HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1751 OF 2008 Rajesh Kumar and ors Petitioners High Court of J&K and ors Respondent !Mr. Sunil Sethi, Sr. Advocate with Ms. Veenu Gupta, Advocate. ^Mr. A.Kapoor, Advocate for R-1&2. Ms. S.Kour, Advocate for R- 3 to 13. Mr. Justice J. P. Singh, Judge. Date: 22.04.2010 :J U D G M E N T :
1) Governed by the Jammu and Kashmir High Court Staff
(Conditions of Service) Rules,1968, the petitioners and
respondent Nos. 3 to 13 are the members of the Jammu
and Kashmir High Court Staff Service. They were serving in
the same class and category as Senior Assistants when the
High Court of Jammu and Kashmir ordered adjustment of
respondent Nos. 3 to 13 as Head Assistant in their own pay
and grade, until further orders, entitling them to Charge
Allowance for working against the promotional post, vide
order No.667 of 24.11.2008.
2) In terms of the High Court order, respondent Nos. 3 to 13
were entitled to consideration for regularization/
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appointment to the higher post only if they attained requisite
qualification and experience prescribed for the post.
3) Aggrieved by the adjustment of respondent Nos.3 to 13, the
petitioners have filed this Writ Petition seeking quashing of
the High Court order No.667 dated 24.11.2008 in so far as it
directs adjustment of respondent Nos. 3 to 13 against the
post of Head Assistant, hereinafter to be referred as the
“impugned order”, for short, besides for a command to the
respondents to consider and promote them as Head
Assistants.
4) The case set up by the petitioners in their Writ Petition, in a
nut shell, is that respondent Nos.3 to 13 did not possess
Degree of Graduation, the academic qualification,
prescribed as such for the post of Head Assistant vide High
Court Order No.579 dated 24.10.2008 issued under Rule 6
of the Jammu and Kashmir High Court Staff (Conditions of
Service) Rules 1968 and in supersession of all previous
orders in this behalf, prescribing Mode of recruitment/
promotion to various posts in the High Court, and were thus
disentitled to adjustment against the post of Head Assistant
which was per se bad because consideration under law,
was available to those alone who were otherwise eligible for
promotion under the Rules and the order of the High Court
issued under Rule 6 of the High Court Rules.
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5) Adjustment of the respondents by the High Court has been
assailed as wholly unwarranted besides being unjustified, in
that, it had been ordered ignoring the right of consideration
of the available eligible Senior Assistants like the petitioners
and in violation of the order of the High Court prescribing
Mode of recruitment, inter alia, for the post of Head
Assistant.
6) The High Court Administration responds to the petitioners’
Writ Petition questioning its maintainability besides saying
that adjustment of respondent Nos. 3 to 13, who were senior
to the petitioners, was only a stop gap arrangement for
running the affairs of the Registry of the High Court and that
it had to continue until such time eligible and suitable
candidates were available to fill up the posts, which
according to it, would not affect any of the petitioners’
enforceable right.
The adjustments are stated to have been made by
Hon’ble The Acting Chief Justice, on the recommendations
of the Hon’ble Judges’ Committee.
7) Respondent Nos. 3 to 13 justify their adjustment saying that
Lord Acting Chief Justice possessed the Authority to relax
the conditions of service, And that the order impugned in the
Writ Petition, being in relaxation of the Rules, was not open
to question by the petitioners. They justify their adjustment
additionally relying on Circular No.13 of 1980 which allowed
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25% quota for promotion to matriculate employees of the
High Court staff.
8) I have considered the submissions of learned counsel for
the parties and perused the records made available by the
learned counsel appearing for the High Court.
9) To consider the issues projected by learned counsel for the
parties at the Bar, for determination, following questions
need to be addressed.
i) Whether adjustment of respondent Nos.3 to 13
against the post of Head Assistant affects any
enforceable right of the petitioners entitling them
to seek Judicial Review thereof?
ii) In case question No.1 was answered in the
affirmative, whether the High Court order No.667
dated 24.11.2008, in so far as it pertains to the
adjustment of respondent Nos. 3 to 13, was
justified and sustainable ?
iii) Whether Lord Acting Chief Justice, possessed
the power to relax the Rules, and if so, whether
the impugned order had been issued in
relaxation of the Rules ?
10) Before addressing the questions aforementioned, reference
needs to be made to some of the provisions of the Jammu
and Kashmir High Court Staff (Conditions of Service) Rules
1968, hereinafter to be referred as “the High Court Rules”,
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for short, the order passed by Lord Chief Justice, in terms of
the Rule 6 of the High Court Rules, the recommendations
made by the Hon’ble Judges’ Committee, and the approval
accorded by Lord Acting Chief Justice thereon.
