ORDER
R.V. Raveendran, J.
1. Petitioners 1 to 3 herein were the applicants 1, 2 and 6 in Application Nos. 3582 to 3592 of 1995 and petitioner 4 herein was applicant 3 in Application Nos. 3987 to 3995 of 1995, before the Karnataka Administrative Tribunal, The respondents 1 to 12 herein were the common respondents in the said two sets of applications before the Tribunal.
2. It is stated that petitioners 1 and 2 are working as Senior Assistants, petitioner 4 is working as Assistant and petitioner 3 is working as Junior Assistant in Karnataka Administrative Tribunal (‘KAT’ for short). According to petitioners, there are two feeder channels cadres to the post of Assistant Registrars. One is the hierarchy from Junior Assistant – Assistant – Senior Assistant – Section Officer/Court Officer to Assistant Registrar. The other is Typist – Stenographer – Junior Judgment Writer – Personal Secretary-cum-Judgment Writer/Personal Secretary to Registrar to Assistant Registrar. The posts of Junior Assistant and Typist were in the pay scale of Rs. 1040-1900; the posts of Assistants and Stenographers were in the pay scale of Rs. 1400-2675; the posts of Senior Assistants and Junior Judgment Writers were in the pay scale of Rs. 1720-3330; and the posts of Section Officer/Court Officers and Personal Secretary-cum-Judgment Writer/Personal Secretary to Registrar were in the pay scale of Rs. 2050-3950, There is a combined seniority list of Section Officers/Court Officers and Personal Secretary-cum-Judgment Writer/Personal Secretary to Registrar from which promotion is made to the cadre of Assistant Registrars.
3. The method of recruitment and the minimum qualifications for recruitment to several cadres in the KAT are prescribed by the Karnataka Administrative Tribunal (Recruitment) Rules, 1993, which came into force on 3-6-1993 (‘Recruitment Rules’ for short), Rule 1(3) of the said Rules provides that in respect of each category of posts, specified in column (1) of the schedule thereto, the method of recruitment and minimum qualification shall be as specified in the corresponding entries in columns (2) and (3) of the said schedule. We extract below the relevant portions of the schedule to the rules prescribing the method of recruitment and minimum qualifications for the posts of Assistant Registrar, Personal Secretary-cum-Judgment Writer (PS-cum-Judgment Writer), Personal Secretary to Registrar (PS to Registrar) and Junior Judgment Writers (Jr. Judgment Writers).
Category of post
Method of recruitment
Minimum qualification
Assistant Registrar
By promotion from the cadre of Section Officer, Court Officer, Personal Secretary (Judgment Writer), Personal Secretary to the Registrar on the basis
of combined seniority, seniority being determined in the basis of length of service in the respective cadres.
XXX XXX XXX
For promotion.__
(1) Must be holder of a Degree in law.
(2) Must have put in a service of not less than five years in the cadre specified in column (2):
(3) Provided that if persons who have put in a minimum service of five years are
not available, a person who has put in three years of service in the cadre
specified in column (2) may be considered for promotion.
Personal
Secretary-cum-Judgment Writer
By
promotion from the cadre of Junior Judgment Writers or Stenographers
For promotion.__
(1) Must have passed Senior Typewriting and Senior Shorthand
examination in English and Kannada conducted
by the Department of Public Instruction or a Diploma in Secretarial Practice
in English and Kannada granted by the Board of Technical Education in
Karnataka or possesses an equivalent qualification.
(2) Must have put in a service of not less
than three years in the cadre of Junior Judgment Writers or Stenographers.
Personal
Secretary to the Registrar
By
promotion from the cadre of Stenographers
For promotion.__
(1) Same as what is prescribed for Personal Secretary-cum-Judgment Writer
(2) Must have put in a service of not less than five years in the cadre of Stenographers:
Provided that if persons who have put in a minimum service of five years are
not available, a person who has put in three years service in the
cadre specified in column (2) may be considered for promotion.
Junior Judgment Writers
By promotion from the cadre of
Stenographers
For promotion.__
(1) Must have put in a
minimum service of three years in the cadre of Stenographers and must possess
a Degree in Arts, Science or Commerce.
(2) Must have passed Senior Typewriting and
Senior Shorthand examination in English and Kannada conducted by the
Department of Public Instruction or a Diploma in Secretarial Practice in
English and Kannada granted by the Board of Technical Education in Karnataka
or possesses an equivalent qualification and subject to selection by test.
Rule 4 of the KAT (Conditions of Service etc.) Rules, 1992 prescribed the categories of posts for the staff of the Tribunal as also the number of posts in each category and the scales of pay applicable, the relevant portions of which are extracted below:
Sl.
