{"id":250937,"date":"1998-01-14T00:00:00","date_gmt":"1998-01-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-uppal-ors-vs-state-of-j-k-and-ors-on-14-january-1998"},"modified":"2017-10-24T02:46:51","modified_gmt":"2017-10-23T21:16:51","slug":"ashok-kumar-uppal-ors-vs-state-of-j-k-and-ors-on-14-january-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-uppal-ors-vs-state-of-j-k-and-ors-on-14-january-1998","title":{"rendered":"Ashok Kumar Uppal & Ors vs State Of J & K And Ors on 14 January, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ashok Kumar Uppal & Ors vs State Of J & K And Ors on 14 January, 1998<\/div>\n
Author: S S Ahmad.<\/div>\n
Bench: S.Saghir Ahmad, D.P. Wadhwa<\/div>\n
           PETITIONER:\nASHOK KUMAR UPPAL & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF J & K AND ORS.\n\nDATE OF JUDGMENT:\t14\/01\/1998\n\nBENCH:\nS.SAGHIR AHMAD, D.P. WADHWA\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nS. SAGHIR AHMAD. J.\n<\/p>\n
     The  appellants   as  also\t respondents  2\t to  7\twere
\npermanent Junior  Scale Stenographers in the Secretariat and
\nother Government  Departments. For  promotion to the post of
\nSenior Scale  Stenographer, they  were required to possess a
\nspeed of  80 words  per minute in shorthand and 40 words per
\nminute in  typewriting. They could not attain that standard,
\nbut the spate of litigation filed by them against each other
\nin quick  succession, did really match their speed, whatever
\nit be,\tin shorthand  and typewriting. Without showing sings
\nof fatigue  and breathlessness,\t they started the litigation
\nin 1984\t and now  in 1998 they seem to be, today, at the and
\nof the litigative race.\n<\/p>\n
2.   Promotion from Junior Scale Stenographers to the Senior
\nScale Stenographers  are made in terms of the Rules knows as
\n“J&K Secretariat  (Subordinate) Service\t Recruitment  Rules,
\n1972” made  by the State Government in exercise of its power
\nunder the  Provision to\t Section 124  of the Constitution of
\nJammu &\t Kashmir. Rule\t5(1)(B)\t thereof,  relating  to\t the
\nmethod of  appointment\/recruitment to  the  post  of  Senior
\nScale Stenographers, originally provided as under :\n<\/p>\n
     “Senior Scale  Stenographers  (340-\n<\/p><\/blockquote>\n
     700) :\n<\/p><\/blockquote>\n
     (i) 75%  by selection from class II
\n     category `B’ having not less than 3
\n     years service  in that category and
\n     on the basis of a test in shorthand
\n     and typewriting  for which\t minimum
\n     speed should be 80 and 40 words per
\n     minute respectively :\n<\/p><\/blockquote>\n
     Provided that  in the  case of such
\n     Junior Scale  Stenographers of  the
\n     Civil Secretariat\tas have attained
\n     the age  of fifty\tyears or  above,
\n     the  Government  may  consider,  on
\n     individual\t basis\t and  with   due
\n     regard  to\t  merit,  seniority  and
\n     suitability, their\t appointment  to
\n     the   posts    of\t Senior\t   Scale
\n     Stenographers without  appearing in
\n     the prescribed test.\n<\/p><\/blockquote>\n
     (ii) 25% by direct recruitment from
\n     the  in-service  candidates  having
\n     not less  than 5  years service  in
\n     the     category\t   of\t  Junior
\n     Stenographers and on the basis of a
\n     test in  shorthand and  typewriting
\n     for which\tthe minimum speed should
\n     be\t 80  and  40  words  per  minute
\n     respectively.\n<\/p><\/blockquote>\n
3.   In 1984,  a number\t of vacancies in the cadre of Senior
\nScale  Stenographer   were   available.\t  Since\t  the\tRule
\ncontemplated a test for the selection of suitable candidates
\nfor appointment\t as Senior Scale Stenographer, a requisition
