Ravi Kishore Pradhan vs State of U.P. and Others

Vimlesh Kumar Shukla, J.—1. Ravi Kishore Pradhan is before this Court assailing the validity of judgement dated 30th May, 2014 and 21st September, 2015 passed by State Public Service Tribunal, Lucknow in Claim Petition No. 2402 of 1997 (Arun Kumar v. State of U.P. and others).

Brief background of the case is that petitioner was initially appointed as Class-IV employee under the Registrar, Firms, Societies and Chits, U.P. at Lucknow under order dated 21.06.1991 issued by the Registrar, Firms Societies and Chits, U.P. at Lucknow and continued to function in the said capacity. Promotion is permissible from Class IV to Class III posts in the department under G.O. dated 31.08.1992 providing for a 15% quota for promotion. By means of a subsequent Government Order dated 08.09.1995, an additional 5% quota was provided for promotion, thus there existed a 20% quota for promotion. In the year 1985, Statutory Rules framed in exercise of authority conferred by the proviso to Article 309 of Constitution of India has been framed governing appointment against clerical posts were framed by a notification dated 16.03.1985, which notified the Subordinate Offices, Ministerial Staff (Direct Recruitment) Rules, 1985. In the year 1997, the Registrar, Firms Societies and Chits, U.P. at Lucknow by communication dated 19.09.1997 notified selection proceedings to be conducted at Lucknow Headquarters for making promotion from Class IV employees working in the Department and a written examination was held on 27.07.1997 and the candidates were also subjected to typing test and interview. Petitioner submits that Arun Kumar s/o Chutkau has not passed the typing test and even though petitioner was shown at serial No. 3 in the order of merit while Arun Kumar shown at serial No. 2 in the order of merit, accordingly recommendation has been made in his favour and order dated 04.10.1997 has been passed granting promotion to petitioner as Junior Clerk. Petitioner submits that pursuant thereto he has joined as Junior Clerk and discharging his duties.

The promotion granted to the petitioner was challenged by Arun Kumar-respondent No. 6 by means of filing writ petition before the Lucknow Bench of this Court. The said writ petition was dismissed by judgement dated 27.10.1997 on the ground of availability of alternative remedy before the State Public Services Tribunal. Thereafter Arun Kumar filed a Claim Petition No. 2402 of 1997 (Arun Kumar v. State of U.P. and others) before the State Public Services Tribunal and the said claim petition was dismissed by the State Public Services Tribunal by judgement dated 11.05.2000. Aggrieved by the aforesaid judgement Arun Kumar filed a review petition, which was numbered as Review Petition No. 63 of 2000 in Claim Petition No. 2402 of 1997. The aforesaid review petition was also dismissed by the State Public Services Tribunal by judgement dated 17.08.2000. Aggrieved by the aforesaid orders, Arun Kumar filed Writ Petition No. 1497 (S/B) of 2000 before the Lucknow Bench of this Court and said writ petition was dismissed by a Division Bench of this Court on 13.09.2000. Thereafter aggrieved by the judgement dated 13.09.2000, Review Petition in question has been filed numbered as Review Application No. 22582 of 2000. During the pendency of the aforesaid Review Petition, Arun Kumar filed a supplementary affidavit enclosing therewith certain documents pertaining to the selection claimed to have been obtained under the Right to Information Act 2005. Thereafter the said Review Application No. 22582 of 2000 was decided by a Division Bench of Lucknow Bench of this Court by judgement dated 20.03.2013. Armed with the judgement dated 20.03.2013, Arun Kumar filed Misc. Application No. 110 of 2013 seeking recall of the judgement and orders dated 11.05.2000 and 17.08.2000 passed in Claim Petition No. 2402 of 2007.

The Review Petition so filed was accompanied by a copy of the supplementary affidavit alongwith annexures filed by Arun Kumar before this Court in Service Bench No. 1497 of 2000. The said supplementary affidavit was accompanied by the under noted documents:

"(i) Allocation of marks in the written test;

(ii) Allocation of marks in the interview;

(iii) Answer sheets pertaining to typing of Arun Kumar and the petitioner."

