# Satish Kumar Balmiki & Anr v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 1000
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-28
- **Case number:** Special Appeal No. 331 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-kumar-balmiki-anr-v-state-of-u-p-ors-48705
- **Pages:** 6

## Headnote

Promotion Rules 2014-Rule 7- provides
typing as essential qualification for promotionRules 2001 incorporated in promotion Rules
2014-only to extent of hindi typewriting-"
knowledge of typewriting" is essential for
promotion from Group 'D' employees.

Appeal dismissed. (E-9)

List of Cases cited:

Special Appeal No.173 of 2017; Ved Vrat Tyagi &
ors. Vs St. of U.P. & ors.

## Text

1000 INDIAN LAW REPORTS ALLAHABAD SERIES
Tuticorin Educational Society and Others,
reported in (2019) 9 SCC 538 that where
there is availability of remedy under CPC,
normally petition under Article 227 would
not lie. Paragraph nos.11, 12 & 13 of the
said judgement is reproduced here-inbelow:

"11.Secondly, the High Court ought
to have seen that when a remedy of appeal
under section 104 (1) (i) read with Order
XLIII, Rule 1 (r) of the Code of Civil
Procedure, 1908, was directly available, the
respondents 1 and 2 ought to have taken
recourse to the same. It is true that the
availability of a remedy of appeal may not
always be a bar for the exercise of
supervisory jurisdiction of the High Court. In
A. Venkatasubbiah Naidu Vs. S. Chellappan
& Ors.1, this Court held that "though no
hurdle can be put against the exercise of the
constitutional powers of the High Court, it is
a well recognized principle which gained
judicial recognition that the High Court
should direct the party to avail himself of
such remedies before he resorts to a
constitutional remedy".

12. But courts should always bear
in mind a distinction between (i) cases where
such alternative remedy is available before
civil courts in terms of the provisions of Code
of Civil Procedure and (ii) cases where such
alternative remedy is available under special
enactments and/or statutory rules and the fora
provided therein happen to be quasi-judicial
authorities and tribunals. In respect of cases
falling under the first category, which may
involve suits and other proceedings before
civil courts, the availability of an appellate
remedy in terms of the provisions of CPC, may
have to be construed as a near total bar.
Otherwise, there is a danger that someone
may challenge in a revision under Article 227,
even a decree passed in a suit, on the same
grounds on which the respondents 1 and 2
invoked the jurisdiction of the High Court.
This is why, a 3 member Bench of this Court,
while overruling the decision in Surya Dev Rai
vs. Ram Chander Rai, pointed out in Radhey
Shyam Vs. Chhabi Nath that "orders of civil
court stand on different footing from the orders
of authorities or Tribunals or courts other than
judicial/civil courts.

13.
Therefore
wherever
the
proceedings are under the code of Civil
Procedure and the forum is the civil court, the
availability of a remedy under the CPC, will
deter the High Court, not merely as a measure
of self imposed restriction, but as a matter of
discipline and prudence, from exercising its
power
of
superintendence
under
the
Constitution. Hence, the High Court ought not
to have entertained the revision under Article
227 especially in a case where a specific
remedy of appeal is provided under the Code
of Civil Procedure itself."

24. Thus, for the reasons given above,
the present writ petition under Article 227 of
the Constitution of India is not maintainable as
remedy by way of revision under Section 115
of C.P.C. is available to the petitioners. It is,
accordingly, dismissed with no order as to
costs.
----------

(2022)07ILR A1000
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE RAJNISH KUMAR, J.

Special Appeal No. 331 of 2022

Satish Kumar Balmiki & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents
7 All. Satish Kumar Balmiki & Anr. Vs. State of U.P. & Ors.
1001
Counsel for the Appellants:
Vijay Kumar Srivastava, Shailendra Kumar
Dubey

Counsel for the Respondents:
C.S.C.