\nwas sent  by the  State Government  to the State Recruitment
\nBoard constituted under the J&K Civil Service (Decentralised
\nRecruitment to\tNon-Gazetted Cadres) Rules, 1969 to hold the
\ntest.\n<\/p>\n
4.   Out of  100 candidates drawn from Secretariat and other
\nGovernment department,\twho were called for the test held on
\n4.12.1984, only\t 78 appeared in the test of which the result
\nwas communicated  to the  Government by the Secretary of the
\nSTATE Recruitment  Board on  2.1.1985, indicating  that only
\nsix had\t qualified in  the test\t as they alone were found to
\npossess a  speed of  80 words per minute in shorthand and 40
\nwords per  minute in  typewriting. The\tnames of  those\t six
\ncandidates were\t consequently recommended for appointment as
\nSenior Scale  Stenographer. The\t Recruitment Board, however,
\nmade a further recommendation as under:\n<\/p>\n
     “Since  the   number  of  available
\n     vacancies in  the discussions  held
\n     with the  Deputy Secretary\t General
\n     Department is  far greater than the
\n     number  intimated\tearlier\t by  the
\n     General   Department,   the   State
\n     Recruitment  Board\t  would\t suggest
\n     that  26\tcandidates  (listed   in
\n     annexure to  the letter in order of
\n     merit)  who   are\tnearer\t to  the
\n     prescribed\t standard  may\talso  be
\n     considered\t  for\tappointment   as
\n     Senior  Scale   Stenographers   fin
\n     relaxation\t  prescribed\tstandard
\n     against the available vacancies.”\n<\/p><\/blockquote>\n
5.   The Board\tsuggested the  names of\t 26 more  candidates
\nwhose performance  (Between 71\tto 79  words per  minute  in
\nshorthand)  was\t found\tto  be\tnearest\t to  the  proscribed
\nstandard for their appointment as Senior Scale Stenographers
\nby relaxing the standard prescribed under the Rules.\n<\/p>\n
6.   The  State\t  Government  considered  the  matter,\tbut,
\nalthough it  appointed the  six persons who had qualified in
\nthe test  as Senior Scale Stenographers, it took no decision
\nwith regard  to those  twenty six  other candidates who then
\nrepresented to\tthe Government\tand prayed  that in terms of
\nthe recommendation  of the STATE Recruitment Board, they may
\nbe also\t promoted to the post of Senior Scale Stenographers.
\nWhen  their  representation  remained  undisposed  of,\tthey
\napproached the High Court and files Writ Petition No. 193 of
\n1985 praying  for a  direction to  the State  Government  to
\nappoint them as Senior Scale Stenographers. They also prayed
\nfor the\t interim relief\t that no  promotions on\t the post of
\nSenior Scale  Stenographers be\tmade during  the pendency of
\nthe Writ Petition which relief, incidentally, was granted by
\nthe High  Court by  order dated\t 23.2.1985. This  order was,
\nhowever, vacated  on 23.4.1985 when the writ Petition itself
\nwas  dismissed\t by  the   High\t Court\twith  the  following
\nobservations:\n<\/p>\n
     “Having  considered  the  arguments
\n     advanced\tin    the   facts    and
\n     circumstances of  the present  case
\n     we find that the authority of their
\n     Lordships of  the Supreme\tCourt is
\n     distinguishable  on  facts\t in  the
\n     present\tcase,\t although    the
\n     principle\tcannot\tbe  denied  that
\n     once the  selection is  made by the
\n     Recruitment  Board\t  in  accordance
\n     with  the\t Rules\tprescribed,  the
\n     qualification and the result of the
\n     test for  selection, Government can
\n     reject the\t recommendation for  the
\n     reasons to be recorded otherwise if
\n     the  appointments\t are  made,  the
\n     select list  in accordance with the
\n     rules shall  have to be adhered to.
