LPA No.110 of 2009 in 1 CWP No.20390 of 2008 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. LPA No.110 of 2009 in CWP No.20390 of 2008 Date of decision: 2.3.2009 Rajinder Kumar ....Appellant. vs. Haryana Urban Development Authority,Panchkula, and another. ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE NAWAB SINGH. --- Present: Mr. K.L.Dhingra, Advocate, for the appellant. -- J.S.KHEHAR,J. (Oral) Through the instant appeal learned counsel for the appellant has impugned the order dated 20.1.2009, passed in CWP No.20390 of 2008, whereby the learned Single Judge has arrived at the conclusions, that the eligibility conditions for promotion to the post of Clerk (presently re- designated as Office Associate) have remained unchanged. In order to repudiate the conclusions drawn by the learned Single Judge, learned counsel for the appellant has placed reliance on the provisions of the Haryana Urban Development Authority Services Regulations, 1989 (hereinafter referred to as “the Service Regulations”). Learned counsel for the appellant has placed specific reliance on Regulation 10 and Appendix-B of the Service Regulations. Regulation 10 of the Service Regulations, is extracted hereunder:- “ No person shall be appointed to the service unless he is in possession of qualifications and experience specified in LPA No.110 of 2009 in 2 CWP No.20390 of 2008 column 3 of Appendix B to these Regulations in case of recruitment made otherwise than by promotion and those specified in column 4 in case of recruitment by promotion. Provided that in case of direct recruitment of reserved categories of employees the condition regarding experience shall be relaxable to the extent of 50% at the discretion of the recruiting Authority in case sufficient number of candidates belonging to schedules castes, backward classes, ex- servicemen and physically handicapped candidates, possessing the requisite experience are not available to fill up the vacancies reserved for them, after recording reason for so doing in writing.” A perusal of the aforesaid regulation reveals, that it is not open to the respondents to appoint a person in the service of the Haryana Urband Development Authority, whether by direct recruitment or otherwise, unless he possesses the eligibility conditions stipulated in Appendix-B attached to the Service Regulations. Regulation 10, extracted hereinabove further reveals, that qualifications and experience for appointment by direct recruitment have been stipulated in column-3, whereas, eligibility conditions for promotion have been enumerated in column-4. Since the controversy in the present case relates to a claim by way of promotion, it is apparent, that the qualifications laid down in column-4 of Appendix-B would be relevant for the determination of the present controversy. Accordingly, the eligibility conditions including academic qualifications and experience for appointment by promotion for the post of Clerk/Office Associate depicted in paragraph 4 of Appendix B of the Service Regulations is being extracted hereunder:- “ xx xx xx LPA No.110 of 2009 in 3 CWP No.20390 of 2008 i) From amongst the class III & IV employees whose scale is lower than the post of clerk and has passed the matriculation examination with Hindi or equivalent from recognised University/Board. ii) 5 years regular service. Iii) Qualifies type test either in English or Hindi at the speed of 30/25 words per minute respectively”. It is not a matter of dispute that the Appendix-B of the Service Regulations was amended. The amendment of the Service Regulations effected through a notification dated 28.4.2008, has been placed on the record of the instant appeal as Annexure P6; wherein, for the post of Clerk/Office Associate the eligibility conditions stipulated in column-4 stood amended as under:- “ xx xx xx From amongst the employees of Haryana Urban Development Authority whose pay scale is lower than that of Office Associate and who fulfill the following conditions:- i) Pass in matriculation from a recognised Board. ii) Knowledge of Hindi/Sanskrit upto Matriculation. Iii) 5 years regular service in HUDA. iv) Typing speed 25/30 words per minute in Hindi or English respectively”. It would not be out of place to mention, that in so far as the present appeal is concerned, pointed consideration is, to the eligibility of the appellant, in qualifying the typewriting test at the speed of 25/30 words per minute prescribed in Appendix B. It is not a matter of dispute, that the appellant has not qualified the typewriting test at the speed stipulated in column-4 of the Service Regulations. We are satisfied, that the aforesaid qualification has not undergone any change detrimental to the LPA No.110 of 2009 in 