STATE OF PUNJAB & ORS.versusJAGDISH KAUR

                         [2011] 10 S.C.R. 728


A                    STATE OF PUNJAB & ORS.
                                    v.
                           JAGDISH KAUR
                   (Civil Appeal No.2897 of 2006)
                          AUGUST 26, 2011
B
              [AFTAB ALAM AND R. M. LODHA, JJ.]

         SERVICE LAW:

c      Promotion from Class-IV to Class-I/I posts -
  Requirement of typing test in Punjabi - Held: In view of
  circular of Government of Punjab dated 24. 08. 1983,
  requirement of the test in Punjabi typewriting at the speed of
  30 w.p.m. is manifestly a criteria for promotion from 'Class-IV
0 to Class-Ill posts - The order of High Court striking down the
  requirement is untenable - Since one of the employee has
  been promoted and the other has the order of the High Court
  in her favour, the latter should also be promoted and they
  should qualify the typing test as stateJ in the order - Since
E in case of direct recruitment to a class Ill post the qualification.'#
  of typing in Punjabi as a requirement has been greatly
  relaxed, State Government advised to review the criteria for
  promotion from class IV to class Ill posts a_nd to bring them
  at par with the requirements for direct recruitment to class Ill
  posts.
F
       In the instant appeals, the State Government
  challenged the order of the High Court by which it struck
  down the requirement of typing test in Punjabi as an
  eligibility criterion for promotion from Class IV to Class
G Ill posts in the State Government service.
        Allowing the appeals, the Court

        HELD: 1.1 The High Court was in error in making the
                                  728
H
   STATE OF PUNJAB & ORS. v. JAGDISH KAUR                  729


Punjab Civil Services (General and Common Conditions              A
of Service) Rules, 1994 ("1994 Rules"), the basis of its
judgment. The 1994 Rules, which have been framed under
the proviso to Article 309 of the Constitution of India, are
exclusively in respe~t of the appointments, by direct
recruitment, to class I, class II and class Ill services in the   B
State Government. Even r. 15 of the said Rules, as
originally framed prescribing qualification of typing test
was amended by Notification dated June 23, 1999, and
as a result, the qualification of typing that earlier used to
be an essential requirement for appointment ceased to             c
be a precondition and can now be acquired within a
period of one year from the date of appointment failing
which no annual increments would be allowed. It is, thus,
clear that in case of direct recruitment to a class Ill post,
the qualification of typing in Punjabi as a requirement for       0
appointment has been considerably relaxed. [Paras 7 and
8) [734-F-H; 735-A-B-F-G]
     1.2 However, the 1994 Rules do not deal with
appointments to class IV posts nor do they provide for
promotion from class IV as a mode of recruitment to class         E
Ill posts. Therefore, there is no question of finding in the
1994 Rules any provision dealing with the eligibility
criteria for promotion from class IV to class Ill posts. The
High Court was, therefore, quite wrong in drawing the
inference that while qualifying the typewriting test in           F
Punjabi is a condition for direct recruitment, it was not a
pre-condition for promotion. [Para 9] [735-H; 736-A-B]

     1.3 The provision for promotion from class IV to class
Ill posts was first made in the Government Circular letter        G
No.4117179-IPP/1973, dated August 24, 1983. It contained
a provision for. a qualifying test in Punjabi typewriting.
The said Government Order was amended by Circular
dated October 27, 1998. The later circular increased the
quota for promotion from 10% to 15% but retained the
                                                                  H
     730     SUPREME COURT REPORTS               (2011) 10 S.C.R


 A qualification of Punjabi typewriting as prescribed in the
   earlier order. It is well-settled that in the absence of
   statutory rules on any subject, the relevant Government
   Orders would hold the field. [Paras 10 and 11) [736-C-G;
   737-A-B]
 B
        Sant Ram Sharma Vs. State of Rajasthan & Anr. AIR
   1967 SC 191 O= 1968 SCR 111; Ashok Kumar Shrivastava
   & Ors. Vs. Ram Lal & Ors. (2008) 3 SCC 148= 2008 (1)
   SCR 299; Shiba Shankar Mahapatra & Ors. Vs. State of
 C Orissa & Ors. (2010) 12 SCC 471= 2009 (15) SCR 866 -
   relied on.

