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Judgment
Nidhi Gupta, J.
Present Civil Writ Pe,,on under Ar,cles 226/227 of the Cons,tu,on of India has been filed by the pe,,oner for the issuance of a writ in the nature of cer,orari for quashing the impugned speaking order dated 27.09.2018 (Annexure P/10) passed by the respondent no.2 i.e. Engineer in Chief, Haryana PWD B&R Department, Chandigarh vide which pe,,oner has not been granted pension as per his last pay drawn in an illegal, arbitrary and unjus,fied manner; AND further issuance of a writ in the nature of mandamus direc,ng the respondent to fix the pay of the pe,,oner for the post of clerk and fix the pension of the pe,,oner accordingly, as the pe,,oner stood re,red on 31.05.2017 from the post of Sub Divisional Clerk in view of the Haryana Government No,fica,on No.17/17/2019-3GSII dated 01.05.2019; AND further issuance of a writ in the nature of mandamus direc,ng the respondents to grant interest on the amount on account of delayed payment of retrial benefits.
It is inter alia submiBed by learned counsel for the pe,,oner that pe,,oner was ini,ally appointed as Peon with the respondent-Department vide order dated 13.10.1995 (Annexure P-1). Pe,,oner was promoted as Clerk vide order dated 28.06.2011 (Annexure P-2). The pe,,oner was granted further promo,on to the post of Sub-Divisional Clerk (SDC) vide order dated 21.07.2015 (Annexure P-3) subject to having passed typing test. The pe,,oner has re,red from the post of SDC on 31.05.2017 upon aBaining the age of superannua,on.
Learned counsel submits that aDer re,rement despite having fulfilled all requirements and formali,es, pe,,oner was not granted any re,ral benefit and pension. Pe,,oner has made numerous representa,ons in this regard including Representa,ons dated 16.09.2017 (Annexures P-4 and P-5) to the Special Secretary Commissioner, Haryana Government, PWD B&R Department, and Commissioner, PWD B&R Department, Panchkula respec,vely. As no ac,on was taken, pe,,oner had approached this Court vide CWP-8694-2018 ,tled as Roshan Lal Vs. State of Haryana and others, which was disposed of vide order dated 06.04.2018 (Annexure P-8) with a direc on to the respondents to release the re ral benefits to the pe oner within the s pulated period; (as also stated in para 6 of the present Writ Pe,,on). As, s,ll the respondents failed to take any ac,on in the maBer, pe,,oner approached this Court by way of COCP-2945-2018 ,tled as Roshan Lal vs. Rakesh Manocha Engineer-inChief, PWD B&R, Haryana; which was disposed of as infructuous vide order dated 26.10.2018 (Annexure P-9) taking note of the fact that impugned speaking order dated 27.09.2018 (Annexure P-10) has already been passed. However, liberty was granted to the pe,,oner to approach this Court in case of any surviving grievance.
Learned counsel submits that impugned order cannot be sustained as the pe,,oner has been given promo,on two ,mes and benefit of various increments was also awarded to the pe,,oner. During his service no objec,on as to his reversion was raised. The pe,,oner re,red from the post of Sub Divisional Clerk on 31.05.2017 aDer aBaining the age of 58 years. The pe,,oner never received any leBer or communica,on with regard to type test as no type test was conducted by the respondent department during his service period. Under these circumstances the pe,,oner is en,tled for monthly pension in accordance with his last pay drawn; and the impugned speaking order dated 27.09.2018 is liable to be set aside.
It is further submiBed by learned counsel for the pe,,oner that it is an admiBed fact that no type test was conducted by the respondent-department during the service period of the pe,,oner. Whereas it is the duty of the employer to conduct ,me to ,me type test. The pe,,oner has more than 20 years of sa,sfactory service into his credit and aDer serving the respondent department for such a long period, the pe,,oner on re,rement is not geGng the monthly pension as per rules. It is further submiBed that the respondent-department conducted the type test only in the year 2019; and prior to that no type test was conducted by the Department.
Learned counsel for the pe,,oner further submits that the respondent-department is taking an excuse that a condi,on of type test was imposed in the promo,on order dated 28.06.2011. However, ,ll the age of superannua,on of the pe,,oner on 31.05.2017 no objec,on was ever raised with regard to this very fact. Neither any ac,on was taken nor was any adverse order or communica,on given rela,ng to not passing of type test. Moreover, with the promo,on of the pe,,oner from Class-IV to Class-III post, the service period has been reduced to two years. If this fact was earlier known to the pe,,oner that the pe,,oner would not get his monthly pension in accordance with last pay drawn, then he would have refused the promo,on and served the department up to the age of 60 years. In view of these peculiar facts and circumstances, the impugned speaking order dated 27.09.2018 is liable to be quashed.
He accordingly prays that the present Writ Pe,,on be allowed; and impugned order dated 27.09.2018 (Annexure P-10) be set aside; and further prays for “issuance of a writ in the nature of mandamus direc ng the respondent to fix the pay of the pe oner for the post of clerk and fix the pension of the pe oner accordingly, as the pe oner stood re red on 31.05.2017 from the post of Sub Divisional Clerk in view of the Haryana Government No fica on No.17/17/2019-3GSII dated 01.05.2019.”
