying the

typewriting test in Punjabi is a condition for direct

recruitment, it is not a pre-condition for promotion."

(emphasis added)

The High Court, then, proceeded to observe that in the absence of any

provision in the statutory rules, no such requirement could be introduced

through any Government Order. Hence, it held the stand of the State

Government untenable and made the directions, as noted above.

7. To us it appears that the High Court was in error in making the 1994

Rules, the basis of its judgment. We have gone through the 1994 Rules.

The rules framed under the proviso to Article 309 of the Constitution of

India are exclusively in respect of the appointments, by direct recruitment, to

class I, class II and class III services in the State Government. Rule 15 which

is in two parts lays down the eligibility for appointment to the post of Clerk;

sub-rule (a) prescribes matriculation in second division or passing senior

secondary part II examination from a recognized University as the minimum

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educational qualification and sub-rule (b), as originally framed, made

qualifying a test in Punjabi typewriting at the speed of 30 w.p.m. as the

essential pre-requisite for appointment to a post of clerk in the Punjab

Government. It may be noted that Rule 15 was amended by Notification

dated June 23, 1999 and the amended rule reads as under.

"15. Minimum educational qualification and other

qualifications:-

(1) No person shall be appointed by direct appointment to the

post of a clerk under the Punjab Government unless he is

matriculate in Second Division or has passed Senior

Secondary Part III Examination from recognized university

or institution.

(2) The person so appointed as Clerk in terms of sub-rule (1)

shall have to qualify a test in Punjabi typewriting to be

conducted by the Board or by the appointing authority at the

speed of thirty words per minute within a period of one year

from the date of his appointment.

(3) In case the persons fails to qualify the said test within the

period specified in sub-rule (2) he shall be allowed annual

increment only with effect from the date he qualifies such

test, but he shall not be paid any arrear for the period, for

which he could not qualify the said test."

8. As a result of the amendment the qualification of typing that earlier

used to be an essential requirement for appointment ceases to be a

precondition and can now be acquired within a period of one year from the

date of appointment failing which no annual increments would be allowed. It

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is, thus, clear that in case of direct recruitment to a class III post the

qualification of typing in Punjabi as a requirement for appointment has been

considerably relaxed.

9. The significant thing to note, however, is that the 1994 Rules do not

deal with appointments to class IV posts and do not provide for promotion

from class IV as a mode of recruitment to class III posts. Hence, there is no

question of finding in the 1994 Rules any provision dealing with the

eligibility criteria for promotion from class IV to class III posts. The High

Court was, therefore, quite wrong in drawing the inference that while

qualifying the typewriting test in Punjabi is a condition for direct

recruitment, it was not a pre-condition for promotion.

10. Coming now to the issue of promotion from class IV to class III posts,

the provision was first made in the Government Circular letter No.4/17/79-

IPP/1973, dated August 24, 1983. Paragraphs (i) and (ii) of the circular letter

read as follows:-

"(i) There should be a provision for filling up 10% of

Class III posts by promotion from amongst Class IV

employees, who possess a minimum educational qualification

of matriculation (with Punjabi) and have a minimum of 5

years' experience as such;

(ii) There should be a provision for a qualifying test

in Punjabi typewriting which should be equal to the one

prescribed by the Subordinate Services Selection Board for

such posts and it should be made essential to pass the test

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before a Class IV employee is considered eligible for

promotion. The test may be held by the appointing authority

or any such authority to whom the powers for doing so are

delegated by the appointing authority."

The aforesaid Government Order was amended by Circular dated October

27, 1998. The later circular increased the quota for promotion from 10% to

15% but retained the qualification of Punjabi typewriting as prescribed in the

earlier order. Paragraph 2 of the circular letter dated October 27, 1998, reads

as follows:-

"There should be provision for a qualified test of Punjabi

typewriting which should be equal to the one prescribed by the

S.S.S. Board for such posts and it should be made essential to

pass the test before a Class IV employee is considered eligible

for promotion. The test may be held by the appointing authority

or any such authority to whom the powers for doing so are

delegated by the appointing authority."

11. It is well-settled that in the absence of statutory rules on any subject,

the relevant Government Orders would hold the field. [See: Sant Ram

Sharma Vs State of Rajasthan & Anr., AIR 1967 SC 1910, Ashok Kumar

Shrivastava & Ors. Vs. Ram Lal & Ors., (2008) 3 SCC 148, Shiba Shankar

Mohapatra & Ors. Vs. State of Orissa & Ors. (2010) 12 SCC 471.]

12. In light of the above, the requirement of qualifying the test in Punjabi

typewriting at the speed of 30 w.p.m. is manifestly a criterion for promotion

from class IV to class III post. We are, therefore, clearly of the view that the

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orders passed by the High Court are untenable and we are constrained to set

aside those orders.

13. Coming now to the specific cases of the two respondents, it is noted

above that following the order passed by the High Court, Harjinder Singh

was promoted to a class III post on which he is working since then. Jagdish

Kaur, though, not promoted on account of the stay order passed by this

Court, had the order of the High Court (though now set aside) in her favour

for the past seven years. We, accordingly, direct that she too should be

promoted to a class III post. However, the promotions given to Harjinder

Singh and Jagdish Kaur would be subject to their qualifying in the

typewriting test in Punjabi at the speed of 30 w.p.m. within one year from

today in the case of Harjinder Singh and within one year from her promotion

in the case of Jagdish Kaur, failing which they may be reverted back to their

substantive posts in class IV.

14. Before parting with the records of the case, however, we must put in a

caveat. It is seen above that in case of direct recruitment to a class III post

the qualification of typing in Punjabi as a requirement has been greatly

relaxed. It may be legally permissible for the State to have different

standards for direct recruitment and for recruitment by promotion but in

fairness the State would be well advised to review the criteria for promotion

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from class IV to class III posts and to bring them at par with the

requirements for direct recruitment to class III posts.

15. In the result, the appeals are allowed subject to the observations and

directions made above.

..............................J.

(Aftab Alam)

..............................J.

(R.M. Lodha)

New Delhi;

August 26, 2011.