In opposition to the said supplementary affidavit, a supplementary counter affidavit sworn by Shyma Narain Yadav had been filed and in opposition thereto Arun Kumar had filed a supplementary rejoinder affidavit. In the aforesaid claim petition, an order was passed by the State Public Services Tribunal issuing directions to respondent No. 2 in the claim petition to obtain affidavits from the examiner and to file the original typing sheet within a period of 15 days. During the pendency of the review petition, a compliance affidavit was filed on behalf of Registrar. The said compliance affidavit was accompanied by affidavits of Rajendra Singh, Mohammad Jama, Jagannath Shukla and R.T. Pandey apart from the other documents. In opposition to the aforesaid compliance affidavit, Arun Kumar filed his rejoinder affidavit dated 16.04.2014. Thereafter on 30.05.2014, the State Public Services Tribunal passed an order on the review petition whereby the earlier orders dated 11.05.2000 and 17.08.2000 were recalled and the claim petition was restored to its original number with direction for matter being heard on 08.07.2014. Thereafter the matter was finally heard by the State Public Services Tribunal and has been decided by the judgement dated 21.09.2015 and at this juncture, present writ petition in question has been filed.

Shri Ashok Khare, Senior Advocate assisted by Shri Saurabh Sinha, Advocate submitted with vehemence that there was no occasion or justification to recall/review the order impugned and further Tribunal has misdirected itself at the point of time when it has proceeded to allow the claim petition in question on totally surmises and conjectures whereas answer-sheets in question has rightly been evaluated and the contesting respondent has not at all passed the typing test and in view of this, writ petition in question deserves to be allowed.

The claim in question has been resisted by Shri Vijendra Prasad, Advocate duly assisted by Mrs. Abhilasha Singh, Advocate by submitting that this is a glaring case of fraud and manipulation and Tribunal, in the facts of case, has fully satisfied itself that petitioner''s promotion is an act of manipulation and fraud and justice cannot travel together as manipulations are writ apparent, in view of this, no relief should be accorded to the petitioner.

Learned Standing Counsel, on the other hand, contended that records are speaking for itself and as such, this Court should not interfere with the impugned order.

After respective arguments have been advanced, the factual situation on which there is no dispute that in the result in question that has been prepared by the Department concerned showed Ravi Kishore Pradhan having obtained 7 marks in written test, 30 marks in typing test and 8 marks in interview, whereas Arun Kumar has been shown to have received 17 marks in written test, 21 marks in typing test and 8 marks in interview. The aggregate marks of Ravi Kishore Pradhan has been shown as ''45'' whereas the aggregate marks of Arun Kumar has been shown as ''46''. In the select list so prescribed for according promotion, name of Arun Kumar had been shown at Serial No. 2 whereas name of Ravi Kishore Pradhan, the petitioner was shown at Serial No. 3.

The situation that is emerging in the present case is that complaint has been made qua the promotion made after the final result has been declared. The promotion accorded has been subjected to challenge before the Lucknow Bench of this Court in the shape of writ petition and the writ petition was dismissed on 27.10.1997 on the ground of availability of alternate remedy before U.P. State Public Services Tribunal and leading to filing of Claim Petition No. 2402 of 1997 (Arun Kumar v. State of U.P. and others) before the State Public Services Tribunal. The said claim petition in question has been dismissed on 11th May, 2000 and aggrieved by the aforesaid judgement, Arun Kumar has filed a review petition, which was numbered as Review Petition No. 63 of 2000 in Claim Petition No. 2402 of 1997. The aforesaid review petition was also dismissed by the State Public Services Tribunal by judgement dated 17.08.2000 and then aggrieved by the aforesaid orders, Arun Kumar filed Writ Petition No. 1497 (S/B) of 2000 before the Lucknow Bench of this Court and said writ petition was dismissed by a Division Bench of this Court on 13.09.2000 and then a review petition has been filed numbered as Review Application No. 22582 of 2000. During the pendency of the aforesaid review petition, Arun Kumar has filed a supplementary affidavit enclosing therewith certain documents pertaining to the selection claimed to have been obtained under the Right to Information Act 2005. Thereafter the said Review Application No. 22582 of 2000 was decided by a Division Bench of Lucknow Bench of this Court by judgement dated 20.03.2013 and therein liberty was given to the petitioner to move to Tribunal and move appropriate application for recall of Tribunal''s judgement on the basis of alleged fraud which is said to be committed by the Departmental Promotion Committee and State Authorities. Pursuant to the direction issued by this Court, review application was filed by Arun Kumar and therein specific claim has been raised of fraud being committed/perpetuated. On 12/XI/2013 Tribunal concerned asked Respondents of Claim Petition to explain situation pertaining to the two typing sheets. Thereafter exercise has been undertaken and compliance affidavit was filed on behalf of Registrar accompanied by affidavits of Rajendra Singh, Mohammad Jama, Jagannath Shukla and R.T. Pandey apart from the other documents, and same prima-facie reflected manipulations in such backdrop, the earlier order passed by Tribunal has been recalled on 30.05.2014. At the point of time when order dated 30.05.2014 has been passed, the Tribunal had already done exercise, on record material had arrived that suggested of manipulations in record for according promotion.

