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Judgment
Nidhi Gupta, J.
Present Civil Writ PeƟƟon under ArƟcles 226 of the ConsƟtuƟon of India has been filed by the peƟƟoner “for issuance of a writ in the nature of cerƟorari for quashing the impugned order dated 11.7.2024 (Annexure P-18) passed by respondent No. 3 vide which respondent No. 3 has illegally withdrawn the promoƟon order dated 5.7.2023 (Annexure P-16) without issuing any show cause noƟce or affording any opportunity of hearing to peƟƟoners as the peƟƟoners were granted promoƟon as they are also similarly situated to employee Ram Niwas who has been promoted from Clerk to SDC without passing the Part II I.e., Typing Test of the SETC Exam and his qualificaƟon is idenƟcal to that of the present peƟƟoners; and a writ, order or direcƟon for exempƟng the peƟƟoners also from passing/clearing the Part II (Typing Test) of the SETC as they are also similarly situated to employee Ram Niwas who has been promoted from Clerk to SDC, without passing the Part II i.e., Typing Test of the SETC Exam and his qualificaƟon is idenƟcal to that of the present peƟƟoners; and a writ in the nature of mandamus direcƟng the respondents to permit the peƟƟoners to conƟnue to work on promoted post of Sub Divisional Clerk along with all other consequenƟal and aƩended benefits.”
It is inter alia submiƩed by ld. counsel for the peƟƟoners that on 01.05.2002, peƟƟoner No. 1-Anil Kumar was appointed as Watchman/Chowkidar on ex-graƟa basis. He was promoted as Clerk vide order dated 13.10.2016 (Annexure P-1).
Similarly, peƟƟoner No. 2-Sunder Singh was appointed as Peon on ex-graƟa basis on 23.01.2002. PeƟƟoner No. 2 was promoted as Clerk vide order dated 23.12.2015 (Annexure P-2).
Ld. counsel submits that a perusal of the said promoƟon leƩers shows that for further promoƟon, the peƟƟoners were required to qualify the State Eligibility Test in Computer AppreciaƟon and ApplicaƟon (SETC) within a probaƟon period of one year and extendable by one year. It was further sƟpulated that candidates will not be enƟtled to earn any increment in their respecƟve pay scale Ɵll they qualify the said test, failing which they will be reverted back.
Ld. counsel submits that as per the SETC prospectus (Annexure P-3), there are two parts to the SETC test; the same being Part-I - Computer Knowledge Test; and Part-II - Typing Proficiency Test (TPT).
It is submiƩed that as per Clause 9 of the NoƟficaƟon dated 07.11.2013 (Annexure P-4), exempƟon from Part-I of the test was granted upon compleƟon of certain Diploma Courses and CerƟficates from government organizaƟons. Thus, as the peƟƟoners have cerƟficates (Annexures P-5 and P-6) of Computer Knowledge issued by the HSCIT, as such peƟƟoners had cleared the first part of the SETC.
However, in 2021, respondents had issued leƩers to the peƟƟoners staƟng that they had sƟll not cleared the SETC. Learned counsel submits that due to COVID-19 pandemic, peƟƟoners could not clear the test on Ɵme and had accordingly requested for the extension of two years.
As a similar request was made on large scale, respondents had issued a leƩer dated 19.05.2022 (Annexure P-9) staƟng that if SETC is not cleared by 30.06.2020, then employees shall be reverted back.
It is submiƩed that numerous other persons who were iniƟally appointed as Beldar and Chowkidar and were later promoted to the post of Clerk, have not yet cleared their SETC Part-II typing exam and sƟll they are being granted annual increments. Even more so, 29 Clerks who fall in the same category as the peƟƟoners, have been even promoted to the post of Sub-Divisional Clerk (SDC) vide order dated 03.12.2020 (Annexure P-10).
It is further submiƩed that peƟƟoners had applied under the RTI to obtain informaƟon as to how many Clerks out of the above menƟoned office order (Annexure P-10) had cleared the Typing Test. Vide reply dated 14.12.2022 Annexure P-13, it was informed that only one Ram Niwas at serial No. 24 of the List (Annexure P-10) had cleared the HS-CIT exam in September 2018.
