REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2897 OF 2006

STATE OF PUNJAB & ORS. … APPELLANTS

VERSUS

JAGDISH KAUR … RESPONDENT

WITH

CIVIL APPEAL NO.4134 OF 2006

STATE OF PUNJAB & ANR. … APPELLANTS

VERSUS

HARJINDER SINGH … RESPONDENT

J U D G M E N T

Aftab Alam,J.

1. These  two  appeals,  at  the  instance  of  the  State  of  Punjab  and  its  

officials, are directed against 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  III  posts  in  the  State  

Government service.  

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  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 examination, she became eligible for promotion to  

a class III 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.   

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  

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person, namely, Baldev Singh, who was junior to him in class IV, was given  

promotion to a class III 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 III post.  

4. The writ petition filed by Jagdish Kaur was allowed by 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 Kaur that too  

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 III post since then.  In the case of  

Jagdish  Kaur,  however,  this  Court  stayed  the  operation  of  the  impugned  

order of the High Court while issuing notice on April 18, 2005. As a result  

she continues 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 on the basis of seniority.  Moreover,  

they were not eligible for promotion from class IV to class III 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  

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promotion on the basis of seniority but went on to examine the requirement  

of passing the typing test in Punjabi as a condition for promotion to a class  

III 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:-

“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 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  petitioner  is  otherwise  qualified,  her  claim shall  be  considered  for  promotion  to  the  post  of  Clerk,  without  any  further delay.  If 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 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 III post  

but there was no such requirement for promotion from Class IV to class III  

posts.  In this regard the High Court made the following observations:-

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“In  the  present  case  also,  in  the  absence  of  any  statutory  provision to the contrary, the Punjab Civil Services (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 speed of 30 words per minute within  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 the 1994 Rules, is that while qualifying the  typewriting  test  in  Punjabi  is  a  condition  for  direct  recruitment, it is not a pre-condition for promotion.”

                                               (emphasis added)

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 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 in respect of the appointments, by direct recruitment, to  

class I, class II and class III 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 from a recognized University as the minimum  

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educational  qualification  and  sub-rule  (b),  as  originally  framed,  made  

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.

“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 he is  matriculate  in  Second  Division  or  has  passed  Senior  Secondary Part III Examination from recognized university  or institution.  

(2) The person so appointed as Clerk in terms of sub-rule (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 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.”    

8. As a result of the amendment the qualification of typing that earlier  

used  to  be  an  essential  requirement  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  

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is,  thus,  clear  that  in  case  of  direct  recruitment  to  a  class  III  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 not provide for promotion  

from class IV as a mode of recruitment to class III 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 III posts. The High  

Court  was,  therefore,  quite  wrong  in  drawing  the  inference  that  while  

qualifying  the  typewriting  test  in  Punjabi  is  a  condition  for  direct  

recruitment, it was not a pre-condition for promotion.  

10. Coming now to the issue of promotion from class IV to class III posts,  

the provision was first made in the Government 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  III  posts  by  promotion  from  amongst  Class  IV  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  prescribed by the  Subordinate  Services  Selection Board for  such posts  and it  should be made essential  to pass  the test  

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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.”

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 qualification 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 by the  S.S.S. 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  delegated by the appointing authority.”

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. Ram Lal & Ors., (2008) 3 SCC 148, Shiba Shankar  

Mohapatra & 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 manifestly a criterion for promotion  

from class IV to class III post.  We are, therefore, clearly of the view that the  

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orders passed by the High Court are untenable and we are constrained to set  

aside those orders.  

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 III post on which he is working since then. Jagdish  

Kaur,  though,  not  promoted on account  of  the  stay  order  passed by this  

Court, 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 III 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 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, we must put in a  

caveat. It is seen above that in case of direct recruitment to a class III 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  

fairness the State would be well advised to review the criteria for promotion  

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from  class  IV  to  class  III  posts  and  to  bring  them  at  par  with  the  

requirements for direct recruitment to class III posts.

15.  In the result, the appeals are allowed subject to the observations and  

directions made above.  

…………………………J. (Aftab Alam)

…………………………J. (R.M. Lodha)

New Delhi; August 26, 2011.  

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