No.
Category
of posts
Number
of post
Scale
of pay
Group A
3.
Assistant
Registrar
3
Rs.
2200-4070
Group B
4.
Section
Officers
6
Rs. 1900-3650
5.
Court
Officers
6
6.
“Personal
Secretary-Cum-Judgment
Writer
6
7.
Personal
Secretary to Registrar
1
Group C
8.
Senior
Assistants
7
Rs. 1600-2990
8-a.
Junior
Judgment Writers
3
12
Assistants
25
Rs. 1280-2450
15
Stenographers
11
4. Some employees of KAT belonging to the cadre of Stenographers (respondents 3, 7, 8, 10, 11 and 12, along with three others namely, Munendrakumar, Waheeda Banu and K.V. Savithri) filed Application Nos. 2250 to 2258 of 1993, DD: 6-7-1994 (S. Jagadeesha and Ors. v. State of Karnataka) before the Tribunal for the following reliefs: (i) to quash the Recruitment Rules insofar as the prescription of selection test for promotion of Stenographers to the cadre of Junior Judgment Writers; (ii) to quash the memo by which KAT had proposed to conduct the selection test for promotion of Stenographers as Junior Judgment Writers; and (iii) a direction to KAT to fill up the posts of Junior Judgment Writers. Personal Secretary-cum-Judgment Writers and Personal Secretary to Registrar by promotion of Stenographers on the basis of senior-ity-cum-merit. The said applications were allowed by the Tribunal (Bench constituting of Acting Chairman and an Administrative Member) by order dated 6-7-1994. The Tribunal held that the provision for holding a selection test for promotion from the cadre of Stenographers to Senior Judgment Writers was violative of Rule 3(2)(b) of the KCS (General Recruitment) Rules, 1977 which provides that notwithstanding anything contained in any Recruitment Rules specially made in respect of any service or post, promotion to posts (other than the post of Head of the Department or Additional Head of the Department) shall be on the basis of seniority-cum-merit. It also held that prescribing the qualification of degree for a lower post (of Junior Judgment Writers) without prescribing such qualification for the higher posts of Personal Secretary-cum-Judgment Writer or Personal Secretary to Registrar was arbitrary. Consequently, it moulded the reliefs purporting to do so to serve ends of justice and ordered as follows:
In the rule of recruitment in the schedule.–
(a) in the entries relating to the category of posts of Junior Judgment Writers, in column (3), the following words are quashed.–
(i) "and must possess a degree in Arts, Science or Commerce". (ii) "and subject to selection by test".
(b) in the entries relating to the category of posts of Personal Secretaries-cum-Judgment Writers, in column (2), before the words “or Stenographers” a punctuation mark semi-colon “;” shall be inserted and the words “or Stenographers” shall be read as “if no suitable Junior Judgment Writers is available for promotion, by promotion of a stenographers”;
(c) in view of the order at (a) and (b) above question of holding a test does not arise.
5. For clear understanding of the effect of the alterations made by the said order of the Tribunal in the Recruitment Rules, we have given in juxtaposition the relevant portions of the Recruitment Rules as made, and as modified by the Tribunal:
Method of recruitment as per the Recruitment Rules
Method of recruitment as per Rules, as modified by the order of Tribunal
For Personal Secretary-cum-Judgment Writer.__
By promotion from the cadre of Junior Judgment Writers or Stenographers
By promotion from the cadre of Junior Judgment Writers, if no suitable Judgment Writer is available for promotion, by promotion of a Stenographer.
For Junior Judgment Writers.__
Minimum qualification as per the Rules
Minimum qualification as per the Rules, as modified by the order of Tribunal
For promotion.__
(1) Must have put in a minimum service of three years in the cadre of Stenographers and must possess a degree in Arts, Science or Commerce.
(2) Must have passed Senior Typewriting and Senior Shorthand examination in English and Kannada conducted by the Department of Public Instruction or a Diploma in Secretarial Practice in English and Kannada granted by the Board of Technical Education in Karnataka or possesses an equivalent qualification and subject to selection by test.
For promotion.__
Must have putin a minimum service of three years in the cadre of Stenographer.
Must have passed Senior Typewriting and Senior Shorthand examination in English and Kannada conducted by the Department of Public Instructions or a Diploma in Secretarial Practice in English and Kannada granted by the Board of Technical Examination in Karnataka or possesses an equivalent qualification.
