C.W.P. No.8375 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8375 of 1991 Date of Decision: 30.06.2010. Om Parkash Bhagat & others ........Petitioners Versus State of Haryana & Others .......Respondents CORAM:- HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. G.S.Bal, Advocate for the petitioners. Mr. R.K.S.Brar, Addl. A.G., Haryana. ****** PERMOD KOHLI, J. Promotion of respondents No.3 & 4 for the post of Sr. Scale Stenographer vide the impugned order dated 26th February, 1991 (Annexure P-4) is under challenge in the present petition. Petitioners and the private respondents were working as Junior Scale Stenographers in the office/department of Director, Public Relations, Haryana. It is admitted case of the parties that the petitioners were senior to the private respondents as per the Gradation list (Annexure P-3). Respondents No.3 & 4 were promoted to the post of Senior Scale Stenographers vide the impugned order dated 26th February, 1991 (Annexure P-4) on the basis of a test conducted by respondent No.2. The petitioners also participated in the said test but failed. The grievance of the petitioners is that the service conditions of the petitioners and private respondents are governed and regulated by C.W.P. No.8375 of 1991 -2- statutory rules namely Punjab Public Relations Department (Class III Non Gazetted) Services Rules, 1958 and for promotion from the post of Junior Scale Stenographer to the post of Senior Scale Stenographer, no test is prescribed. According to the petitioners, holding of such tests on the basis of only draft rules is illegal and the petitioners cannot be deprived of the promotion on the basis of their seniority merely for non-clearance of some test, which is not provided for in the statutory rules. It is contended on behalf of the petitioners that since rules do not prescribe any test, holding of such test for promotion is impermissible in law. It is admitted case of the parties that the private respondents No.3 & 4 were promoted on the basis of test conducted. It is, however, submitted that under the rules, there is a post of Stenographer and in the year 1976, the Directorate of Public Relations, Haryana was declared 'A' class office with effect from 01.04.1976. A copy of the order dated 12th February, 1976 has been placed on record as Annexure R-2. It is further stated that in view of the above order, the department stands bifurcated into 'A' Class and 'B' Class. On the advise of the Legal Remembrancer, Haryana service rules applicable to the Secretariat Establishment, which is 'A' Class office, also became applicable to the respondent-Department. Accordingly, an amendment was carried out in Rule 8 of Punjab Public Relations Department (Class-III Non Gazetted) Service Rules, 1958, vide notification No.GSR-42/Const./Art.309/Amd.(1)/78 dated 31.03.1978. In view of the amendment, the recruitment of Stenographers and Junior Scale Stenographers has been provided in the revised draft rules and in view of the above situation, a test was held on 30th July, 1990 to fill up the post of Senior Scale Stenographers. As per the provisions of draft rules, respondents No.3 & 4 having qualified the test were promoted whereas the petitioners failed to qualify the test. In so far the private respondents are concerned in their separate C.W.P. No.8375 of 1991 -3- replies, they have pleaded that the amended rules envisage minimum typing and transcription speed for promotion to the post of Senior Scale Stenographers and thus with a view to determine the speed, a test was essential, which was held and the petitioners having failed in the test could not be promoted. Punjab Public Relations Department (Class-III Non Gazetted) Service Rules, 1958 rules regulate the promotion for the posts in question. Appendix 'A' of the rules prescribe number of posts and pay scales therefor whereas Rule 8 lays down the qualifications for the posts on the cadre of Service. Rule 9 deals with the method of recruitment. Relevant rules are reproduced hereunder:- “Rule-3” Number and character of posts – The service shall comprise the posts shown in appendix 'A' to these rules: Provided that nothing in this rule shall affect the inherent right of Government to make additions to or reductions in the number of such posts, either permanently or temporarily”. APPENDIX 'A' Designation of Number Rising Pay-Scale Post of Post from _________ Superintendents 1 350-450 XX XX Stenographer