\n     In the  present case  in accordance
\n     with the letter Annexure-R-I of the
\n     Recruitment Board, it is pertinence
\n     to\t note\tthat  the   list  of  26
\n     candidates\t  suggested    by    the
\n     Recruitment Board\tthe  respondents
\n     shall take\t into account  the list,
\n     which has\tbeen recommended  by the
\n     Recruitment  Board\t  otherwise   in
\n     further selection\tthey will adhere
\n     to the  rules subject  to which the
\n     selections are made.\n<\/p><\/blockquote>\n
     With the  above said  observations,
\n     we don’t  find  any  merit\t in  the
\n     present writ petition, the petition
\n     is,   therefore,\t dismissed    as
\n     premature and  also  the  connected
\n     CMPs. The stay order passed by this
\n     court on  February 2,  1985 CMP NO.
\n     365 of 1985 stands vacated.”\n<\/p><\/blockquote>\n
7.   It may  be stated that the State Government, during the
\npendency of  the above\tWrit Petition,\tand,  significantly,
\njust two  days after  the interim  order dated 23.2.1985 was
\npassed, amended\t the Rules  by SRO  76 dated  25.2.1985.  by
\nsubstituting the  following in\tplace of  existing Rule 5(1)
\n(B) :\n<\/p>\n
     “B\t –  Senior  Scale  Stenographers
\n     (825-1240):\n<\/p><\/blockquote>\n
     By selection  form Class I Category
\n     `B’  having  not  less  than  three
\n     years service  in that category and
\n     on the  basis of  a qualifying test
\n     in shorthand  and type-writing  for
\n     which   the minimum speed should be
\n     80 and 40 words respectively :
\n     Provided that in case the number of
\n     available\tvacancies   exceeds  the
\n     number   of   qualified   officials
\n     recommended  by  the  test\t holding
\n     agency,  the   remaining  vacancies
\n     after accommodating  those who have
\n     qualified in  the\ttest  should  be
\n     filled up by promotion on the basis
\n     of seniority.”\n<\/p><\/blockquote>\n
8.   The amended  Rule, specially its Provision, thus opened
\nthe  door   to\tpromotion  on  the  posts  of  Senior  Scale
\nStenographer merely  on the  basis of seniority irrespective
\nof the\tspeed in shorthand and typewriting, but promotion in
\nthis manner  could be made only if there were more vacancies
\nthat the  names recommended  by the  State Recruitment Board
\nwith   the   result   that   additional\t  vacancies,   after
\naccommodating those  who had qualified in the test, could be
\nfilled up on the basis of seniority alone.\n<\/p>\n
9.   On 13.5.1985,  the State  Government issued  SRO 177 by
\nwhich  the  amendments\tintroduced  by\tSRO  76\t were  given
\nretrospective effect  by providing  that the  Rule shall  be
\ndeemed to  have been  amended with effect from 4.12.84. This
\ndate is\t the date  on which  the test  was held by the State
\nRecruitment Board.  On the  same day,  namely, on  13th May,
\n1985,  the   State  Government\t promoted  33  Junior  Scale
\nStenographers to  the posts of Senior Scale Stenographers on
\nthe basis of their seniority. These 33 Stenographers did not
\ninclude any of the 26 Stenographers regarding whom the STATE
\nRecruitment Board had suggested that they may be promoted by
\nrelaxing the Rules.\n<\/p>\n
10.  Five of these 26 Stenographers made a representation to
\nthe State  Government that  they, having been recommended by
\nthe State  Recruitment Board  for promotion  to the posts of
\nSenior Scale  Stenographers, may  be promoted on those posts
\nby accepting  the suggestion  of the Board that the Rules in
\ntheir cases  may be  relaxed. The  Government accepted their
\nrepresentation and  promoted them  to the  posts  of  Senior
\nScale Stenographers,  may be  promoted\ton  those  posts  by
\naccepting the  suggestion of  the Board\t that the  Rules  in
\ntheir cases  may be  relax. The\t Government  accepted  their
\nrepresentation and  promoted them  to the  posts  of  Senior
\nScale Stenographers  by order  dated 19th  December, 1986 by
\nrelaxing the requirement of possessing the speed of 80 words
\nper  minute   in  shorthand  and  40  words  per  minute  in
\ntypewriting. This  order was  challenged by  G.R. Sharma and
\nothers in W.P. No. 101 of 1987 on the ground that they being
\nthe next  into he  seniority list, should have been promoted