6. In view of the said order dated 6-7-1994, the Acting Chairman of the Tribunal, who is also the Appointing Authority, in purported exercise of power under Rule 3 of the KAT (Conditions of Service) Rules, 1992, effected the following promotions on officiating basis from the cadre of Stenographers.–
(a) Respondents 3 to 5, 7 and 8 were promoted as Personal Secretary-cum-Judgment Writers as per order dated 11-8-1994; (b) Respondent 12 was promoted as Personal Secretary-cum Judgment Writer by another order dated 11-8-1994; (c) Respondents 9 to 11 were promoted as Junior Judgment, Writers by another order dated 11-8-1994; (d) Respondent 6 was promoted as Personal Secretary-cum-Judgment Writer with retrospective effect from 11-8-1994, by order dated 7-1-1995.
It could be seen from the orders that respondents 3 to 8 and 12 were given double promotions from the post of Stenographers directly to the post of Personal Secretary-cum-Judgment Writer and thereby skipping the intermediate post of Junior Judgment Writers. Respondents 9 to 11 however were promoted from the post of Stenographer to the next higher cadre of Junior Judgment Writers.
7. As noticed above, the promotions to the cadre of Assistant Registrars is from the feeder channel of Section Officer/Court Officers as also from the feeder channel of Personal Secretary-cum-Judgment Writer/Personal Secretary to Registrar. Feeling aggrieved by the said promotions, and being aggrieved by the order of the Tribunal in Jagadeesha’s case, supra, which enabled the Tribunal to make such promotions, petitioners herein, along with several others, who were working as Senior Assistants, Assistants and Junior Assistants, filed Application Nos. 3585 to 3592 and 3987 to 3995 of 1995. In Application Nos. 3385 to 3392 of 1995, the prayers were as follows.–
(a) for setting aside the order of the Tribunal dated 6-7-1994 in Jagadeesha's case (Application Nos. 2250 to 2258 of 1993); (b) for declaration that the promotions accorded to respondents 3 to 12 as per orders dated 11-8-1994 and 7-1-1995 are illegal and contrary to law laid down by the Supreme Court. The prayers in Application Nos. 3987 to 3995 of 1995 were: (a) for quashing the orders of promotion dated 11-8-1994 and 7-1-1995; (b) to direct the Registrar, KAT not to declare the officiation period of respondents 3 to 12, since their promotions are illegal and not valid in law; (c) refer the decision of the Tribunal in Jagadeesha's case to a larger Bench, as the said decision was contrary to decision of the Supreme Court in Mallikarjuna Rao v. State of Andhra Pradesh, .
Petitioners contended that the Tribunal has no power to modify the educational qualifications prescribed under the rules for promotion to the cadre of Junior Judgment Writers; that it had also no power to amend the method of recruitment provided in the Rules for the post of Personal Secretary-cum-Judgment Writer; and that if the Stenographer as a class had any grievance in regard to the educational qualifications prescribed for the higher promotional post of Junior Judgment Writers they ought to have given a representation to the Rule Making Authority for modification. Similarly, if anyone aspiring to become Personal Secretary-cum-Judgment Writer had any grievance in regard to the method of recruitment prescribed for the post of Personal Secretary-cum-Judgment Writer, their remedy is to represent to the Rule Making Authority for modification. The Tribunal could not alter the method of selection or qualifications prescribed under the rules merely because it felt otherwise inclined. The petitioners also contended that the promotions given to stenographers as per the orders dated 11-8-1994 and 7-1-1995, being violative of the Recruitment Rules, are illegal and invalid.
8. Respondents resisted the applications on the following grounds:
(i) The petitioners have no locus standi to challenge the order dated 6-7-1994 passed in Jagadeesha’s case or the promotions given to respondents 3 to 12 as per orders dated 11-7-1994 and 7-1-1995;
(ii) The petitioners not having sought review of the order dated 6-7-1994 made in Jagadeesha’s case, cannot challenge the said order, while challenging the consequential promotions in applications under’ Section 19 of the Administrative Tribunals Act;
(iii) As the petitioners have not challenged the Recruitment Rules as interpreted by the Tribunal in Jagadeesha's case, they are not entitled to any relief; and (iv) The order of the Tribunal adding, deleting and altering words in regard to the provision for method of recruitment to the post of Personal Secretary-cum-Judgment Writer and the provision for qualification for promotion to the post of Junior Judgment Writers, was valid and permissible having regard to the principles relating to interpretation of statutes.
