Dismissed

Lovely Pasricha & Ors. v. State of Punjab & Anr.

Punjab & Haryana HC24 Jan 2012CWP/6614/1995

Case brief

AI extract

What is this about?

In a writ petition, petitioners challenged termination from Clerk posts for failing a Punjabi type test despite 11 attempts. The Court held that the appointment order's condition, enforced by Executive Instructions, was binding under Rule 10(3)(b)(i), dismissing the petition after 17 years.

What did the court decide?

No relief granted. The writ petition was dismissed; the order of termination stands affirmed.

Lovely Pasricha & Ors. Vs State of Punjab… — Service and Employment | Punjab & Haryana HC (2012)

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CWP No. 6614 of 1995

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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH

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CWP No. 6614 of 1995

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Date of Decision: 24 .01.2012

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Mrs. Lovely Pasricha & others

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……… Petitioners

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Versus

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State of Punjab & another

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………… Respondents

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CORAM : HON’BLE MR. JUSTICE RAJIV NARAIN RAINA

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Present: Mr. Dinesh Nagar, Advocate for the petitioners.

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Mr. Alok Jain, Addl. A.G., Punjab.

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To be referred to the reporters or not? 2. Whether the judgment should be reported in the digest.

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RAJIV NARAIN RAINA, J.

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The services of the four petitioners before this Court as Clerks in the Office of the Director-cum-Secretary, Treasury & Accounts, Punjab were put to an end on 25.4.1995 invoking a condition in the appointment order which stipulated that they would have to clear the Punjabi type test within 6 months of appointment. The petitioners were appointed on the recommendations of the Departmental Selection Committee as Clerks against purely temporary vacancies without assurance of permanent employment under the State. The petitioners were appointed on different dates spanning 10.1.1989 to 28.5.1990. After the filing of the present petition the termination order of the 4^th respondent; appointed on priority basis on compassionate grounds, was reviewed in terms of the Punjab Government instructions dated 9.6.1992, according to which ordinarily the services of persons appointed on priority basis could not be terminated for failure to qualify type test but non-passing would result in nongrant of increments till they pass such test. As a result, the 4^th petitioner was reinstated on 19.5.1995 (R-2). This action was brought about on a

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CWP No. 6614 of 1995

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representation of the 4^th respondent on 10.5.1995. Consequently, petitioners No. 1 to 3 have pressed their case against their termination orders. The orders of termination for non-passing of the Punjabi type test have been challenged inter alia on the ground that the Rules of service applicable to the petitioners, when they were in employment, were governed by the Punjab Treasury State Service (Class III) Rules, 1979 (for short 'the 1979 Rules); that Rule 8.1 dealt with the method of appointment and minimum qualifications and experience required for appointment to the posts in the service. The post of Clerk is mentioned at Sr. No. 7 and can be filled 90% by direct appointment from such persons as are, Ist Class matriculates or graduates of a recognized University with Mathematics as one of the subjects at the matriculation level and 10% by promotion from certain class IV feeder cadre posts; that these rules do not entail termination as a consequence of non-passing of type test since passing of a type test is not made condition precedent; that the stipulation in the appointment order was imposed de hors the Rules and is, therefore, not binding in nature since it does not draw force from statutory rules or instructions. As a matter of fact, the imposition of such a condition of passing a type test is contained in Executive Instructions which have been appended with the petition. These are dated 8.6.1992 & 4.1.1993 which have been issued from time to time on the strength of the original instructions of the Government dated 24.8.1983 in which passing of type test was made compulsory for Clerks directly appointed in various departments of the Government of Punjab. It is stated that these instructions have ultimately been watered down to non-grant of annual increments on failure to pass the Punjabi type test.

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On notice of motion having been issued by this Court on 5.5.1995 the respondent-State put in appearance. The matter was admitted on 18.7.1995. The written statement filed is dated 14.7.1995.

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The claim of the petitioners has been contested on the strength of a stipulation in the appointment order that the petitioners would pass the type test

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CWP No. 6614 of 1995

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within six months. The department took a lenient view and extended the period of six months and gave 11 chances to the petitioners to appear and pass the Punjabi type test. It is not disputed that the petitioners were tested on 9.3.1990, 20.9.1990, 6.12.1991, 26.2.1992, 30.4.1992, 20.7.1992, 23.10.1992, 7.4.1993, 28.7.1993, 20-12.10.1993 and 25-26-27.4.1994.

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It appears that the respondent-department was at the end of its tether on successive failure of the petitioners to pass the type test and, therefore, issued show cause notice dated 29.12.1994 (P-5) to the petitioners as to why their services be not terminated. In response to the show cause notice issued, the petitioners sought more time to pass test and also asked for waiver of the condition itself. On consideration of the matter the impugned orders of termination were passed. The case of the petitioner No.4-Jaswant Singh was explained. As to how his termination order was set aside and he was reinstated since his appointment was on compassionate ground being a son of a victim of terrorism. The stand of the State is that action has been taken in accordance with the Executive Instructions dated 24.8.1983 by which the Government of Punjab had made it mandatory for clearance of Punjabi type test as an essential qualification for direct recruitment of Clerks in all offices of the Punjab Government. It may be noted that these Executive Instructions were issued prior to the direct appointment of the petitioners.

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I have heard the learned counsel for the parties at length and have perused the record, the rules and the instructions. 6. There can be no gainsaying that there was a clear and irrevocable condition in the appointment order that the petitioners would have to pass the type test. The condition was obviously incorporated in the appointment order to give effect to the Executive Instructions dated 24.8.1983, which made it mandatory to pass the type test. I am of the view that the instructions dated 24.8.1983 and subsequent instructions on the subject only supplement service Rules framed under proviso to Article 309. They cannot be said to supplant the

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CWP No. 6614 of 1995

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Rules. I, therefore, do not agree with the contention of the learned counsel for the petitioners that since the 1979 Rules do not make the condition of passing type test as a condition precedent for appointment or confirmation the petitioners have a right of continued employment under the State without fulfilling the condition. The State has showed an extraordinary indulgence to the petitioners in testing them 11 times. There have no one to blame but themselves. Proficiency in type writing was made a prescribed minimum standard to be an essential qualification for direct recruitment to the post of Clerk across board in all Government departments. Merely because the condition has not been incorporated in various service Rules would not make the Executive Instructions ineffective. The impugned order has been passed in the light of the powers vested in the competent authority under Rule 10(3)(b)(i) and Appendix 'B' of the 1979 Rules.

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The learned counsel for the petitioners contends that action could not have been taken under Rule 10 since the Rule deals with departmental examination, and a type test does not amount to departmental examination as prescribed under Rule 10. Even if I agree with the learned counsel for the petitioners on the interpretation of Rule 10(3)(b)(i) of the 1979 Rules even then he is left staring at a clear stipulation at the end of condition 8 of the appointment order which reads “ You shall have to clear the Punjabi type test within 6 months of appointment” . Even though the consequences of non-passing of the type test may be a debatable issue the condition cannot be read as giving an ad infinitum chance to the petitioners to continue till the Greek calends. Besides, after 17 years it would be inappropriate to consider the matter for reinstatement by quashing the impugned orders of termination. Consequently, I find no merit in this petition and dismiss the same.

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(RAJIV NARAIN RAINA) Judge

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24.01.2012 ‘sp’

Lovely Pasricha & Ors. v. State of Punjab & Anr.

Case brief

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Lovely Pasricha & Ors. v. State of Punjab & Anr.

Case brief

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