\nas  Senior   Scale  Stenographers  on  the  basis  of  their
\nseniority, in  place of those 5 persons who were promoted by
\nrelaxing  the Rules.\n<\/p>\n
11.  SRO 177 of 1985, which gave retrospective effect to SRO
\n76, was\t challenged in Writ Petition No. 1341 of 1986 on the
\nground\tthat  the  Government  was  not\t competent  to\tgive
\nretrospective operation to SRO 76 of 1985.\n<\/p>\n
12.  Both the Writ Petitions, namely, Writ Petition NO, 1341
\nof 1986 and 101 of 1987, were heard by a Single Judge (Chief
\nJustice, S.S. Kang) and by judgment dated December 21, 1990,
\nWrit Petition  No, 1341\t of  1986  was\tdismissed  with\t the
\nfinding that  the Government could give retrospective effect
\nto the\tService Rules  made by\tit in  exercise of the power
\nconferred upon\tit by  the Proviso  to Section\t124  of\t the
\nConstitution of\t Jammu and Kashmir. Writ Petition No. 101 of
\n1987 was,  however, allowed and the appointment of 5 persons
\non the\tbasis of the recommendation of the State Recruitment
\nBoard that  they may  be promoted by relaxing the Rules, was
\nset aside  with the finding that such a recommendation could
\nnot have  been legally\tmade by\t the State Recruitment Board
\nnor could  those persons  be treated as persons selected for
\nappointment. It\t was also  held that  the Government  had no
\npower to  relax the  prescribed standard  particularly as no
\nRule,  empowering   the\t State\t Government  to\t  relax\t the
\nprescribed standard, was brought to the notice of the court.\n<\/p>\n
13.  The Letters  Patent Appeal,  filed\t against  the  above
\njudgment, was  dismissed in limine by the Division. Bench on
\n1st March,  1991. It  is in  these  circumstances  that\t the
\nmatter is now before us.\n<\/p>\n
14.  We are  informed by  Mr. D.D.  Thakur, that  during the
\npendency of  this appeal,  Gobind Ram  Sharma, who had filed
\nWrit Petition  No. 101\tof 1987, had already been promoted a
\nSenior Scale  Stenographer. We\tare also  informed that\t the
\nRule  of  promotion  was  again\t amended  in  1995  and\t the
\nrequirement of\ta qualifying test, prescribed under the Rule
\nfor  making   promotion\t to   the  post\t  of  Senior   Scale
\nStenographer, has  been completely dispensed with ant it has
\nbeen provided that promotion shall be made only on the basis
\nof seniority.  Thereafter, all\tthe appellants were promoted
\nas Senior Scale Stenographers and are working as such.\n<\/p>\n
15.  Normally, since  all the  appellants have\talready been
\npromoter  as  Senior  Scale  Stenographers,  we\t would\thave
\ndismissed the  appeal as  infectors  but  Mr.  D.D.  Thakur,
\nSenior Counsel\tappearing on  behalf of\t the appellants, has
\ncontended that\tit is  not a matter of mere promotion to the
\nposts of  Senior Scale Stenographers but it  is the question
\nof  seniority\tof  the\t  appellants,  a   matter  of  prime
\nimportance, which is involved as an important factor in this
\nappeal. It is contended by him that if it is held ultimately
\nby  this  Court\t that  their  appointment  as  Senior  Scale
\nStenographers by  the State  Government on   19th  December,
\n1986 by\t relaxing the prescribed standard, as recommended by
\nthe State  Recruitment Board was properly mad, they shall be
\ntreated to  have been promoted as Senior Scale Stenographers
\nwith effect  from that\tdate and  will, in  that even,\trank
\nsenior\tto  all\t those\twho  were  promoted  to\t that  cadre
\nsubsequent to  their promotion.\t This is a question which is
\nnot directly  in issue in this petition as the only question
\nwith which  we are  concerned in  this appeal is whether the
\nGovernment could,  in the  particular circumstances  of this
\ncase, specially\t when there  was already a suggestion of the
\nState Recruitment  Board, relax\t the prescribed standard and
\npromote\t the   appellants  to  the  posts  of  Senior  Scale
\nStenographers. If  that promotion  is upheld,  what would be
\nits effect  on the question of seniority and further whether
\nany person,  senior to\tthe  appellants,  who  was  promoted
\nsubsequent to  the promotion of the appellants, would region
\nhis original  seniority, a questions which cannot be decided
\nby us  in this\tappeal. However,  as contended\tby Mr.\tD.D.