9. The Tribunal disposed off both batches of applications by a common order dated 21-4-1997. It rejected the request of petitioners for reference of the decision in Jagadeesha’s case to a larger Bench. It is also rejected the prayer to set aside the order dated 6-7-1994 in Jagadeesha’s case, on the ground that as the applicants were not parties to the said decision, if they were aggrieved, they ought to have either impleaded themselves as parties when the said applications were pending or sought review of the decision. The Tribunal also held that the promotions as per orders dated 11-8-1994 and 7-1-1995 were as per the Recruitment Rules (as interpreted and modified by the Tribunal in its order dated 6-7-1994) and therefore did not call for interference. The Tribunal also held that the applicants had no locus standi to challenge the decision in Jagadeesha, as they belonged to a totally different cadre and were not governed by the method of selection and qualifications prescribed for promotion to the cadre of Junior Judgment Writers of Personal Secretary-cum-Judgment Writer/Personal Secretary to Registrar and that mere fact that their promotion opportunities were likely to be affected at a later stage in the hierarchy was not sufficient to give them locus standi. Consequently, the Tribunal dismissed the said applications.
10. Feeling aggrieved, four of the applicants before the Tribunal have filed these petitions and sought the following reliefs;
(a) to set aside the order of Tribunal dated 21-4-1997 in Application Nos. 3585 to 3592 and 3987 to 3995 of 1995; (b) to set aside order dated 6-7-1994 passed by the Tribunal in Application Nos. 2250 to 2258 of 1993; and (c) to declare that the promotions given to respondents 3 to 12 by orders dated 11-8-1994 and 7-1-1995, are illegal and contrary to law. Re: Locus standi and maintainability of the applications.--
11. The petitioners are in the cadres of Junior Assistants, Assistants and Senior Assistants, which are equal to the cadres of Typists, Stenographers and Junior Judgment Writers (in pay scale) in the parallel feeder channel for promotion to the cadre of Assistant Registrars. The next promotional cadre in their hierarchy is that of Section Officers/Court Officers. The combined seniority list for promotion to the cadre of Assistant Registrars consists of Section Officers/Court Officers as also Personal Secretary-cum-Judgment Writer/Personal Secretary to Registrar. If a provision relating to promotion in the parallel feeder channel (which ultimately leads to the common seniority list) is amended by the Tribunal, by an interpretation, which according to the petitioners is erroneous, and if they feel that the decision of the Tribunal will affect their seniority or promotional opportunities in future, the petitioners will have sufficient locus standi to challenge the said decision of the Tribunal. The contention that only employees in the same cadre or same feeder channel can challenge a promotion or a provision for promotion cannot therefore be accepted.
12. The respondents contend the order of the Tribunal in Jagadeesha’s case could have been challenged only by filing an application for review or by seeking Special Leave to Appeal before the Supreme Court, even if petitioners were not parties to that decision; and as no review was sought, the order in Jagadeesha’s case, attained finality and the petitioners cannot challenge the said decision by filing fresh applications under Section 19 of the Administrative Tribunals Act. It is true that the order of the Tribunal dated 6-7-1994 was not challenged before the Supreme Court. Nor have the petitioners sought review of the decision dated 6-7-1994 in Jagadeesha’s case by filing an application for review. But in Application Nos. 3585 to 3592 of 1995, the petitioners sought setting aside of the order dated 6-7-1994 passed by the Tribunal in Jagadeesha’s case. In Application Nos. 3987 to 3995 of 1995, the applicants sought reference of the decision in Jagadeesha to a larger Bench.
13. The challenge to the order of the Tribunal passed in Jagadeesha’s case should be seen in the context of the challenge to the orders dated 11-8-1994 and 7-1-1995 giving promotions to Stenographers by alleging violation of the Recruitment Rules. The said promotions (whereby some Stenographers were given double promotions, skipping the intermediate cadre of Junior Judgment Writers and some were given promotion as Junior Judgment Writers) were given relying on the decision in Jagadeesha’s case, which amended the Recruitment Rules. By such process some of the Stenographers who in the normal course would have reached the cadre of Personal Secretary-cum-Judgment Writer/Personal Secretary to Registrar much later than some Senior Assistants and Assistants reaching the cadre of Section Officers/Court Officers, overtook the Senior Assistants and Assistants, in reaching the common seniority list of Section Officers/Court Officers and Personal Secretary-cum-Judgment Writer/Personal Secretary to Registrar. The petitioners were therefore entitled to challenge the said promotions. While challenging the said promotions, they were also entitled to challenge the order of the Tribunal which enabled such promotion of Stenographers, which according to them were illegal. The applications were filed within one year from the date of promotions dated 11-8-1994 and 7-1-1996 and therefore in time.
