Permod Kohli, J. - (1.) THE petitioners are employees of the High Court. At the time of filing of this petition, they were working as Restorers, however, during the pendency of this petition, they stand promoted as Clerks in the year 2008. At the time of filing of this petition, the prayer made by the petitioners was for their promotion, on the basis of passing of the type test on 6th November, 1993 against the vacancies that may be available thereafter. Since the petitioners were promoted during the pendency of this writ petition, an amended writ petition has been filed seeking a direction for their retrospective promotion to the post of Clerks having qualified the type test on 6th November, 1993. It may be useful to briefly notice the factual matrix leading to the filing of this petition. Petitioners no. 1 to 3 are matriculates whereas petitioner no. 4 is graduate. Next promotion from the post of Restorer is to the post of Clerk. Promotion/recruitment is governed by Rule 19 of the High Court Establishment (Appointment and Condition of Service) Rules 1973 (hereinafter referred to as the "1973 Rules"). For appointment of Clerks, two sources are prescribed -by direct recruitment 90% and promotion from amongst the Supervisors/Restorers 10%. The relevant extract of Rule 19 is reproduced here under: - 19. Clerks - (1) Appointment to the post of Clerk shall be made either by direct recruitment or by promotion from the High Court Establishment in accordance with the provision laid down hereunder: - (2) The direct recruitment to the posts of Clerks shall be regulated as under: - XXX XXX XXX (v) A select list of successful candidates in order of merit shall be prepared as a result of one competitive examination. The appointment to the posts of Clerks shall be made as the vacancies arise from the list which shall remain in force for a period of two years from the date of examination and lapse thereafter. XXX XXX XXX (4) 10% of the vacancies in the cadre of Clerks during Calendar year may be filled up by promotion from amongst the supervisors/Restorers working in this Court possessing the following qualifications/experience: - (i) Graduate of recognized University with two years service as Supervisor/Restorer on the establishment of this Court. OR (ii) Matriculates of a recognized University/Board or its equivalent with five years service as Supervisor/Restorer on the establishment of this Court. Provided that the eligible Supervisors/Restorers shall have to qualify type -writing test in English at the speed of 30 words per minute before promotion as Clerk. (iii) Add Notification No. 258 dt. 27.5.1992, Following Proviso may be added as third below existing Rule 19(4) (ii): - Provided further that no Supervisor or Restorer shall be considered to have qualified the test, if he commits more than 10% mistakes.
(2.) UNDER the promotional channel, there are two categories of eligible persons, Matriculate, Supervisor/Restorer with five years experience and Graduate Supervisor/Restorer with two years experience. For making promotions against the available vacancies under 10% quota, a type test was held on 6th November, 1993. Petitioners were amongst 15 persons who participated in the type test for promotion as Clerks. Out of 15 persons, 8 qualified, including the petitioners. Petitioners were from Sr. Nos. 5 to 8 in the Panel of the qualified Supervisors/Restorers. Four out of the 8 qualified persons were promoted. It is admitted case of the parties that no wait list or select panel was prepared for the left over qualified candidates. It is alleged that a number of ineligible persons were promoted, without passing the type test either by granting exemption or without holding the type test. The petitioners have given names of such persons in paragraphs 8 and 9 of the writ petition. Details of these averments are not relevant for the purpose of this writ petition. After the declaration of the result and finding their names next in the list of the qualified persons, petitioners made representation for keeping their names in the panel for consideration for promotion as and when any vacancy occurs. Copies of these representations dated 29.11.1993 and 23.12.1993 are placed on record as Annexures P -4 and P -5. At that time, the petitioners were considered for promotion under the existing Rule 19. There was no provision for preparing a panel for promotional channel whereas Rule 19(2) (v) provides for a panel/waiting list to remain in force for a period of two years from the date of examination. One of the grievances expressed by the petitioners in this petition is that Rule 19 as in force at the time they participated in the selection was discriminatory in nature. The fact remains that Rule 19 is not under challenge in the present petition. Rule 19, however, was amended by adding clarification in the form of a note vide clarification dated 13.11.1995. This amendment came to be gazetted on 1.1.1996 and after 3rd Proviso to Rule 19(4), following note was added: - Note (i) A panel of eligible Supervisors/Restorers who qualify the type test shall be maintained for making appointments to the vacancies of their quota. The first panel shall be prepared after holding a type test on such date as may be deemed appropriate by the Hon'ble Chief Justice and thereafter regular type tests shall continue to be held in January and July in each year and the names of those qualifying the type tests shall continue to be added in the panel having due regard to their seniority. The panel so prepared shall never lapse and senior employee passing the type test at the subsequent stage would jump over his juniors who have passed the type test earlier but are awaiting their turn, for appointment. (ii) The eligibility of the candidate for taking the type test shall be determined as on 31st December and 30th June, respectively. Apart from above note, another Sub Rule (5) to Rule 19 was added which reads as under: - 19(5)(i) All regular vacancies of Clerks shall be filled in from the two sources by rotation i.e. first two vacancies shall be filled in from source (1) i.e. appointment by way of direct recruitment and the next one vacancy from source (II) i.e. appointment by way of promotion, from amongst eligible Supervisors/Restorers from the High Court Establishment. Provided that all vacancies of one source may be filled in from the other by making appointments on ad hoc basis till the appointments of candidates from the source to which the vacancies belong, subject to the conditions that the persons appointed on ad hoc basis will not be entitled to claim seniority on the basis of such appointment. (ii) The seniority inter -se of the Clerks shall be determined by the order in which they are appointed on regular basis. Sd/ - OP Goel, Additional Registrar (Admn.) In view of the above amendment, a panel of the qualified persons under promotional quota was allowed to remain in force without any limitation and even if a senior person qualifies the written test, later than the juniors in the panel who had qualified the type test earlier is entitled to claim seniority in the matter of appointment/promotion as Clerks. The amended Rule further provides for holding regular type test of eligible candidates. Eligibility to be determined on 31st December and 30th June of a Calendar year, respectively. Sub Rule (5) of Rule 19 as introduced by amendment also provides rotation of vacancies for direct recruits and promotees. Though power to fill up the available vacancies from other source was also introduced subject to restrictions contained therein. Rule 19 is said to have been amended later in the year 2008 and under the amended rule exemption from passing type test has been granted to Restorers/Supervisors.
(3.) THE petitioners are claiming their promotion retrospectively when the vacancies for promotional quota became available after their qualifying type test on 6.11.1993. This plea is based upon the following grounds: - (i) that the amended Rule 19 notified on 1.1.1996 is applicable in case of the petitioners as well; and (ii) that there is discrimination as a number of restorers/supervisors have been promoted for the post either by exempting them from passing the type test or imposing a condition for passing such a test after their promotion. It is also alleged that in the year 1995, only 10 vacancies were circulated vide Circular dated 21.10.1995 whereas 19 successful candidates who qualified the type test were appointed from the same panel on ad hoc basis even against the quota meant for direct recruits; (iii) The petitioners have placed on record information received under the RTI Act after the enforcement of the RTI Act where under it is disclosed that when the type test was conducted on 6.11.1993, four vacancies were available from 10% promotees quota for which test was held. It is further disclosed that after the amendment of the Rules, these vacancies belonging to the promotional quota were available out of 18 total vacancies of Clerks.;