\nThakur, we  would definitely  examine the  validity  of\t the
\norder of  promotion, concerning\t the appellants, made by the
\nState Government  on 19th  December, 1986  by  relaxing\t the
\nprescribed standard.\n<\/p>\n
16.  As pointed out above, the service conditions of all the
\nStenographers,\tSenior\tScale  as  also\t Junior\t Scale,\t are
\nregulated J&K  Secretariat (Subordinate) Service Recruitment
\nRules, 1972. Rule 12 of these Rules provides as under:-\n<\/p>\n
     “12. Residuary  matters.- In regard
\n     to matters not specifically covered
\n     by these  rules  or  by  a\t special
\n     order, the\t members of  the service
\n     shall be  governed\t by  the  rules,
\n     regulations and order applicable to
\n     the   STATE    Civil   Service   in
\n     general.”\n<\/p><\/blockquote>\n
17.  Power to  relax the Rules or any requirement thereof is
\nnot contained  in these\t Rules and,  therefore, it  become a
\n“Residuary matter”  within the\tmeaning\t of  Rule  12  above
\ncompelling us to look to other Rules applicable to the State
\nCivil Services in general.\n<\/p>\n
18.  Our attention  has been  drawn to the J&K Civil Service
\n(Decentralization of and Recruitment to Non-Gazetted Cadres)
\nRules, 1969,  Specially Rule  1 (2) thereof, which is quoted
\nbelow:-\n<\/p>\n
     “1.(1)………………………..
\n     …………\n<\/p><\/blockquote>\n
     (2) Unless otherwise expressly
\n     provided in these rules shall apply
\n     to all non-gazetted posts under the
\n     Government except such posts in the
\n     Police Department.”\n<\/p><\/blockquote>\n
19.  These Rules are thus applicable to all the Non-Gazetted
\nposts which will obviously include the posts of Senior Scale
\nStenographers as  the applicability  of these  Rules has not
\nbeen expressly excluded by the J&K Secretariat (Subordinate)
\nService Recruitment Rules, 1972.\n<\/p>\n
20.  Rule 14 of the 1969 Rules provides as under :\n<\/p>\n
     “14. Power\t to issue instructions.-
\n     The Government  may  from\ttime  to
\n     time,  issue   such  directives  or
\n     instructions, as  may be necessary,
\n     for the purpose of carrying out the
\n     provisions of these rules.
