Ashok Kumar And Ors Etc.Etc. vs The State Of Jammu And Kashmir on 18 January, 2021


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Supreme Court of India

Ashok Kumar And Ors Etc.Etc. vs The State Of Jammu And Kashmir on 18 January, 2021

Author: V. Ramasubramanian

Bench: S. Abdul Nazeer, A.S. Bopanna, V. Ramasubramanian

                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION

                               CIVIL APPEAL NOs.5189­5192 0F 2017


          ASHOK KUMAR AND ORS. ETC. ETC.                 … APPELLANT(S)

                                           VERSUS


          THE STATE OF JAMMU AND KASHMIR &
          ORS.                           … RESPONDENT(S)


                                               WITH

                           CONTEMPT PETITION (C) NOs.392­395 OF 2019
                                                 in
                                 CIVIL APPEAL NOs.5189­5192 0F 2017



                                          JUDGMENT

V. Ramasubramanian, J.

1. Challenging a common order passed in a batch of Letters

Patent Appeals confirming the Judgment of the learned Single

Judge, quashing an administrative Order of the Chief Justice

prescribing certain qualifications for promotion to the post of Head
Signature Not Verified

Digitally signed by
Neelam Gulati
Date: 2021.01.18
17:06:25 IST
Reason:

Assistant along with a power of relaxation, persons who were fully

1
qualified as per the rules at the time of appointment, have come up

with the above Civil Appeals.

2. We have heard the learned Counsel for the appellants, the

learned Counsel for the High Court of Jammu & Kashmir and the

learned Counsel for the contesting respondents.

3. The contesting private respondents were originally appointed

as peons (Class­IV) during the period 1989­1995. They were

promoted as Junior Assistants in the year 1997 and as Senior

Assistants in 1998­1999. Up to this stage of their career, there were

no hiccups.

4. In contrast, the appellants in these appeals were directly

recruited to the post of Junior Assistants in the year 1998. They

were promoted as Senior Assistants on various dates in the years

2001, 2005, 2006 and 2008.

5. The High Court of Jammu & Kashmir is a creation of the

Constitution of Jammu & Kashmir. Section 108 of the Constitution

of Jammu & Kashmir which is similar to Article 229 of the

Constitution of India deals with “Officers and servants of the High

Court”. Under Sub­section (1) of Section 108, appointments of

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officers and servants of the High Court shall be made by the Chief

Justice of the Court or such other person as the Chief Justice may

direct. The conditions of Service of the officers and servants of the

High Court, as per Sub­section (2), shall be such as may be

prescribed by the Rules made by the High Court with the approval

of the Governor. Sub­sections (1) and (2) of Section 108 reads as

follows:

“108. Officers and servants of the High Court. ­ (1) Appointments
of officers and servants of the High Court shall be made by the
Chief Justice of the Court or such other Judge or officer of the
Court as he may direct;

Provided that the Governor may by rule require that in such cases
as may be specified in the rule no person not already attached to
the Court shall be appointed to any office connected with the Court
save after consultation with the State Public Service Commission;

(2) Subject to the provisions of any law made by the Legislature,
the conditions of service of the officers and servants of the High
Court shall be such as may be prescribed by rules made by the
High Court with the approval of the Governor.”

6. In exercise of the powers conferred by Sub­section (2) of

Section 108, the High Court issued a set of Rules known as the

Jammu & Kashmir High Court Staff (Conditions of Service) Rules,

1968, with the approval of the Governor of the State. While Rule 4

stipulates that all appointments of the staff of the High Court

3
including promotions shall be made by the Chief Justice, the power

to lay down the qualifications and to determine the mode of

recruitment is conferred by Rule 6 upon the Chief Justice. Rule 6

reads as follows:

“6. Qualifications and mode of recruitment. – The Chief Justice may
from time to time lay down the qualifications of a member of
service and determine the mode of recruitment.”

7. In exercise of the power conferred by Rule 6, the Chief Justice

of the High Court of Jammu & Kashmir issued an Office Order

No.579 dated 24.10.2008, prescribing the qualifications as well as

the mode of recruitment for appointment and promotion to various

posts in the High Court. The method of recruitment, the minimum

qualification required, the experience, if any, and the pay scales

stipulated for three posts, namely, the posts of Head Assistant,

Senior Assistant and Junior Assistant, in the Table contained in the

Chief Justice’s Order dated 24.10.2008 are of importance for the

appeals on hand and hence they are reproduced as follows:­

Post Method of Minimum Experience Pay Scale
recruitment Educational , if any
Qualification
Head By promotion Graduate from a Two years 5000­8000