14. The Tribunal committed an error in rejecting the applications on the ground that as there was a provision enabling non-parties to any proceedings to file application for review under Regulation 3(b) of the KAT (Review Applications) Regulations, 1994, the petitioners ought to have sought review, instead of challenging them in a separate applications. The provision for review being conditional, requiring permission of the Tribunal and being only available on limited grounds, cannot be said to be an efficacious remedy.
15. The petitioners were not parties to the decision in Jagadeesha’s case. The Acting Chairman of the Tribunal, effected certain promotions of Stenographers on the basis of the decision in Jagadeesha’s case, affecting their prospects of promotion. They could not challenge the promotions without challenging the said decision. Therefore, they have challenged the promotion of Stenographers as also the decision of the Tribunal which enabled such promotions. We see no reason why the petitioners could not challenge the decision in Jagadeesha’s case while challenging the promotions of Stenographers. There is no need either to seek review or seek special leave to appeal to the Supreme Court. For example, a person aggrieved by a rule can challenge it whenever he is aggrieved by it, The cause of action to challenge the rule arises not only when a rule is made and published, but also when any action taken under it which affects him. The challenge cannot simply be turned down on the ground that the rule has been in existence for several years and that it had not been challenged earlier. Similarly, when a rule is modified by a decision of the Tribunal, a non-party to the decision, who is affected by any act done as per such modified rule, can while challenging such act, also challenge the correctness of the decision, on the basis of which such action is taken. He cannot be non-suited merely on the ground that he had failed to seek review of the decision or on the ground that he failed to challenge it before the Supreme Court by seeking special leave.
16. In fact the correct procedure to be followed by Tribunal is such a situation is set down by the Supreme Court in K. Ajit Babu v. Union of India, . It held that any person aggrieved by a decision of a Tribunal affecting his seniority is entitled to file an application under Section 19 of the Administrative Tribunals Act. The following observations are relevant:
“Often in service matters the judgments rendered either by the Tribunal or by the Court also affect other persons, who are not parties to the cases. It may help one class of employees and at the same time adversely affect another class of employees, In such circumstances the judgments of the Courts or the Tribunals may not be strictly judgments in personam affecting only the parties to the cases, they would be judgments in rem. In such a situation, the question arises: What remedy is available to such affected persons who are not parties to a case, yet the decision in such a case adversely affects their rights in the matter of their seniority. In the present case, the view taken by the Tribunal that the only remedy available to the affected persons is to file a review of the judgment which affects them and not to file a fresh application under Section 19 of the Act. . . . Ordinarily, right of review is available only to those who are party to a case. However, even if we give wider meaning to the expression “a person feeling aggrieved” occurring in Section 22 of the Act whether such person aggrieved can seek review by opening the whole case decided by the Tribunal. The right of review is not a right of appeal where all questions decided are open to challenge. The right of review is possible only on limited grounds, mentioned in Order 47 of the Code of Civil Procedure. Although strictly speaking the Order 47 of the Code of Civil Procedure may not be applicable to the Tribunals but the principles contained therein surely have to be extended. Otherwise there being no limitation on the power of review is would be an appeal and there would be no certainty of finality of a decision. Besides that, the right of review is available if such an application is filed within the period of limitation. The decision given by the Tribunal, unless reviewed or appealed against, attains finality. If such a power to review is permitted, no decision is final, as the decision would be subject to review at any time at the instance of party feeling adversely affected by the said decision. A party in whose favour a decision has been given cannot monitor the case for all times to come. Public policy demands that there should be end to law suits and if the view of the Tribunal is accepted the proceedings in a case will never come to an end. . . . Whenever an application under Section 19 of the Act is filed and the question involved in the said application stands concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take into account the judgment rendered in earlier case, as a precedent and decide the application accordingly, The Tribunal may either agree with the view taken in the earlier judgment or it may dissent. If it dissents, then the matter can be referred to a larger Bench/Full Bench and place the matter before the Chairman for constituting a larger Bench so that there may be no conflict upon the two Benches. The larger Bench, then, has to consider the correctness of earlier decision in disposing of the later application. The larger Bench can overrule the view taken in the earlier judgment and declare the law, which would be binding on all the Benches”.
17. If petitioners on the one hand and respondents 3 to 12 on the other were in two different parallel hierarchy of cadres (without merger at any stage), it is true that persons in one hierarchy of cadres may not have the locus standi to challenge the promotions in the other hierarchy of cadres. But where the two parallel hierarchy of cadres have a confluence at a particular stage for providing a common seniority list for farther promotions, and if some in one hierarchy leapfrogs illegally to reach that level where there is a merger of the two parallel cadres giving rise to common seniority list, the persons who are in the other parallel hierarchy who are affected thereby become persons aggrieved and become entitled to challenge the promotions made by any wrong interpretation of the Recruitment Rules.
