CWP No. 7283 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 7283 of 2009 Date of decision : 29.07.2011 Kuldip Singh ......Petitioner versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. R.K. Arora, Advocate for the petitioner. Mr. Ram Lal Gupta, Addl.A.G. Punjab Mr. N.P.S. Mann, Advocate for respondent Nos. 4 and 5. **** RITU BAHRI, J. (Oral) Petitioner is seeking quashing of order dated 18.03.2008 (annexure P-5) passed by respondent No. 2 whereby annual increments of petitioner has been stopped till passing of typing test. The petitioner was initially joined as Chowkidar on daily wages basis on 12.10.1988. His services were regularized on 20.05.1991 as Chowkidar. He joined as Sewadar on 15.07.1997 on his promotion and transferred from Panchayat Samiti, Balachaur to Panchayat Samiti, Garhshankar in pursuant to order passed by the Joint Secretary, Govt. of Punjab, Department of Rural Development and Panchayats as per order dated 31.05.1997 (Annexure P-1) issued vide endorsement dated 05.06.1997 against vacant post. The petitioner is CWP No. 7283 of 2009 -2- a matriculate with knowledge of Punjabi typing. Thereafter, his case for promotion was recommended by Panchayat Samiti, Garhshankar vide office letter dated 04.04.2000 to respondent No. 4. His promotion case was returned with the observation that such cases are decided at the level of Panchayat Samiti with reference to Govt. letter dated 15.07.2002 (Annexure P-2). Thereafter, respondent No. 5 in its meeting hold on 22.09.2003 (Annexure P-3) passed a resolution granting promotion to the petitioner from the post of Sewadar to the post of Clerk. The petitioner joined as Clerk on 25.09.2003 and thereafter, his case for promotion was sent to Government for approval along with resolution dated 22.09.2003 vide letter dated 25.09.2003. The Government of Punjab, Department of Rural Development and Panchayats vide its memo dated 20.04.2004 (Annexure P-4) returned the case with the observation that such cases are to be decided at the level of Panchayat Samiti with reference to Govt. instructions dated 15.07.2002 (Annexure P-2). Learned counsel for the petitioner has argued that thereafter the petitioner is working as a Clerk continuously and he has also been given his due annual increments in the pay scale of Clerk. He has further submitted that there was no condition in the resolution passed by the Panchayat Samiti for promotion of the petitioner or before allowing the petitioner joining as Clerk for passing of type test. Thereafter, the Audit Party from the office of respondent No. 3 raised objection in the year 2006 with regard to not taking prior approval of the Government before appointing the petitioner by way of promotion as Clerk and also raised objection for the grant of annual increments to the petitioner without passing of Punjabi type test in view of instructions dated 27.10.1988. In CWP No. 7283 of 2009 -3- view of the audit report, recovery was made from the salary of the petitioner. Vide order dated 18.03.2008, the case of the petitioner was forwarded to the Director for ex-post facto approval for promotion of the petitioner as Clerk from the post of Sewadar. In response to the said recommendation the approval was granted by the Government. However a condition was put therein that the petitioner will not be given annual increments till he passes Punjabi Type Test at the prescribed speed. His increment will be released on passing of type t est but no arrears of increment will be given. Learned State counsel has also informed the Court that no SLP has been filed by the State against the judgment dated 04.08.2003 in C.W.P No. 5401 of 2003. Learned counsel for the petitioner has argued that instructions dated 27.10.1998 which prescribes passing of type test for grant of annual increment came up for consideration before this Court in the case of 'Ramesh Chand and others vs. Director Department of Rural Development and Panchayats, Punjab and another, 2004(4) RSJ 555'. In this case, attention has been invited to the Punjab Department of Rural Development and Panchayats (Class III) Rules, 1988 (herien after tobe referred as '1988 Rules'). The 1988 Rules regulate the conditions of service of the petitioners. Rule 8 of 1988 Rules of delineates the method of appointment. Qualifications required for appointment against the posts regulated by the 1988 Rules have been stipulated in Appendix B. So far as the post of Clerk is concerned, Appendix B makes a reservation of 10% of the cadre posts of Clerks for appointment by way of promotion. The remaining 90% of the cadre posts of clerks are to be filled by way of direct CWP No. 7283 of 2009 -4- recruitment. Column 5 of Appendix B of the 1988 Rules lays down the following parameters for promotion to the post of Clerk:- “From amongst Class IV employees working in Directorate of Panchayats (Head Quarters staff other than intelligence unit Staff) Cadre who are matriculates and who have an experience of working as such for a minimum period of five years.” Column 6 of Appendix B of the 1988 rules lays down the following eligibility conditions for appointment to the post of Clerk:- ”Should be matriculate or its equivalent and should have qualified the type writing test in Punjabi language to be conducted by the Board at a speed of thirty words per minute” It is apparent from a comparative assessment of columns 5 and 6 of Schedule B pertaining to posts of Clerk that it is not essential for a promotee to qualify the typewriting test in Punjabi language for promotion, whereas direct recruitment a candidate selected for appointment as Clerk is required to qualify the typewriting test in Punjabi. It was also held that instructions dated 27.10.1988 cannot overrule the statutory provision. Learned State counsel has also informed the Court that no SLP has been filed by the State against the judgment rendered in the case of Ramesh Chand and others vs. Director Department of Rural Development and Panchayats, Punjab and another, 2004(4) RSJ 555', decided on 04.08.2003 In the facts of the present case, the petitioner was promoted against the 10% quota meant for promotees, hence, he was not required to pass a typing test. In view of the above factual position, the present writ petition is allowed and the order dated 18.03.2008 is quashed and petitioner is held entitled to the annual increments after joining as Clerk on 25.09.2003. The petitioner is also held entitled to 6% interest on the calculation of payment made to the petitioner from the date due till date he is being paid arrears. This exercise be completed within four months. July 29, 2011 (RITU BAHRI) G.Arora JUDGE