to DPR 1 116-250 Stenographers 3 100-175 Steno-Typists 4 60-115 plus Rs.15/- xx xx xx xx “Rule-8” “Superintendents: xx xx Stenographers: Matriculation certificate of a recognized University or Board of C.W.P. No.8375 of 1991 -4- examination, with 50 words per minute speed in type-writing and 100 words per minute speed in shorthand. Steno-Typist: Matriculation certificate of a recognized university or Board of examination with 40 words per minute speed in type-writing and 80 words per minute speed in shorthand. xx xx xx xx “ Rule-9” : Recruitment to the service shall be made:- a) to f) xx xx xx xx g) In the case of Stenographers - i) by selection from among the Steno-Typists; or ii) by transfer or deputation of a person already in the service of the Government of a State or of the Union; or iii)by direct recruitment. h) to b2) xx xx xx c3) In the case of Steno-Typists i) By selection from among the Clerks; or ii) by transfer or on deputation of a person already in the service of the Government of a State or of the Union or; iii) by direct appointment; Under Rule 8, the qualifications and eligibility criteria for C.W.P. No.8375 of 1991 -5- recruitment of Stenographers by direct recruitment is matriculation certificate of a recognized University or Board of examination, with 50 words per minute speed in type-writing and 100 words per minute speed in shorthand. Rule 9 prescribes the three modes of recruitment to the post of Stenographer:- (i) by selection from among the Steno-Typists; or (ii) by transfer or deputation of a person already in the service of the Government of a State or of the Union; or (iii) by direct recruitment". From Annexure R-1 i.e. a notification dated 31st March, 1978, it appears that Rule 8 of the above mentioned Rules was amended and for the post of Stenographer, separate qualifications were prescribed. For 'A' Class office, the following qualifications are prescribed:- Clerk 1. Matric 1st Division/Higher Secondary Second Division/Intermediate Second Division/ Graduate or equivalent. (For ex-Servicemen, Matric only) 2. Knowledge of Hindi upto Matric standard. 3. Hindi/English typing at a speed of 25/30 words per minute respectively. Steno- Typist 1. Matric 1st Division/High Secondary second Division. Intermediate Second Division/Graduate or its equivalent. (For ex-Servicemen Matric only) 2. Knowledge of Hindi upto Matric standard. 3. English shorthand at 80 words per minutes and transcription thereof at 15 words per minute. 4. Hindi shorthand at 64 words per minute and transcription thereof at 11 words per minute. C.W.P. No.8375 of 1991 -6- Stenographer: 1. Matric 1st Division/High Secondary Second Division/Intermediate Second Division/Graduate or equivalent (for Ex-Servicemen Matric only). 2. Knowledge of Hindi upto Matric standard. 3. English shorthand at 100 words per minute and transcription thereof at 20 words per minute. 4. Hindi shorthand at 80 words per minute and transcription at 15 words per minute. OTHER THAN 'A' CLASS OFFICER (OTHER THAN HEADQUARTERS) Clerk: 1. Matric/Higher Secondary or equivalent. 2. Knowledge of Hindi upto Matric standard. 3. Hindi or English typing at a speed of 25/30 words per minute respectively. Steno- Typist: 1. Matric/Higher Secondary or equivalent. 2. Knowledge of Hindi upto Matric Standard. 3. Hindi shorthand at 6f4 words per minute and transcription thereof at 11 words per minute. OR English shorthand at 80 words per minute and transcription thereof at 15 words per minute. Steno- grapher: 1. Matric/Higher Secondary or equivalent. 2. Knowledge of Hindi upto Matric standard. 3. Hindi shorthand at 80 words per minute and transcription thereof at 15 words per minute. OR English shorthand at 100 words per minute and transcription C.W.P. No.8375 of 1991 -7- thereof at 20 words per minute. From the perusal of rules, it appears that there is only one cadre of Stenographer and the recruitment to the post of Stenographer is to be made either by selection from Steno-Typist or by transfer/deputation from other Government departments and by direct recruitment. Rule 8 relates to only direct recruitment. Even the amendment carried out in the year 1978 is in respect of the direct recruitment to the post of Stenographer. Under the Recruitment Rules of the department, there are no posts of Junior Scale Stenographers or Senior Scale Stenographers. It appears that when in the year 1976 when the Government intended to