Re: Correctness of the decision in Jagadeesha’s case.–
18. It is well-settled principle of service jurisprudence that prescription of mode of recruitment and minimum qualifications for a post is in the realm of Executive Policy of the Government and neither a Court nor the Tribunal can modify them, unless they are arbitrary, irrational or fanciful. In the case of J. Ranga Swamy v. Government of Andhra Pradesh, : the Supreme Court observed thus:
“It is not for the Court to consider the relevance of qualifications prescribed for various posts. There is nothing prima facie preposterous about this requirements. It is not for us to assess the comparative merits of such a BARC Diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question. It will be open to the petitioner, if so advised, to move the college, University, Government, Indian Medical Council or other appropriate authorities for a review of the prescribed qualifications and we hope that if a doctorate in nuclear physics is so absolutely irrelevant for the post in question as is sought to be made out by the petitioner, the authorities concerned will take expeditious steps to revise the necessary qualifications needed for the post appropriately. But on the qualifications as they stand today, the petitioner is not eligible to the post and cannot legitimate complain against his non-selection”.
19. The Recruitment Rules clearly require that for promotion from the cadre of Stenographer to the cadre of Junior Judgment Writers, the candidate must have put in a minimum service of three years in the cadre of Stenographers and must possess a degree in Arts, Science or Commerce. The Rule Making Authority in its wisdom has decided that the degree in Arts/Science/Commerce is necessary for promotion to the cadre of Junior Judgment Writers. It cannot be said that prescription of a degree for a Junior Judgment Writer’s post is fanciful or arbitrary. There was no valid reason for the Tribunal to sit in judgment over the said requirement relating to qualification and decide that it was not necessary to have a Bachelor’s Degree for promotion from the cadre of Stenographers to Junior Judgment Writer. As pointed out by the Supreme Court, if the Stenographers felt that a degree was not necessary, it was always open to them to give a representation to the Rule Making Authority for amendment of the Rule. But so long as the Rule requires a Bachelor’s degree and having regard to the nature of post it cannot be said that the requirement is arbitrary or fanciful, the Tribunal cannot take up on itself, to decide what should be the minimum qualification for the post of Junior Judgment Writers and change the minimum qualification prescribed by the State. In this case, instead of considering whether the qualification prescribed is arbitrary, the Tribunal has acted beyond its jurisdiction in deleting a qualification (of degree) prescribed under the Rules.
20. Similarly, when the rules prescribe that the promotion from, the cadre of Stenographer to the cadre of Junior Judgment Writers is subject to selection by test, it is impermissible for the Tribunal to delete the requirement regarding the test. The Tribunal has relied on the non obstante clause in Rule 3(2)(b) of the General Recruitment Rules to hold that promotion should be on the basis of seniority-cum-merit and therefore, it is not legal to require the candidates to undergo any test. But, what is required to be undergone by Stenographers is not a competitive examination or test for selection, but a test to be undergone by all candidates to find out whether they continue to have the ‘touch’ for shorthand and typing. The Junior Judgment Writers are required to take dictation in open Court and chambers and transcribe them. Therefore, efficiency in shorthand, and typing as also sound knowledge of the medium (language) of dictation is an absolute must for the post. The test is held to find out whether the candidate still has the necessary skill and ‘touch’ with shorthand and typing to function as a Junior Judgment Writers. What is prohibited by Rule 3(2)(b) of the General Recruitment Rules is assessment of comparative merit of candidates by holding a competitive examination for selection, when promotion is by seniority-cum-merit. Rule 3(2)(b) doss not prohibit ascertainment as to whether the candidate is fit for promotion. When promotion is by seniority-cum-merit, what is prohibited is comparing the merit of a senior with the merit of his juniors. But, if the candidate is found unworthy or unfit for promotion on account of incapacity to discharge the duties attached the promotional post, he need not be promoted. Therefore, prescription of any qualifying test or examination to find out the fitness for promotion by seniority-cum-merit is not prohibited. The test prescribed promotion as Junior Judgment Writers is only to ascertain the fitness of the candidate, to take down dictation and transcribe them. It does not convert the promotional process from seniority-cum-merit to selection. We therefore hold that the deletion of the clear and unambiguous words “must possess a degree in Arts/Science/Commerce” and the words “and subject to selection by tes in the qualification prescribed for promotion to the post of Junior Judgment Writers by the Tribunal is illogical and arbitrary and therefore unwarranted.