        1.4. Thus, the requirement of qualifying the test in
   Punjabi typewriting at the speed of 30 w.p.m. is manifestly
   a criterion for promotion from class IV to class Ill post.
 D Therefore, the orders passed by the High Court are
   untenable. [Para 12) [737-D]
        1.5 Following the order passed by the High Court, the
   respondent in C.A. No. 4134 of 2006 was promoted to a
·E class  Ill post on which he is working since then. The
   respondent in C.A. No. 2897 of 2006 though, not
   promoted on account of the stay order passed by this
   Court, had the order of the High Court in her favour for
   the past seven years. It is, therefore, directed that she too
   should be promoted to a class Ill post. However, the
 F promotions· given to both the respondent would be
   subject to their qualifying in the typewriting test in
   Punjabi at the speed of 30 w.p.m. within one year in the
   case of the respondent in C.A. No. 4134 of 2006 and
   within one year from her promotion, in the case of the
 G respondent in C.A. No. 2897 of 2006, failing which they ~
   may be reverted back to their.substantive posts in class
   IV. [Para 13] [737-E-G]

        2. It is seen that in case of direct recruitment to a class
 H Ill post the qualification of typing in Punjabi as a
   STATE OF PUNJAB & ORS. v. JAGDISH KAUR.                     731


requirement has been greatly relaxed. It may be legally                A
permissible for the State to have different standards for
direct recruitment and for recruitment by promotion, but
in fairness the State would be well advised to review the
criteria for promotion from class IV to class Ill posts and
to bring them at par with the re.quirements for direct                 B
recruitment to class Ill posts. [Para 14] [738-A-B]
                       Case Law Reference:
     1968 SCR 111                  Relied on              Para 11
     2008 (1) SCR 299               Relied on             Para 11
                                                                       c
     2009 (15) SCR 866              Relied on             Para 11
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2897 of 2006.
                                                                       D
     From the Judgment & Order dated 20.02.2004 of the High
Court of Punjab & Haryana at Chandigarh in CWP No. 11758
of 2003.                              ·
                                 WITH
                                                                       E
C.A. No. 4134 of 2006.

     H.M. Singh (for Ajay Pal) for the Appellants.

   AP. Mohanty, Sudha Gupta, Jagjit Singh Chhabra for the
Respondents.                                                           F

     The Judgment of the Court was delivered by

     AFTAB ALAM, J. 1. These two appeals, at the instance
of the State of Punjab and its officials, are directed against         G
orders passed by the Punjab and Haryana High Court by which
it knocked down the requirement of passing typing test in
Punjabi at the speed of 30 words per minute (w,p.m.) as an
eligibility criterion for promotion from class IV to class Ill posts
in the State Government service.                                   -
                                                                       H
    732     SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A        2. Jagdish Kaur, the respondent in Civil Appeal No.2897
    of 2006 was appointed as a Peon in the Government High
    School Vairwal, Tehsil Tarn Taran, District Amritsar, on February
    21, 1978. Her-appointment was made on compassionate
    grounds following her husband's death in harness on January
B   14, 1977. At the time of her appointment, she had passed
    matriculation examination in 3rd division. After joining the
    service, she passed the Senior Secondary School Examination
    from the Punjab School Education Board in 2nd division in the
    year 1992. According to her case, after passing the plus two
c   examination, she became eligible for promotion to a class Ill
    post and she, accordingly, moved the concerned authorities for
    her promotion. However, getting no favourable response from
    them, she approached the Punjab and Haryana High Court in
    CWP No.11758 of 2003 seeking appropriate reliefs.

D        3. Harjinder Singh, respondent No.1, in Civil Appeal
    No.4134 of 2006, similarly joined as a Peon in the department
    of technical education on April 7, 1992. He was a matriculate
    at that time. According to his case, another person, namely,
    Baldev Singh, who was junior to him in class IV, was given
E   promotion to a class Ill post in supersession of his claim. He
    too, therefore, moved the Punjab and Haryana High Court in
    CWP No.729 of 2004 seeking a direction to the concerned
    authorities to promote him to a class Ill post.

         4. The writ petition filed by Jagdish Kaur was allowed by
F
    order passed by a Division Bench of the High Court on
    February 20, 2004. Later on the writ petition of Harjinder Singh
    came up before another Division Bench of the court and
    following the order passed in the case of Jagdish Ka1Jr that too
G   was allowed by order dated July, 1, 2005.

        5. Following the order passed by the High Court, Harjinder
    Singh was given promotion and is working on a class Ill post
    since then. In the case of Jagdish Kaur, however, this Court
    stayed the operation of the impugned order of the High Court
H
   STATE OF PUNJAB & ORS. v. JAGDISH KAUR                     733
              [AFTAB ALAM, J.]

while issuing notice on April 18, 2005. As a result she continues     A
to work on the class IV post.