\n     The Government  may,  where  it  is
\n     satisfied that the operation of any
\n     provision\tof  these  rules  causes
\n     undue hardship  in\t any  particular
\n     case or  class of\tcases, by order,
\n     dispense\twith\tor   relax   the
\n     requirements of that rule as it may
\n     consider necessary.”\n<\/p><\/blockquote>\n
21.  This Rule\tgives specific\tpower to  the Government  to
\nrelax the  Rules in  case of  undue hardship,  either  in  a
\nparticular case or class of cases.\n<\/p>\n
22.  The next  question is  whether the\t power to  relax the
\nRules  was  exercised  by  the\tGovernment  for\t justifiable
\nreasons\t or  was  it  exercised\t arbitrarily  only  to\tgive
\nappointment on higher posts to the appellants.\n<\/p>\n
23.  Our attention  has been  drawn to\tan  affidavit  dated
\n17.12.91 filed\tin third  appeal.  The\taffidavit  has\tbeen
\nsubmitted by appellant No.1. A copy of the Note of Secretary
\nto the\tGovernment, General  Department, submitted  for\t the
\nconsideration of  the Chief  Minister has  been annexed with
\nthat affidavit. This Noted reads as under:-\n<\/p>\n
     “350 –  In the  year 1984-85, there
\n     were  22  vacancies  of  Sr.  Scale
\n     Stenographers   available\t to   be
\n     filled  up.  These\t vacancies  were
\n     referred  to  the\terstwhile  State
\n     Recruitment   Board.    The   Board
\n     conducted the  test and recommended
\n     32 candidates for their appointment
\n     in the manner as indicated below :-\n<\/p><\/blockquote>\n
     a)\t  Number  of  candidates  having
\n     speed of  80 words\t power minute in
\n     Shorthand and  40, words per minute
\n     in Typing\t -6\n<\/p><\/blockquote>\n
     b)\t  Number  of  Candidates  having
\n     speed of  70 to 79 words per minute
\n     in\t Shorthand   and  40  words  per
\n     minute in Typing.\t-26\n<\/p><\/blockquote>\n
     351) Appointment  orders  in favour
\n     of six candidates at (a) above were
\n     issued  in\t accordance  with  their
\n     interest merit. But the select life
\n     of 26  candidates at  (b) above was
\n     not followed strictly in accordance
\n     with   their    inters   merit   as
\n     determined by  the Board. The first
\n     five candidates,  who were\t topping
\n     in the  merit list of 25 candidates
\n     wee left  out even\t failed\t in  the
\n     test were picked up and promoted as
\n     Sr.  Scale\t    Stenographers.  This
\n     course  of\t  action  was  taken  by
\n     amending\t retrospectively     the
\n     existing  recruitment   rules.  The
\n     Recruitment   Rules   provide   for
\n     appointment to  the basis\tof merit
\n     and suitability to be determined by
\n     written test. This rule was changed
\n     retrospectively  to   provide   for
\n     appointment   to\t Senior\t   Scale
\n     Stenographers  on\t the  basis   of
\n     seniority\talone.\tThis  course  of
\n     action was\t taken when the panel of
\n     candidates approved  by  the  Board
\n     was available.<\/p><\/blockquote>\n
     352) The  case has been examined by
\n     the    General    Department    and
\n     considering the  matter in totality
\n     of the  circumstances  it\tis  felt
\n     that retrospective amendment of the
\n     rules has\tcaused hardship\t to  the
\n     candidates, who  were having higher
\n     merit  resulting\tin   denial   of
\n     promotion to  them in comparison to
\n     those, who\t have lesser  merit  but
\n     promoted\t as\tSenior\t   Scale
\n     Stenographers.   These   candidates
\n     have   been   persistently\t  making
\n     representations for  redress all of
\n     their grievance and have even filed
\n     a writ  petition,\twhich  is  still
\n     pending.  Five   vacancies\t are  at
\n     present\tavailable     in     the
\n     Secretariat. It  would be\tfair, if
\n     without  distributing   the   order
\n     issued in\tthe past, the first five
\n     candidates\t in   merit  are   given
\n     appointment i  relaxation of  rules
\n     against  the  available  vacancies.
