C.W.P. NO. 11947 OF 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. NO. 11947 OF 2007 Date of decision:28.1.2008 Satish Chander & others. ...Petitioners versus State of Haryana and another. ...Respondents CORAM:HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Raman B. Garg, Advocate for the petitioners. Mr. Harish Rathee, Sr. DAG, Haryana for the respondents. -.- JASWANT SINGH, J. The petitioners, four in number, working as Clerks in the office of Deputy Commissioner, Rohtak (respondent no.2) have filed this writ petition praying for quashing the condition of passing of type test imposed by the respondents in their appointment letters (not annexed with the writ petition) and order dated 13.9.2002 (Annexure P-3) and orders dated 30.7.2003 (Annexures P-4 and P-5) vide which they have been granted the Ist ACP scale of Rs. 4000-6000/- on completion of 10 years regular satisfactory service with the condition to allow the annual increments after passing the type test prescribed in their appointment letters, and further prayed for directing the respondents to grant annual increments from the date of its accrual alongwith interest @ 18% p.a. The brief facts of the case are that some posts of Clerks for various Haryana Government Offices were advertised by the Subordinate C.W.P. NO. 11947 OF 2007 2 Service Selection Board, Haryana vide advertisements dated 7.1.1986/2.7.1987 (Annexures P-1 & P-2). The petitioners, namely, Satish Chander, Karan Singh, Ram Kishan and Om Parkash were selected and issued appointment letters dated 26.4.1990, 21.6.1991, 15.2.1990 and 6.4.1990 respectively by the Deputy Commissioner Bhiwani, Kurukshetra, Panipat and Kurukshetra respectively. They joined their duties on 4.5.1990, 26.9.1991, 25.2.1990 and 22.5.1990 respectively. It is stated that subsequently all the petitioners were transferred to the Office of Deputy Commissioner, Rohtak-respondent No.2. It is apparent from para no.7 of the writ petition that the respondents had imposed a condition in the appointment letters of the petitioners to pass a departmental type-writing test in Hindi/English at the speed of 25/30 w.p.m. respectively within a period of one year failing which annual increments were not to be allowed to them. The petitioners for the reasons best known to them have not appended copies of their respective appointment letters. It is further admitted that the posts of Clerks held by them are governed by the Haryana Revenue Department District Subordinate (Group-C) Service Rules, 1988 (hereinafter called the 1988 Rules),which are extracted as under:- APPENDIX-B Sr. No. Name of post Academic qualifications, experience, if any for direct recruitment Academic qualifications, experience, if any, for appointment other than by direct recruitment [1] [2] [3] [4] 1 xx xx Xx 2 xx xx xx 3 xx xx xx 4 xx xx xx C.W.P. NO. 11947 OF 2007 3 Sr. No. Name of post Academic qualifications, experience, if any for direct recruitment Academic qualifications, experience, if any, for appointment other than by direct recruitment 5 xx xx xx 6 xx xx xx 7 xx xx xx 8 xx xx xx 9 xx xx Xx 10 Clerk In the case of direct recruitment:- (i)Matric Ist Division or Higher Secondary or its equivalent. (ii) Knowledge of Hindi upto Matric Standard (iii) Knowing typewriting in Hindi or English at the speed of 25/30 words per minute respectively. In the case of Promotion:- (i)Matric (ii) Five years experience as Group C Group D employees. (iii) To pass Departmental test in Hindi or English at the speed of 25/30 words per minute, respectively, within a period of one year from the date of appointment failing which annual increment shall not be allowed till he qualifies the test. On qualifying annual increments shall be released with retrospective effect from the dates these may otherwise due but no arrear shall be paid for the past period. It is further admitted that the petitioners vide orders dated 6.9.2002 (Annexure P-3) and two orders dated 30.7.2003 (Annexures P-4 and P-5) were granted the benefit of Ist ACP in the pay scale of Rs. 4000- 100-4800-EB-100-6000/- w.e.f. the dates they completed ten years of regular satisfactory service subject to the condition that their next dates of C.W.P. NO. 11947 OF 2007 4 increment will be after passing the type test as per terms and conditions mentioned in their appointment letters/till they qualify the prescribed typing test. Admittedly, none of the petitioners till date has passed the required typing test, as per the condition of their original appointment letters and hence have not earned any increments. Although, it is sought to be stated that petitioner nos.1 and 3 had passed the requisite typing test on 20.9.2001 and 25.6.1998 respectively, but in the written statement in para no. 8, it has been categorically mentioned that the result of the said typing tests were cancelled/not approved by the competent authority i.e. Deputy Commissioner, Rohtak-respondent No.2 due to improper checking and on receipt of various oral complaints. This factual position as stated in the written statement is further established by reading of Annexures P/14 and P15 placed on record with the replication filed by the petitioners. Learned counsel for the petitioners, in sum and substance has argued that no condition of passing the type test at the required speed can be imposed in their appointment letters as well as in the orders Annexures P-3 to P-5 vide which they have been granted ACP scale so as to say that they shall be entitled to increments only on passing the prescribed type test as the same is de hors the mandate of the 1988 Rules. To fortify the same he has relied upon different conditions prescribed for direct recruitment and promotion as per Rule 7 read with Item No.10 of Column No.