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Assistant from amongst recognised
Senior Assistants University
on the basis of
seniority­cum­
merit
Senior By promotion Graduate from a Two years 4000­6000
Assistant from amongst recognised
Junior Assistants University
on the basis of
merit­cum­
Seniority
Junior (A) 75% by direct (A) Graduate from ­ 3050­4910
Assistant recruitment a recognised
University
(B) 25% by
promotion from (B) Matriculation
amongst Class­IV
employees on the
basis of Seniority­
cum­merit

8. The Office Order No.579 dated 24.10.2008 issued by the Chief

Justice of the State of Jammu & Kashmir, contained a Note towards

the end. The Note reads as follows:

“1. If the candidate(s) is/are not available from the relevant feeding
cadre then the selection/appointment shall be made from amongst
the candidates from other equivalent cadre(s).

2. Since the requirement of graduation for entry into the High
Court service was prescribed vide Notification dated 25.4.1987, at
that time officials having qualification less than graduation entered
the service. Such officials having during this period gained
sufficient experience in the working of the administration, the
Chief Justice may on his own or on the recommendations of
committee, if soconstituted, relax the qualification in cases
ofofficers/officials who have made their entry into the service on or
before the 25th April, 1987. Further the minimum period of
experience can also be relaxed in exceptional and appropriate
cases. The officials can get only one relaxation at the time.”

5

9. It is relevant to note at this stage that the prescription of the

minimum educational qualification of a graduation, was not an

innovation by the Chief Justice, made all of a sudden in the year

2008. It appears that even way back on 25.04.1987, graduation was

prescribed as a qualification for promotion to the post of Head

Assistant. Keeping this in mind, let us now go back to the

background in which the controversy on hand arose.

10. On 26.10.2008, persons like the appellants who were directly

recruited as Junior Assistants in year 1998 with the qualification of

graduation, were promoted as Head Assistants from the post of

Senior Assistants. It appears that still some vacancies were

available and hence the contesting respondents­herein who entered

service as Class­IV employees and who had risen upto the position

of Senior Assistants, were also promoted as Head Assistants.

However, such promotions were intended to fill up the gap till

eligible candidates were available.

11. Challenging the promotions so granted to the contesting

respondents­herein, on the ground that they were not qualified at

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the relevant point of time, a writ petition in Writ Petition No.1751 of

2008 was filed. On 22.04.2010 the writ petition was allowed and

the Order of the promotion dated 24.11.2008 of the contesting

respondents was set aside.

12. The affected parties filed appeals in LPA Nos.45 and 84 of

2010, but those appeals were dismissed on 30.08.2011. As a

consequence thereof, all persons like the appellants­herein, who

were left out earlier, were promoted on 30.08.2011 as Head

Assistants.

13. Finding that the benefit promotion that came to them was

short lived and also finding that this was on account of the office

Order dated 24.10.2008 of the Chief Justice, the contesting

respondents­herein filed a set of writ petitions in Writ Petition

Nos.489 of 2010, 2681 of 2011, 2344 of 2011 and 501 of 2012.

14. By a common Order dated 30.08.2013, a learned Judge of the

High Court allowed the set of four writ petitions and quashed the

Chief Justice’s Order dated 24.10.2008. Primarily, the reasoning of

the learned Judge was (i) that all persons working as Senior

Assistants constituted a homogenous group and hence there cannot

7
be any differentiation among them on the basis of educational

qualifications; (ii) that the Chief Justice’s order dated 24.10.2008

was not put up before the Full Court for approval; (iii) that Note­2

of the Chief Justice’s Order restricts the power of relaxation

available to the Chief Justice only to cases of persons appointed

before 25.04.1987 and hence it is invalid; and (iv) that the Order of

the Chief Justice had the effect of affecting individuals adversely

with retrospective effect.

15. Challenging the Order of learned Judge dated 30.08.2013

passed in favour of the contesting respondents­herein, the

appellants­herein filed a set of Letters Patent Appeals. These

appeals were dismissed by a Division Bench of the High Court by a

final Order dated 16.04.2016. It is against the said Order that the

appellants are before us.

16. On 13.05.2016, notice was ordered by this Court in the special

leave petitions. An interim stay of the Order of the Division Bench of

the High Court was also granted. Subsequently leave was granted

and the appeals are before us.

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17. It appears that after this Court granted an interim stay on

13.05.2016, an office order was issued on 29.06.2016 regularising

the services of a candidate who was an undergraduate and who was

given out of turn promotion. Subsequently a few more orders of

similar nature were issued forcing the appellants to move contempt

petitions in Contempt Petition (C) Nos.392­395 of 2019. These

contempt petitions were also taken up along with the main appeals.