21. We may now consider the reason given by Tribunal for deleting the said qualification requirements for promotion to the post of Junior Judgment Writers. Under the rules, provision is made for promotion from the cadre of Stenographers to the cadre of Junior Judgment Writers, Personal Secretary-cum-Judgment Writer and Personal Secretary to Registrar. The post of Junior Judgment Writers, when compared to the posts of Personal Secretary-cum-Judgment Writer and Personal Secretary to Registrar, carries lesser pay and lesser responsibilities. The rules do not prescribe that a Stenographer should possess a degree in Arts/Science/Commerce nor provide for passing of any test for being promoted to the higher posts Personal Secretary-cum-Judgment Writer and Personal Secretary to Registrar, but prescribes such requirements for promotion to the lesser post of Junior Judgment Writers. The Tribunal has reasoned that if a degree in Arts/Science/Commerce and undergoing of a test are not necessary for promotion from the cadre of Stenographers to the higher posts of Personal Secretary-cum-Judgment Writer and Personal Secretary to Registrar, prescription of such requirements for promotion to the post of Junior Judgment Writers (which is lower than the posts of Personal Secretary-cum-Judgment Writer nd Personal Secretary to Registrar) is arbitrary and unreasonable.
22. The Tribunal has concluded that if a Stenographer without a degree of Arts/Science/Commerce could be promoted directly as Personal Secretary-cum-Judgment Writer, there should be no reason why for being promoted as a Junior Judgment Writers, he should possess a degree in Arts, Science and Commerce. A careful reading of the method of recruitment and minimum qualification prescribed for Personal Secretary-cum-Judgment Writer and for Junior Judgment Writers, shows that there is no anomaly as assumed by the Tribunal. For promotion to the cadre of Junior Judgment Writers, the Rules specifically prescribe that Stenographer should possess a degree in Arts/Science/Commerce. In regard Personal Secretary-cum-Judgment Writer, the rule says that the promotion is from the cadre of ‘Junior Judgment Writers’ or ‘Stenographer’. The words or Stenographer would mean, as rightly held by the Tribunal that a Stenographer can also be considered for promotion to the cadre of Personal Secretary-cum-Judgment Writer, if no suitable and eligible Junior Judgment Writers is available. The provision for double promotion to a Stenographer necessarily assumes and infers that the candidate should possess the qualification prescribed for the next higher post of Junior Judgment Writers and the qualifications prescribed for the post of Personal Secretary-cum-Judgment Writer. While a Junior Judgment Writers takes dictation from the members of the Tribunal and transcribes them, a Personal Secretary-cum-Judgment Writer apart from taking dictation and transcribing them, also additionally functions as a Personal Secretary to the members of the Tribunal. A person working as a Stenographer and who does not have the minimum qualification for being promoted to the cadre of Junior Judgment Writers, cannot obviously therefore be promoted as Personal Secretary-cum-Judgment Writer. To read the provision relating to the qualification for Personal Secretary-cum-Judgment Writer otherwise, would lead to absurd and contradictory results apart from rendering the educational qualification prescribed for Junior Judgment Writers meaningless. The rules cannot be interpreted as providing for higher qualifications for a lesser post and lesser qualification for a higher post in the same hierarchy. Nor can they be interpreted in a manner that a person who is ineligible for promotion to the next higher post in the hierarchy, becomes eligible for direct promotion to a much higher post. Therefore, the correct interpretation of the provisions for promotion to the posts of Junior Judgment Writers and Personal Secretary-cum-Judgment Writer is as follows:
(a) For promotion to the cadre of Junior Judgment Writers, a candidate, apart from having minimum service of three years in the cadre of Stenographers, should possess a degree in Arts/Science/Commerce. He should also undergo a test as prescribed.
(b) For promotion to the cadre of Personal Secretary-cum-Judgment Writer, a candidate should be in the cadre of Junior Judgment Writers having put in service of not less than three years in that cadre. If there is no one in the cadre of Junior Judgment Writers a candidate from the cadre of Stenographers can be considered for promotion to the cadre of Personal Secretary-cum-Judgment Writer, provided such candidate possesses the minimum qualification prescribed for the post of Junior Judgment Writers and has put in service of not less than three years in the cadre of Stenographer.
23. It is next pointed out by the respondents that a Stenographer can be promoted as a Personal Secretary to Registrar (which is also a higher post than Junior Judgment Writers) without possessing a degree in Arts/Science/Commerce and therefore such a requirement for promotion to the post of Junior Judgment Writers is unreasonable. But it should be remembered that there is only one post of Personal Secretary to Registrar (as against three posts of Junior Judgment Writers and six posts of Personal Secretary-cum-Judgment Writer). It is also obvious that the post of Personal Secretary to Registrar is meant to provide a promotional opportunity to Stenographers without a degree, if they have minimum of five years experience, as against the three years experience required for promotion to the post of Junior Judgment Writers. Therefore, what is prescribed as minimum qualification for the post of Personal Secretary to Registrar, cannot be a comparison or basis to delete an express educational qualification specified for the post of Junior Judgment Writers.
