KEJRIWAL, J. - (1.) ALL these three special appeals have been filed under Section 18 of the Rajasthan High Court Ordinance, 1949 against the judgment/order dt. 12. 8. 91, passed by learned Single Judge in S. B. Civil Writ Petition No. 3154/1989, Babu Lal Yadav vs. Rajasthan High Court and others. As all the three appeals have been filed against one judgment and as such they are decided by a common judgment.
(2.) THE brief relevant facts of the case are that the respondent Babu Lal Yadav after passing competitive test of Stenographer Grade II on 18. 9. 91, was appointed as Stenographer Gr. II for a period of three months by the District and Sessions Judge, Pali, in accordance with the Rajasthan Subordinate Civil Courts Ministerial Establishment Rules, 1958, (hereinafter referred to as 'the Rules of 1958' ). An appointment letter was also issued in this connection on 22. 1. 1982, which is Annexure 1 on the file of the writ petition. It has been mentioned in the appointment letter that the petitioner will have to pass the test of Stenographer Gr. II to be held by Rajasthan Public Service Commission, Ajmer, as required under the Rules of 1958. THE petitioner also passed the speed test under the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957. After passing the aforesaid test held by the R. P. S. C. the petitioner submitted representations for his confirmation but the petitioner was never confirmed. Under these circumstances, the petitioner after service of notice, filed a writ petition on 2. 8. 1989, praying that the respondents be directed to declare the petitioner as substantive Stenographer Gr. II and he may be confirmed under the Rules. It was further prayed that the respondents be directed to consider the petitioner for promotion to the post of Stenographer Gr. I in accordance with the Rules. THE writ petition was contested by the respondents on various grounds including the ground that unless the petitioner passes the test held by the R. P. S. C. under the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986 (for short the Rules of 1986), the petitioner can not be confirmed on the post of Stenographer Gr. II. THE learned Single Judge after hearing arguments, vide its order dated 12. 8. 91, allowed the writ petition and directed the respondents to confirm the petitioner with effect from the date the substantive post is available. THE learned Single Judge further observed in his operative portion of the order as under : - "before parting with I may say few words about the other temporary Stenographers Gr. II who have not been confirmed on the ground of their not passing the speed test to be conducted by the Public Service Commission. It is expected from the concerned authorities to now hold the said test as early as possible and if they are unable to hold such test, then, they should not be deprived from being considered for confirmation with no fault on their part. " Against this order of the learned Single Judge, the appellants Kunj Behari Lal and Kishan Lal Gupta have filed separate appeals before this Court on the ground that they being seniors to the petitioner-respondent Babu Lal Yadav, and in case the judgment of learned Single Judge is allowed to stand, they would suffer heavy irreparable injury. On the basis of judgment passed by the learned Single Judge, the petitioner-respondent Babu Lal Yadav will be confirmed and will be promoted whereas they would remain unconfirmed Stenographer Gr. II. The Rajasthan High Court has also filed an appeal. Counsel for the petitioner-respondent raised an objection that Kishan Lal Gupta and Kunj Behari Lal were not parties in the writ petition and as such they have no right of filing any appeal against the judgment passed by the learned Single Judge. This objection has no substance when the Rajasthan High Court has also filed an appeal against the judgment passed by the learned Single Judge. Rule 10 of 1986 Rules provides for academic qualifications for direct recruitment on the post of Stenographer. Proviso to the said rule reads as under: - "provided that the persons appointed temporarily as Stenographer prior to 31. 8. 1978 and have put in 3 years service as on 31. 8. 78 shall be exempted from appearing at the test to be held by the Public Service Commission and shall be treated as regularly appointed Stenographers if they possess the educational qualifications prescribed in the rule and were so appointed after passing the provisional speed test held by the District Judge. " Rule 28 of the aforesaid Rules reads as under: - "28. Probation (1) All persons appointed to any cadre by direct recruitment or promotion against permanent vacancies shall be placed on probation for one year: Provided that a person who has been regularly recruited against temporary post and has put in two years service after such regular recruitment shall not be placed on probation on conversion of such post into a permanent one or on a permanent vacancy being available but he shall be confirmed only after he has fulfilled the conditions of confirmation as laid down in Rule 31 : Provided further that in the case of recruitment to the cadre of Stenographers the probationary period shall stand extended till the Stenographers passes the qualifying test held by the Commission, unless he is reverted or removed from service in accordance with the provisions of rule 30. (2) In case of a person who dies or is due to retire on attaining the age of superannuation, the period of probation shall be reduced so as to end on the date of immediately preceding the date of his/her death or retirement from Government Service. " It has been argued by counsel for the appellants that as provided in second proviso to rule 28 of the 1986 Rules, the period of probation of a Stenographer is extended till the Stenographer passes the qualifying test held by the Commission, unless he is reverted or removed from Service in accordance with the provisions of Rule 30. They argued that the petitioner-respondent has neither been removed nor has been reverted and as such he is still on probation till he passes the qualifying test held by the Commission. They argued that unless and until the petitioner passes the qualifying test held by the Commission, the petitioner-respondent can not be confirmed on the post of Stenographer Gr. II. They further argued that the learned Single Judge has committed serious mistake by allowing the writ petition and directing the respondents to confirm the petitioner with effect from the date the substantive post is available.
