Back
1990 Supreme(J&K) 66
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S.S. Kang, J.
Ashok Kumar Mangotra & Ors. - Appellant
Versus
State Of J&K & Ors. - Respondent
Writ Petition No. 1341/1986 And 101/1987
Decided On : 15 December, 1990
Advocate For Appellant: H.L. Bhagotra
Advocate For Respondent: Amrish Kapoor
Advocate For Respondent: R.P. Bakshi
The State Government has the power to amend the service rules retrospectively in the absence of an Act passed by the appropriate Legislature under Article 309 of the Constitution of India.
Headnote:
CONSTITUTIONAL LAW - SERVICE RULES - AMENDMENT - RETROSPECTIVE EFFECT - VALIDITY - PROMOTION - SENIORITY - RELAXATION OF QUALIFICATIONS - POWER OF STATE GOVERNMENT - PUBLIC SERVICE COMMISSION - RECOMMENDATIONS - BINDING NATURE.
Fact of the Case:
The petitioners, junior scale stenographers, challenged the validity of SRO 76 and 177, which amended the service rules and allowed for the promotion of senior scale stenographers based on seniority rather than merit. They also challenged the promotions of private respondents, who were promoted based on seniority, ignoring the recommendations of the State Recruitment Board.
Finding of the Court:
The court held that the State Government had the power to amend the service rules retrospectively and that the petitioners had not acquired any legal or substantive rights under the previous rules. The court also held that the suggestions made by the Board for the relaxation of qualifications and appointment of certain candidates were not binding on the State Government and did not confer any rights on the petitioners. The court further held that the State Government could not appoint persons other than those recommended by the Board, but it could choose not to appoint all the recommended candidates. The court found that the appointments of private respondents 2 to 6 were illegal as they were not qualified in the test and were not recommended by the Board.
Issues: 1. Whether the State Government had the power to amend the service rules retrospectively? 2. Whether the petitioners had acquired any legal or substantive rights under the previous rules? 3. Whether the suggestions made by the Board for the relaxation of qualifications and appointment of certain candidates were binding on the State Government? 4. Whether the State Government could appoint persons other than those recommended by the Board? 5. Whether the appointments of private respondents 2 to 6 were legal?
Ratio Decidendi: 1. The State Government has the power to amend the service rules retrospectively in the absence of an Act passed by the appropriate Legislature under Article 309 of the Constitution of India. 2. The petitioners had not acquired any legal or substantive rights under the previous rules. 3. The suggestions made by the Board for the relaxation of qualifications and appointment of certain candidates were not binding on the State Government and did not confer any rights on the petitioners. 4. The State Government could not appoint persons other than those recommended by the Board, but it could choose not to appoint all the recommended candidates. 5. The appointments of private respondents 2 to 6 were illegal as they were not qualified in the test and were not recommended by the Board.
Final Decision: Writ petition No: 1341/1986 is dismissed and writ petition No: 101/1987 is allowed and the appointment of respondents 2 to 6 by promotion to posts of Sr. Scale Stenographers is quashed. Appointments to these posts shall be made strictly in accordance with Rules and observations made on this judgment.
`W P. No: 1341/1986 (Ashok Kumar Mangotra and Ors. Vs. State of J&K and Ors, W.P No: 101/1987 G.R Sharma and Ors Vs. State of J8K and Ors), under Article 226 of the Constitution of India react with Section 103 of the Constitution of Jammu and Kashmir is the legality and constitutional validity of SRO 76 dated 25.2.1985 substituting clause (B) of Rule 5 of the Jammu and Kashmir Secretariat (Subordinate) Service Rules 1972 (hereinafter referred to as 1972 Rules and SRO 177 dated 13.5.1985 enforcing SRO 76 aforementioned retrospectively with effect from the December, 1984. The petitioners in writ petition No: 1341/1986 also impugne the Govt. Order No.833-GD of 1985 dated 13.5.1985, whereby the State Govt. respondent No.1 had ordered the promotions of private respondents 3 to 35, Junior scale stenographers of the Civil Secretariat as Senior Scale Stenographers in accordance with their seniority in the cadre of Jr. Scale Stenographers of the Civil Secretariat, and petitioners in W.P No: 101/87 assail/Govt. order No; 1051-GD of 1986 dated 19th December, 1986 whereby the State Govt. had ordered the promotions of private respondents 2 to 6 in writ petition No: 101/1987 on purety temporary basis and subject to further conditions which are not relevant for the purpose of present petitions.
2. A broad brush factual backdrop shall help delineate the contour of the pristinely forensic controversy.
3 The petitioners and private respondents in these writ petitions had joined service with the State of Jammu and Kashmir as Jr. Scale Stenographers in the Secretariat and other offices on different dates. Their service conditions are governed by the J&K Classifications, Control and Appeal Rules, 1956 and J&K Civil Services Decentralization of and Recruitment to Won Gazetted Cadre Rules, 1969 The petitioners and the private respondents fall within the category of Class I I B of the service and are eligible for promotion to the post of Sr. Scale stenographers in the higher pay scales Senior scale stenographers are placed in class I-B.
4. In the year 1984 posts of Sr. Scale stenographers were lying vacant. Respondent-State sent a requisition to the State Recruitment Board (For short the Board) for selection of candidates for these posts. Jr. Scale Stenographers from the Secretariat as also from various departments applied to the Board. The Board conducted an examination. The Secretary of the Board vide letter dated 2.1.1985 intimated to the Government that the Board had conducted the test for filling the vacancies of Sr. Scale stenographers. 100 Jr. Scale stenographers applied. 78 of them actually appeared in the examination. On the basis of evaluation 6 candidates whose names were arranged in order of merit had qualified according to the prescribed standard and were recommended by the Board for being appointed as Sr. Scale Stenographers. In this letter it is also said that since the number of available vacancies, as revealed in the discussion held with the Dy. Secretary General Department, is for greater than the number intimated earlier by the General Department, the Board would suggest that 26 candidates (listed in annexure to the letter in order of merit) who were nearer to the prescribed standard may also be considered for appointment as Sr. Scale Stenographers in relaxation of aforementioned prescribed standard, against the available vacancies. This would obviate the necessity of holding tests a time consuming process again and again and would also not allow the Govt. work to suffer because of the dearth of Sr. Scale Stenographers.
5. The State Govt. issued orders of promotion of the six candidates aforementioned who had qualified the test and whose names had been recommended by the Board. Since the petitioners did not receive any orders of promotion, they approached respondents 1 & 2 and represented that the Board had recommended that the petitioners also be promoted and appointed as Sr. Scale Stenograp