upgrade the office of the Director, Public Relations, Haryana to declare it as 'A' Class, the rules of the Secretariat Establishment were applied. Nothing has been placed on record to indicate that merely by declaring an office of the 'A' Class, the rules of Secretariat Establishment will apply. Even the note dated 12th/13th February, 1976, placed on record as Annexure R-2, indicates that a notification is required to be issued separating the Cadre at the Head Quarter from the cadre at the District level. It further provides that option is to be obtained from the entire staff serving at the District level and also the Head Quarter for their absorption in the District level or the Head Quarter Cadre as the case may be. Admittedly, the statutory notification dated 31st March, 1978 was issued bifurcating the department in two Cadres i.e. 'A' Class office Head Quarter and 'A' Class office other than Head Quarters. The post of Stenographer remained as it is. This post of Stenographer was never re-designated into Junior Scale Stenographer or Senior Scale Stenographer. How and on what basis, the post of Senior Scale Stenographers were created, is not apparent from the record nor any material has been placed on record to establish creation of separate the posts of Senior Scale Stenographers and Junior Scale Stenographers. It is admitted case of the respondents that the test was held under the draft C.W.P. No.8375 of 1991 -8- rules. Draft rules cannot be applied and invoked in the presence of statutory rules in operation. Holding a test in absence of any statutory backing is impermissible in law. Hon'ble Supreme Court in the case of State of Haryana and Others Versus Shamsher Jang Bahadur and Others, 1972 S.L.R. (S.C.) 443 held as under:- “It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Sectt. The first question arising for decision is whether the Govt. was competent to add by means of administrative instructions to the qualifications prescribed under the rules framed under Art. 309. The High Court and Courts below have come to the conclusion that the Govt. was incompetent to do so. This Court has ruled in (1) Sant Ram Sharma v. State of Rajasthan and anr. that while the Govt. cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Govt. can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as they relate to the Clerks in the Sectt. amend or alter the conditions of service prescribed by the rules framed under Art. 309. Undoubtedly the instructions issued by the Govt. add to those qualifications. By adding to the qualifications already prescribed by the rules, the Govt. has really altered the existing conditions of service. The instructions issued by the Govt. undoubtedly affects the promotion of concerned officials and therefore they relate to their conditions of service. The Govt. is not competent to alter the rules framed under Art. 309 by means of administrative instructions. We are C.W.P. No.8375 of 1991 -9- unable to agree with the contention of the State that by issuing the instructions in question, the Govt. had merely filled up a gap in the rules. These rules can be implemented without any difficulty. We see no gap in the rules.” In view of the above position, promotion of respondents No.3 & 4 ignoring the seniority of the petitioners was bad in law. It is relevant to note that respondents No.3 & 4 were promoted to the post of Senior Scale Stenographers on 26.02.1991. It is more than 19 years now. They might have earned further promotions and it is not deemed appropriate to quash their selection/promotion at this belated stage but at the same time, petitioners also cannot be denied the relief. In view of the above peculiar circumstances, this petition is disposed of with the following directions:- (1) Petitioners shall be considered for promotion to the post of Senior Scale Stenographers with effect from the date, respondent Nos.3 & 4 were promoted and if they do not suffer any disqualification, they shall be so promoted; (2) The petitioners shall not be entitled to the monetary benefits except notional fixation of their salary/emoluments etc. at par with respondents No.3 & 4; (3) If there is no post of Senior Scale Stenographer, the State will create superannuary post for the petitioners till the time they retire; (4) If the petitioners have already retired, their retiral benefits shall be fixed on the promotional post. June 30, 2010 (PERMOD KOHLI) Gagan JUDGE