IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:7898/2008 Decided on:29.4.2009 Umesh Jaswal and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners : Ms. Ranjana Parmar, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General for respondent No.1. None for respondents No.2 and 3. Rajiv Sharma, J. The petitioners submitted applications to the Himachal Pradesh Public Service Commission for considering their candidature for the post of Junior Scale Stenographer. They were offered appointment to the post of Junior Scale Stenographer vide order dated 21.4.1994. They were permitted to qualify typing test and shorthand test as per Annexure A-2 on 3.4.1995. They were confirmed as Junior Scale Stenographers with effect from 24.1.1997 vide office order dated 27.1.1997. In the provisional seniority list issued by the respondent-department, the petitioners were 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 assigned Sr. No. 4 to 6 whereas respondents No.2 and 3 figured at Sr. No. 7 and 8. Respondents No.2 and 3 were promoted to the post of Senior Scale Stenographer vide office order dated 10.1.2000. The petitioners preferred representations to the competent authority. The petitioners were promoted to the post of Senior Scale Stenographer with effect from 24.4.2000. Thereafter the petitioners again made representations seeking their promotion from the date their juniors were promoted. The reminder was also sent to the competent authority on 12.12.2000. Thereafter the provisional seniority list of Senior Scale Stenographers as it stood on 15.5.2001 was issued. The petitioners were assigned seniority below respondents No.2 and 3. The petitioners filed objections against the seniority list vide Annexure A-12. It was rejected by the competent authority on 21.6.2001. Thereafter the final seniority list of Senior Scale Stenographers was circulated on 2.7.2001. The case of the petitioners is that they could not be superseded by respondents No.2 and 3. The precise case of the respondent No.1 is that since the petitioners had not qualified the requisite test they have rightly been ignored for promotion at the time when respondents No.2 and 3 were promoted. Ms. Ranjana Parmar, Advocate has strenuously argued that the petitioners were permitted to qualify the written examination and they have qualified the departmental examination pursuant to office order dated April 1995. She further contended that her clients were confirmed with effect from 24.1.1997 vide office order dated 27.1.1997. They were ranking seniors to respondents No.2 and 3 in the provisional seniority list published on 30.5.2001. She finally contended that there was no mandatory condition in the Recruitment and Promotion Rules notified on 3 6.1.2000 to qualify the bilingual test for the purpose of promotion to the post of Senior Scale Stenographer. Mr. R.K. Sharma, learned Senior Additional advocate General has strenuously argued that since the petitioners had not qualified the bilingual test as per their appointment letter, they could not be considered for promotion by the Departmental Promotion Committee which met on 7.1.2000. I have heard the learned counsel for the parties and perused the record carefully. It is true that the petitioners were required to qualify the typing test/ and shorthand test in English from Commission within one year. As per letter dated 21.4.1994 in case they did not qualify the test they were not entitled to next annual increment. The petitioners were confirmed with effect from 24.1.1997. Ms. Ranjana Parmar, Advocate has drawn the attention of the Court to notification dated 6.1.2000. A bare perusal of notification dated 6.1.2000 reveals that the Junior Scale Stenographer with five years regular service is eligible to be considered for promotion. There is no condition in the Recruitment and Promotion Rules that the candidates who have not qualified the bilingual test would not be considered for promotion to the post of Senior Scale Stenographer. The only rider/restriction as per appointment letter Annexure A-1 was that the petitioners could not be granted the annual increment till they qualify the bilingual test. The petitioners, as noticed above, have qualified the bilingual test. They were ranking senior to respondents No.2 and 3 in the provisional seniority list of Junior Scale Stenographers as it stood on 15.5.2001. Respondents No.2 and 3 have been promoted on the basis of the recommendations made by the Departmental Promotion Committee in its meeting held on 7.1.2000. 4 The only reason assigned as per the minutes of the Departmental Promotion Committee placed on record by the learned Senior Additional Advocate General for not considering the petitioners is that they had not qualified the bilingual test. The Court is of the firm opinion that the respondent-department has misinterpreted the Recruitment and Promotion Rules for the post of Senior Scale Stenographer. The petitioners were fully eligible to be considered for promotion to the post of Senior Scale Stenographer and their cases could not be over looked only for the reasons that they had not qualified the bilingual test. The petitioners were also promoted to the post of Senior Scale Stenographer vide office order 24.4.2000. The petitioners filed representation against the provisional seniority list of the Senior Scale Stenographers. The same was rejected by the Principal Secretary (SAD) on 21.6.2001. Consequently, the final seniority list of Senior Scale Stenographer of Himachal Pradesh Secretariat as it stood on 15.5.2001 was circulated. The petitioners ranked juniors to respondents No.2 and 3. The petitioners have made representations against the promotions of respondents No.2 and 3 as well as against the issuance of provisional seniority list of Senior Scale Stenographers by the respondent- department. These representations have been rejected by the competent authority on 21.12.2000 and 21.6.2001 without a speaking order. It is necessary for the competent authority to pass a speaking/self-contained order in case the person is to be visited with civil or evil consequences. It was necessary for the competent authority to pass a speaking order in the present case. The petitioners have qualified the bilingual test on 19.4.2000. Respondents No.2 and 3 have qualified their bilingual test on 21.12.1995. The passing of bilingual test as per appointment letter was necessary for 5 them to earn the annual increment only. It could not be termed as a condition precedent for promotion to the post of Senior Scale Stenographer. The petitioners though have qualified the bilingual test on 19.4.2000, but they were confirmed with effect from 24.1.1997 vide office order dated 27.1.1997. It further fortifies the submission of Ms. Ranjana Parmar that passing of bilingual test was not a condition precedent for considering her clients for promotion to the post of Senior Scale Stenographer. The petitioners were given the notional benefits of their annual increments as per order dated 24.7.2000. The contention raised by the learned Senior Additional Advocate General that since the petitioners had not qualified the bilingual test as per the appointment letter and thus could not be considered for promotion merits rejection in view of the observations made hereinabove. The action of the respondent-department of not considering the petitioners to the post of Senior Scale Stenographers only on the ground that they had not qualified the bilingual test is declared arbitrary. The petitioners had right of consideration for promotion as enshrined in Articles 14 and 16 of the Constitution of India. The respondents are required to consider all the eligible persons for promotion in a just and fair manner. Respondent No.1 cannot be permitted to read something which was not at all existing in the Recruitment and Promotion Rules for promotion to the post of Senior Scale Stenographer. The conditions of service are required to be framed precisely for better administration. Accordingly, the petition is allowed. Annexures A-5, A-10, A-13 and A-14 are quashed and set aside. The respondents are directed to convene a review Departmental Promotion Committee to consider the case of the petitioners for promotion to the post of Senior Scale Stenographers from the date their juniors were promoted i.e. 7.1.2000. 6 The petitioners in case are found suitable for promotion, they shall be held entitled to all the consequential benefits, including arrears of salary, seniority etc. The petitioners are held entitled to costs quantified at Rs. 5,000/-. 29.4.2009 (Rajiv Sharma ), J. *awasthi*