CWP No. 18181 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 6. 9.2010 Paramjit Kaur ...Petitioner VERSUS State of Punjab and another …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Ashish Grover, Advocate for the petitioner Ms.Kavita Arora, Punjab for respondents Permod Kohli, J. (Oral) Keeping in view the controversy involved and with the consent of learned counsel for the parties, this petition is disposed of at motion stage. The petitioner came to be appointed as Clerk on compassionate ground vide letter dated 17.1.1994. She joined the post on 23.6.1994. He was released annual increment, due on 1.6.1995 and later also proficiency step up vide letter dated 18.8.2003, on completion of eight years of regular service. She was released all annual increments upto 1.6.2005. However,annual increment due on 1.6.2006 was withheld for not having passed the Punjabi Type test. Vide letter dated 19.9.2007, the petitioner was CWP No. 18181 of 2008 2 intimated that the Type Test of the Clerks appointed on compassionate grounds will be held on 26.9.2007 and he was asked to appear in the said test. The petitioner submitted his reply dated 25.9.2007 to respondent no.2 protesting against holding of such test after 12 years of service. Thereafter a show-cause notice dated 25.2.2008 (Annexure P-4) was issued to the petitioner for withdrawing the benefit of annual increments, earlier released. It is this letter which is subject matter of challenge in the present writ petition. During the pendency of this petition, the petitioner passed the type test on 17.12.2009. Consequently, her pay has been again re-fixed by granting her the benefit of the increment w.e.f. 17.12.2009 and she has been denied arrears prior to that date vide letter dated 11.5.2010 (Annexure P-8). Both these orders have been placed on record alongwith replication. The contention of the petitioner is that at the time of her recruitment, there was no statutory requirement of passing the type test for appointment to the post of Clerk. To the contrary, respondents have relied upon the appointment letter dated 17.1.1994 (Annexure R-1) which, inter alia, contains stipulation for passing the type test. The relevant condition in the appointment reads as under:- “You are required to pass Punjabi type test within six months from the date of joining the post.” It is further contended on behalf of respondents that the Government had issued Circular dated 9.6.1992, which, inter-alia, requires passing of the Punjabi Type test for release of annual increments. The relevant extract of the said Circular reads as under:- CWP No. 18181 of 2008 3 “2) That in future also these instructions may be mentioned on priority basis. Appointment letter that they will pass the Punjabi Type Test within one year from the date of their appointment on the prescribed speed and if they do not follow this, their annual increments or the higher pay scale which is due to them), will not be given till they qualify the Punjabi Type Test and after passing the Punjabi Type Test their annual increments will be released but fore the period before passing the Punjabi Type Test, no arrears will be given to them. These instructions may be brought to the notice of all the concerned officials/employees.” During the course of hearing, learned counsel for the petitioner has contended that the petitioner’s services were governed and regulated by the statutory rules, namely, the Punjab Local Fund Audit State Service (Class III) Rules, 1979. Rule 6 of the said Rules deals with the direct recruitment. Appendix “B” Rule 5 of the said Rules deals with the qualifications and eligibility for the post of Clerk. These statutory Rules do not prescribe for any type test for release of increments and thus, 1992 administrative instructions cannot be a substitute for the statutory rules. I have heard learned counsel for the parties. From the perusal of the statutory rules which are applicable, it appears that there is no requirement of passing of the Punjabi Type Test. 1992 government Circular, though prescribes passing of such type test in future, however, these government instructions neither amend the statutory rules nor over-ride the same. Even a condition in the appointment letter for CWP No. 18181 of 2008 4 passing the type test is not enforceable, in view of the statutory rules, which lacks legal sanction. The controversy in the present case has been settled vide judgment dated 3.9.2001 passed in CWP No.5566 of 1999 by this court. Considering similar issues of passing of the type test, this court observed as under:- “There is of course a condition in the promotion order Annexure P-3 that “he will have to qualify the type test in Hindi and English at the speed of 25/30 words per minute as per Haryana Government Instructions.” By letter dated 25.2.1997 (Annexure P-4), the workman has denied increment unless and until he qualifies the departmental type test. The question, therefore, arises for our determination is a simple one; whether the increment can be withdrawn on account of the petitioner's not passing the type test. In the written statement, the respondents have reproduced the relevant rules for appointment by direct recruitment and appointment other than by direct recruitment to the post of Clerks. So far as the direct recruits are concerned, the rules make it mandatory that they shall have to pass a test in Hindi and English typing at the speed of 25/30 words per minutes respectively with in a period of one year of their appointment. So far as appointment other than by direct recruitment is CWP No. 18181 of 2008 5 concerned (which is to be considered in the present case as the petitioner in this case is a promote) the requirement is knowledge of Hindi and English type writing. This is the basis difference between the requirements for the direct and promotee. When the rules does not insist that the petitioner should pass typing test for getting his increment/s released, of course for the post of a Clerk, the type test can be said to be necessary but for the reasons best known to the respondents, the rules have made distinction for the promotees in this regard. Annexure P-2 is a letter from the Chief Secretary to all the Heads of Departments. It is dated 30.3.1973, of course, before the publication of the rules which came into existence in the year 1983. According to the letter, there is no compulsion of such employee to pass the examination taken by the Board for appointment as clerk. There is no provision that a type test should be passed by the promotee clerk. In view of the legal position, impugned order (Annexure P-5) is not sustainable in law. Admittedly, the petitioner has now passed the type test vide Annexure P-8, but she has been denied the arrears before the date of passing of type test. As a matter of fact, the petitioner had been released the increments CWP No. 18181 of 2008 6 from 1.6.2005. It was only by virtue of the impugned order that the petitioner’s pay has been re-fixed by withdrawing the increments. Since the respondents could not have withdrawn the arrears under law, the petitioner is entitled to the increments right from the date of joining the service till the date of passing of the type test. In view of the above, this petition is allowed and the impugned order dated 23.9.2008 (Annexure P-5) is hereby set aside. The respondents are directed to release the benefits of arrears of annual increments to the petitioner w.e.f. 1.6.1995 till the date of passing of Punjabi Type test and accordingly re-fix the salary of the petitioner by granting all the annual increments withheld by the respondents. (PERMOD KOHLI) JUDGE 6.9. 2010 MFK