\n     Before issuing orders, they will be
\n     asked to withdraw the writ.\n<\/p><\/blockquote>\n
     353) Chief\t Minister may be pleased
\n     to approve\t the appointment  of the
\n     aforementioned   five    candidates
\n     against the available posts.\n<\/p><\/blockquote>\n
24.  The above\tNote clearly  spells out  a case  of genuine
\nhardship inasmuch as the first five candidates, mentioned in
\nthe  list   of\t26   candidates,  were\tnot  promoted  while
\ncandidates much\t lower in merit including even those who had
\nfilled\tin   that  test,   were\t promoted  as  Senior  Scale
\nStenographer. These promotions were made by taking advantage
\nof the\tretrospective operation\t given to SRO  76 by SRO 177
\nwith effect  from  4.12.84  (date  of  test).  It  was\talso
\nindicated  in  the  Note  that\tthere  were  five  vacancies
\navailable in  the Secretariat  and on those vacancies, first
\nfive candidates,  out of the list of 26 candidates, who were
\nmost meritorious,  may be  appointed in\t relaxation  of\t the
\nRules as suggested by the State Recruitment Board. It was in
\nthese circumstances  that the  Chief Minster agreed with the
\nsuggestion and\tdirected that those five candidates, namely,
\nhe present  appellants, may  be\t promoted  as  Senior  Scale
\nStenographers in relaxation of the Rule.\n<\/p>\n
25.We are,  therefore, clearly\tof the opinion that it was a
\ncase in\t which Government  had\tthat  acted  arbitrarily  or
\ncapriciously but had proceeded to relax the Rules to obviate
\ngenuine hardship caused to a class of employees, namely, the
\nappellants and directed their promotion in relaxation of the
\nRules.\n<\/p>\n
26.  Power to  relax the Recruitment Rules or any other Rule
\nmade by\t the State  Government, under  Article\t309<\/a>  of\t the
\nConstitution  of   which  the\tcorresponding  provision  is
\ncontained in  Section 124  of the  Constitution of Jammu and
\nKashmir, is  conferred\tupon  the  Government  to  meet\t any
\nemergent situation where injustice might have been caused or
\nis likely  to be  caused to any individual employee or class
\nof employees  or where\tthe working  of the  Rule might have
\nbecome impossible.  Under service  jurisprudence as also the
\nAdministrative Law,  such a  power  has\t necessarily  to  be
\nconceded to  the employer  particularly the State Government
\nor the Central Government who have to deal with the hundreds
\nof employees  working under  them in  different\t departments
\nincluding the Central or the State Secretariat.\n<\/p>\n
27.  In\t State\t of   Maharashtra   vs.\t  Jagannath   Achyut
\nKarandikar<\/a>, AIR\t 1989 Sc  1133 =  1989 (1)  SCR 947 = (1989)
