CWP No.10925 of 1988 :1:
In the High Court of Punjab and Haryana at Chandigarh.
CWP No.10925 of 1988
Date of decision:23.09.2008
Prem Singh and others .. Petitioners
Versus
State of Punjab and others .. Respondents
CORAM
HON’BL MR. JUSTICE PERMOD KOHLI
Present: Mr.AK Chopra, Senior Advocate,with
Mr.ND Kalra, Advocate, for the petitioners.
Mr.S.S. Sahu, AAG, Punjab, for the respondents.
PERMOD KOHLI, J. (Oral):
The petitioners were working as Clerks on being
recruited/appointed in the Punjab Education Department. It is not in dispute
that at the time of their appointment, their service conditions were governed
by regulations of Punjab Education Department (Subordinate Offices)
Clerical Service Rules, 1941 (hereinafter referred to as “the Rules”). At the
time of the filing of the writ petition, they have completed 15 or 20 years of
service. The next promotion from the post of Clerk is to the post of Senior
Clerk/Assistant. Rule 6 of the Rules aforesaid deals with the method of
appointment to various cadres of service. In the Rule aforesaid, following
three modes are prescribed for appointment to the post of Senior
Clerk/Assistant:-
“6 (1) Posts in the service shall be filled-Method
CWP No.10925 of 1988 :2:of appointment.
(a) XX XX XX
(b) in the case of senior clerk in the grade of
Rs.80-5-110/5-150;
i) by promotion from the post of Junior Clerk;
ii) by transfer of an official already in Government
service; or
iii) by direct appointment.”
The petitioners are seeking appointment by promotion from the
post of Junior Clerk/Clerk. It is not stated in the petition as to when the
petitioners became due for promotions. In the year 1984, the State notified
Punjab State Assistants Grade Examination Rules, 1984 (hereinafter
referred to as the “1984 Rules”), vide notification dated 11.04.1984. Some
of the relevant 1984 Rules are noticed hereunder:-
“2. Definitions:- In these rules, unless the context
otherwise requires:-
a) xx xx
b) xx xx
c) “Government” means the Government of the
State of Punjab in the Deptt. Of Personnel and
Administrative Reforms.
CWP No.10925 of 1988 :3:
d) xx xx
e) “Post of Assistant” means a civil post or a post
in civil service under the State of Punjab
designated as Assistant and includes all such
posts, higher in rank to that of the post of Clerk, as
are in the same or in a identical pay scale and carry
responsibilities similar to or identical with those of
the post of Assistant, by whatever designation they
be called;
f) xx xx
g) "Provisional appointment" means an
appointment by promotion of a person to the post
of Assistant before qualifying the test prescribed
in the relevant service rules or in these rules, as the
case may be, with or without a condition of
qualifying the test imposed in the order of
appointment; and
h) “test” means a written qualifying examination
conducted by the Board, under these rules.
i) xx xx
4. Eligibility for promotion to the post of
Assistant:
(1) No person shall be eligible for appointment by
promotion to the post of Assistant unless in
CWP No.10925 of 1988 :4:addition to fulfilling the qualifications and
experience prescribed for appointment by
promotion to the post of Assistant, he qualifies the
Test;
Provided that a person who has already
qualified the Assistant Grade Examination inter-
alia in terms of Punjab Government circular
No.4868 (II-57)/21176, dated the 23rd October,
1957, or who was holding on regular basis the post
of Assistant on the 23rd October, 1957, shall not be
required to qualify the test;
Provided further that if a person holding the
post of Assistant or a higher post, on provisional
basis, on the commencement of these rules is of the
age of fifty years or more; she shall also not be
required to qualify the test;
Provided further that a person who has been
appointed by promotion to the post of Assistant or
to any higher post on provisional basis before the
commencement of these rules, shall be required to
qualify the test within a period of three years from
such commencement and failure to qualify the test
within the specified period shall result in reversion
CWP No.10925 of 1988 :5:of such person to the post of clerk or to the post, by
whatever designation called, from which he was
appointed by promotion to the post of Assistant on
provisional basis.
(2) Notwithstanding anything contained in sub-
rule (1) where no person, who has qualified the
test, is available for promotion, to the post of
Assistant in a service, the appointing authority
may appoint a person by promotion to the post of
Assistant on provisional basis till a person who has
so qualified the test becomes available in that
service.
5. xx xx
6. xx xx
7. persons eligible to sit in test:- All persons
holding the posts of clerks or other posts, by
whatever designation called from which they
could appointed by promotion to the posts of
Assistants, shall be eligible to sit in the test.