It is true that at the point of time when review/recall application has been allowed, no reasons have been indicated, the said order is not to be read in isolation, and the entire exercise undertaken by Tribunal has to be examined, and specially the exercise undertaken by the Tribunal vide order dated 12.11.2013, whereafter affidavits have come on record filed as Annexure-23, 24 to the writ petition, wherein two of the examiners have clearly disowned making any correction after marks have been awarded to Arun Kumar. There existed material on record to recall order passed on earlier occasion and to decide Claim Petition on merits. Petitioner, at the said point of time, never came forward to question validity of order dated 30.05.2014 and participated in proceedings resulting in passing of order impugned, wherein categorical finding has been returned of manipulation/manoeuvring in record, then to say that there is any infirmity in the order dated 30th May, 2014 cannot be accepted by us.

In the present case what we find from the record in question and the pleadings that have come on record that both the petitioner as well as Arun Kumar have undertaken typing test. From the typing sheets, that has been produced before this Court, at the point of time when respective typing sheets have been examined, then as far as Arun Kumar is concerned, he has been awarded 25.4 marks and as far as petitioner is concerned he has received 30.1 marks. This much is also reflected from the record in question and the Tribunal concerned, in its tun, has also recorded categorical finding based on the affidavits filed by the incumbents that after final marks have been awarded, thereafter cutting/overwriting is there and same was signed by Shri Rajendra Singh, one of the examiners. The other incumbents/examiners have totally disowned of any proceeding being initiated after 25.4 marks have been awarded to Arun Kumar. Other examiners by way of filing affidavit, clearly mentioned that they have not evaluated typing sheet thereafter, their affidavits are at page 174, 176 of the writ petition. Rajendra Singh has come up with the case that all three had undertaken exercise, whereas two out of three had specifically denied of such exercise. Coupled with this, Rajendra Singh had submitted that such exercise was undertaken on the asking of Chairman, Selection Committee whereas there was nothing on record to suggest that any order in black and white has been passed by Chairman, Selection Committee for re-evaluation.

Once such is the factual situation that is so emerging, in the present case, that after answer sheets in question have been evaluated and there has been no order in black and white given by the Superior Officials to further re-examine the same and in such a situation, once the Tribunal has recorded finding on the basis of evidence before it that selection of Ravi Kishore Pradhan has been nothing but an act of manipulation and manoeuvring by making tampering in the typing sheet of Arun Kumar, then we cannot come to the rescue and reprieve of the petitioner specially when there is no order of Superior Officials for re-examining the typing sheets and two other examiners have proceeded precisely to disown their participation in re-evaluation exercise, in view of this, once Rajendra Singh, on his own, has proceeded to make re-evaluation without there being any authorization from the Superior Officials and other two examinees have clearly disowned the same, then with the said finding of fact returned based on appreciation of evidence that fraud and manipulation is there.