11) All appointments to the Staff of the High Court including
promotions, are made by the Chief Justice of the High Court
unless, the power of appointment, other than those of
Gazetted Officers, was delegated to the Registrar or to any
Judge of the High Court in terms of Rule 4 of the High Court
Rules.
Rule 6 of the High Court Rules, empowers the Chief
Justice to lay down the qualifications of the members of
service and determine the Mode of recruitment to the posts
borne on the cadre of the service.
The High Court Rules do not contemplate relaxation of
the Rules as such. The decision of Lord Chief Justice, in
case of any doubt regarding the interpretation of Rules is,
however, indicated to be final by the Rules.
12) The background facts leading to the issuance of High Court
orders prescribing Mode of Recruitment and Qualification for
the members of the service may now be noticed.
Acting under Rule 6 of the High Court Rules, the then
Lord Chief Justice prescribed qualifications and Mode of
appointment/ promotion to the posts on the cadre of the
service vide order No.508 dated 15.10.2008.
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These Rules were, however, later superseded by the
Acting Chief Justice when his Lordship, in exercise of the
powers under Rule 6 of the High Court Rules and in
supersession of all previous orders on the subject,
prescribed fresh qualifications/Mode of appointment to the
posts on the cadre of the service vide order No.579 dated
24.10.2008.
13) The Mode of appointment/ minimum qualification prescribed
for the post of Head Assistant, in terms of order No.579
dated 24.10.2008 is indicated as follows:-
Name of the Post: Head Assistant
Mode of Appointment: By promotion from amongst Senior
Assistants on the basis of seniority cum
merit.
Minimum qualification: Graduation from a recognized
Required University.
Minimum experience, if any,: Two years
required
Existing pay scale : 5000-8000
14) Note Nos. 1 and 2 appearing in the concluding portion of
order No.579 dated 24.10.2008 read thus:-
“1) If the candidate(s) is/are not available from the
relevant feeding cadre, then the selection/appointment shall be
made from amongst the candidate(s) from other equivalent
cadre(s).
(2) Since the requirement of graduation for entry into
the High Court service was prescribed vide Notification dated 25-4-
1987, at that time officials having qualification less than graduation
entered the service. Such official having during this period gained
sufficient experience in the working of the administration, the Chief
Justice may on his own or on the recommendations of committee, if
so constituted, relax the qualification in cases of officers/officials
who have made their entry into the service on or before the 25th of
April, 1987. Further the minimum period of experience can also be
relaxed in exceptional and appropriate cases. The officials can get
only one relaxation at the time.”
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15) Few more facts, discerned from the official records leading
to the issuance of the order impugned in the Writ Petition
may be necessary. These are as follows:-
Qualification and Mode of recruitment prescribed for
appointment and promotion to the posts in the High Court by
Lord Acting Chief Justice vide order No.579 dated
28.10.2008 in supersession of order No.508 dated
15.10.2008, does not appear to have resulted in filling up of
the available vacancies in the High Court.
The Registrar General of the Court, therefore, mooted
proposal suggesting further relaxation in the Mode of
recruitment and promotions against the available vacancies
in the High Court Staff Service.
Lord Acting Chief Justice directed the matter to be
placed before the already constituted Judges’ Committee,
for examination/ recommendation and approval.
The Committee, accordingly, considered the Registrar
General’s Report/Note and made various recommendations
suggesting promotions/adjustments to various posts in the
High Court. The recommendations made by the Committee
at paragraph No. 33, which may be relevant for the purpose
of this Writ Petition, are reproduced hereunder for
reference:-
“33. Sanjeev Kumar, Abdul Rashid, Shakeel Ahmad, Bhawani
Prasad, Molvi Mehboob, Tahira Parveen, Ranjeet Singh,
Ravi Kumar, Pawan Kumar, Gh. Rasool and Daljit Singh
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are adjusted as Head Assistants in their own pay and
grade till further orders.”
16) Perusal of the recommendations of the Judges’
Committee indicates that it had made No
suggestion/recommendation for affecting changes in
the Mode of Recruitment for appointment and promotion
to the posts available in the High Court, as proposed by
the Registrar General.
17) The recommendations of the Committee, suggesting
amongst others the adjustment of the respondents were
approved by Lord Acting Chief Justice on November 21,
2008.
18) Before entering into discussion on the issues which arise for
consideration in the Writ Petition, it needs to be noticed that
the Registrar General’s note, which had been put to the
Judges’ Committee, pursuant to the orders of the Acting
Chief Justice, neither refers to nor suggests filling up of
the posts of Head Assistant or for that matter change in
the Mode of recruitment therefor appearing in High
Court Order No.579 of 24.10.2008.