Promotion Rules 2014-Rule 7- provides
typing as essential qualification for promotionRules 2001 incorporated in promotion Rules
2014-only to extent of hindi typewriting-"
knowledge of typewriting" is essential for
promotion from Group 'D' employees.

Appeal dismissed. (E-9)

List of Cases cited:

Special Appeal No.173 of 2017; Ved Vrat Tyagi &
ors. Vs St. of U.P. & ors.
(Delivered by Hon'ble Rajnish Kumar, J.)

1.

Heard,
Shri
Vijay
Kumar
Srivastava,
learned
counsel
for
the
appellants-petitioners
and
Shri
Rajesh
Tiwari, learned State Counsel representing
the State-respondents.

2. The appellants-petitioners have
filed this intra-court Special Appeal under
Chapter VIII Rule 5 of the Allahabad High
Court Rules assailing the validity of the
judgment and order dated 20.04.2022,
passed by learned Single Judge in a bunch
of writ petitions, the leading Writ Petition
being Writ-A No.24026 of 2018;Sushil
Kumar and others Versus State of U.P. and
others, whereby the writ petitions have
been dismissed by learned Single Judge
providing therein that the dismissal of the
petitions shall not preclude the petitioners
from participating in any subsequent
recruitment for Group 'C' post against the
promotion quota provided they fulfill the
essential requirement as mandated under
Rule 7 of the Promotion Rules, 2014.

3. The appellants-petitioners are
working on various class-IV posts in the
department of Medical and Health in the
office of the opposite party no.3. The
appellants-petitioners, in pursuance of the
decision of the Government to fill up classIII posts of Junior Assistants by way of
promotion
from
Class-IV
employees,
applied for promotion by way of selection.
The eligibility list dated 17.07.2018 was
prepared, in which the names of the
appellants-petitioners
figured
alongwith
other candidates in a composite list of 1325
candidates. By means of a letter dated
17.07.2018, the respondents had fixed the
date for typing test between 24.07.2018 and
27.07.2018. It was also provided in the said
letter that in case due to some unavoidable
reason a candidate could not appear on the
dates fixed, he may appear on 28.07.2018.
In
pursuance
thereto
the
appellantspetitioners appeared in the typing test,
result
of
which
was
declared
on
10.08.2018. The appellants-petitioners were
not selected. Therefore the appellantspetitioners approached this court by means
of Writ Petition No.24026 (SS) of 2018.

4. Learned counsel for the appellantspetitioners submitted that in terms of
relevant Service Rules, namely, "The Uttar
Pradesh
Government
Department
Ministerial Cadre Service Rules, 2014"
(here-in-after referred to as the Rules 2014)
read with "The Uttar Pradesh Subordinate
Offices Ministerial Group 'C' Posts of the
Lowest Grade (Recruitment by Promotion)
Rules, 2001" (here-in-after referred to as
the Rules 2001), the appellants-petitioners
have been subjected to typing test, but there
is no such requirement under the aforesaid
Rules, except for the posts of typist or the
posts for which typing is essential.
However, learned Single Judge rejected the
claim of the appellants-petitioners by
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
placing reliance on Rules 2014 read with
Rules 2001, which could not have been
done.

5. Learned counsel for the appellantspetitioners vehemently argued that the
reliance placed by learned Single Judge on
Rules 2014 is highly misplaced because as
per Rules 2014, only certain provisions of
Rules 2001 are to be followed for making
promotion by way of selection. It has
further been contended by learned counsel
for the appellants-petitioners that Rules
2014 only contemplates the knowledge of
typing skill for the posts for which the
typing is required, hence the respondents
could not have held the typing test for all
the posts. Submission is that without
considering it the learned Single Judge has
dismissed the writ petition, therefore the
judgment and order passed by learned
Single Judge is not sustainable and liable to
be set aside.

