-1- Civil Writ Petition No.8786 of 2006 (O&M). IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 31,2008. Dinesh Sharma ... Petitioner VERSUS High Court of Punjab and Haryana through its Registrar and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.Chetan Mittal, Senior Advocate, with Mr.Jatinder Kumar, Advocate, for the petitioner. Mr. Karminder Singh, Advocate, for the respondents. -.- MOHINDER PAL, J. In this petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari, thereby quashing the order dated August 18, 2005 (Annexure P-13) whereby rejection of his request contained in application dated September 25, 2004 -2- Civil Writ Petition No.8786 of 2006 (O&M). (Annexure P-9) for promotion as Clerk from the post of Restorer by exempting him from passing the typewriting test under Rule 19 (4) (ii) of the High Court Establishment (Appointment and Conditions of Service) Rules, 1973 (hereinafter referred to as `the Rules') was conveyed to him. He has also prayed for issuance of a writ in the nature of mandamus directing the respondents to promote him as Clerk after exempting him from typewriting test. The petitioner was appointed as Restorer in this Court on March 08, 1991 vide order Annexure P-1. Since then, he is working on this post. As per Rule 19 (4) of the Rules, every third vacancy in the cadre of Clerks occurring after May 02, 1995, may be filled up by promotion from amongst the Supervisors/Restorers working in this Court. First proviso to Rule 19 (4) (ii) provides that eligible Supervisors/Restorers shall have to qualify the typewriting test in English at the speed of 30 Words Per Minute before promotion as Clerk. Second proviso to this Rule provides that the physically incapable candidate, who produces the Medical Certificate from the competent authority certifying that he is physically incapable of typewriting, shall be exempted from qualifying the typewriting test. The petitioner fulfils the requisite qualifications for promotion as Clerk. The petitioner applied for promotion as Clerk in the year 1998 and sought exemption from typewriting test under Rule 19 (4) (ii) of the Rules . The matter was referred to the -3- Civil Writ Petition No.8786 of 2006 (O&M). Principal Medical Officer, General Hospital, Sector 16, Chandigarh and the petitioner was examined by Dr.G.D. Singh, Medical Officer (Orthopaedic), on June 17, 1998, who opined that the petitioner “is an operated case of gallaezi fracture radius plating done. Having stiffness of left wrist joint and limitation of supination and pronation. He is not able to do typing efficiently”. The said opinion was conveyed by the Principal Medical Officer, General Hospital, Sector 16, Chandigarh, to the Registrar of this Court vide letter dated June 23, 1998 (Annexure P-2). On the basis of the opinion of Dr.G.D. Singh, the petitioner requested for exemption from typewriting test and promotion to the post of Clerk. Vide letter dated December 23, 1999 (Annexure P-3), the petitioner was informed that the said medical certificate was not in accordance with the second proviso to Rule 19(4) (ii) of the Rules. Thereafter, the petitioner was again examined by Dr. N.K. Arora, Senior Medical Officer (Orthopaedic), General Hospital, Sector 16, Chandigarh, on February 18, 2000, upon the letter dated December 23, 1999 (Annexure P-4) written by the Registrar of this Court to the Principal Medical Officer, General Hospital, Sector 16, Chandigarh, asking the latter to issue necessary certificate in terms of the second proviso to Rule 19 (4) (ii) of the Rules. The opinion dated February 18, 2000 of Dr. N.K. Arora is contained in letter dated March 01, 2000 (Annexure P- 6) according to which the petitioner “ is an old operated case of fracture radius left. Partial stiffness suppuration and -4- Civil Writ Petition No.8786 of 2006 (O&M). pronation left. Partial stiffness of left wrist. Muscle power hand grade V. In view of above improvement, it is concluded that he is incapable of doing efficient type work.” Thereafter, as the petitioner was not conveyed any decision for the purpose of his promotion as Clerk, he served legal notice dated February 25, 2003 (Annexure P-7). In reply to the legal notice, the petitioner was conveyed vide letter dated August 31, 2004 (Annexure P-8) to furnish requisite medical certificate fulfilling the requirement of the second proviso to Rule 19 (4) (ii) of the Rules from the competent authority showing that he was physically incapable of typewriting test in case he wanted consideration of his request for exemption from typewriting