DISCUSSION:
19) Perusal of the facts culled from the records of the High Court
indicates that the recommendations made by the Registrar
General in his note of October 28, 2008, suggesting
reconsideration of the Mode of recruitment and appointment
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to various posts in the High Court, does not appear to have
been deliberated upon by the Committee which, without
suggesting any changes in the already prescribed Mode of
recruitment for appointment and promotions, recommended
promotion/adjustment of the Head Assistants besides other
members of the service.
20) The mode of promotion to the post of Head Assistant, in
terms of Order No.579 aforesaid, permits consideration for
promotion, to only those Senior Assistants, who possessed
academic qualification of Graduation and had two years
experience as Senior Assistant. Respondent Nos. 3 to 13,
as admitted by the learned counsel for the parties at the Bar,
did not possess the prescribed qualification of Graduation.
21) Consideration for adjustment of those who were otherwise
ineligible for promotion against the promotional post is not
countenanced by the Service jurisprudence. Adjustment of
the respondents who were admittedly ineligible for promotion
for their not possessing requisite qualification was not thus
warranted particularly when eligible Senior Assistants
possessing requisite prescribed qualification and experience
were available with the High Court.
22) The recommendations made by the Judges’ Committee
suggesting adjustment of respondent No.3 to 13 as Head
Assistants, were thus not in consonance with Order No.579
dated 24.10.2008, which permitted promotion to the post of
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Head Assistant of only those Senior Assistants who were
graduates with two years’ experience.
23) The records further reveal that the only material which the
Hon’ble Judges’ Committee had considered while making
recommendations for promotion, was the Registrar
General’s note and nothing beyond that. The Registrar
General’s note, however, does not contain even a whisper
about the promotion/adjustment of the Head Assistants.
24) Approval accorded by Lord Acting Chief Justice to the
recommendations of the Hon’ble Judges’ Committee for
adjustment of respondent Nos. 3 to 13 as Head Assistants
cannot, thus, be justified, on any count whatsoever, in that,
the approval was in clear violation of Order No.579 dated
24.10.2008 issued by his Lordship, in terms whereof only
those Senior Assistants could be considered for promotion
as Head Assistants, who were graduates and had two years
experience as Senior Assistant.
25) In terms of the Mode of recruitment for appointment and
promotions prescribed by Lord Acting Chief Justice, the
power to relax the prescribed qualification under Order 579
dated 24.10.2008 was restricted only in case of those
officers/officials, who had made their entry into the High
Court service on or before April 25, 1987.
26) Respondent Nos. 3 to 13, as conceded by the learned
counsel appearing for the High Court, had entered the High
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Court service after April 25, 1987, the date prescribed in
Order No.579.
27) To examine the issues projected at the Bar by the
respondents’ learned counsel that Lord Acting Chief Justice
had the power to relax the Rules, the Rules were examined
in the light of the Mode of recruitment for appointment and
promotions prescribed vide Order No.579 dated 24.10.2008.
No provision was, however, found either in the Rules or in
the Mode of recruitment for appointment and promotions
prescribed by Lord Acting Chief Justice, which may be
construed vesting powers in the Lord Chief Justice to make
appointments/ promotions in relaxation of the Rules.
28) Note 2 forming part of Order No.579 too, was found vesting
only a limited discretion in the Lord Chief Justice to consider
relaxation of qualification in case of only those
officers/officials, who had made their entry in the High Court
service on or before April 25, 1987.
29) Respondent Nos. 3 to 13 having entered service much after
the date appearing in note 2 referred to hereinabove, were
thus not entitled to any relaxation in the qualification
prescribed vide Order No.579 dated 24.10.2008.
30) Respondent Nos. 3 to 13’s counsel’s next submission that
the adjustment of respondent Nos. 3 to 13 were justified in
view of the quota of promotions reserved vide Circular No.13
of 1980 needs to be noticed only for rejection, in that, the
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Circular has no application to the post of Head Assistant and
that apart Order No.579 dated 24.10.2008, does not
prescribe any such type of quota for in-service ineligible
Senior Assistants for promotion to the post of Head
Assistant, as was projected by the learned counsel to justify
the adjustment of respondent Nos.3 to 13, despite their
ineligibility.
31) The High Court Administration’s learned counsel’s plea that
the adjustment of the private respondents was a stop gap
arrangement for running the affairs of the Registry too, is
found to be without merit, in that, no material has been
placed on records to support the plea. On the contrary, the
Registrar General’s silence to suggest promotion/
adjustment against the post of Head Assistants, goes a long
way in suggesting that the adjustment of respondents had
not been made by way of stop gap arrangement for running
the affairs of the Registry because had there been any such
necessity, the Registrar General’s note should have referred
to it.
32) The Judges’ Committee appears to have suggested the
adjustment of respondent Nos. 3 to 13 as Head Assistants,
merely on the basis of their seniority.
