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Judgment
Nidhi Gupta, J.
Present Civil Writ PeƟƟon under ArƟcles 226/227 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 19.02.2021 (Annexure P-8) to the extent of contents "is required to clear Typing Test (SETC Part-II) for release of annual increment" while ignoring the issuance of clarificaƟon dated 02.09.2020 (Annexure P-9), issued by the office of Chief Secretary to Government of Haryana; and further quashing the impugned acƟon of the respondents in making applicable in the classificaƟon of SETC (part 1 and part 2), retrospecƟvely as well as for seƫng aside the impugned act of grave discriminaƟon as the promoted Clerks have been granted such exempƟon even without acquiring the cerƟficate Annexure P-2 as required by the peƟƟoner; and for issuance of a writ in the nature of mandamus, direcƟng the respondents to grant the benefit of annual increment, arrears thereof along with interest as the peƟƟoner had already presented the cerƟficate of qualificaƟon, which falls under the ExempƟon Clause of leƩer dated 07.11.2013 (Annexure P-2) as well as in view of clarificaƟon dated 02.09.2020.”
It is inter alia submiƩed by ld. counsel for the peƟƟoner that peƟƟoner was appointed as Clerk in the respondent Department on regular basis vide order dated 13.01.2017 (Annexure P-1). The peƟƟoner was appointed in terms of the Policy, whereby wives of martyrs were offered appointment as the husband had sacrificed his life for the naƟon. As per the terms and condiƟons of the LeƩer of Appointment, peƟƟoner was required to qualify the State Eligibility Test in Computer AppreciaƟon and ApplicaƟons (hereinaŌer referred to as "SETC") within the probaƟon period of one year, extendable by one year.
Ld. Counsel submits that there are two parts to the SETC - the first requiring having Computer Knowledge; and the second requires passing of type test. Learned counsel contends that the peƟƟoner fulfills both the said condiƟons as evident from the CerƟficates (Annexures P-3 and P-4) issued by the Haryana State CerƟficate in InformaƟon Technology (HS-CIT), cerƟfying that peƟƟoner has successfully completed course in Computer Knowledge. It is pointed out that as per the said CerƟficate, it is also shown that "the peƟƟoner has also successfully completed and passed computer typing speed test in English with net speed of 36 words per minute."
Accordingly, peƟƟoner had submiƩed applicaƟon dated 22.02.2019 (Annexure P-4) to the respondent No. 3 staƟng that peƟƟoner had qualified the required test in December 2018 and January 2019. As such, Annual Increment be granted to the peƟƟoner, which had been withheld on non-qualificaƟon of SETC. However, as no acƟon was taken upon the said applicaƟon, peƟƟoner had filed CWP-11210-2020 seeking the same benefit of annual increment. The said writ peƟƟon was disposed of by this Court vide order dated 02.11.2020 (Annexure P-7) with a direcƟon to the respondents to decide the claim of the peƟƟoner aŌer taking into consideraƟon the InstrucƟons of the Government of Haryana dated 02.09.2020 (Annexure P-9), and specific direcƟons were issued to respondent No. 2 to keep in mind whether any similarly situated persons have been granted benefit of exempƟon of Typing Test or not.
Ld. counsel submits that other similarly situated employees not only of the respondent Department but also from the other departments, have been granted exempƟon on the basis of the CerƟficates specified in Clause No. 9 of the InstrucƟons dated 07.11.2013 (Annexure P-2). The details pertaining to the similar employees of respondent Department as well as other departments who have been granted exempƟon on the basis of similar cerƟficate are available in the affidavit dated 16.8.2020 (Annexure P-5), filed by the peƟƟoner in previous CWP No. 11210 of 2020.
Further, even as per the InstrucƟons dated 02.09.2020 (Annexure P-9), it has been clarified that the employees who had completed 3 months computer course from Haryana Knowledge CorporaƟon Limited/HKCL prior to 19.09.2019 stand exempted in terms of Para 9 of the InstrucƟons dated 07.11.2013 (P-2) and 22.09.2017 in respect of the fact that an employee has to qualify SETC Part I and Part II.
It is submiƩed that therefore, in face of the above instrucƟons, impugned orders of the respondents passed by ignoring the provisions of clause 9 of the Policy dated 07.11.2013 and clarificaƟon dated 02.09.2020, and for not granƟng the benefit of withheld increments, arrears thereof along with interest is unjust, unfair, illegal, arbitrary and discriminatory.
Per contra, ld. State counsel has submiƩed that in the LeƩer of Appointment dated 13.01.2017 (Annexure P-1), in condiƟons No. 9 and 10, it is clearly sƟpulated that peƟƟoner has to qualify the SETC test within the period of probaƟon, extendable up to one year. It is submiƩed that SETC is to be conducted in two parts. Part I comprising of the computer knowledge, in which exempƟon has already been granted to the peƟƟoner. However, the peƟƟoner is yet to complete the second part, which is the Type Test.