18. The impugned Judgment is assailed on the grounds inter alia:

(i) that a classification is permissible on the basis of educational

qualifications, even within a homogenous group, for the purpose of

promotion to a higher post; (ii) that an order passed by the Chief

Justice in exercise of the power conferred by Rule 6 need not go

before the Full Court; (iii) that the order of the Chief Justice dated

24.10.2008 does not curtail the power of relaxation available to the

Chief Justice; and (iv) that the order of the Chief Justice was not

actually retrospective in nature.

19. In addition to the above contentions, it is also submitted by

the learned Counsel for the appellants that as on date, those

9
contesting respondents who are now in service, have all acquired a

degree and that therefore the question that remains to be answered

is only one of seniority. Therefore, it is submitted by the learned

counsel for the appellants that if no one is reverted and if the power

of the Chief Justice to prescribe the qualifications under Rule 6 is

upheld, then the long standing lis can be put to an end by fixing

seniority on the basis of possession of qualifications at the time of

appointment/promotion to the relevant post.

20. However, it is contended by the learned Counsel appearing for

the contesting respondents that once a person has been

appointed/promoted, he becomes part of a homogenous class

within which there can be no differentiation and that what is

applicable to the case on hand is only Rule 5 of the Jammu &

Kashmir Civil Services (Classification, Control and Appeal) Rules,

1956, (hereinafter referred to as “CCA Rules, 1956”) under which the

power of relaxation vests with the Government and that under Rule

18 of these Rules, it is for the Government to prescribe the

qualifications for appointment to any service.

21. We have carefully considered the rival contentions.

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22. Before we proceed to analyse the rival contentions, it must be

kept in mind that the contesting respondents­herein have actually

secured a second lease of life, after having failed in the first round

of litigation. After the office Order dated 24.10.2008 was issued by

the Chief Justice prescribing the qualifications for direct

recruitment/promotion to various posts, the contesting respondents

got promoted as Head Assistants on 24.11.2008 only because

suitable eligible candidates were not available. Their appointments

were set aside in Writ Petition No.1751 of 2008. The appeals filed

against the said Order in LPA Nos.45 and 84 of 2010 were also

dismissed.

23. It is only after their promotion was set aside in the first writ

petition filed by the qualified candidates, that the contesting

respondents woke up from the slumber and initiated a second

round of litigation by challenging the Order of the Chief Justice.

24. As a matter of fact, the Order of promotion dated 24.11.2008

promoting the contesting respondents as Head Assistants made it

clear that their appointments were only till eligible and suitable

candidates are posted to these posts and that they can be

11
considered for regularisation/appointment only if they attain the

qualification and experience prescribed for the post. But the

contesting respondents did not choose to challenge the Order of

Chief Justice dated 24.10.2008, until the writ petition filed against

their promotion was allowed by the single Judge and the Order also

got confirmed in writ appeal by the Division Bench.

25. If we come to the grounds of attack to the impugned order of

the Chief Justice, it is clear that the power of the Chief Justice

clearly flowed out of Rule 6 of the Jammu & Kashmir High Court

Staff (Conditions of Service) Rules, 1968. These Rules were issued

by the High Court in exercise of the power conferred by Section

108(2) of the Constitution of Jammu & Kashmir. These Rules had

the approval of the Governor also. Therefore, the contention of the

respondents that the office order issued by the Chief Justice was

ultra vires, is completely untenable.

26. The CCA Rules, 1956 will have only limited application to the

employees of the High Court. These Rules, by themselves, do not

stipulate the qualifications required for appointment to any

particular post in the High Court. Rule 18 of the CCA Rules relied

12
upon by the learned Counsel for the contesting respondents reads

as follows:

“18. Special Qualification

No person shall be eligible for appointment to any service, class,
category or grade or any post on the cadre thereof unless he­

(a) Possesses such qualification and has passed such special tests
as may be prescribed in that behalf by the Government, or

(b) Possesses such other qualification as may be considered by the
Government to be equivalent to the said special qualifications or
special tests.”

27. But the above Rule has no application to the staff of the High

Court, as Section 108(2) of the Constitution of Jammu & Kashmir

leaves this issue to the High Court.

28. Similarly Rule 5 of the CCA Rules on which reliance is placed

by the learned Counsel for the contesting respondents, also has no

application to the case on hand. This Rule 5 reads as follows:

“5. Relaxation of rules

Any of these rules made under them, may for reasons to be
recorded in writing, be relaxed by the Government in individual
cases if Government is satisfied that a strict application of the rule
would cause hardship to the individual concerned or confer undue
benefit on him.”

