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Jammu & Kashmir High Court
Mansoor Ahmad Mir, J.
Abdul Rashid Masoodi & Ors. - Appellant
Versus
State of J&K & Ors. - Respondent
SWP No. 2682 of 2011 & CMP No. 4450 of 2011, SWP No. 2344 of 2011 & CMP No. 3891 of 2011, SWP No. 489 of 2010 & CMP No. 739 of 2010, SWP No. 501 of 2012 & CMP No. 758 of 2012
Decided On : 30-08-2013
HIGH COURT STAFF - CLASSIFICATION - PROMOTION - RELAXATION OF QUALIFICATION - VALIDITY - ARBITRARINESS - VIOLATION OF ARTICLES 14 AND 16 OF THE CONSTITUTION - POWER OF CHIEF JUSTICE TO RELAX QUALIFICATION - JUDICIAL REVIEW - WRIT PETITION - MAINTAINABILITY - EARLIER WRIT PETITION - SCOPE OF CHALLENGE - DIVISION BENCH OBSERVATIONS - SUBSEQUENT ORDER - EFFECT - DIRECTIONS FOR DE NOVO EXERCISE - EARMARKING OF POSTS FOR CLASS IV MATRICULATE EMPLOYEES - RESTORATION OF SENIORITY.
Fact of the Case:
Petitioners, appointed as Orderlies, were promoted as Junior Assistants and then as Senior Assistants. Private respondents were appointed as direct recruit Junior Assistants. High Court issued an order prescribing Graduation as the minimum qualification for promotion to various posts above the post of Junior Assistant. Note (2) appended to the order provided for relaxation of qualification in cases of officers/officials who had made their entry into the service on or before 25th April, 1987. Petitioners challenged the order and the subsequent promotion orders, contending that the classification was unreasonable and violative of Articles 14 and 16 of the Constitution, that there was no intelligible differentia, that the order had no rationale nexus with the object sought to be achieved, that it was arbitrary and chocked their promotional avenues, that it was void ab initio as it sought to place an embargo on the power of the Chief Justice to grant relaxations, and that the impugned promotions of private respondents were liable to be quashed on the same grounds.
Finding of the Court:
1. The classification introduced by the order between Graduates and Matriculates as also between Matriculates and Matriculates on the basis of a cut-off date was unreasonable, hit by Articles 14 and 16 of the Constitution, as there was no intelligible differentia justifying the classification between similarly placed employees constituting one homogeneous group. 2. The order had no rationale nexus with the object sought to be achieved. 3. Note (2) appended to the order was void as it sought to place an embargo on the power to relax conferred on the Chief Justice under a Statute. 4. The order was arbitrary and chocked the promotional avenues of the petitioners, making it effective from a retrospective date. 5. The impugned promotions of private respondents were liable to be quashed on the same grounds.
Issues: 1. Whether the classification introduced by the order between Graduates and Matriculates as also between Matriculates and Matriculates on the basis of a cut-off date was reasonable and justified under Articles 14 and 16 of the Constitution. 2. Whether the order had a rationale nexus with the object sought to be achieved. 3. Whether Note (2) appended to the order was void as it sought to place an embargo on the power to relax conferred on the Chief Justice under a Statute. 4. Whether the order was arbitrary and chocked the promotional avenues of the petitioners. 5. Whether the impugned promotions of private respondents were liable to be quashed on the same grounds.
Ratio Decidendi: 1. Classification based on higher educational qualification is permissible to achieve efficiency in service, but the acceptability thereof depends on the facts and circumstances of each case. 2. Classification must be based on an intelligible differentia which has a rational nexus with the object sought to be achieved. 3. The power to relax rules is a statutory power exercisable by the Chief Justice vis-a-vis the members of the High Court staff. 4. An executive order cannot curtail the statutory power conferred on the Chief Justice. 5. Retrospective application of rules creates frustration and discontentment and is arbitrary and unreasonable.
