The essentiality of passing the type test for availing the benefit of ACP scale and the conflict between executive instructions and departmental rules.

JUDGMENT

Rajiv Narain Raina, J. - The 1st ACP scale was sanctioned to the petitioner w.e.f. December 01, 2009 vide letter dated March 11, 2010. This was a mistake committed by the officials of the department and corrected by the order dated June 18, 2010 whereby the previous order was cancelled as the petitioner did not fulfill the conditions for grant of ACP benefit. ACP scale is given to a Clerk on completion of ten years service after passing of departmental type test as per Chief Secretary to Government, Haryana instructions dated October 22, 1997 (Annex R-1). These instructions brought to the notice of the Government that Clerks who were promoted as Assistant or on some other higher post without passing the departmental type test, an essential qualification for the post of Clerk, in terms of service Rules applicable to them or Government instructions dated March 27, 1974, as the case may be, create inefficiency in the office work. Government observed that over the years there has been utter laxity in the observance of rules regarding promotion to higher post from the post of Clerk. The essential pre-requisite of passing a test in typewriting has been given a go by. This has, as the instructions proceed to guide, resulted in creeping inefficiency and delay in disposal of work. The Government carefully considered the matter and decided that in future no Clerk who has not passed type test be promoted to higher post. However, there was a saving clause for such officials who were promoted without passing type test in the past should be given an opportunity of passing the test within a period of three months from the date of issue of those instructions failing which they will be reverted to the post of Clerks. However, in the case of those Assistants or other officials who were holding their higher positions substantively without passing the prescribed type test, they will be reverted to post of Clerks after observing the deconfirmation process. The authorities in Government were requested to take necessary follow up action to implement the orders dated October 27, 1997 immediately.

2. The petitioner did not pass the type test till February 14, 2017 and as per the stand of the State he would be entitled to grant of 1st ACP pay scale immediately thereafter but not for any period before that. In similar situation, and in identical facts case titled State of Haryana and others v. Om Parkash, RSA No.3743 of 2005 decided on January 16, 2007 this Court held that for the period annual increments were not granted for failure to pass the type test the right to increments would begin only after qualifying the test and, therefore, the question of grant of ACP prior thereto did not arise. If person is not entitled to increment he would not be entitled to ACP scale and would become entitled only when the obstructions stand removed by virtue of passing the type test. The petitioner has not only challenged the order dated June 18, 2010 (P-5) but also the response dated November 09, 2015 to his legal notice denying benefit of grant of 1st ACP pay scale. The earlier sanction has been withdrawn. The petitioner claims restitution of the 1st ACP pay scale with 12% per annum. The rules governing service of the petitioner are known as the Haryana Employment Department (Group-C) Service Rules, 1985 ("1985 Rules") notified on August 09, 1985. Appendix- 'B' with reference to Rule 7 deals with qualifications in case of direct recruitment and appointment other than direct recruitment requires three years experience as Clerk or Stenotypist to be eligible for promotion. There is no mention of passing type test in Appendix 'B'. The petitioner strongly relies on a clarification issued by the Financial Commissioner and Principal Secretary to Government Haryana, Revenue and Disaster Management dated June 27, 2011 in response to letter dated February 11, 2011 by the Commissioner, Hisar Division Hisar asking guidance in the matter. It would be necessary to reprod