13

29. In so far as the staff of the High Court are concerned, Rule 5

has no application. When the Rule making power is vested with the

High Court (subject to the approval of the Governor) and when the

Chief Justice is specifically empowered to prescribe the

qualifications and method of recruitment, the CCA Rules which are

general in nature cannot be replicated.

30. The High Court was wrong in thinking that Note­2 of the Order

of the Chief Justice curtailed or restricted the power of relaxation

available with him. If the authority conferred with the power to

relax, chooses to regulate the manner of exercise of his own power,

the same cannot be assailed as arbitrary. The notification dated

25.04.1987 prescribed for the first time, graduation as a necessary

qualification. This is why, the Chief Justice chose by his Order, to

limit his own power of relaxation to cases where appointments were

made before the cut off date.

31. The contention that the Order of the Chief Justice affects the

staff adversely with retrospective effect, is completely incorrect. The

Order dated 24.10.2008 did not at all impact the promotions gained

by persons upto 24.10.2008. We are concerned in this case with the

14
competing claims of the appellants and the contesting respondents

for promotion to the post of Head Assistant. The entitlement of

unqualified candidates to seek promotion to the post of Head

Assistant after 24.10.2008, is what was impacted by the Order of

the Chief Justice.

32. The High Court erred in thinking that the impugned action of

the Chief Justice violated Article 14 by creating a distinction

between graduates and non graduates among the same category of

persons who constituted a homogenous class.

33. Way Back in 1968, the Constitution Bench of this Court held

in the State of Mysore & Anr. vs. P. Narasinga Rao1, that Article

16(1) does not bar a reasonable classification of employees or

reasonable test for their selection. It was further held that the

provisions of Article 14 or Article 16 do not exclude the laying down

of selective tests nor do they preclude the Government from laying

down qualifications for the post in question. Despite the fact that

the competing parties who were before this Court in the said case

were employed as Tracers, carrying out the same duties and

1 AIR 1968 SC 349

15
responsibilities, the Bench held in that case that the classification

of Tracers, into two types with different grades of pay, on the basis

that one type consisted of matriculates and the other non­

matriculates, is not violative of Articles 14 and 16. Again in State of

Jammu & Kashmir vs. Triloki Nath Khosa & Ors.2, another

Constitution Bench considered the question whether persons drawn

from different sources and integrated into one class can be

classified on the basis of their educational qualifications for

promotion. The Constitution Bench answered the question in the

affirmative holding that the Rule providing for graduates to be

eligible for promotion to the exclusion of diploma holders is not

violative of Articles 14 and 16 of the Constitution.

34. In T.R. Kothandaraman vs. Tamil Nadu Water Supply and

Drainage Board3, the legal position in this regard was summarised

as follows:­ (i) Higher educational qualification is a permissible

basis of classification, acceptability of which will depend on the

facts and circumstances; (ii) Higher educational qualification can

2(1974) 1 SCC 19
3(1994) 6 SCC 282

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be the basis not only for barring promotion, but also for restricting

the scope of promotion; (iii) restriction placed cannot however go to

the extent of seriously jeopardising the chances of promotion.

35. As pointed out in T.R.Kothandaraman (supra), the Court

shall have to be conscious about the need for maintaining efficiency

in service, while judging the validity of the classification. Though

the High Court took note of these decisions, the High Court fell into

an error in thinking that in the facts and circumstances of the case,

the High Court could not establish the necessity for higher

qualification for the efficient discharge of the functions of higher

posts. It is apparent from the facts and circumstances of the case

that the non graduates have had opportunities to qualify

themselves, which they have also done. Therefore, the prescription

of graduation as a qualification for promotion to the post of Head

Assistant cannot be held as violative of Articles 14 and 16.

36. In view of the above, the appeals are allowed and the judgment

of the Division Bench of the High Court is set aside. However, in

view of the fact that the contesting respondents have been working

in the post of Head Assistants for quite some time and have also

17
acquired the necessary qualifications, they need not be reverted at

this stage. But the seniority of the appellants vis a vis the

contesting respondents shall be based on the dates of acquisition of

such qualification and the length of service taken together. In other

words, the seniority of the contesting respondents will be decided

not on the basis of the date of their promotion but on the basis of

the date of their acquiring the qualification while occupying the

promoted posts. There will be no order as to costs.

37. In so far as the Contempt Petitions are concerned, no further

orders are necessary in view of the Orders passed in the appeals

and the directions issued therein. Hence they are closed.

……………………………..CJI
(S.A. BOBDE)

……………………………….J.

(A.S. BOPANNA)

………………………………..J.

(V. RAMASUBRAMANIAN)
New Delhi
January 18, 2021

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