Per contra, learned State Counsel has opposed submissions of the pe,,oner and pointed out that as admiBed by the pe,,oner himself, pe,,oner had not passed Type Test which is mandatory condi,on for promo,on to the post of Clerk. It is submiBed that therefore, there is no error in the impugned ac,on/order. He accordingly prays for dismissal of the present Writ Pe,,on.
No other argument has been raised on behalf of learned counsel for the par,es. I have heard learned counsel and perused the case file in detail. I find merit in the submissions of the pe,,oner.
It is undisputed fact that order dated 28.06.2011 (Annexure P-2) promo,ng the pe,,oner to the post of Clerk is a condi,onal order s,pula,ng that pe,,oner shall “have to qualify test in Typewri ng in Hindi/English at the speed of 30/25 words per minute respec vely within one year of promo on failing which annual increment will not be granted.” On a Court query, learned counsel for the pe,,oner has very candidly admiBed that pe,,oner has failed to qualify the said test. However, pe,,oner has categorically unequivocally pleaded that since date of his promo,on on 28.6.2011 ,ll date of his superannua,on on 31.5.2017, respondents had not conducted any type test. Pe,,oner has also categorically pleaded that in fact, no type test was conducted by the respondent even up to the year 2019. These facts have not been denied by the respondent-Department.
In para 9 ii), iii) and iv) of the present Writ Pe,,on, pe,,oner has clearly pleaded as follows: -
“ii) That it is worthwhile to men on here that the pe oner has been given promo on two mes and benefit of various increments was also awarded to the pe oners. During his service no objec on as to his reversion was raised. Moreover, the pe oner stood re red from the post of Sub Divisional Clerk on 31.05.2017 a7er a8aining the age of 58 years. The pe oner never received any le8er or communica on with regard to type test as no type test was conducted by the respondent department during his service period. Under these circumstances the pe oner is en tled for monthly pension in accordance with his last pay drawn and the impugned speaking order dated 27.09.2018 is liable to be set aside.
iii) That it is an admi8ed fact that no type test was conducted by the respondent department during the service period of the pe oner whereas it is the duty of the employer to conduct me to me type test. The pe oner has more than 20 years of sa sfactory service into his credit and a7er serving the respondent department for such a long period, the pe oner on re rement is not ge;ng the monthly pension as per rules. It is further relevant to men on here that the respondent department conducted the type test in the year 2019 prior to that no type test was conducted by the Department.
iv) That the respondent department taking an excuse that a condi on of type test was imposed in the promo on order dated 28.06.2011 but ll the age of superannua on of the pe oner on 31.05.2017 no objec on was ever raised with regard to this very fact. Neither any ac on was taken nor was any adverse order or communica on given rela ng to not passing of type test. Moreover, with the promo on of the pe oner from Class-IV to Class-III post the service period has been reduced to two years. If this fact was earlier known to the pe oner that the pe oner would not get his monthly pension in accordance with last pay drawn then he would have refused the promo on and served the department up to the age of 60 years. In view of these peculiar facts and circumstances, the impugned speaking order dated 27.09.2018 is liable to be quashed.”
In Reply on Merits to the above, respondents No. 1 to 5 in their wriBen statement dated 17.10.2023 have stated as follows: -
“(ii)That in reply to contents of sub para No. (ii), it is submi8ed that as stated above, due to inadvertence and accidental slip, the pe oner was given increments, and on no cing the said mistake/omission, the increments given to the pe oner were withdrawn by way of order no.235 dated 11.6.2018, passed by the Execu ve Engineer, Provincial Division No.1, PWD B&R Branch, Sirsa. The monthly pension of the pe oner has also been fixed as per law. The speaking order dated 27.9.2018 is perfectly legal and valid and is not liable to be set-aside.
(iii)That in reply to contents of sub para No. (iii), the pe oner never came forward to give type test and he never approached the Authori es of the Department for taking his typing test. It was/is not the duty of the employer to conduct the type test, rather, it was the duty of the pe oner to come forward and to approach the Authori es for taking his typing test. As stated above, the pe oner did not submit his pension papers well in me despite repeated le8ers and reminders. Other details are given above, which may be read here as well.
(iv)That in reply to sub para No (iv), detailed reply stands given above in the foregoing paragraphs, which may be read here as well. (Emphasis added)
Clearly therefore, the respondents admiBed that they had conducted no type test. Needless to say, type test is required to be conducted by the respondent-Department. As the respondent-Department did not conduct type test despite representa,on by the pe,,oner, the benefits granted to the pe,,oner cannot now be withdrawn from him due to an error/omission on part of the respondents. Thus, in view of the fact that no type test was conducted by the respondent-Department during the service period of the pe,,oner, therefore, pe,,oner is en,tled to monthly pension in accordance with his last pay drawn.
Consequen,ally, the present Writ Pe,,on is allowed; impugned order dated 27.09.2018 (Annexure P-10) is set aside; and a writ in the nature of mandamus is issued direc,ng the respondents to fix the pay of the pe,,oner for the post of Clerk and fix the pension of the pe,,oner accordingly; and release all the pensionary benefits and fix the pension for the post of Clerk as the pe,,oner stood re,red on 31.05.2017 as Sub Divisional Clerk in view of the Haryana Government No,fica,on No. 17/17/2019-3GSII dated 01.05.2019. The said amounts be released to the pe,,oner along with interest @ 6% p.a. from the date due ,ll date of actual payment.
Pending applica,on(s) if any also stand(s) disposed of.