CWP No.16710 of 2008 - 1 - In the High Court of Punjab and Haryana at Chandigarh Date of decision: 17.08.2010 1. CWP No.16710 of 2008 Housing Board Haryana ... Petitioner Versus Rattan Singh and others ... Respondents 2. CWP No.17912 of 2008 Housing Board Haryana ... Petitioner Versus Ram Chander & others ... Respondents 3. CWP No.17934 of 2008 Housing Board Haryana ... Petitioner Versus Om Parkash & others ... Respondents 4. CWP No.17919 of 2008 Housing Board Haryana ... Petitioner Versus Naresh Kumar and others ... Respondents 5. CWP No.17942 of 2008 Housing Board Haryana ... Petitioner Versus Dharam Pal and others ... Respondents 6. CWP No.17944 of 2008 CWP No.16710 of 2008 - 2 - Housing Board Haryana ... Petitioner Versus Mohinder Singh and others ... Respondents 7. CWP No.17920 of 2008 Housing Board Haryana ... Petitioner Versus Dhian Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr. Ashwani Talwar, Advocate. Ms.Sonia G. Singh, Advocate. Mr. RS Kundu, , Addl.AG, Haryana. Mr., Senior Advocate, with, Mr. , Advocate, for respondent No.2. PERMOD KOHLI, J. (Oral) These writ petitions have been filed by the Housing Board, Haryana, against the order dated 27.06.2008 (Annexure P-1) common to all the cases, passed by the Financial Commissioner and Principal Secretary to Government of Haryana, Housing Department, Chandigarh, whereby a direction has been issued to grant increment to the private respondents (appellants before him) notwithstanding the passing of the Type Test as per the stipulation contained in the promotion order to the post of Clerk. It is the common case of the parties that private respondents were working as Class-IV employees with the petitioner-Board. They were promoted from Class-IV to Class-III (Clerks) in the pay scale of Rs.950- CWP No.16710 of 2008 - 3 - 1500/- or any other pay scale revised from time to time. While granting them promotion, they were placed on probation for a period of one year. Apart from that, a condition was incorporated that they will be required to pass Type Test either in English or Hindi at the speed of 30/25 words per minute, respectively, within a period of one year. Release of increment shall be subject to the passing of the Type Test. It is further provided that the increment will be given with effect from the date of passing of the Type Test. It is also admitted case of the parties that the private respondents could not pass the Type Test within one year. It is also admitted that most of the private respondents have passed the Type Test in the year 2009, barring few who could not pass such a test till date. Learned counsel for the respondents has relied upon a Division Bench Judgment of this Court in the case of Prithvi Raj Clerk Vs. State of Haryana and others, (CWP No.5566 of 1999) decided on 03.09.2001. In this case, it is held that a condition incorporated in the promotion order for passing the Type Test, cannot be enforced unless there is a provision in the statutory rules governing the promotion. Petitioner in the aforesaid case, was denied annual increment on account of the non-passing of the Type Test in accordance with the stipulation contained in the promotion order. However, it was found that there is no condition for passing of the Type Test in the statutory rules governing the promotion. It was under these circumstances that a Division Bench of this Court held that such condition in the promotion order cannot be imposed and such of the employees who have failed to clear the Type Test cannot be denied increment.s. In the present case, Mr.Talwar has brought to my notice the draft rules, namely, Housing Board Haryana Staff Service Rules, 1977 as CWP No.16710 of 2008 - 4 - also the Housing Board Haryana Employees Service Rules, 1990. In both these, drafts rules, for promotion from Class-IV to Class-III, following provision was introduced:- 1. Matric Ist Division or Higher Secondary IInd Division or BA/B.Sc./B.Com. Part-I or Part-II with 2nd Division or Graduate. Class-IV employees who are matriculate and have minimum 5 yeas experience as such and possess a speed in typewriting @ 30/25 W.P.M either in English or Hindi. Even though these rules were draft rules, the same were being applied for the purpose of promotion to the employees. It is contended that except these rules, there were no other rules operating in the field. It is settled proposition of law that the service condition can also be governed and regulated by non-statutory rules i.e. Administrative/Executive instructions. Draft rules cannot be treated as the statutory in nature. However, these rules can be construed as Executive instructions and the promotions can be regulated by such administrative/executive instructions in absence of statutory provisions. Since these draft rules were applied for granting promotion to the employees, the same could be construed as the Administrative/Executive instructions regulating promotion. In view of the clear stipulation in the draft rules, there was requirement of passing of the Type Test. Thus, the private respondents were not entitled to increment till they pass the Typing Test. Mr.Talwar made a statement at the Bar that such of the private respondents who have passed the Type Test, will be granted notional benefit of increment from the date of their actual promotion as Clerks and CWP No.16710 of 2008 - 5 - monetary benefits with effect from the passing of the Type Test. In view of the stand of the respondents, these writ petitions are disposed of with the following directions:- i) such of the private respondents who have passed Type Test will be granted monetary benefit of increments from the date of passing of the Type Test; ii) their salary shall be fixed by giving them notional benefit of increments which they might have earned from the date of promotion till the date of passing of the Type Test; iii) their salary shall be re-fixed accordingly. A copy of this order be placed on the record of each connected file. 17.08.2010 (PERMOD KOHLI) BLS JUDGE