Brief facts of the case
The appellants, who were directly recruited as the Junior Assistants in the year 1998 with the qualification of graduation were promoted to as Head Assistants from the post of Senior Assistants in the year 2008.
The Contesting Respondents, who entered the service as Class IV employees and had risen to the position of Senior Assistant, were also promoted as Head Assistants. However, such promotions were intended to fill up the gap till eligible candidates were available.
Challenging the promotions so granted to the contesting respondents, on the ground that they were not qualified at the relevant point of time, thus writ was filed. The petition was allowed, and the order of promotion dated 24.10.2008 of contesting respondents was set aside. The appeals filed against these orders were dismissed.
The Contesting respondents on finding that the benefit promotion that came to them was short-lived and based on the order of the Chief Justice of the Jammu & Kashmir Court dated 24.10.2008, filed a writ petition. The appellant filed this appeal against the order of the High Court in favour of Contesting-Respondents.
The impugned Judgment is assailed because (i) classification is permissible based on educational qualification, even within a homogenous group, for promotion of higher post, (ii) an order passed by Chief Justice was under Rule 6 of the Jammu & Kashmir High Court Staff Rules, 1968 need not go before the full Court, (iii) the order dated 24.10.2008 does not curtail the power relaxation available to the Chief Justice, (iv) the order of Chief Justice was not retrospective.
The contesting respondents who are now in service, had all acquired a degree, and therefore, the question that remains to be answered is only that of seniority. If no one is reverted and if the power of the Chief Justice to prescribe qualifications under Rule 6 was upheld, then the long-standing dispute in the Court can be put an end to by fixing seniority based on the possession of qualifications at the time of appointment/promotion to the relevant post.
It was contended by the respondents that once a person has been appointed/promoted, he becomes a part of a homogenous class within which there can be no differentiation and that is what is applicable in the case on hand is the Rule 5 of the Jammu & Kashmir Civil Services (Classification, Control and, Appeal) Rules, 1956, (CCA, Rules, 1956) under which 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.
Observation by the court
The Court observed that the promotion of the contesting respondents as Head Assistants were only till eligible and suitable candidates are posted to these posts and they can be considered for regularization only if they attain the qualification and experience prescribed for the post.
The power of Chief Justice flowed from Rule 6 of the Jammu & Kashmir High Court Staff (Conditions of Services) Rules, 1968. These Rules had the approval of the Governor also. Therefore, the contention of the respondents that the office order issued by the Chief Justice was ultra vires, was completely untenable.
Rule 18 and Rule 5 has no application to the staff of the High Court as Section 108(2) of the Constitution of Jammu & Kashmir leaves this issue to the High Court.
The High Court erred in thinking that the impugned action of 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.
In the year 1968, the Constitution Bench of the Supreme Court held in the State of Mysore & Anr. vs. P. Narasinga Rao, that Article 16(1) does not bar reasonable classification of employees or reasonable test for selection. It was further held that the provisions of Article 14 or Article 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question.
Another Constitution Bench, in the case of State of Jammu & Kashmir vs. Triloki Nath Khosa & Ors. it was held that the persons drawn from different sources and integrated into one class can be classified based on their educational qualifications for promotion.
In the case of T.R. Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board, the legal position was summarized as follows: (i) Higher Educational Qualification is a permissible basis of classification, acceptability of which depends on the facts and circumstances, (ii) Higher educational qualifications can be the basis not only for barring promotion but also for restricting its scope, (iii) restriction should not be such that it jeopardizes the chances of promotion.
The High Court took note of this decision but fell into an error thinking that in the facts and circumstances the High Court could not establish the necessity for higher qualification for the efficient discharge of the function of higher posts. From the facts and circumstances in the given case, it is clear that the non-graduates had the opportunity to qualify themselves, which they had done. Thus, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held violative of Articles 14 and 16.
The decision of the court
The appeals were allowed, and the judgment of the High Court was set aside. The contesting respondents had been working as Head Assistants for quite some time, thus was not reverted at this stage. But the seniority of the appellant vis a vis the contesting respondents shall be based on the date of acquisition of such qualification and length of service taken together.
Case: Ashok Kumar And Ors. Etc. vs. The State of Jammu And Kashmir & Ors.
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