\nSupp. 1 SCC 393. it was held as under:-\n<\/p>\n
     “The power\t to relax the conditions
\n     of\t the   rules  to   avoid   undue
\n     hardship in  any case  or class  of
\n     cases cannot  now be  gainsaid.  It
\n     would be, therefore, futile for the
\n     respondents to make any grievance.”\n<\/p><\/blockquote>\n
28.  In J.C.  Yadav and\t others vs.  State  of\tHaryana\t and
\nothers<\/a>, (1990) SCC 189, it was held as under:-\n<\/p>\n
     “The relaxation  of the rules may be
\n     to the  extent the\t State Government
\n     may consider  necessary for  dealing
\n     with a  particular\t situation  in\ta
\n     just and equitable manner. The scope
\n     of rule  is wide  enough  to  confer
\n     power on  the  State  Government  to
\n     relax the\trequirement of\trules  in
\n     respect of an individual or class of
\n     individuals to  the  extent  it  may
\n     consider necessary\t for dealing with
\n     the case  in a  just  and\tequitable
\n     manner. The  power of  relaxation is
\n     generally\tcontained  in  the  Rules
\n     with  a   view  to\t  mitigate  undue
\n     hardship or  to  meet  a  particular
\n     situation.\t Many\ta   time   strict
\n     application of  service rules create
\n     a\tsituation   where  a   particular
\n     individual or  a set  of individuals
\n     may  suffer   undue   hardship   and
\n     further there  may\t be  a\tsituation
\n     where  requisite  qualified  persons
\n     may not be available for appointment
\n     to the  service. In such a situation
\n     the government  has power\tto  relax
\n     requirement  of   rules.  The  State
\n     Government may  in exercise  of  its
\n     powers   issue   a\t  general   order
\n     relaxing any  particular rule with a
\n     view  to\tavail  the   services  of
\n     requisite\tofficer.  The  relaxation
\n     even if  granted in a general manner
\n     would  ensure   to\t the  benefit  of
\n     individual officers.”\n<\/p><\/blockquote>\n
29.  This decision  was followed in Sandeep Kumar Sharma vs.
\nState of  Punjab and  others<\/a>, (1997)  10 SCC  298. in  which
\nHon’ble Punchhi,  J. (as His Lordship then was), observed as
\nunder:-\n<\/p>\n
\t  “The power  of relaxation even
\n     if\t generally   included\tin   the
\n     service rules  could either  be for
\n     the purpose of mitigating hardships
\n     or to  meet special  and  deserving
\n     situation.\t Such\trule   must   be
\n     construed liberally,  according  to
\n     the  learned   Judges.  Of\t  course
\n     arbitrary\texercise  of  such  poor
\n     must  be  guarded\tagainst.  But  a
\n     narrow construction  is  likely  to
\n     deny   benefit    to   the\t  really
\n     deserving case.  We too  are of the
\n     view that\tthe rule  of  relaxation
\n     must get  a pragmatic  construction
\n     so\t  as\tto   achieve   effective
\n     implementation of\ta good policy of
\n     the Government.”\n<\/p><\/blockquote>\n
30.  In view  of the  above, the Government can exercise the
\npower to  relax the  Rules  in\tall  those  cases  in  which
\nhardship is  caused in\tthe implementation of those Rules to
\nmeet a particular situation or where invasive has been cause
\nto either  individual employee\tor class  of  employees.  Of
\ncourse, this]  power cannot  be\t exercised  capriciously  or
\narbitrarily  to\t  give\tundue  advantage  or  favour  to  an
\nindividual employee.\n<\/p>\n
31.  Since power  to relax  the Rule  was available  to\t the
\nGovernment and\tsince, on  a scrutiny of facts of this case,
\nwe are\tsatisfied that\tthe  power  of\trelax  the  standard
\nprescribed  for\t promotion  to\tthe  post  of  Senior  Scale
\nStenographer was  properly exercised so that the appellants.
\nwho topped  the list  of 26  candidates, recommended  by the
\nState Recruitment  Board for promotion by relaxing the Rules
\nas they\t were nearest  to the  prescribed standard,  may  be
\npromoted to the posts on which persons who were far below in
\nmerit, and  even those\twho had\t failed\t in  the  test,\t had
\nalready been  as Senior Scale Stenographers, the order dated
\n19.12.86 by  which appellants were promoted has to be upheld
\nas valid and properly passed by the State Government.\n<\/p>\n
32.  The appeal is consequently allowed and the judgments of
\nthe Single Judge as also of the Division Bench are set aside
\nand Writ  Petition NO.\t101 of\t1987 is\t dismissed with\t the
\nobservation that the appellant shall be treated to have been
\npromoted to  the posts\tof Senior Scale Stenographers on the
\nbasis of  the order  of the State Government dated 19.12.86.
\nThere will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ashok Kumar Uppal & Ors vs State Of J & K And Ors on 14 January, 1998 Author: S S Ahmad. Bench: S.Saghir Ahmad, D.P. Wadhwa PETITIONER: ASHOK KUMAR UPPAL & ORS. Vs. RESPONDENT: STATE OF J & K AND ORS. DATE OF JUDGMENT: 14\/01\/1998 BENCH: S.SAGHIR AHMAD, D.P. WADHWA ACT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-250937","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAshok Kumar Uppal & Ors vs State Of J & K And Ors on 14 January, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-uppal-ors-vs-state-of-j-k-and-ors-on-14-january-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ashok Kumar Uppal & Ors vs State Of J & K And Ors on 14 January, 1998 - 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