6. Learned Standing Counsel representing
the State-respondents vehemently opposed the
submissions of learned counsel for the
appellants-petitioners. He submitted that though
typing was not an essential qualification under
the Rules 2001, but it has been made the
essential qualification under Rule 7 of the Rules
2014 for promotion and Rules 2001 are
applicable only for the procedural purposes i.e.
as to how the selection is to be made and what
should be the criteria and minimum speed for
typing. Thus he submitted that learned Single
Judge has rightly considered the pleadings and
the Rules and dismissed the writ petition. It has
been thus submitted that there is no illegality or
error in the judgment and order passed by
learned Single Judge and hence the Special
Appeal has been filed on misconceived and
baseless grounds, which is liable to be
dismissed.

7. We have considered the submissions
of learned counsel for the parties and perused
the records available on Special Appeal and
the Rules 2014 and Rules 2001.

8. Rules 2014 have been framed under
Article 309 of the Constitution of India and in
supersession of all existing Rules and Orders
on the subject. Rule 7 of Rules 2014 provides
three sources of recruitment for the post of
Junior Assistant, which is a class III post;
80% of said posts are to be filled in by way of
direct recruitment, 15% of the posts are to be
filled in by way of promotion from amongst
the substantively appointed Group 'D'
employees having High School or equivalent
qualification and who possess the knowledge
of typewriting and 5% posts are to be filled
up by making promotion from amongst
substantively appointed Group 'D' employees,
who have passed the Intermediate or
equivalent examination and who possess the
knowledge of typewriting. Accordingly apart
from qualification of High School and
Intermediate or equivalent qualification, one
of the essential qualifications prescribed
therein is "knowledge of typewriting" for
promotion from Group 'D' post. The words
"knowledge of typewriting" are followed by
"in accordance with the Uttar Pradesh
Subordinate Offices Ministerial Group 'C'
Posts of the Lowest Grade (Recruitment by
Promotion) Rules, 2001 as amended from
time to time", which would mean that the
knowledge of typewriting has to be read in
consonance with the provisions contained in
Rules 2001.

9. Rule 7 (1) of the Rules 2014,
relevant for consideration in this appeal, is
extracted here-in-below:-

"7.
Source
of
recruitment-
Recruitment to the various categories of
7 All. Satish Kumar Balmiki & Anr. Vs. State of U.P. & Ors.
1003
posts in the service shall be made from the
following sources:

(1) Junior Assistant-(i) Eighty
percent by direct recruitment.

(ii) Fifteen percent by promotion
from amongst substantively appointed
Group 'D' employees who have passed the
High School Examination of the Board of
High School and Intermediate Education,
Uttar
Pradesh
or
an
Examination
recognized
by
the
Government
as
equivalent thereto and who possess the
knowledge of typewriting, in accordance
with the Uttar Pradesh Subordinate Offices
Ministerial 'Group 'C' Post of the Lowest
Grade (Recruitment by Promotion) Rules,
2001, as amended from time to time.

(iii) Five percent by promotion
from amongst substantively appointed
Group 'D' employees who have passed the
Intermediate Examination of the Board of
High School and Intermediate Education,
Uttar Pradesh or an examination recognized
by the Government as equivalent thereto
and who possess the knowledge of
typewriting, in accordance with the Uttar
Pradesh Subordinate Offices Ministerial
Group 'C' Posts of the Lowest Grade
(Recruitment by Promotion) Rules, 2001,
as amended from time to time."

10. Rule 18 of Rules 2014 provides
that recruitment by promotion for the post
of Junior Assistant in the service shall be
made in accordance with the provisions of
the Uttar Pradesh Subordinate Offices
Ministerial Group 'C' Posts of the Lowest
Grade (Recruitment by Promotion) Rules,
2001 as amended from time to time. The
conjoint reading of the Rules 7(1) and Rule
18 of Rules 2014 clearly indicates that the
essential qualifications for promotion from
Group 'D' post is High School/Intermediate
or equivalent thereto and knowledge of
typewriting and for testing the knowledge
of typewriting and procedure for selection
as prescribed under the Rules 2001, would
be applicable. Rule 18 of Rules 2014 is
extracted here-in-below:-

"18. Procedure for recruitment
by promotion for the post of Junior
Assistant- Recruitment by promotion to the
posts of Junior Assistant in the service shall
be made in accordance with the provisions
of the Uttar Pradesh Subordinate Offices
Ministerial Group 'C' Posts of the Lowest
Grade (Recruitment by Promotion) Rules,
2001, as amended from time to time."