     6. Before the High Court, the case of the State was that
the two writ petitioners (respondents in the two appeals before
this Court) could only be considered for promotion in their turn      B
on the basis of seniority. Moreover, they were not eligible for
promotion from class IV to class Ill posts since they had not
passed the typewriting test in Punjabi with the minimum speed
of 30 w.p.m. The High Court did not take any objection to denial
of promotion on the basis of seniority but went on to examine         C
the requirement of passing the typing test in Punjabi as a
condition for promotion to a class Ill post. It came to find that
the condition of qualifying in typing test in Punjabi was illegal,
arbitrary and unenforceable and, consequently, held and
directed as follows:-
                                                                      D
     "Accordingly, the instant petition is allowed. The action of
     the authorities in requiring members of Class IV service
     to possess Punjabi typewriting test as a pre-condition for
     promotion to the post of Clerk is held to be illegal. The
     claim of the petitioner for promotion to the post of Clerk       E
     shall now be considered by re-determining her eligibility
     without insisting upon the earlier pre-condition having to
     pass the typewriting test in Punjabi. In case the petiti01:ier
     is otherwise qualified, her claim shall be considered for
     promotion to the post of Clerk, without any further delay. If    F
     she is found suitable, she shall be promoted to the post
     of Clerk, with effect from the date, persons junior to her
     were promoted as such. The aforesaid exercise be carried
     out and completed within three months from today."

The finding of the High Court is primarily based on the               G
provisions of the Punjab Civil Services (General and Common
Conditions of Service) Rules, 1994 (in short "1994 Rules"). The
High Court observed that in the statutory rules, the requirement
of qualifying the typewriting test in Punjabi with a minimum
speed of 30 w.p.m. was for direct recruitment to a class Ill post     H
    734       SUPREME COURT REPORTS                 [2011) 10 S.C.R


A   but there was no such requirement for promotion from Class
    IV to class Ill posts. In this regard the High Court made the
    following observations:-            ·

          "In the present case also, in the absence of any statutory
          provision to the contrary, the Punjab Civil Services
B
          (General & Common Conditions) Rules, 1994 (hereinafter
          referred to as the 1994 Rules), would be relevant to
          determine the controversy in hand. Under the 1994 Rules,
          the rule making authority laid down the requirement of
          qualifying the typewriting test in Punjabi with a minimum
c         speed of 30 words. per minute i,,yithin one year of the date
          of the direct recruitment. The 1994 Rules did not lay down
          such a pre-condition/stipulation for appointment by
          promotion to the post of Clerk. The inference, that is
          liable to be drawn from the conditions delineated under
D         the 1994 Rules, is that while qualifying the typewriting test
          in Punjabiis a condition for Jirect recruitment, it is not a
          pre-condition for promotion."

                                                   (emphasis added)
E
    The High Court, then, proceeded to observe that in the absence
    of any provision in the statutory rules, no such requirement could
    be introduced through any Government Order. Hence, it held
    the stand of the State Government untenable and made the
F   directions, as noted above.

        7. To us it appears that the High Court was in error in
  making the 1994 Rules, the basis of its judgment. We have
  gone through the 1994 Rules. The rules framed under the
  proviso to Article 309 of the Constitution of India are exclusively
G in respect of the appointments, by direct recruitment, to class
  I, class II and class Ill services in the State Government. Rule
  15 which is in two parts lays down the eligibility for appointment
  to the post of Clerk; sub-rule (a) prescribes matriculation in
  second division or passing senior secondary part II examination
H from a recognized University as the minimum educational
    STATE OF PUNJAB & ORS. v. JAGDISH KAUR                     735
               [AFTAB ALAM, J.]

qualification and sub-rule (b), as originally framed, made             A
qualifying a test in Punjabi typewriting at the speed of 30 w.p.m.
as the essential pre-requisite for appointment to a post of clerk
in the Punjab Government. It may be noted that Rule 15 was
amended by Notification dated June 23, 1999 and the
amended rule reads as under.                                           B

            '"15. Minimum educational qualification and other
     qualifications:-

     (1) No person shall be appointed by direct appointment
     to the post of a clerk under the Punjab Government unless         C
     he is matriculate in Second Division or has passed Senior
     Secondary Part Ill Examination from recognized university
     or institution.

     (2) The person so appointed as Clerk in terms of sub-rule         0
     (1) shall have to qualify a test in Punjabi typewriting to be
     conducted by the Board or by the appointing authority at
     the speed, of thirty words per minute within a period of one
     year from the' date of his appointment.

     (3) In case the persons fails to qualify the said test within     E
     the period specified in sub-rule (2) he shall be allowed
     annual increment only with effect from the date he qualifies
     such test, but he shall not be paid any arrear for the period,
     for which he could not qualify the said test."
                                                                       F
      8. As a result of the amendment the qualification of typing
 that earlier used to be an essential requiremen! for appointment
 ceases to be a precondition and can now be acquired within
 a period of one year from the date of appointment failing which
 no annual increments would be allowed. It is, thus, clear that in     G
·case of direct recruitment to a class Ill post the qualification of
 typing in Punjabi as a requirement for appointment has been
 considerably relaxed.

