REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2897 OF 2006
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.
