CWP No.12319 of 2007 (1) In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 17.03.2009 Chander Mohan .. Petitioner Versus State of Punjab and others .. Respondents. CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Sanjay Gupta, Advocate,for the petitioner. Ms.Charu Tuli, Senior DAG,Punjab,for respondent Nos.1 to 3. Mr.BR Mahajan, Advocate, for respondent No.4. Mr.KS Dadwal, Advocate,for respondent No.5. PERMOD KOHLI, J. (Oral): The petitioner is aggrieved of the promotion of respondent No.5 made vide order dated 05.12.2006 (Annexure P-4). The petitioner was appointed as Mali-cum-Chowkidar, a Class-IV post on 12.09.1985. Thereafter, he was promoted as Clerk with effect from 09.07.1997 (Annexure P-1). Respondent No.5 was promoted as Clerk vide order dated 26.09.1997 (Annexure P-2). In the seniority list circulated vide letter dated 04.05.2006 (Annexure P-3), the petitioner was shown senior to respondent No.5, at serial No.5, whereas CWP No.12319 of 2007 (2) respondent No.5 figures at serial No.6. The next promotion in hierarchy of service is to the post of Superintendent Grade-II in the pay scale of Rs.6400-10640/-. One post of Superintendent Grade-II fell vacant in the office of the Executive Engineer, Panchayat Samiti, Mukerian, District Hoshiarpur. Respondent No.5 has been promoted vide order dated 05.12.2006 (Annexure P-4). The petitioner has been denied promotion and, accordingly, he has challenged the promotion of respondent No.5. He also seeks a writ in the nature of mandamus for his consideration for promotion against the vacancy occupied by respondent No.5. It is contended in the writ petition by the petitioner that there is no adverse entry or at least no such adverse entry was ever communicated to him. The claim of the petitioner for promotion has been resisted by the private respondent as also by the official respondents on two counts (i) that the petitioner has failed to pass the Punjabi Type Test at the prescribed speed within a period of one year from the date of his promotion as Clerk; (ii) that his ACRs for the years 2005-2006 were adverse. I have heard the learned counsel for the parties at length. The condition of service of the petitioner as also respondent No.5 was governed by statutory rules, known as, the Punjab Panchayat Samiti and Zila Parishad Service Rules, 1965 (hereinafter referred to as “the Rules”). Rule 8 of the Rules deals with the method of recruitment CWP No.12319 of 2007 (3) and qualifications of service. Sub Rule (2) of Rule 8 of the Rules specifically provides for promotion to the service on the basis of seniority-cum-merit and the seniority alone is not considered for such promotion. Ms.Tuli has produced the record relating to the promotion of respondent No.5. From the perusal of the record, it appears that the petitioner earned adverse remarks for the years 2005-2006. From the minutes of the proceedings it also appears that the petitioner has been considered for promotion but on account of his adverse ACRs and for non passing of the Punjabi Type Test at the prescribed speed within one year, he has been denied promotion and respondent No.5 being fit and suitable was promoted to the post of Superintendent Grade-II. Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of Jagdish Kaur Vs. State of Punjab and others, (CWP No.11758 of 2003) decided on 20.02.2004, wherein this Court has held that passing of Punjabi typing test is not an essential condition for promotion from the post of Clerk. Similar judgment is reportedly stayed by the Hon'ble Supreme Court in Civil Appeal No.2897 of 2006. Even in the promotion order of the petitioner as Clerk, there is categoric stipulation that he will have to pass the Test in Punjabi Typewriting at the prescribed speed within a period of one year. It is admitted case of the parties that no such test was passed by CWP No.12319 of 2007 (4) the petitioner. The petitioner has been duly considered for promotion but on account of the reasons mentioned hereinabove, he has been ignored and respondent No.5 was promoted to the post of Superintendent Grade-II. In so far as the adverse remarks are concerned, these were not communicated to the petitioner and cannot be used against him for denying promotion. However, the petitioner has failed to pass the type test in Punjabi within the stipulated period and, thus, he was ineligible for such promotion in view of the stay of the judgment by the Hon'ble Supreme Court, relied upon by the learned counsel for the petitioner. In the totality of the facts and circumstances of this case, the order promoting respondent No.5 cannot be stated to be invalid or illegal. Accordingly, this petition is dismissed. It is, however, observed that the respondents will communicate the adverse ACRs to the petitioner and after seeking his reply/explanation, will pass final order on the grading of his ACRs for the years 2005-2006 to enable him for future consideration as and when any vacancy for promotion is available. The right of the petitioner for consideration for promotion shall depend upon the outcome of the final order that may be passed by the respondents on the ACRs for the aforesaid period after communicating the adverse ACRs and seeking explanation/reply of the petitioner. The matter regarding the condition of passing of typing test in Punjabi is sub judice before the Hon'ble Supreme Court and the right of the petitioner in this regard shall remain subject to outcome of CWP No.12319 of 2007 (5) the appeal pending before the Hon'ble Supreme Court. 17.03.2009. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? NO