24. We are also conscious of some anamolies and unsatisfactory provisions in the Recruitment Rules. While it is permissible to the Tribunal to interpret them in a manner to make sense out of them and harmonise them, it is not permissible to delete specific educational qualifications prescribed for any post under the rules. It is for the Rule Making Authority to rationalise the provisions for recruitment to the posts of Personal Secretary-cum-Judgment Writer and Personal Secretary to Registrar, with reference to the qualifications prescribed for the post of Junior Judgment Writers. It is also open to any section of affected employees to represent to the Rule Making Authority to rationalise the provision for recruitment to the post of Junior Judgment Writers by providing for promotion from the cadre of Stenographers with three years experience, if they possess a degree, or five to six years experience if they do not possess a degree. But all that are in the realm of Rule Making Authority and not the Tribunal. As cautioned by Supreme Court in Mallikarjuna Rao’s case, supra and Asif Hameed v. State of Jammu and Kashmir, the Courts cannot usurp the functions assigned to the executive.
Re: Validity of Promotions of respondents 3 to 12.–
25. Petitioners have challenged the promotion of respondents 3 to 12 from the cadre of Stenographer to the cadre of Personal Secretary-cum-Judgment Writers and to the cadre of Junior Judgment Writers. It is stated that respondents 3 to 6 and 12 hold degrees in Arts/Science/Commerce. Therefore, there is no reason to disturb their promotions as Personal Secretary-cum-Judgment Writer at this distance of time. Insofar as Ramrao and Devika (respondents 7 and 8), it is seen that they are not graduates and could not have been promoted as Personal Secretary-cum-Judgment Writer. Respondent 9 who has been promoted as Junior Judgment Writers, is stated to possess a degree. But respondents 10 and 11 who have been promoted as Junior Judgment Writers are not graduates and were not therefore eligible for promotion. Thus, the promotions respondents 7 and 8 (promoted to the post of Personal Secretary-cum-Judgment Writers) and respondents 10 and 11 (promoted to post of Junior Judgment Writers) are illegal and requires interference.
Conclusion:
26. The promotions of respondents 7, 8 10 and 11 can not be upheld. However, having regard to the decisions in the cases of Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18 : 1995 SCC (L and S) 248 and Shyam Babu Verma v. Union of India, there shall be no recovery of any excess salary paid for the period when they have functioned in the higher posts, as a consequence of quashing of their promotions.
27. We therefore allow these petitions in part as follows:
(a) We declare that the “amendment” made by the Karnataka Administrative Tribunal by order dated 6-7-1994 in Jagadeesha’s case, supra to the Karnataka Administrative Tribunal (Recruitment) Rules, 1993, by deleting certain portions of minimum qualifications prescribed for the post of Junior Judgment Writers is not valid. Consequently, the provision of the said rule prescribing educational qualification for the post of Junior Judgment Writers as made by the Rule Making Authority shall remain unaltered.
(b) We declare that the provision for educational qualification for ‘Personal Secretary-cum-Judgment Writer’ should be read in a manner that if a Stenographer is considered for direct promotion to the post of Personal Secretary-cum-Judgment Writer, he should also possess the educational qualifications for Junior Judgment Writers. In other words only persons who can be promoted as Junior Judgment Writers can be promoted as Personal Secretary-cum-Judgment Writers.
(e) We hereby quash the order dated 11-8-1994 passed by the Acting Chairman of Tribunal promoting respondents 7 and 8 as Personal Secretary -cum-Judgment Writers and the order dated 11-8-1994 promoting respondents 10 and 11 as Junior Judgment Writers. However, no recovery shall be made from the salaries paid to them in regard to the period they have worked as Personal Secretary-cum-Judgment Writer and Junior Judgment Writers, on the ground of quashing of their promotions.
(d) Liberty is reserved to the affected employees to give representations to the Rule Making Authority for rationalisation of the Recruitment Rules by removing the anamolies. It is also open to the Tribunal to address the Rule Making Authority in this behalf.
(e) Second respondent is directed to redo the combined gradation list of Section Officer/Court Officer/Personal Secretary- cum- Judgment Writers/Personal Secretary to Registrar in the light of the above directions within four months from the date of receipt of this order. (f) Parties to bear their respective costs.