Ld. counsel submits that a perusal of the RTI reply further clearly shows that Ram Niwas has only cleared Part I of the SETC and has not cleared the Typing Test. It is argued that peƟƟoners are similarly situated as Ram Niwas in respect of the Typing Test; and are at a higher pedestal to all the other employees promoted vide order dated 03.12.2020 (Annexure P-10).
Accordingly, aggrieved by the said discriminatory acƟon, peƟƟoners had filed CWP-3325-2023 praying for grant of promoƟon and increments to the peƟƟoners as were being given by the respondent-Department to similarly situated employee, namely Ram Niwas.
During the pendency of the said writ peƟƟon, respondents had passed order dated 05.07.2023 (Annexure P-16) promoƟng the peƟƟoners to the post of Sub Divisional Clerk. Consequently, the said CWP-3325-2023 came to be disposed of as infructuous vide order dated 10.01.2024 (Annexure P-17).
However, now respondent No. 3 has again issued impugned order dated 11.07.2024 (Annexure P-18), whereby order dated 05.07.2023 has been withdrawn and peƟƟoners have been ordered to be posted as Clerk in the office of ExecuƟve Engineer, PWD (B&R) Rohtak.
Ld. counsel contends that the impugned order dated 11.07.2024 is unsustainable as the same is discriminatory as persons similarly situated as the peƟƟoners, namely Ram Niwas, has been promoted from Clerk to SDC without passing Part-II, that is Typing Test of the SETC exam, and his qualificaƟon is idenƟcal to that of the present peƟƟoners.
It is further submiƩed that respondent No. 3 while issuing order dated 11.7.2024 has erred in not considering the fact that as peƟƟoners were promoted as SDC vide order dated 5.7.2023 during the pendency of CWP-3325-2023 so said writ peƟƟon was disposed of as having been rendered infructuous vide order dated 10.1.2024, but by passing order dated 11.7.2024 respondent has proved that order dated 5.7.2023 was passed with the mala fide of geƫng said writ peƟƟon disposed of. It is submiƩed that respondent No. 3 has erred in not considering the fact that aŌer passing order dated 5.7.2023 granƟng promoƟon to peƟƟoners as SDC and geƫng writ peƟƟon of peƟƟoners disposed of now respondent No. 3 cannot turn around and cancel/withdraw order dated 5.7.2023.
It is submiƩed that order dated 11.7.2024 passed by respondent No. 3 is also illegal, null and void on the ground that no show cause noƟce or opportunity of hearing has been granted to peƟƟoners before passing order dated 11.7.2024 whereby order dated 5.7.2023 has been cancelled/withdrawn without considering the fact that in compliance of order dated 5.7.2023 peƟƟoners were promoted as SDC and now civil rights have accrued to peƟƟoners so before withdrawing said rights peƟƟoners have to be heard.
Accordingly prayed that the present writ peƟƟon be allowed and impugned order be set aside.
Per contra, learned State counsel has opposed submissions advanced on behalf of the peƟƟoners and has submiƩed that it is an admiƩed fact on record that the peƟƟoners do not fulfill the required criteria for promoƟon to post of Sub Divisional Clerk by not passing the SETC Part II/Typing Test, which is mandatory for promoƟon/financial upgradaƟon.
Therefore, the impugned order suffers from no error. Accordingly, prays for dismissal of the present writ peƟƟon.
No other argument is made on behalf of learned counsel for the parƟes. I have heard ld. counsel and perused the case file and record in detail. I find no merit in the submissions advanced on behalf of the peƟƟoners.
It is admiƩed fact on record that for further promoƟon from post of Clerk to post of Sub Divisional Clerk, as also for financial upgradaƟon, peƟƟoners are required to pass the SETC comprising of two parts, being Part-I Computer Knowledge Test and Part-II Typing Proficiency Test. AdmiƩedly, peƟƟoners have not fulfilled the mandatory condiƟon of passing Part-II, i.e.Typing Proficiency Test of the said SETC. As such, peƟƟoners are not eligible for promoƟon.