4 CWP No.20390 of 2008 appellant ever since the promulgation of the Service Regulations in the year 1989. From the unamended, as well as, the amended provisions of the Service Regulations vide notification dated 28.4.2008, we are satisfied, that there has been no alteration in the condition of qualifying the typewriting test. Thus, we are satisfied, that the condition recorded by the learned Single Judge while disposing of CWP No.20390 of 2008 vide order dated 20.1.2009 was wholly justified, and in consonance with law. Despite our conclusion hereinabove, it would be pertinent to mention, that the learned counsel for the appellant has placed reliance on the remarks column incorporated along with the original Service Regulations. The remarks column i.e., column-5 relied upon by the learned counsel for the appellant is being extracted hereunder:- “80% posts will be filled up by direct recruitment and the remaining 20 % will be filled up by promotion from amongst the Class III & IV employees. They have to pass departmental type test within one year failing which their annual increments will be withheld. If they passes the examination after the prescribed period then the increment for the period subsequent to that within which the departmental examination was to be passed will be released from the date following the last date on which the departmental examinations are completed. The increments shall be released with retrospective effect from the date it was otherwise due but no arrears will be paid for the past period.” By the same notification, referred to hereinabove, dated 28.4.2008, column- 5 i.e., the remarks column was amended to the following effect:- “ 80% posts by direct recruitment and 20% by promotion from amongst Group D regular employees.” LPA No.110 of 2009 in 5 CWP No.20390 of 2008 Based on the amendment of column-5, it is the submission of the learned counsel for the appellant, that prior to the amendment vide notification dated 28.4.2008, for promotion to the post of Clerk/Office Associate it was not necessary to qualify the typewriting test, and that the aforesaid typewriting test could be qualified at any time after promotion. This, according to the learned counsel for the appellant, has been the consistent practice at the hands of the respondents. It is not possible for us to accept the contention advanced at the hands of the learned counsel for the appellant, as has been noticed in the foregoing paragraph. Firstly, because the mandate of Regulation 10 of the Service Regulations, extracted hereinabove, reveals that it is imperative for a person seeking promotion to possess the qualifications and experience stipulated in column-4 of Appendix B of the Service Regulations, and as such, it is not open to an individual to claim promotion unless he satisfies the eligibility conditions stipulated in column-4. Undoubtedly, the appellant does not fulfil the condition of having qualified the typewriting speed with the speed of 25/30 words per minute, and as such, cannot be treated as eligible for promotion to the post of Clerk/Office associate. Secondly, it is not possible for us to accept that the condition of qualifying the typewriting test at the speed specified in column-4, is the same, as the “departmental type test” depicted in column-5. Had the two been the same, they would have been identically described in column-4, as well as, in column-5 of the Service Regulations. Since they are not similarly described , it is imperative for us to infer that the departmental test referred to in column-5 is a test which must be qualified by a promotee after his promotion. There is a third LPA No.110 of 2009 in 6 CWP No.20390 of 2008 reason as well for not accepting the contention of the learned counsel for the appellant, which is, that column-5 is not a condition of relaxation of the eligibility condition for promotion specified in column-4. There is nothing in the Service Regulations brought to our notice, on the basis of which such an inference can be drawn. Having expressly incorporated in Regulation 10, that it is imperative for a promotee to possess the conditions of his eligibility prescribed in column-4 of Appendix B of the Service Regulations, it is not possible for us to accept that the remarks recorded in column-5 can be treated as relaxation of condition expressed in column-4. We hereby hold, that the amendment of the original Service Regulations by the notification dated 28.4.2008, does not in any way alter the conditions of eligibility for promotion to the post of Clerk/Office Associate. For the reasons recorded hereinabove, we find no merit in this appeal and the same is accordingly dismissed. ( J.S.Khehar) Judge (Nawab Singh ) Judge March 2, 2009 rk