It is submiƩed that the CerƟficate (Annexure P-3) is of no help to the peƟƟoner as the Type Test has to be cleared through government appointed agency, which is HARTRON. It is accordingly prayed that there is no merit and therefore peƟƟoner is not enƟtled to grant of annual increment. The present peƟƟon deserves to be dismissed.
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 advanced on behalf of the peƟƟoner.
It is an undisputed fact on record that as per CondiƟon No. 10 contained in the appointment leƩer dated 13.01.2017 (Annexure P-1), it is sƟpulated as follows:-
“10.You will have to qualify the State Eligibility Test in Computer AppreciaƟon and ApplicaƟons (SETC) within the probaƟon period one year, extendable by one year. You will not be enƟtled to earn any increment in your respecƟve pay scale given above Ɵll you qualify the said test. The typing speed of 30 words per minute in English and 25 words per minute in Hindi converted with equivalent key depressions in both cases as the typing speed would be tested on computer.”
ContenƟon of the peƟƟoner that the CerƟficate (Annexure P-3) issued to her by the Haryana Knowledge CorporaƟon Limited (HKCL) cerƟfying that peƟƟoner has computer knowledge and that peƟƟoner has also successfully completed and passed the computer typing test in English with net speed of 36 words per minute saƟsfies condiƟon No. 10, is misconceived. It is not disputed by ld. counsel for the peƟƟoner that the peƟƟoner is required to pass the SETC conducted by the Haryana State Electronic Development CorporaƟon Limited/HARTRON as mandated by the Government of Haryana leƩer dated 07.11.2013 within a period of one year from the date of joining to become eligible to earn annual increment. Clearly, therefore, peƟƟoner does not qualify.
It is the next contenƟon of the peƟƟoner that the impugned order has been passed while ignoring the clarificaƟon dated 02.09.2020 (Annexure P-9) issued by the Government of Haryana. Even the said argument is misconceived as ExcepƟon Clause 9 of the InstrucƟons dated 07.11.2013 sƟpulates that: -
"The employees possessing any of the following qualificaƟon are exempted from taking the State Eligibility test in Computer AppreciaƟon and ApplicaƟons (SETC).
(i)M.Tech./B.Tech. (Computers) MCA, BCA or Diploma in Computers from the recognized insƟtuƟons e.g. Polytechnics.
(ii)Basic Computer Literacy CerƟficate from any recognized center established under the NaƟonal InsƟtute of Electronics & InformaƟon Technology (NIELIT) [erstwhile DOEACC Society].
(iii)Haryana State CerƟficate in informaƟon Technology (HS-CIT) the Authorized learning Centres (ALCs) of the HKCL.
(iv)Candidates / employees who have already passed the SETC and the same is valid at the Ɵme of joining the service. The State Eligibility Test in Computer AppreciaƟon and ApplicaƟon (SETC) passed by any candidate earlier shall be considered valid for the period of 5 years from the date of issue of such cerƟficate by HARTRON or any other agency authorized by the Government.
(v)Physically disabled candidates i.e. amputaƟon of hand (LeŌ and Right) AmputaƟon of upper limbs, Paralysis of Radial Nerve (Radial Nerve Paisy) either upper limbs DeclinaƟon degeneraƟve disorder effecƟng the nervous system which may cause paralysis and atrophy of the hand and its muscles and Visually handicapped. However, these employees, with the excepƟon of those menƟoned under sub-para (v) above shall be required to clear the type "test" being part of the State Eligibility Test in Computer AppreciaƟon and ApplicaƟons (SETC)."
The above said InstrucƟons further clarified by the Chief Secretary to Govt. Haryana vide leƩer No.42/164/2008-3GS-II dated 02.09.2020 staƟng that such employees who had acquired CerƟficate before 19.09.2019 as per Para-9 of the InstrucƟons dated 07.11.2013 and 22.09.2017, stand exempted from InstrucƟons dated 19.09.2019. The six months’ course prescribed by the InstrucƟon dated 19.09.2019 was prospecƟve in nature. In this situaƟon, the cerƟficate No.10028136 dated 13.06.2018 and No. 10037389 dated 10.01.2019 (P-3) each of 03 months duraƟon submiƩed by the peƟƟoner issued by HKCL are of no help to the peƟƟoner as the said cerƟficates have to be read in context of clause Para 9; as per which, Employees, with the excepƟon of those menƟoned under sub para (v) above shall be required to clear the (type test) being part of the State Eligibility in Computer AppreciaƟon and ApplicaƟons (SETC). AŌer plain reading of exempƟon clause Para 9, it is crystal clear that the peƟƟoner is enƟtled to have privilege merely of sub-para (iii) of Para 9; and is certainly not enƟtled to the benefit of exempƟon under sub para (v) with regard to "type test" which is solely meant for physically disabled candidates. The candidate who falls under sub para (v) stand exempted from SETC including typing test and candidate who falls under category of sub part (i to iv) required to clear the "type test" being part of SETC, however, they are not required to pass Computer knowledge test.”
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.
In view of the aforesaid factual and legal posiƟon, the present writ peƟƟon stands dismissed.
Pending applicaƟon(s), if any, also stands disposed of.