2012 Supreme(Kar) 324

High Court of Karnataka
ANAND BYRAREDDY & SUBHASH B. ADI
The Honourable Chief Justice, High Court of Karnataka rep. by Registrar General & Another
Versus
C. Sudhakar & Others
Writ Appeal Nos.1934 – 1938 of 2011 & Writ Appeal Nos.2245 – 2449 of 2011 C/W Writ Petition Nos.35072-35111 of 2009 (S-PRO), 37825-37841 of 2009 (S-PRO) & 10131 of 2010 (S-PRO) in Writ Appeal Nos.1934-1938 of 2011 & 2245-2279 of 2011, Arising Out Of W.P.Nos.4683-4722 of 2010
Decided on : 13-06-2012

Headnote:HIGH COURT OF KARNATAKA SERVICE (CONDITIONS OF SERVICE & RECRUITMENT, AMENDMENT RULES, 2009 - (I to V): [Anand Byrareddy & Subhash B.Adi, JJ] Rules prescribing higher qualification in respect of certain categories of posts - Restrictions on scope of promotion - Held, Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case, High educational qualification can be the basis not only or barring promotion, but also for restricting the scope of promotion. Restriction placed cannot however go to the extent of seriously jeopardizing the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. The view of the Single Judge that if in the case of any one candidate, the competent authority could exercise his discretion to relax the requirement of a higher educational qualification, without indicating any other special qualification being recognized, such a consideration ought to be extended to all suitable candidates who are not graduates or Law Graduates, notwithstanding the 2009 Rules, is to be fully endorsed. Further, The vacancies which occurred prior to the Amended Rules would be governed by the old Rules and not by the Amended Rules and therefore, the question of filling the vacancies that occurred prior to the Amended Rules undoubtedly would be governed by the old Rules and not by the new Rules.

       LABOUR & SERVICES - Promotion: [Anand Byrareddy & Subhash B. Adi, JJ] Prescribing Higher Qualification - Held, The view of the Single Judge that not more than 10% of the officials working in a particular cadre would be permitted to pursue a higher Degree Course and permission has to be granted on the basis of seniority is pertinent. If this is read in conjunction with the Explanation to the Proviso, which provides for a maximum period of five years to obtain a higher qualification, going by the number of employees, even 10% of such employees per cadre would clearly require more than five years to obtain such higher qualification and therefore it is totally unworkable for all the employees desirous of gaining such higher qualification within the stipulated time. Insofar as the employees in Group-D or even the Second Division Assistants and First Division Assistants are concerned, many of them had moved on the to the next post by way of promotion in the past. The minimum qualification required at the time of initial appointment was Seventh Standard and not even SSLC. Therefore, a Group-D employee, who has passed the Seventh Standard, is required to obtain a Degree, to be eligible for promotion, he or she would first have to complete SSLC and then a Pre-University Course, before embarking on a Degree Course. This is again totally unworkable, when only a five year period is granted to the employees desirous of obtaining a higher qualification. It is hence to be held that the mechanism provided to enable the employees to acquire the necessary educational qualification is not sustainable. Further, Judicial notice is taken of the fact that there are no longer part-time LL.B Degree Courses available in the State of Karnataka and any Correspondence Course may not be recognised by any University nor would they be eligible for employment under the State Government. And further, it is to be noted that there was no controversy between the parties insofar as the promotions effected in respect of vacancies that arose prior to the amendment. This is apparent from the record and the petitioners cannot be deprived of being considered for promotion by virtue of the Proviso now substituted to the 1973 Rules, whereas, on the contrary, the posts which the petitioners would have occupied by way of promotion under the original Rules, have now been conferred on persons who are promoted pursuant to the 2009 Rules. The view of the Single Judge in this regard is affirmed.

       CONSTITUTION OF INDIA - Articles 229(2), 16, 14: [N. Kumar, J] High Court of Karnataka (Conditions of Service and Recruitment) Rules, 1973, Sch III (as amended by 2009 Rules) - Conditions of service of High Court staff - Promotion - Prescription of higher qualification by Amended Rules of 2009 as criteria for being considered for promotion to next higher cadre - Not unreasonable - Nor arbitrary or violative of Articles 14 and 16 of Constitution.

        Per Anand Byrareddy J. - The educational qualification is a valid basis of classification. But, at the same time, it is to be kept in view that the need for maintaining efficiency in service would not be jeopardized if non-graduates and persons without a Law degree and who have put in long years of service were also to be considered for promotion without the insistence of their acquiring such educational qualification, if otherwise, they are found to be efficient and suitable for promotion having regard to the length of service and a good track record. Therefore, the amended Rules ought to have provided adequate scope by introducing a quota for such candidates, which may progressively be tapered off in time and it could then by ultimately ensured that only person with higher educational qualifications filled the rank and file. The rule making authority has permanently shut out those employee, without the requisite educational qualifications as prescribed, for promotion. This is notwithstanding the mechanism provided enabling such employees to acquire the necessary educational qualification. However, it is not within the realm of High Court to take upon itself the exercise of prescribing the appropriate quota in respect of employees without the requisite educational qualification vis-a-vis the quota prescribed for direct recruitment. But, the proviso as well as the Explanation to the amended Rules of 2009 requiring higher qualification shall not be applicable to employees already in service and shall be read down to that effect.