11. Rule 5 of Rules 2001 provided the
source of recruitment for promotion, under
which 15% posts were to be filled in from
the substantively appointed Group 'D'
employees who possess the High School or
equivalent qualification and 5% posts from
the substantively appointed Group 'D'
employees who possess the Intermediate or
equivalent. The procedure for recruitment
for promotion is provided in Rule 8 of
Rules 2001. In terms of Sub-rule (1) of
Rule 8 for the purpose of recruitment by
promotion a Selection Committee has to be
constituted
in
accordance
with
the
provisions
of
the
Uttar
Pradesh
Constitution of Departmental Promotion
Committee for the posts outside the
purview of the Public Service Commission
Rules, 1992. Sub Rule (2) provides that the
recruitment by promotion shall be made on
the basis of merit as disclosed by marks
obtained in the test for selection through
the Selection Committee constituted under
sub-rule (1) and the test for selection shall
include a simple written test, interview and
evaluation of character roll. The maximum
marks for all the three have also been
provided. Note-2 to Sub-rule (2) of Rule 8
provides
that
where
recruitment
by
promotion is being made for the post of
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
Typist
or
a post
for which Hindi
Typewriting is essential, there shall be
conducted a qualifying test of Hindi
Typewriting also, as prescribed by the
Government from time to time and to
qualify this test a candidate must have a
minimum speed of twenty-five words per
minute in Hindi Typewriting. As such as
per Rule 8(2)-Note-2 where recruitment by
promotion is to be made against the post of
Typist or against a post for which Hindi
Typewriting is essential, a test in Hindi
typing shall be conducted by the Selection
Committee, which is to be of qualifying
nature. Note-2 appended to Rule 8 (2) of
Rules 2001 is extracted here-in-below:-

"Note 2- Where recruitment by
promotion is being made for the post of
Typist
or
a post
for which Hindi
Typewriting is essential, there shall be
conducted a qualifying test of Hindi
Typewriting also, as prescribed by the
Government from time to time. To qualify
this test a candidate must have a minimum
speed of twenty-five words per minute in
Hindi Typewriting."

12. When we examine the contention
of learned counsel for the appellantspetitioners
in
the
backdrop
of
the
provisions contained in Rules 2014 read
with Rules 2001, it is crystal clear that
though knowledge of typewriting was not
an essential qualification under Rules 2001
for promotion to all Group 'C' posts from
Group 'D' posts, but the same has been
made an essential qualification under Rules
2014, which is to be tested as per the
procedure prescribed under Rules 2001,
which specifically provides as to what will
be the benchmark to ascertain the eligibility
of a candidate for promotion to Group 'C'
post from Group 'D' post. According to
Note
2,
as
extracted
here-in-above,
appended to Rules 8 of Rules 2001, for
promotion to the post of Typist or to a post
where the knowledge of Hindi typewriting
is necessary a test of Hindi typing is to be
organized
and
conducted
which
is
qualifying in nature and in that test a
candidate has to perform/acquire speed of
25 words per minute in Hindi Typing test.
Thus, under the backdrop of the aforesaid
Rules on being examined the submissions
of learned counsel for the appellantspetitioners and the respondents, we find
that the submissions of learned counsel for
the appellants-petitioners are not tenable.