8. xx xx
9. xx xx
10. Saving of seniority:- Where a person who
was promoted as Assistant before the
CWP No.10925 of 1988 :6:commencement of these rules on provisional basis
subject to his qualifying the test shall be liable to
reversion to the post from which he was promoted
if he fails to qualify the test within a period of
three years as specified in the third proviso to rule
4 and in case such a person qualifies the test within
that period his seniority shall be determined with
reference to his date of promotion to the post of a
Assistant on provisional basis.
11. Over-riding effect:- The provisions of these
rules shall have effect notwithstanding anything
inconsistent there with contained in any other rules
governing the appointment and other conditions of
service for the time being in force.
12. power to grant exemption:- Where the
Government is of the opinion that it is necessary
or expedient to do so, it may, by order, for reasons
to be recorded in writing, exempt any class or
category of persons from the operation of these
rules and such exemption shall operate
prospectively.”
Rule 4 of 1984 Rules referred to above prescribes qualifying
test for promotion to the post of Assistant, whereas Rule 7 prescribes the
CWP No.10925 of 1988 :7:
eligibility for sitting in the test and Rule 12 deals with the power of the
State to grant exemption from examination/test. It has been stated in
paragraph 7 of the petition that at the time of commencement of the Rules,
there was a quota of 25% for appointment to the post of Assistant by direct
appointment and 75% quota was reserved for appointment to the post of
Assistant by promotion from the Clerks, but by the subsequent amendment
for the appointment to the post of Assistant, it is 100% by promotion and
every person has to clear the test before being appointed to the post of
Assistant.
The grievance of the petitioners is that while in service they
have been subjected to condition of passing of test/examination in the year
1984 by virtue of Rule 4 of 1984 Rules. It is argued that this condition is
arbitrary and violative of Articles 14 and 16 of the Constitution of India. It
is further contended that it amounts to taking away the right of promotion
from the petitioners. The petitioners have, accordingly,challenged Rule 4
of 1984 Rules and in the alternative they have prayed for grant of exemption
under Rule 12 of the Rules, to the petitioners from passing the
examination/test.
No reply has been filed on behalf of the State.
It is not in dispute that Rules are statutory in nature and have
been framed in exercise of powers under Article 309 of the Constitution of
India. Under the Punjab Education Department (Subordinate Officers)
Clerical Services Rules,1941, there was no condition for passing an
examination for promotion. The condition of passing examination was
CWP No.10925 of 1988 :8:
introduced in the year 1984 by virtue of notification dated 11.04.1984. The
Rule of introduction of a test for promotion to the post of Assistant is only
regulatory in nature and does not take away any right of the petitioners for
promotion. It is settled law that no government servant is allowed to claim
promotion as a matter of right. The only right is to be considered for
promotion. By virtue of the introduction of the rule introducing a test for
promotion, right of consideration is not taken away, but is to energize the
service and bring efficiency in the work. It does not in any manner cause
prejudice to the petitioners. The petitiones have challenged only Rules 4
and 10 of 1984 Rules. Rule 10 of 1984 Rules deals with the reversion if a
person fails to qualify the test on being promoted prior to the
commencement of the rules. By virtue of Rule 11 of 1984, Rules have
been given over-riding effect upon all other rules inconsistent with these
rules. Rule 11 has not been assailed or challenged in any manner. It gives
over riding effect to these rules. The petitioners have prayed for a writ in
the nature of certiorari quashing rule 4 and 10 of 1984 Rules and in the
nature of mandamus to grant exemption to the petitioners or they may be
declared exempted from the examination envisaged in 1941 Rules. It is a
settled law that the Court cannot issue any direction to the respondents to
grant exemption except where it is violative of any of the fundamental
rights guaranteed under the Constitution. No such violation has been
projected. Hence, no direction can be issued to the State to grant exemption
from appearing in the examination/test. So far as the quashing of the Rules
is concerned, Rules do not suffer from any voice of ultra vires nor can the
Rules be said to be illegal in any manner. These rules have been framed
under Article 309 of the Constitution of India and the Governor of the State
CWP No.10925 of 1988 :9:
has the competence to frame such transitory rules by introduction of the test
for promotion. By introduction of the examination/test for the post of
Assistant, the service conditions of the petitioners have not been changed in
any manner.
In view of the above, I find no merit in the present petition and
the same is hereby dismissed with no order as to costs.
23.09.2008. (PERMOD KOHLI)
BLS JUDGE
Note: Whether to be referred to the Reporter? YES