Igyar Dass Vaishnav vs State of Rajasthan and Others

Rajendra Saxena, J.—The petitioner by means of this writ petition has sought the relief of mandamus and prayed that the respondents be directed to promote him on the post of LDC from the date his juniors have been given such promotions with all consequential benefits.

Succinctly, the relevant facts are that the petitioner was appointed as Class IV employee by the Collector, Pali, (respondent No. 2) by his order dated 3.12.1977 (Annex. 1) and was posted in Tehsil Pali. Thereafter, he was made a substantive employee vide order dated 5.1.81 (Annex. 2) w.e.f. his date of initial appointment i.e. 3.12.1977. He passed the Rashtra Bhasha Kovid Examination of the Rashtra Bhasha Prachar Samiti, Vardha in the year 1980 vide certificate Annex. 15 and passed the Secondary School Examination, 1981 in English subject from the Board of Secondary Education, Rajasthan vide Annex. 16. At that time, the Rashtra Bhasha Kovid certificate was recognised equivalent to Secondary Examination in Hindi subject. As the petitioner had the requisite qualification equivalent to Secondary Examination and acquired more than five years experience, he was held to be eligible for promotion as LDC, hence the respondent No. 2 by his letter dated 26.2.1983 (Annex. 3) called him for interview for the post of LDC. But at that time, he was not promoted. After the derecognition of Rashtra Bhasha Kovid Certificate, the petitioner after procuring the necessary permission appeared in the Secondary School Examination, 1988 in all subjects conducted by the Board of Secondary Education, Rajasthan and passed the same vide Annex. 5. The respondent No. 2 published a final seniority list (Annex. 4) of Class IV employees of Pali District wherein petitioner''s name appears at S. No. 127. Thereafter the petitioner submitted an application dated 26.3.1990 (Annex. 6) to the respondent No. 2 through the Tehsildar, Sojat praying for his promotion as LDC. Thereupon the Collector by his letter dated 27.3.90 and 2.4.90 Ex. 7 and Ex. 8 respectively intimated him that as per the decision taken by the Departmental Promotion Committee for the promotion of Class IV employees to the post of LDC, he should appear in typing test on 5.4.90. The petitioner appeared before the Collector and represented that there was no rule for taking the type test for the promotion on the post of LDC amongst the class IV employees but the latter was adamant to take the typing speed test and therefore, the petitioner refused to appear in the said test. The petitioner also made representation to the Government about the said action of the Collector, Pali. Thereupon the Assistant Secretary Personnel & Administrative Reforms Department (DOP-A, Group II) by his letter dated 11.4.1990 (Annex. 9) informed the Collector, Pali that under Rule 7(1)(3) of the Rajasthan Subordinate Offices Ministerial Staff Rules 1957 (in short ''the Rules 1957) there was no provision for taking the typing test of the Class IV employees for the promotion to the post of LDC and reiterated that a class IV employee, who possesses five years experience of substantive service and has the requisite qualifications has to be given promotion to the post of LDC on the basis of seniority. But despite the letter Annex. 9, petitioner''s case was not considered and he was not promoted on the post of LDC, while person junior to him namely Vishnulal, whose name appears at S. No. 140 in the seniority list (Annex. 4) was promoted vide order dated 15.5.1990 (Annex. 10). The respondent No. 2 again promoted Sarva Shri Narayna lal, Mangal Puri, Hemraj & Prakash Chand whose names appear at S. No. 128, 131, 139 and 150 respectively in the seniority list (Annex. 4) and who were admittedly junior to him and one more person namely Durga Shanker, whose name even did not appear in the said seniority list were also promoted on the posts of LDC by his office order dated 8.7.1990 (Annex. 12). The petitioner has, therefore, alleged that the action of the respondent No. 2 is discriminatory and violative of Articles 14 & 16 of the Constitution of India and prayed that the respondents be directed to promote him on the post of LDC from the date his juniors have been given such promotions.