    9. The significant thing to note, however, is that the 1994
Rules do not deal with appointments to class IV posts and do           H
    736      SUPREME COURT REPORTS                  (2011] 10 S.C.R.


A not provide for promotion from class IV as a mode of
  recruitment to class Ill posts. Hence, there is no question of
  finding in the 1994 Rules any provision dealing with the.
  eligibility criteria for promotion from class IV to class Ill posts.1
  The High Court was, therefore, quite wrong in drawing the!              1


B inference that while qualifying the typewriting test in Punjabi is·
  a condition for direct fecruitment, it was not a pre-condition for I
  promotion.

        10. Coming now to the issue of promotion from class IV
  to class Ill posts, the provision was first made in the Government
C Circular letter No.4/17/79-IPP/1973, dated August 24, 1983.
  Paragraphs (i) and (ii) of the circular letter read as follows:-

                 "(i) There should be a provision for filling up 10% of
          Class Ill posts by promotion from amongst Class IV
D         employees, who possess a minimum educational
          qualification of matriculation (with Punjabi) and have a
          minimum of 5 years' experience as such;

                (ii) There should be a provision for a qualifying test
          in Punjabi typewriting which should be equal to the one
E
          prescribed by the Subordinate Services Selection Board
          for such posts and it should be made essential to pass the
          test before a Class IV employee is considered eligible for
          promotion. The test may be held by the appointing authority
          or any such authority to whom the powers for doing so are
F         delegated by the appointing authority."

  The aforesaid Government Order was amended by Circular
  dated October 27, 1998. The later circular increased the quota
  for promotion from 10% to 15% but retained the qualific.ation
G of Punjabi typewriting as prescribed in the earlier order.
  Paragraph 2 of the circular letter dated October 27, 1998, reads
  as follows:-

          "There should be provision for a qualified test of Punjabi
          typewriting which should be equal to the one prescribed
H
   STATE OF PUNJAB & ORS. v. JAGDISH KAUR                       737
              [AFTAB ALAM, J.]

     by the S.S.S. Board for such posts and it should be made           A
     essential to pass the test before a Class IV employee is
     considered eligible for promotion. The test may be held
     by the appointing authority or any such authority to whom
     the powers for doing so are delegated by the appointing
     authority."                                                        B

      11. It is well-settled that in the absence of statutory rules
on any subject, the relevant Government Orders would hold the
field. [See: Sant Ram Sharma Vs State of Rajasthan & Anr.,
AIR 1967 SC 1910, Ashok Kumar Shrivastava & Ors. Vs.                    C
Ram Lal & Ors., (2008) 3 SCC 148, Shiba Shankar
Mahapatra & Ors. Vs. State of Orissa & Ors. (2010) 12 SCC
471.]

     12. In light of the above, the requirement of qualifying the
test in Punjabi typewriting at the speed of 30 w.p.m. is                D
manifestly a criterion for promotion from class IV to class Ill post.
We are, therefore, clearly of the view that the orders passed
by the High Court are untenable and.we are constrained to set
aside those orders.
                                                                        E
      13. Coming now to the specific cases of the two
 respondents, it is noted above that following the order passed
 by the High Court, Harjinder Singh was promoted to a class Ill
 post on which he is working since then. Jagdish Kaur, though,
 not promoted on account of the stay order passed by this Court,        F
 had the order of the High Court {though now set aside) in her
favour for the past seven years. We, accordingly, direct that she
-too should be promoted to a class Ill post. However, the
 promotions given to Harjinder Singh and Jagdish Kaur would
 be subject to their qualifying in the typewriting test in Punjabi
at the speed of 30 w.p.m. within one year from today in the             G
case of Harjinder Singh .and within one year from her promotion
in the case of Jagdish Kaur, failing which they may be reverted
back to their substantive posts in class IV.

     14. Before parting with the records of the case, however,          H
    738     SUPREME COURT REPORTS                [2011] 10 S.C.R.


A we must put in a caveat. It is seen above that in case of direct
  recruitment to a class Ill post the qualification of typing in
  Punjabi as a requirement has been greatly relaxed. It may be
  legally permissible for the State to have different standards for
  direct recruitment and for recruitment by promotion but in
B fairness the State would bewell advised to review the criteria
  for promotion from class IV to class Ill posts and to bring them
  at par with the requirements for direct recruitment to class Ill
  posts.

C       15. In the result, the appeals are allowed subject to the
    observations and directions made above.

    R.P.                                        Appeals allowed.