ContenƟon of the peƟƟoners that they were previously promoted as SDC vide order dated 05.07.2023 and have subsequently been reverted is also of no use as the said order of promoƟon clearly sƟpulates that peƟƟoners' earlier promoƟon to post of SDC is subject to the following condiƟon:-
“5.if at any later stage, it is found that any official has been promoted inadvertently who was otherwise actually not eligible for promoƟon will be reverted without any noƟce.”
Accordingly, in view of the ineligibility of the peƟƟoners, the competent authority rightly withdrew promoƟon order of the peƟƟoners.
Even contenƟon of the peƟƟoners that they are enƟtled for promoƟon on the ground that Ram Niwas, who is similarly situated as the peƟƟoners, has been promoted as SDC is incorrect as, it has been categorically stated by the learned State Counsel that Ram Niwas has been reverted back vide order dated 21.01.2025. In any event, peƟƟoners cannot claim negaƟve parity or equity. As such, peƟƟoners can derive no benefit from the List (Annexure P-10).
In this situaƟon, reference is made to judgment of this Court in Mohan Ram v. State of Haryana, (Punjab And Haryana) : Law Finder Doc Id # 2074493. The relevant paras are as follows:-
“12.Furthermore, it is a maƩer of consideraƟon whether claim of the peƟƟoners seeking exempƟon from passing the type test, based on parity with others, can be allowed. In the opinion of this Court, this argument again cannot sustain, considering the fact that peƟƟoners here have been knocking doors of this Court by filing various writ peƟƟons whereby they had iniƟally sought exempƟon from passing the type test and necessary relief had not been allowed to them. In LPA No.1508 of 2013, though a direcƟon was issued to the respondents to consider the case of the peƟƟoners for granƟng exempƟon from passing the type test sympatheƟcally, these maƩers were considered and rejected by passing the speaking order. In the opinion of the Court, reading of the orders passed by the Division Bench in earlier bunch of writ peƟƟons, CWP No.18143 of 2018 being the lead case, would not reflect that there was any intenƟon of granƟng exempƟon from passing the type test to the peƟƟoners. It was only the SETC test which was made mandatory to be passed by the persons, who were appointed/promoted on the post of Clerk aŌer 07.11.2013 and to the persons, who had been promoted to the post of Clerk but did not pass the type test, an opƟon was given either to pass the type test or the SETC and 10 chances were decided to be given to do the same. The condiƟon of type test imposed is neither arbitrary, nor unreasonable, nor unconsƟtuƟonal and is largely in accordance with the modern Ɵmes where the office environment is rapidly changing to meet future challenges at the workplace.
13.The counsel for the peƟƟoner has vehemently argued that persons have been exempted from passing the type test as in the case of Hari Om and therefore on the basis of parity, the essenƟal qualificaƟon of passing the type test for the post of Clerk be exempted and increments be released. As per the seƩled proposiƟon of law, ArƟcle 14 of the ConsƟtuƟon of India embodies concept of posiƟve equality alone and not negaƟve equality. Even if the Rules were bent to accommodate a few, this court can not issue any such mandamus to the respondents to exempt the peƟƟoners from passing the type test as provided under the rules and under the appointment leƩer, otherwise the Court itself will be perpetuaƟng an illegality. In the case of State of West Bengal v. Debasish Mukherjee, (2011) 14 SCC 187 while dealing with the concept of equality it is observed in paragraph 26 as under:
"26.It is now well seƩled that guarantee of equality before law is a posiƟve concept and cannot be enforced in a negaƟve manner. If an illegality or an irregularity has been commiƩed in favour of any individual or group of individuals, others cannot invoke the jurisdicƟon of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others."
The above view has been followed in a more recent judgment of this Court in CWP-5712-2021 Ɵtled as Jagdish Chander and others vs. State of Haryana and another decided on 23.10.2024.