The respondents in their reply have not disputed the factual position regarding the bio-data of the petitioner, his date of initial appointment and confirmation and educational qualifications, but have inter alia pleaded that the Departmental Promotion Committee in its proceedings dated 27.3.90 and 21.4.90 had resolved that for the promotion of class IV employees on the post of LDC, the necessary typist test should be conducted and that petitioner deliberately did not appear in the typing test while Vishnulal and Dev Nath passed the said typing test and were accordingly promoted. Another objection taken on behalf of the respondent is that since the petitioner passed his Secondary School Examination in the year 1988, he was not eligible for promotion prior to that year because he did not passess the requisite academic qualification while Vishnulal, Mangal Puri, Hemraj, Prakash Chand and Durga Shanker passed the Secondary/ Hr. Secondary Examination in the year 1982 and Narayan Lal had passed the said examination in the year 1985. The respondents have averred that most of the existing vacancies pertained to the years when the petitioner was not qualified and eligible to get promotion for the post of LDC.

The petitioner in his rejoinder has reiterated that since he had put in more than five years service and possessed the requisite academic qualifications and was senior, he become entitled for being consider for promotion on the post of LDc since the year 1982.

I have heard the learned Counsel for the petitioner and the learned Addl. Govt. Advocate and perused the relevant record.

There is no dispute that the petitioner is governed by the Rules, 1957. Proviso (3) to Rule 7 lays down that 12� of the total number of vacancies of the Lower Divisional Clerks determined under Rule 9 of the said Rules by the Appointing Authority concerned shall be reserved for being filled in by promotion amongst class IV employees who hold the post in the substantive capacity and possess the academic qualification prescribed by these Rules for the post of Lower Divisional Clerks. Rule 9 deals with the determination of vacancies and lays down that the Appointing Authority shall determine every year the number of existing vacancies and those anticipated during the following twelve months and the number of persons likely to be appointed to the service by each method. Rule 12(2) which prescribes the academic qualifications, applies only for the candidates for direct recruitment and not for the promotions amongst Class IV employees. Therefore, the Departmental Promotion Committee had no authority to prescribe the typing test for the promotion on the post of LDC amongst the Class lV employees and as such the letters dated 27.3.90 and 2.4.90 issued by the Collector, Pali to the petitioner were ex facie without jurisdiction and illegal and against the provisions of Rule 7 of Rules 1957. The Department of Personnel A (Group II) vide its letter dated 11.4.90 (Annex. 9) had also specifically intimated the respondent No. 2 that for a class IV employee, who possesses the academic qualification prescribed for the post of LDC. has experience of five years substantive service and is senior most is eligible for being considered for such promotion and it is not at all necessary for him to pass the typing test.

Rule 7 of Rules 1957 nowhere lays down that the five years experience in the substantive post should be counted from the date a class IV employee acquires the requisite academic qualification. The promotion on the post of LDC under Rule 7 of Rues 1957 were made by the respondent No. 2 in the year 1990 and for that vide letters Annexs. 7 and 8, he was found eligible for consideration but he was illegally asked to undergo the typing test. Since the petitioner has passed the Secondary Examination from the Rajasthan Secondary Board in the year 1988 and was in the substantive service since 3.12.1977 he was eligible and entitled to be considered for promotion on the post of LDC. The contention raised that persons junior to the petitioner namely Vishnulal, NaryanLal, Mangal Puri, Hemraj and Prakash Chand had passed the Secondary/Hr. Secondary Examinations in the year 1982/1985 while the petitioner passed the Secondary School Examination in the year 1988 and as such he was not eligible to be considered for the promotion on the post of LDC in the year 1990., is apparently misconceived and against the provisions of Rule 7 of Rules 1957. As per final seniority list (Annex. 4), the petitioner was senior to aforementioned persons and on 15.5.90 when his junior Vishnulal was promoted on the post of LDC, the petitioner was entitled to be considered and promoted as LDC. It may be mentioned here that one Durga Shanker, whose name even did not appear in the seniority list, was also promoted on the post of LDC vide office order dated 8.7.90 (Annex. 12). Thus, it is abundantly apparent that the respondent No. 2 had flagrantly violated the provisions of Rules 1957 as well as the mandate of Articles 14 & 16 of the Constitution of India and has put the petitioner to a hostile discrimination.

Hence for the reasons mentioned above, I allow this writ petition and direct the respondents to promote petitioner Igyar Dass on the post of LDC w.e.f. 15.5.90, when his Junior Shri Vishnulal was given such promotion within one month from the date of the receipt of this order. They are further directed to give the petitioner all consequential benefits.