(3.) ON the other hand, counsel for the petitioner respondent, Mr. Ajay Rastogi drew our attention to Rule 10 of The Rajasthan Subordinate Civil Courts Ministerial Establishment Rules, 1958 (for short 'the Rules of 1958'), which reads as under : - "10. Academic Qualifications: - (1) A candidate for direct recruitment to the Stenographer's cadre - (a) must have passed the Intermediate Examination of the Rajputana University or a corresponding examination of any other University or Board established by law in India, or any other examination recognised as equivalent by the Government : Provided that a person who has been working as a Stenographer on a temporary basis in any Department of Government for at least one year on 1. 10. 57 need not have passed the Intermediate Examination. (b) must have passed a provisional speed test of 100 words per minute of short-hand and 40 words per minute in type-writing in English, or 80 words per minute of short hand and 30 words per minute in type-writing in Hindi, and during the period of probation passed the III Grade Stenographers test held by the Commission, and (c) must possess a good working knowledge of Hindi as written in Devnagari script and of Rajasthani dialects. (2) A candidate for direct recruitment to the general cadre must have passed the High School Examination of the Rajputana University or of a University or Board recognized by the Government for the purpose of this rule and must in addition possess a good working knowledge of Hindi written in Devanagri script and of Rajasthani dialects. " He argued that under clause (b) of the aforesaid rule, a candidate for direct recruitment to the Stenographer's cadre must have passed a provisional speed test of 100 words per minute of short-hand and 40 words per minute in type-writing in English, or 80 words per minute of short-hand and 30 words per minute in type-writing in Hindi, and during the period of probation passed the HI Grade Stenographers test held by the Commission. He argued that the test prescribed under clause (b) of the aforesaid rule is exactly same as provided under the Rules of 1957 and Rules of 1986. He argued that he has already passed the test held by the Rajasthan Public Service Commission under the Rules of 1957 and as such there was no necessity of again passing the same test. He also argued that he approached several times to the respondents for arranging the test but the respondents failed to arrange any test and as such he should not be made to suffer on account of negligence or inaction on the part of the respondents. He argued that this aspect was also taken into consideration by the learned Single Judge and after considering all the facts and circumstances of the case, the learned Single Judge allowed the writ petition. He also argued that there is no infirmity in the judgment passed by the learned Single Judge and as such the appeals deserve to be dismissed. After hearing counsel for all the parties, we are of the opinion that the Rules of 1958 were repealed by the Rules of 1986. No order was passed for confirming the petitioner- respondent under the Rules of 1958 and as such the case has to be governed by the Rules of 1986. Rule 28 of 1986 Rules provides that till a Stenographer passes the qualifying test held by the Commission, his period of probation is extended. Under these circumstances, the petitioner-respondent is still on probation and he can not be confirmed unless he passes the qualifying test held by the Commission. In view of this, the order of the learned Single Judge directing the respondents to confirm the petitioner- respondent with effect from the date the substantive post is available, can not be upheld and we set aside the same. Looking to the circumstances of the case and particularly the fact that the petitioner and other similarly situated persons have been suffering on account of negligence or inaction of the respondents or of the Rajasthan Public Service Commission, we think it proper to direct the respondents to request the R. P. S. C. to hold the test without any further delay. We also direct the R. P. S. C. to hold the test immediately as soon as a request is made for the same by the Rajasthan High Court in this connection. ;