Final Decision: 1. The writ petitions were allowed. 2. Order No. 579 dated 24.10.2008 and the subsequent promotion orders were quashed to the extent that private respondents, who figured junior to the petitioners, were promoted over them. 3. Respondent No. 2 was directed to process the papers for a de novo exercise in the matter, complying with the direction contained in the judgment and order dated 08.04.2002, passed in SWP No. 2887/2001. 4. In the event a decision was arrived at to earmark at least 25% of posts in all categories/classes of the service/cadre, retrospectively from the date the private respondents were promoted, for the employees who were/are appointed against 25% of the posts of Junior Assistants from Class IV Matriculate employees, respondent No. 2 was permitted not to effectuate any break in the promotion of the private respondents falling within the remaining 75% of posts. 5. Rest of the private respondents to the extent of 25% were to stand reverted and consequently, the petitioners were to be considered for promotion against the said 25% posts of Head Assistants/Section Officer as would thus become available. 6. However, they were entitled to restoration of their seniority notionally vis-a-vis the private respondents as it existed prior to the issuance of order dated 24.10.2008.
1. The grievances projected by the petitioners in these petitions spring from order No. 579 dated 24.10.2008 and the orders of promotion made in implementation of the said order. The petitioners have challenged the vires of the aforesaid order dated 24.10.2008 and the consequent promotion orders based thereon.
2. The pleadings of the lead case, SWP No. 2681/2011, titled Abdul Rashid Masoodi and ors v. State of J&K and ors., are exceedingly exhaustive, containing facts and averments supported by relevant documents, ranging from historical background of the service upto the present day scenario vis-a-vis the service. I think it would be burdensome to give a narrative of the facts pleaded in the petition; therefore, I deem it appropriate to concisely give a summary of the facts and delineate the issues which have been raised in the petition. Before doing so, it needs a mention here that the responses of the official and the private respondents in the petition are short, sketchy, bald and bereft of any rebuttals to the averments so made in the petition, especially, those having vital bearing on the outcome of these petitions. Normally, when the averments are left without rebuttal, the same have to be taken to be admitted. On that count a petition can be allowed, if the case is otherwise made out. However, in the instant case, the reliefs prayed for by the petitioners being hinged on multitude of averments and legal grounds, I feel it imperative and just to deal with each issue one by one on the touchstone of the settled law in context of whatever sketchy response thereto has been from the respondents. Summary of the facts is noted hereunder:
3. Appointments to the posts borne on the cadre of the Jammu & Kashmir High Court Staff, historically, were made on the pattern governing the appointments made against identical posts elsewhere under the State Government. The basic minimum educational requirement was Matriculation. Once appointed to the lowest ministerial post of Junior Assistant, an appointee would go up the promotional ladder in normal course.
4. On 25.04.1987, it appears, the High Court issued an advertisement notice inviting applications for filling up the posts of Junior Assistant. The minimum qualification in the said advertisement notice was prescribed as Graduation. However, as is manifest from a plain reading of Note (2) appended to High Court order dated 24.10.2008, persons possessing qualifications less than Graduation entered the service on the said date, meaning thereby, in consequence of selections made pursuant to the aforesaid advertisement notice.
5. It may be observed here that the services of the members of High Court Staff are governed by the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 (for short High Court Staff Rules) framed by the High Court pursuant to the powers conferred by Section 108(2) of the State Constitution. Rule 6 of these Rules empowers the Chief Justice to lay down qualifications for a post and determine the mode of recruitment. Pursuant to the aforesaid provision of the Rules, it appears, it was for the first time in 2001 that the Chief Justice laid down qualifications and mode of recruitment to various posts borne on the cadre of the service. However, the High Court, while issuing order dated 24.10.2008 referred to in the first paragraph of this judgment and impugned herein, does not seem to have given any credence to the said order of 2001, inasmuch as no reliance has been placed thereon by the High Court in the order dated 24.10.2008. Nonetheless, after the aforesaid order was made by the Chief Justice in 2001, promotions in the cadre of the service, from time to time, continued to be made in relaxation of educational qualifications mentioned therein.
6. It is important to note here that, of late, there have been two recognised sources of recruitment to the posts of Junior Assistant in the High Court, as elsewhere under the State. 75% posts are filled i
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