18 Jan 2121
Case : Ashok Kumar and Ors. etc. v. The State of Jammu And Kashmir & Ors Civil Appeal Nos.5189-¬5192 of 2017 and Contempt Petition (C) Nos.392-¬395 of 2019
Court : Supreme Court of India
Bench : Justice S. A. Bobde, Justice A. S. Bopanna and Justice V. Ramasubramanian,
Decided on : 18 Jan 2121
Article 229 of the Constitution of India, 1949
Section 108 of the Constitution of Jammu & Kashmir
Rules 4 and 6 of the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968
Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956
Brief Facts and Procedural History
1. In exercise of the powers conferred by Section 108(2) of the Constitution of Jammu & Kashmir, 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.
2. In exercise of the power conferred by Rule 6, the Chief Justice of the High Court of Jammu & Kashmir issued an Office Order 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.
3. The prescription of the minimum educational qualification of graduation was not an innovation by the Chief Justice, made all of a sudden in the year 2008. Even on 25.04.1987, graduation was prescribed as a qualification for promotion to the post of Head Assistant.
4. On 26.10.2008, persons like the appellants who were directly recruited as Junior Assistants in the year 1998 with the qualification of graduation, were promoted as Head Assistants from the post of Senior Assistants.
5. Some vacancies were available and hence the contesting respondents who entered service as Class IV employees and who had risen to 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.
6. In 2008 a writ petition challenged the promotions so granted to the contesting respondents on the ground that they were not qualified at the relevant point of time. 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.
7. The affected parties filed appeals in 2010 that were dismissed on 30.08.2011. As a consequence, all persons like the appellants who were left out earlier were promoted on 30.08.2011 as Head Assistants.
8. The contesting Respondents filed a set of 4 writ petitions on 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. By a common Order dated 30.08.2013, the High Court allowed the set of four writ petitions and quashed the Chief Justice’s Order dated 24.10.2008.
9. The appellants filed a set of Letters Patent Appeals challenging the Order dated 30.08.2013 passed in favour of the contesting respondents.
10. A Division Bench of the High Court by a final Order dated 16.04.2016 dismissed these appeals.
11. The appellants approached the Supreme Court against the said Order, after the grant of leave.
12. On 13.05.2016, the Supreme Court ordered notice in the special leave petitions. An interim stay of the Order of the Division Bench of the High Court was also granted.
13. After the Supreme Court granted an interim stay, 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 which were also taken up along with the main appeals.
Issue of the Case
Whether the office order of the Chief Justice of the High Court of Jammu & Kashmir prescribing the qualifications as well as the mode of recruitment for appointment and promotion to various posts in the High Court is valid?
The Observations of the Court
The Honourable Supreme Court observed that:
1. The contesting respondents secured a second lease of life, after having failed in the first round of litigation. 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 the second round of litigation by challenging the Order of the Chief Justice.
2. 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 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.
3. The power of the Chief Justice 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 the 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 office order issued by the Chief Justice was completely legal and constitutional.
4. 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 Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 which are general and cannot be replicated.
5. The High Court was wrong in thinking that Note-2 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 its 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 power of relaxation to cases where appointments were made before the cut off date.
6. The Order dated 24.10.2008 did not at all impact the promotions gained by persons up to 24.10.2008.
7. The entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008 was impacted by the Order of the Chief Justice. The competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant had to be dealt with by the Supreme Court.
8. 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.
9. The Constitution Bench of this Court held in the State of Mysore & Anr v. P. Narasinga Rao, AIR 1968 SC 349 that Article 16(1) does not bar a reasonable classification of employees or reasonable test for their selection. 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 a post.
10. In State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., (1974) 1 SCC 19, another Constitution Bench affirmed that persons drawn from different sources and integrated into one class can be classified based on their educational qualifications for promotion.
11. In T.R. Kothandaraman v. Tamil Nadu Water Supply and Drainage Board, (1994) 6 SCC 282, it was pointed out that Court shall have to be conscious about the need for maintaining service efficiency while judging the validity of the classification.
12. The High Court took note of these decisions but fell into an error in thinking that in the facts and circumstances of the case, it could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts.
13. The non-graduates have had opportunities to qualify themselves, which they did. 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.
The Decision Held by the Court
The Honourable Supreme Court held that:
1. The appeals are allowed and the judgment of the Division Bench of the High Court is set aside.
2. As the contesting respondents have been working in the post of Head Assistants for quite some time and have also 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 and not based on the date of their promotion.
3. There will be no order as to costs.
4. With respect to the Contempt Petitions, no further orders are necessary for a view of the Orders passed in the appeals and the directions issued therein.