Before us arguments have also been advanced that there was no requirement of typing speed of 25 words per minute. It may be true that under Subordinate Offices, Ministerial Staff (Direct Recruitment) Rules, 1985, there is no such requirement that has been mentioned for having such a typing speed but the fact of the matter is that 15% of the vacancies in particular sub-ordinate office was required to be filled up by way of promotion and a categorical note has been put that the order in force at the point of time commencement of these rules are contained in G.O. Dated 31st August 1982 shall apply. Mention has been made in the said Government Order, where appointment is to be made in typing cadre, therein typing test shall be held.

The selection in question, in the present case, admittedly has been held on 19th September, 1997 and prior to it, in addition to Government Order dated 31.08.1982, Government Order dated 3rd September, 1995 has been issued wherein in reference of typing test it has been mentioned that for according promotion, for typing knowledge, the current rules/orders would be applicable.

Earlier prior to enforcement of Subordinate Offices, Ministerial Staff (Direct Recruitment) Rules, 1985 there has been Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1975 wherein for the post of Typist in order to ascertain the knowledge of typing test, speed of 25 words per minute was required. The speed of typing is to be determined in consonance with the Government Order dated 30th August, 1978 issued by the State Government, Training and Employment Directorate under Sub-Rule (5) of Rule 23 of Subordinate Officers Ministerial Staff Rules 1985, in the case of candidate to be selected for the post of Typist as also for any other post for which typing has also been prescribed as an essential qualification, only those candidates who know typing are to be considered and final assessment is to be made after adding the marks obtained in Hindi typewriting. Typing test has been held and only such candidates can be accorded promotion those who know typewriting. There is Government Order holding the field for judging typing speed. Under Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1975, for the post of Typist minimum speed of 25 words per minute has been provided for, whereas under Subordinate Officers Ministerial Staff Rules, 1985, no such criteria has been prescribed, but knowledge of typewriting has been provided for in reference of post of Typist as also any other post for which typing has been prescribed. Criteria/Standard for judging knowledge of typing is not at all there, as neither any Statutory Rule holding the field nor any executive instruction/Government Order has been brought even before us to substantiate the fact that typing knowledge of an incumbent could be presumed only if he/she could type 25 words per minute.

At this juncture, though not applicable nor attracted, we take note of Rule, framed by the Governor in exercise of its authority under the proviso to Article 309 of Constitution of India, in reference of promotion in subordinate officers known as The Uttar Pradesh Subordinate Officers Ministerial Group ''C'' Posts of the Lowest Grade "Recruitment by Promotion) Rules, 2001. In this particular Rule, sub-rule (2) of Rule 8 contains Note 2 wherein mention has been made, that where recruitment by promotion is being made for the post of Typist or a post for which Hindi typewriting is essential there shall be conducted a qualifying test for Hindi typewriting also, as provided from time to time. To qualify this test candidate must have a minimum speed of twenty five words per minute in Hindi typewriting. Consequently, at the said point of time, when typing test had been held no qualifying marks for typing test had been prescribed.

The fact of the matter, in the present case, is that both petitioner as well as Arun Kumar have been conscious of this fact that there is requirement of typing knowledge and the typing knowledge would be presumed if 25 words per minute are typed in this background and backdrop typing test has been entered upon by them and it may be true that under Subordinate Offices, Ministerial Staff (Direct Recruitment) Rules, 1985, there is no specific requirement of typing speed of 25 words per minute but the fact of the matter is that even prior to enforcement of Subordinate Offices, Ministerial Staff (Direct Recruitment) Rules, 1985, and even subsequent to the same, for judging the knowledge of typing, 25 words per minute has been fixed and same appears to be a consistent practice, in view of this, we proceed with the presumption that an incumbent can be said to have typing knowledge to his credit only when he has required speed of 25 words per minute. However, in the facts of the case, at the point of time when his typing sheet has been checked, petitioner has received 30.1 marks and the contesting respondent Arun Kumar has received 25.4 marks and thereafter large scale manipulation and manoeuvring has been done by re-evaluating the same without any authority of law and but for Shri Rajendra Singh other examiners have discredited the same there is no occasion or reason for us to accord any relief to the petitioner, inasmuch as, law on the subject is clear that fraud and justice cannot travel together, in view of this, present writ petition sans merit and is dismissed accordingly.