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Prescription of graduation for post of Head Assistant cannot be held as violative of Art. 14 and 16

The prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16. (Para 35)

Ashok Kumar and Ors. Etc. Etc. v. The State of Jammu and Kashmir & Ors.

Civil Appeal Nos.5189­5192 of 2017 with Contempt Petition (C) Nos.392­395 of 2019 in Civil Appeal Nos.5189­5192 of 2017.

Decided on January 18, 2021.

The present case was decided by a three-judge bench of the Supreme Court comprising of the CJI S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian.

In exercise of the power conferred by Rule 6 of the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, the Chief Justice of the High Court of Jammu & Kashmir issued an Office Order No.579 dated 24.10.2008, prescribing the qualifications as well as the mode of recruitment for appointment and promotion to various posts in the High Court. The prescription of the minimum educational qualification of a graduation was not an innovation by the Chief Justice, made all of a sudden in the year 2008. Even way back on 25.04.1987, graduation was prescribed as a qualification for promotion to the post of Head Assistant.

On 26.10.2008, persons like the appellants who were directly recruited as Junior Assistants in year 1998 with the qualification of graduation, were promoted as Head Assistants from the post of Senior Assistants. It appears that still some vacancies were available and hence the contesting respondents­herein who entered service as Class­IV employees and who had risen upto the position of Senior Assistants, were also promoted as Head Assistants. However, such promotions were intended to fill up the gap till eligible candidates were available.

Challenging a common order passed in a batch of Letters Patent Appeals confirming the Judgment of the learned Single Judge in favor of the respondents, quashing an administrative Order of the Chief Justice prescribing certain qualifications for promotion to the post of Head Assistant along with a power of relaxation, persons who were fully qualified as per the rules at the time of appointment had come up with the above Civil Appeals, and contempt petitions for an interim stay granted on 13.05.2016 were also taken up along with these appeals.

Apart from the grounds for which the impugned judgment was challenged, the learned Counsel for the appellants submitted that as on date, those contesting respondents who are now in service, have all acquired a degree and that therefore the question that remains to be answered is only one of seniority. Therefore, the Counsel submitted that if no one is reverted and if the power of the Chief Justice to prescribe the qualifications under Rule 6 is upheld, then the long standing lis can be put to an end by fixing seniority on the basis of possession of qualifications at the time of appointment to the relevant post.

On the other hand, it is contended by the learned Counsel appearing for the contesting respondents that once a person has been appointed, he becomes part of a homogenous class within which there can be no differentiation and that what is applicable to the case on hand is only Rule 5 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, under which the power of relaxation vests with the Government and that under Rule 18 of these Rules, it is for the Government to prescribe the qualifications for appointment to any service.

The Court heard the learned Counsel for the appellants, the learned Counsel for the High Court of Jammu & Kashmir and the learned Counsel for the contesting respondents, and noted:

As a matter of fact, the Order of promotion dated 24.11.2008 promoting the contesting respondents as Head Assistants made it clear that their appointments were only till eligible and suitable candidates are posted to these posts and that they can be considered for regularisation/appointment only if they attain the qualification and experience prescribed for the post. But the contesting respondents did not choose to challenge the Order of Chief Justice dated 24.10.2008, until the writ petition filed against their promotion was allowed by the single Judge and the Order also got confirmed in writ appeal by the Division Bench. (Para 24)

The Court stated that the power of the Chief Justice clearly flowed out of Rule 6 and rejected the contention of the respondents that the office order issued by the Chief Justice was ultra vires.

The Court observed that these Rules, by themselves, do not stipulate the qualifications required for appointment to any particular post in the High Court. Also, Rule 5 and 18 have no application to the case at hand as Section 108(2) of the Constitution of Jammu & Kashmir leaves this issue to the High Court:

When the Rule making power is vested with the High Court (subject to the approval of the Governor) and when the Chief Justice is specifically empowered to prescribe the qualifications and method of recruitment, the CCA Rules which are general in nature cannot be replicated. (Para 29)

The Court clarified that the entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008, is what was impacted by the Order of the Chief Justice:

The High Court erred in thinking that the impugned action of the Chief Justice violated Article 14 by creating a distinction between graduates and non graduates among the same category of persons who constituted a homogenous class. (Para 32)

The Court relied on the judgments in State of Mysore & Anr. vs. P. Narasinga Rao, AIR 1968 SC 349, Jammu & Kashmir vs. Triloki Nath Khosa & Ors., (1974) 1 SCC 19 and T.R. Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board, (1994) 6 SCC 282 and stated:

Though the High Court took note of these decisions, the High Court fell into an error in thinking that in the facts and circumstances of the case, the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts. It is apparent from the facts and circumstances of the case that the non graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16. (Para 35)

The Court allowed the appeals and the judgment of the High Court was set aside. The Court also held that the seniority of the contesting respondents will be decided not on the basis of the date of their promotion but on the basis of the date of their acquiring the qualification while occupying the promoted posts. In respect of these directions, the Court closed the contempt petitions.

Jhanavi M,