Nothing arbitrary with J&K High Court Chief Justice choosing to regulate the manner of exercise of his own power to relax qualifications: Supreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has set aside the order of the single bench of Jammu and Kashmir High Court which quashed 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. The Court held,

“… 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.”

Background

The respondents were originally appointed as peons (Class-IV) during the period 1989¬1995. They were promoted as Junior Assistants in the year 1997 and as Senior Assistants in 1998-1999.

In contrast, the appellants in these appeals were directly recruited to the post of Junior Assistants in the year 1998. They were promoted as Senior Assistants on various dates in the years 2001, 2005, 2006 and 2008.

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.

By a common Order dated 30.08.2013, a learned Judge of the High Court quashed the Chief Justice’s Order dated 24.10.2008 on the reasoning

(i) that all persons working as Senior Assistants constituted a homogenous group and hence there cannot be any differentiation among them on the basis of educational qualifications;

(ii)that the Chief Justice’s order dated 24.10.2008 was not put up before the Full Court for approval;

(iii) that Note¬2 of the Chief Justice’s Order restricts the power of relaxation available to the Chief Justice only to cases of persons appointed before 25.04.1987 and hence it is invalid; and

(iv) that the Order of the Chief Justice had the effect of affecting individuals adversely with retrospective effect.

The said judgment was challenged on the ground that the High Court was wrong in thinking that Note¬2 of the Order of the Chief Justice curtailed or restricted the power of relaxation available with him.

Analysis

In exercise of the powers conferred by Sub-section (2) of Section 108 of the Constitution of Jammu & Kashmir, the High Court issued a set of Rules known as the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, with the approval of the Governor of the State.

“While Rule 4 stipulates that all appointments of the staff of the High Court including promotions shall be made by the Chief Justice, the power to lay down the qualifications and to determine the mode of recruitment is conferred by Rule 6 upon the Chief Justice.”

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. It appears that even way back on 25.04.1987, graduation was prescribed as a qualification for promotion to the post of Head Assistant.

“If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The notification dated 25.04.1987 prescribed for the first time, graduation as a necessary qualification. This is why, the Chief Justice chose by his Order, to limit his own power of relaxation to cases where appointments were made before the cut-off date.”

Further, it is worth noticing that the respondents have actually secured a second lease of life, after having failed in the first round of litigation. After the office Order dated 24.10.2008 was issued by the Chief Justice prescribing the qualifications for direct recruitment/promotion to various posts, the contesting respondents got promoted as Head Assistants on 24.11.2008 only because suitable eligible candidates were not available.

“It is only after their promotion was set aside in the first writ petition filed by the qualified candidates, that the contesting respondents woke up from the slumber and initiated a second round of litigation by challenging the Order of the Chief Justice.”

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.

The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect was also found to be completely incorrect.

“The Order dated 24.10.2008 did not at all impact the promotions gained by persons upto 24.10.2008. We are concerned in this case with the competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant. 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.”

It was hence held that 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.

“… the Court shall have to be conscious about the need for maintaining efficiency in service, while judging the validity of the classification. 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.”

Relief 

However, in view of the fact that the contesting respondents have been working in the post of Head Assistants for quite some time and have also acquired the necessary qualifications, the Court held that they need not be reverted at this stage.

“But the seniority of the appellants vis-a-vis the contesting respondents shall be based on the dates of acquisition of such qualification and the length of service taken together. In other words, 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.”

[Ashok Kumar v. State of Jammu and Kashmir, 2021 SCC OnLine SC 24, decided on 18.01.2021]


*Justice V. Ramasubramanian has penned this judgment 

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