33) The petitioners possessed requisite qualification of
Graduation as also the experience needed for promotion to
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the post of Head Assistant; they were, thus, entitled to
consideration for promotion/adjustment.
34) Omission of the Judges’ Committee to accord consideration
to the petitioners, despite their eligibility and experience,
only on the ground that they were junior to the private
respondents is unwarranted, in that, such a course was not
permissible under law and was even otherwise in violation of
the High Court Rules and High Court Order No.579 dated
24.10.2008.
35) The question that arises for consideration is; whether the
approval accorded by Lord Acting Chief Justice to the
recommendations of the Judges’ Committee for adjustment
of the respondents, refusing consideration to the eligible
Senior Assistants like the petitioners, was justified and
warranted under law ?
36) The answer to the question cannot but, be emphatic ‘No’, in
that, while directing adjustment of the Head Assistants, the
Mode of recruitment for appointment and promotion
prescribed therefor, in exercise of powers vested in Lord
Chief Justice under Rule 6 of the High Court Rules was
required to be adhered to, And in this view of the matter,
violation of, the Rules framed under Section 108 of the
Constitution of Jammu and Kashmir which were required to
be followed in letter and spirit, cannot be justified.
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37) Seniority is no doubt relevant for considering promotion to
the post of Head Assistant but its relevance was subject to
the candidate’s eligibility for consideration therefor, meaning
thereby that ineligible Senior Assistants cannot claim
consideration for promotion only on the basis of their
seniority.
38) The approval accorded by Lord Acting Chief Justice for
adjustment of the respondents, without commenting on the
Registrar General’s note as to whether or not the existing
prescribed qualifications warranted any change, and taking
any decision thereon, as to whether the Mode of recruitment
and promotion prescribed by Lordship vide Order No.579
warranted any further change/modification, is found
unjustified and illegal, in that, the adjustment of the
respondents ordered vide the impugned High Court order
violates not only the petitioners’ right of consideration to
promotion/adjustment for the post of Head Assistant,
guaranteed to them under Article 16 of the Constitution of
India, but also the Rules governing the service conditions of
the members of the Jammu and Kashmir High Court Service
read with the High Court Order No.579 which do not permit
manning of the posts in the cadre of the Service by ineligible
candidates.
39) The facts and circumstances of the case, in which the
adjustment of respondent Nos. 3 to 13, has been ordered
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and that too in violation of the Rules governing the service
justifies Judicial Review thereof, particularly when note No.2
appended to the order impugned, hints at the respondents’
regularization/appointment on the higher posts on their
attaining qualification and experience prescribed therefor.
40) Respondents’ learned counsel’s plea that the adjustment of
respondent Nos. 3 to 13 does not violate any enforceable
right of the petitioners is found untenable, in that, for making
adjustments against higher posts, allowing the incumbents
to draw the Charge Allowance, eligibility prescribed therefor,
cannot, in my view, be sacrificed to adjust ineligible persons
against the promotional post, when eligibles therefor were
available for such adjustment, temporary or otherwise.
41) Petitioners’ right to consideration for promotion and
adjustment having been thereby adversely affected, would
not thus disentitle them to invoke the Extraordinary Writ
Jurisdiction of the Court, notwithstanding any prior
Representation against the adjustment, as projected by the
High Court’s learned counsel, in that, the Rules do not
contemplate any Appeal/Representation against the orders
of promotion/adjustment.
42) For all what has been said above, question No.1 is
answered by holding that adjustment of respondent Nos. 3
to 13 against the post of Head Assistants affects the
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petitioners’ right to consideration entitling them to invoke the
Extra Ordinary Writ Jurisdiction of the Court.
So far as question No.2 is concerned, the High Court
Order No.667 dated 24.11.2008 in so far as it pertains to the
adjustment of respondent Nos. 3 to 13 is found unjustified
and against the Rules, hence unsustainable.
Concluding finding on question No.3, it is held that the
High Court Rules do not as such vest absolute power in the
Lord Chief Justice to relax the Rules and the power of
relaxation, in terms of High Court Order No.579 dated
24.10.2008, is exerciseable in case of only those officers/
officials who had entered the service before April 25, 1987.
Lord Acting Chief Justice had not, thus, relaxed the
Rules in approving the respondents’ adjustments ordered
vide the order impugned in the Writ Petition.
43) The upshot of the above discussion and the findings is that
the Writ Petition succeeds and is, accordingly, allowed
quashing the High Court Order No.667 of 24.11.2008 in so
far as it orders adjustment of respondent Nos. 3 to 13 as
Head Assistants.
Records be returned to the learned counsel for the High
Court.
(J. P. Singh)
Judge
JAMMU:
22.04.2010
Vinod.