Reference may also be made to the judgment passed by this Court in CWP-4353-2023 Ɵtled as Rajinder Parsad vs. State of Haryana and others dated 13.07.2026. The relevant observaƟons read as under:-
“13.Further, even as per following Rule 8(b) of Haryana Civil Services (ACP Rules), 2016, the peƟƟoner is not enƟtled for ACP without qualifying the type test:-
“8.Other general condiƟons of eligibiliƟes of ACP Level. The following general condiƟons shall also be fulfilled by a Government employee for availing benefit of ACP Level :-
a)xxxxxxxxx (b) if such promoƟon involved passing of any departmental or other test, acquisiƟon of higher educaƟonal qualificaƟon, etc., such condiƟon shall also be fulfilled by the Government employee.”
14.Before parƟng, it may also be pointed out that the peƟƟoner was condiƟonally promoted vide order dated 14.02.2012. Three years thereinaŌer, peƟƟoner made the representaƟon dated 27.05.2015 (Annexure P-1) seeking exempƟon from the condiƟon of passing typing test only on the ground that he was aged, being 48 years; and the present Writ PeƟƟon has been filed eight years thereinaŌer on 23.02.2023. Thus, claim of the peƟƟoner is highly belated. Instead of fulfilling the said condiƟon, it is only aŌer more than three years of his promoƟon, peƟƟoner had submiƩed representaƟon dated 27.05.2015 (Annexure P-1) seeking relaxaƟon from passing of typing test. ConsequenƟally, the same came to be rightly rejected vide impugned order 11.08.2015 (Annexure P-2).
15.Moreover, pursuant to promoƟon order dated 14.02.2012, peƟƟoner had duly joined on 15.02.2012, thereby implying that peƟƟoner had acceded to the said condiƟon of passing typing test. Resultantly, peƟƟoner is now estopped from laying challenge to the said condiƟon.”
In this regard, reference may also be made to an order dated 04.09.2018 of this Court in CWP-18084-2016 Ɵtled as Uma Kant & others vs. State of Haryana and others, wherein it has been observed as follows:-
“This Court is of the firm opinion that promoƟon to the post of Clerk necessarily involves skill required for the post of the Clerk at least knowing about the typing and the computer applicaƟon in order to perform the duƟes of Clerk in the Government offices. Nay it would be a fundamental requirement for a Clerk to have skilled knowledge about the computer applicaƟon and the typing (English/Hindi) for discharging the funcƟons as such. There can not be a Clerk without the knowledge of computer applicaƟon and typing etc. There is no quesƟon of prospecƟve applicaƟon of noƟficaƟon dated 09.11.2013. It must apply to all who are working as Clerks and taking salary of Clerk. However, the note shown to us by the learned State counsel that type test would be necessarily prospecƟve as per noƟficaƟon dated 09.11.2013 is absurd. By saying so, the result would be that there would be one set of Clerks in the exempted category having no knowledge of typing (English/Hindi) or computer applicaƟon and or SETC qualificaƟon. Another set would be of Clerks having SETC qualificaƟon working in the same Government office. The Clerks in the exempted category would chuckle at the others having SETC. The present peƟƟoners have claimed that there is discriminaƟon and they should also be granted exempƟon. Thus if all the Clerks are granted exempƟon from passing SETC, the working in the offices of the Government is bound to be severely affected apart from increase in favouriƟsm and nepoƟsm. The State of Haryana is a progressive State and the step in quesƟon to conƟnue to grant exempƟons to the favourites on such excuses including the alleged prospecƟve applicaƟon, is bound to result in a retrograde step. We cannot countenance such a thought and move on the part of the high ranking officer like AddiƟonal Chief Secretary to reduce the standard in such a manner that too when huge salary with 7th recommendaƟon is being paid without accountability. We, therefore, find that passing of SETC type test (English/Hindi) ought to be made compulsory for one and all who want to work as a Clerk on promoƟon or by direct recruitment. It is a different maƩer that Government may give chances and chances to them to appear in the said test.
We hope, trust and request the Chief Secretary of the State of Haryana to look into the maƩer personally and take decision in the interest of public and the State rather than granƟng exempƟons which obviously has given rise to the present liƟgaƟon.”
Ld. Counsel for the peƟƟoners is unable to dispute the aforesaid factual and legal posiƟon. Accordingly, the present writ peƟƟon stands dismissed.
Pending applicaƟon(s), if any, also stands disposed of.