13. A Division Bench of this court, in
which one of us (Mr.Justice Devendra
Kumar Upadhyaya), was a member in
Special Appeal No.173 of 2017; Ved Vrat
Tyagi and 15 others Versus State of U.P.
and two others considering the provisions
of Rules 2014 read with Rules 2001, in
regard to the identical issue, held as under:-

""If the submission of learned
counsel for the petitioners-appellants is
examined on the basis of provisions contained
in 2014 Rules read with referred 2001 Rules, it
is crystal clear that though 2014 Rules provide
that 'knowledge of typing' is essential
qualification, however, 2001 Rules specifically
provides what will be the benchmark to
ascertain eligibility of a candidate for
promotion from Group D post. According to
Note 2, as extracted hereinabove, occuring in
Rule 8 (2) of 2001 Rules, for promotion to the
post of typist or to a post where knowledge of
Hindi typing is essential, a test of Hindi typing
has to be organized/conducted which is
qualifying in nature and in that test a candidate
has to perform/acquire speed of 25 words per
minute in Hindi typing test. Thus, if the
submission made by the learned counsel for the
petitioners-appellants, in the backdrop of the
aforesaid discussions, are examined by us in the
7 All. Nasreen Fatima Vs. State of U.P. & Ors.
1005
light of the 2014 Rules read alongwith 2001
Rules, same are not found to be tenable."

14. We also notice that under Rules 2001
the definition of Ministerial Group 'C' post of
the Lowest grade is given in Rule 4(f), which is
extracted below:-

"(f) 'Ministerial Group 'C' Posts of
the Lowest Grade' shall refer to the Ministerial
group 'C' posts of the lowest scale of pay,
excluding
the
posts
belonging
to
the
Stenographer cadre, Accounts cadre or the posts
of technical nature in the subordinate offices
which are filled both by direct recruitment and
by promotion and which are outside the
purview of the Public Service Commission,
Uttar Pradesh;"

15. According to the aforesaid definition
in Rules 2001,the Ministerial Group 'C' post of
the lowest grade excludes the posts belonging
to the Stenographer cadre, Accounts cadre or
the posts of technical nature in the subordinate
offices. However, under the Rules 2014
Ministerial Group 'C' post of the Lowest Grade
has not been defined and the definition of
'Service' has been given under Rule 5 ((i),
according to which 'Service' means the Uttar
Pradesh Government Department Ministerial
Cadre Service. The same is extracted below:-

"(i) 'service' means the Uttar Pradesh
Government Department Ministerial Cadre
Service;"

16. In view of above, Rules 2014 does not
have any such classification of Group 'C' posts
and Stenographer etc. as was in Rules 2001. In
this view also the submissions of learned
counsel for the appellants-petitioners that the
"knowledge of typewriting" is required for the
post of Stenographer or the post for which
Hindi typing is essential only, is misconceived
and not tenable and now the "knowledge of
typewriting" is essential for promotion from
Group 'D' employees.

17. After considering the Rules, learned
Single Judge has categorically held that the
Rule 7 of the Promotion Rules 2014 provides
that typing is essential qualification mandated
for promotion and the criteria/speed as
prescribed in Rules 2001 has been incorporated
in promotion Rules 2014 only to the extent of
Hindi typewriting, therefore, the reference of
promotion Rules 2001 is for a limited purpose
i.e. typing speed and in so far as the essential
qualification for promotion is concerned the
promotion Rules 2014 is unambiguous by
mandatorily providing that typing knowledge is
an essential qualification.

18. We are in agreement with the findings
recorded by the learned Single Judge for the
reasons stated above. We do not find any
illegality or error in the judgment and order
dated 20.04.2022 passed by the learned Single
Judge in the Bunch of writ petitions, leading
being writ -A No.24026 of 2018. The Special
Appeal is misconceived and lacks merit.

19. The Special Appeal is, accordingly,
dismissed. No order as to costs.
----------
(2022)07ILR A1005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 6713 of 2017

Nasreen Fatima ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: