IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 16522 of 2008. Decided on 07.07.2010. ______________________________________________________________ Puran Chand. ….Petitioner. -Versus- Himachal Road Transport Corporation and others. …..Respondents. ______________________________________________________________ Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. _________________________________________________________________________ For the petitioner : Mr. R.L. Kaith, Advocate. For the respondents : Mr. Adarsh Sharma, Advocate. Rajiv Sharma, Judge(Oral): Petitioner was appointed as Clerk in the respondent-Corporation on 29.10.1998. He was required to qualify the typing test in Hindi/English within a period of one year of appointment in order to get first annual increment. The respondent-Corporation did not conduct any test within a period of one year. The test was conducted on 4th October, 2000. Petitioner qualified the same. He was granted the annual increment w.e.f. 4th October, 2000. Petitioner made various representations to the respondent-Corporation to grant him the benefit of annual increment immediately after completion 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. 2 of one year of service, i.e., 28.10.1999. On the basis of one of the representations made by the petitioner on 02.10.2005, the Divisional Manager sent a communication to Regional Manager on 16th January, 2006, informing him that the petitioner should have been called to appear for the typing test within one year from the date of appointment as per the appointment order. He sought the explanation from the Regional Manager why the typing test was not conducted within one year after the appointment of the petitioner. The Regional Manager replied to the Divisional Manager on 25th February, 2006, bringing to his notice that no concrete reasons could be found either recorded in the concerned file or otherwise why the petitioner was not called to appear in the typing test within one year from the date of his appointment. The Divisional Manager informed the Managing Director on 16th March, 2006 that the department did not conduct the typing test of the petitioner within one year and had it been conducted, he would have qualified the same as he was I.T.I. trained Stenographer (in English) trade. Similarly, the General Manager (Admn.) has sought the explanation from the Regional Manager on 3rd January, 2007 by intimating the circumstances under which he has not conducted the typing test on completion of one year service of the petitioner. However, fact of the matter is that the representation made by the petitioner was rejected on 17th August, 2007. The reasons assigned for rejecting the 3 representation of the petitioner is that since he qualified the typing test on 4th October, 2000, he was allowed first increment w.e.f. 4th October, 2000. 2. Mr. R.L. Kaith, learned counsel for the petitioner has strenuously argued that the petitioner was always ready and willing to appear in the typing test to be conducted by the respondent-Corporation within one year from the date of his appointment, i.e., 29.10.1998. He then contended that the respondent-Corporation was remiss in discharge of its duties by not holding the test within one year and the petitioner, in these circumstances, cannot be denied the benefit from due date, i.e., 28.10.1999 instead of 04.10.2000. 3. Mr. Adarsh Sharma, learned counsel for the respondents has vehemently argued that since the petitioner has qualified the test on 4th October, 2000, he has rightly been granted the first increment from this date. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner was appointed as Clerk on 29.10.1998. The condition No. 6 of the appointment letter, Annexure R-1, dated 29.10.1998 reads thus.: “6. He will have to qualify prescribed Hindi/English type test within a period of one year. In case if he/she do not qualify the type test within the stipulated period than he/she will not be allowed annual increment. He/she will be allowed annual increment only after one year from the date 4 of passing the type test. Similarly, his/her case of proficiency/confirmation/promotion etc. shall only be considered after he/she qualify the prescribed English and Hindi Type test. No. T.A. will be allowed for joining the post.” 6. Therefore, the respondent-Corporation was bound to hold typing test within one year of service to enable the petitioner to get the first annual increment. The respondent- Corporation for the reasons best known to it, conducted the typing test only on 04.10.2000. Petitioner qualified the same, however, he has been given the annual increment only w.e.f. 04.10.2000. The respondent-Corporation cannot take advantage of its own wrongs by not holding the typing test itself within a period of one year from the date of appointment and thereafter not granting the annual increment w.e.f. due date, i.e., 28.10.1999. The respondent-Corporation knew throughout, as is evident from letters dated 16.01.2006, 25.02.2006, 16.03.2006 and 03.01.2007 that the test was required to be held within a period of one year from the date of appointment of the petitioner. Despite this, the petitioner’s representation was rejected on 17th August, 2007. 7. Mr. Adarsh Sharma, learned counsel for the respondents has also argued that petitioner was required to take steps to request/reminder the respondents to take his typing test. This plea cannot be accepted. It was the duty cast on the respondent-Corporation to hold the typing test within 5 one year from the date of appointment of the petitioner to enable him to get the annual increments. The respondents could not force the petitioner to do the impossible. It is a fit case where the principle of lex non cogit ad impossibilia is attracted. 8. Their lordships of the Hon’ble Supreme Court in Union of India & Another versus Hemraj Singh Chauhan & Ors., AIR 2010 Supreme Court 1682, in a similar situation have held as under: “40. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion has been defeated by the acts of the Government and if not of the Central Government, certainly the un-reasonable in-action on the part of the Government of State of U.P. stood in the way of the respondents’ chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy. 44. Concurring with the aforesaid interpretative exercise, we hold that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely, lethargy, in- action, an absence of a sense of responsibility cannot fall within category of just exceptions. 45. In the facts of this case, neither the appellants nor the State of U.P. has justified its action of not undertaking the exercise within the statutory time 6 frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of ‘ordinarily’ in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review.” 9. In the present case also, there is lethargy, in- action, an absence of a sense of responsibility as far as the respondent-Corporation is concerned of not holding the typing test within a period one year. It was fit case where the respondent-Corporation was required to enquire into the matter deeply why the typing test was not conducted within one year. It is apparent that only a prolonged correspondence has been entered into between various authorities of the respondent-Corporation and thereafter, nothing concrete has been done. 10. Accordingly, in view of the observations made hereinabove, writ petition is allowed. Annexure-PA, dated 17th August, 2007 is quashed and set aside. The respondent- Corporation is directed to release the first annual increment to the petitioner w.e.f. 28.10.1999, with all consequential benefits instead 04.10.2000. Thereafter, further consequences shall ensue. Cost is quantified at Rs. 3000/-. (Rajiv Sharma), Judge July 07, 2010. (bhupender) 7