test. In response to the letter dated August 31, 2004 (Annexure P- 8), the petitioner made application dated September 25, 2004 (Annexure P-9) requesting for asking the competent medical authority to examine him for the purpose so that he could appear before the same. Thereafter, the petitioner was examined by the Medical Board consisting of the Principal Medical Officer, Medical Superintendent and Dr. Narinder Arora of the General Hospital, Sector 16, Chandigarh. Proceedings of the Medical Board are contained in Annexure P-12, which are as under:- “ Old operated case of fracture radius left. Movements of (L) Forearm -5- Civil Writ Petition No.8786 of 2006 (O&M). Supination and pronation (L) forearm are restricted in the extremes. Dorsi flexation of the wrist is restrined by about 25-30 %. Muscle power grade V. The above finds may case hindrance to his efficient type work.” After considering the afore-quoted opinion of the Medical Board, the impugned order was passed. In the written statement filed on behalf of the respondents, it has been pleaded that the Doctor had never declared the petitioner physically incapable of typewriting. It had been opined that the petitioner was not able to do typing efficiently. As such, his case is not covered under the second proviso to Rule 19 (4) (ii) of the Rules which clearly provides that it should be certified in the medical certificate that the employee “is physically incapable of typewriting”. We have heard Mr.Chetan Mittal, Senior Advocate, assisted by Mr.Jatinder Kumar, Advocate, appearing for the petitioner and Mr. Karminder Singh, Advocate, appearing for the respondents and have perused the record. In para No.14 of the writ petition, the petitioner mentioned that two similarly situated employees, namely, Madhu Bakshi and Vijay Lakshmi were promoted as Clerks after exempting them from clearing the typewriting test. The -6- Civil Writ Petition No.8786 of 2006 (O&M). petitioner filed Civil Miscellaneous No.20330 of 2007 along with his affidavit mentioning that another similarly situated employee, namely, Dharam Singh was promoted as Clerk vide order dated July 24, 2007 (Annexure P-14). He has also placed on record proceedings of the Medical Board consisting of Principal Medical Officer, Medical Superintendent and Senior Medical Officer of General Hospital, Sector 16, Chandigarh, in respect of said Dharam Singh as Annexure P-15. The opinion of the Medical Board is as under:- “ There is nothing to suggest that he is incapable of type work, however, the above finding clinically may hinder in long duration of type work.” The respondents have also filed reply to Civil Miscellaneous No.20330 of 2007 wherein medical opinions given in the cases of Madhu Bakshi and Vijay Laxmi, mentioned above, who were promoted as Clerks after granting them exemption under the second proviso to Rule 19 (4) (ii) of the Rules, have been given. In the case of Madhu Bakshi, the medical opinion is: “ xx xx xx. Mild weakness both limbs small finger L>R 25 % sensory loss in T 1 distribution with -7- Civil Writ Petition No.8786 of 2006 (O&M). evidence of CBT 1 distribution neurapathy with the above findings, she cannot do type work efficiently and effectively.” In the case of Vijay Laxmi, the medical opinion is: “ xx xx xx. She is a case of Right Arthritis and pain in pelvis. She is on Corticosteroid having swelling of whole body. She is having stiffness of small joints. She is physically incapable of typewriting efficiently. May be exempted”. A perusal of the medical opinions given in the cases of Dharam Singh, Madhu Bakshi and Vijay Laxmi shows that they were not certified to be physically incapable of typewriting as is the requirement of the second proviso to Rule 19 (4) (ii) of the Rules. All these three employees are similarly situated as the petitioner. However, they were promoted as Clerks after granting them exemption from typewriting test. No doubt, concession cannot be claimed as a matter of right by an employee. However, since indulgence had been shown and exemption from clearing the typewriting test was granted to similarly situated employees, as mentioned above, we are of -8- Civil Writ Petition No.8786 of 2006 (O&M). the opinion that the only way of meeting out equality to the petitioner is that the same concession should be extended to him. Consequently, we hold that the petitioner is entitled for exemption from qualifying the typewriting test for getting his promotion as Clerk. Ordered accordingly. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE March 31, 2008. ak