        Thus it was held that the Proviso as well as Explanation to the amended Rules of 2009 requiring higher qualifications are constitutionally valid, but shall be read down as not being applicable to the existing employees. The orders of promotion in respect of vacancies that arose prior to the coming into force of the 2009 Rules were quashed.

        Per Subhash B. Adi, J.;- Prescribing the higher educational qualification as a criterion for promotion to the next higher cadre is neither unreasonable nor is arbitrary nor violative of Articles 14 and 16 ofthe Constitution.

        Further, no legislation can be struck down as arbitrary and unconstitutional merely be· cause it causes hardship if implemented. If the object is rational, the hardship cannot be a ground to declare the rules as unconstitutional.

        Rules prescribing higher educational qualification as criterion for promotion is different from providing an opportunity to the employees, who have not acquired higher educational qualification. The rules prescribing higher educational qualification cannot be nullified as the benefit or the opportunity given to the employee to acquire higher educational qualification causes hardship. However, having regard to the provision made giving benefit to the employees to acquire higher educational qualification, to become eligible for promotion to the next higher cadre, it has to be left to the option of the decision making authority to take into consideration such circumstances. When the decision making authority itself has pro· vided such opportunity and it should be meaningful and effective.

        Hence, amended rules are applicable to all the officers and servants covered under the amended rules for promotion in respect of vacancies that arose from the date of coming into force of the amended rules.

       CONSTITUTION OF INDIA - Article 229(2): [Anand BYrareddy & Subhash B.Adi, JJ] Power of the Chief Justice to frame necessary Rule in respect of recruitment as well as conditions of service of the staff of the High Court - Amendment of Rules prescribing higher educational qualification - Held, The educational qualification is a valid basis of classification. But, at the same time, it is to be kept in view that the need for maintaining efficiency in service would not be jeopardized if non-graduates and persons without a Law Degree and who have put in long years of service were also to be considered for promotion without the insistence of their acquiring such educational qualification, if otherwise, they are found to be efficient and suitable for promotion having regard to the length of service and a good track record. Therefore, the Amend Rules ought to have provided adequate scope by introducing a quota for such candidates, which may progressively be tapered off in time and it could then be ultimately ensured that only person with higher educational qualifications filled the rank and file. Hence, the first point for consideration would have to be answered in the affirmative, in that, the rule making authority has permanently shut out those employees, without the requisite educational qualifications as prescribed, for promotion. This is notwithstanding the mechanism provided enabling such employees to acquire the necessary educational qualification. However, it is not within the realm of High Court to take upon itself the exercise or prescribing the appropriate quota in respect of employees without the requisite educational qualification vis-à-vis the quota prescribed for direct recruitment. But, the Proviso as well as the Explanation to the Amended Rules of 2009 requiring higher qualifications shall not be applicable to employees already in service and shall be read down to that effect. Further Held, Further, it is relevant to note that providing for a mechanism are as per the guidelines formulated under the Circular dated 24.8.2010. On the face of it, the same appears to be impracticable, where it provides that the officers who are desirous of pursuing degrees by attending Colleges with a view to acquire knowledge and higher education, should obtain prior permission of the Chief Justice and subject to condition that their study will not adversely affect their work and it would permit them to adhere to the normal office hours, apparently contemplates a situation where they undertake Correspondence Courses or attending part-time courses and that not more than 10% of the officers working in a particular cadre would be so permitted to pursue their courses of study. This is again totally unworkable, when only a five year period is granted to the employees desirous of obtaining a higher qualification. It is hence to be held that the mechanism provided to enable the employees to acquire the necessary educational qualification is not sustainable. Hence, the Proviso as well as Explanation to the Amended Rules of 2009 requiring higher qualifications are constitutionally valid, but shall be read down as not being applicable to the existing employees. The orders of promotion in respect of vacancies that arose prior to the coming into force of the 2009 Rules are required to be quashed. On facts, held, Consequent to the quashing of the orders of promotion, it is also necessary in the interest of the work of the High Court that no hardship is caused from the point of view of ensuring the smooth administration of the work of the High Court and hence, the persons, whose promotions are now quashed shall, however, be permitted to continue in their respective posts as an in charge arrangement, till promotions are made in terms as above. As the 2009 Rules are upheld, subject to the condition as aforesaid, the 40% ratio provided for direct recruitment for the posts of Judgment Writers and Senior Judgment Writers, is left undisturbed, unless the competent authority deems it necessary to vary the same.