(3) and (4) of Appendix-B of 1988 Rules (reproduced hereinabove), to show that only knowledge of typewriting of Hindi or English at the speed of 25/30 words per minute is necessary in the case of direct recruits. In support of the same, he has also relied on the judgments passed by this C.W.P. NO. 11947 OF 2007 5 Court in Prithvi Raj vs. State of Haryana and others (C.W.P. No. 5566 of 1999, decided on 3.9.2001) (Annexure P-8), Kali Ram Saini and another vs. Haryana State Agricultural Marketing Board and another (C.W.P. No. 19776 of 2002, decided on 2.5.2005) (Annexure P-10) and Hardev Singh vs. State of Haryana 1999 (1) RSJ 444. We have heard learned counsel for the parties and perused the record. A perusal of rule 7 read with Item No.10 of Column No.(3) of Appendix of 1988 Rules makes it clear that no person can be appointed to the service by way of direct recruitment unless, inter alia, he possesses the knowledge of typewriting in Hindi or English at the speed of 30 words per minute respectively. The said rule does not lay down as to how this knowledge in typewriting has to be ascertained. It is apparent from the pleadings that a condition was incorporated in their appointment letters that they were required to pass the departmental typewriting test in Hindi or English at the speed of 25/30 words per minute respectively and till the same was done they were not to be allowed annual increments. (The exact words used in their appointment letters are not known since the parties have not placed on record the copies of the said appointment letters nor shown at the time of hearing by production of records). It is clear that the said condition was incorporated in pursuance of the requirement of 1988 Rules itself. Their knowledge of typewriting at the prescribed speed could only be adjudged by putting them to a typewriting test. It is apparent that at the time of their initial appointment they had not been put to the required test and accordingly the condition of passing the typewriting test at the prescribed speed had been imposed in their appointment letters. Thus, C.W.P. NO. 11947 OF 2007 6 their appointment was conditional, although without their fulfilling this requirement they could not be legally appointed as per rule 7 of the 1988 Rules. Be that as it may, it appears that the appointing authority at that point of time appointed them in public interest subject to their fulfilling this prescribed requirement after joining the service and accordingly imposed the said condition. The non-grant of annual increments till the passing of the prescribed typewriting test was also in consonance with the principle that the increments are to be granted by the employer on account of satisfactory work of an employee. The very fact that the petitioners, to date, have not passed the prescribed typewriting test indicates that their appointment to date is not valid, since the prescribed condition has not yet been fulfilled. However, since the aforesaid rule did not prescribe the manner in which knowledge of direct recruits at the required speed is to be adjudged, the respondent department has chosen the only natural and obvious methodolgy of putting the employees to a departmental typewriting test at the prescribed speed in furtherance of requirement of 1988 Rules. To do so, the respondent authorities have taken guidance from similar provisions provided under column no.(4) of Rule 7 and this action of the respondents cannot be said to be beyond the rules or arbitrary as merely a lacuna in the rule for direct recruits has been filled up. Thus, the case law cited by the petitioner, in support of his arguments, in the facts and circumstances discussed hereinabove is clearly distinguishable and not applicable. It is further apparent from the records that the scheme of grant of ACP scales was adopted by the Government of Haryana as a matter of concession to its Group “C” & “D” employees, who were stagnating in C.W.P. NO. 11947 OF 2007 7 their services for lack of promotional avenues. The petitioners vide impugned letters dated 13.9.2002 (P-3) and 30.7.2003 (P-4 to P-5) were also granted the Ist ACP scale of 4000-6000 with effect from their dates of entitlement but the grant of annual increments was made subject to the condition of their passing the prescribed typewriting test, as provided in their initial appointment letters. We, for the foregoing reasons, also do not find any fault with such condition in the impugned letters dated 13.9.2002 and 30.7.2003 (P3 to P-5). There is another aspect of this case because of which we are not inclined to grant relief in this writ petition. The petitioners have sought quashing of condition of passing the prescribed typewriting test imposed in their appointment letters,which were issued to them in the years 1990 and 1991. The appointment letters, however, have not been annexed with the writ petition. Therefore, this writ petition deserves to be dismissed, in view of the ratio of the judgment of the Hon'ble Supreme Court rendered in Surinder Singh v Central Government and others reported as AIR 1986 SC 2166 (para 9). Still further, petitioners have sought the quashing of said condition imposed in their appointment letters as also in the impugned letters dated 13.9.2002 and 30.7.2003 (P-3 to P-5) vide which they were granted ACP scales, after a delay of approximately 16 years and 4 years respectively. It is a settled proposition of law that a writ court can refuse to exercise its discretion when there is an unexplained delay. It has been held in State of Madhya Pradesh v. Bhai Lal Bhai, AIR 1964 SC 1006 that whenever a triable issue of limitation arises, the writ Court can refuse C.W.P. NO. 11947 OF 2007 8 to entertain the writ petition. In the present case, even if the petitioners were to file a suit to challenge the imposition of the said condition of passing the prescribed typewriting test, the same had to be done within three years of the same. Therefore, on the ground of inordinate delay also the writ petition must fail. In view of the above discussion, we find no merit in this writ petition. The same is dismissed. No order as to costs. (JASWANT SINGH) JUDGE (JASBIR SINGH) JUDGE 28.1.2008 joshi