Case: ASHOK KUMAR AND ORS. ETC. ETC Vs. THE STATE OF JAMMU AND KASHMIR &amp; ORS

also. Therefore, the contention of the respondents that the office order issued by the Chief Justice was ultra vires, is completely untenable. 26. The CCA Rules, 1956 will have only limited application to the employees of the High Court. These Rules, by themselves, do not stipulate the qualifications required for appointment to any particular post in the High Court. Rule 18 of the CCA Rules relied upon by the learned Counsel for the contesting respondents reads as follows: 18. Special Qualification No person shall be eligible for appointment to any service, class, category or grade or any post on the cadre thereof unless he- (a) Possesses such qualification and has passed such special tests as may be prescribed in that behalf by the Government, or (b) Possesses such other qualification as may be considered by the Government to be equivalent to the said special qualifications or special tests. 27. But the above Rule 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. 28. Similarly Rule 5 of the CCA Rules on which reliance is placed by the learned Counsel for the contesting respondents, also has no application to the case on hand. This Rule 5 reads as follows: 5. Relaxation of rules Any of these rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases if Government is satisfied that a strict application of the rule would cause hardship to the individual concerned or confer undue benefit on him. 29. In so far as the staff of the High Court are concerned, Rule 5 has no application. 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. 30. 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. 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. 31. The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect, is 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. 32. 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. 33. Way Back in 1968, the Constitution Bench of this Court held in the State of Mysore & Anr. vs. P. Narasinga Rao AIR 1968 SC 349 , that Article 16(1) does not bar a reasonable classification of employees or reasonable test for their 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. Despite the fact that the competing parties who were before this Court in the said case were employed as Tracers, carrying out the same duties and responsibilities, the Bench held in that case that the classification of Tracers, into two types with different grades of pay, on the basis that one type consisted of matriculates and the other non- matriculates, is not violative of Articles 14 and 16. Again in State of Jammu & Kashmir vs. Triloki Nath Khosa & Ors. (1974) 1 SCC 19 , another Constitution Bench considered the question whether persons drawn from different sources and integrated into one class can be classified on the basis of their educational qualifications for promotion. The Constitution Bench answered the question in the affirmative holding that the Rule providing for graduates to be eligible for promotion to the exclusion of diploma holders is not violative of Articles 14 and 16 of the Constitution. 34. In T.R. Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board (1994) 6 SCC 282 , the legal position in this regard was summarised as follows:- (i) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances; (ii) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion; (iii) restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. 35. As pointed out in T.R.Kothandaraman (supra), 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]22. Before we proceed to analyse the rival contentions, it must be kept in mind that the contesting respondents-herein 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. Their appointments were set aside in Writ Petition No.1751 of 2008. The appeals filed against the said Order in LPA Nos.45 and 84 of 2010 were also dismissed.23. 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.24. 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.25. If we come to the grounds of attack to the impugned order of the Chief Justice, it is clear that the power of the Chief Justice clearly flowed out of Rule 6 of the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968. These Rules were issued by the High Court in exercise of the power conferred by Section 108(2) of the Constitution of Jammu & Kashmir. 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, is completely untenable.26. The CCA Rules, 1956 will have only limited application to the employees of the High Court. These Rules, by themselves, do not stipulate the qualifications required for appointment to any particular post in the High Court.27. But the above Rule 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.28. Similarly Rule 5 of the CCA Rules on which reliance is placed by the learned Counsel for the contesting respondents, also has no application to the case on hand.29. In so far as the staff of the High Court are concerned, Rule 5 has no application. 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.30. 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. 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.31. The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect, is 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.32. 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.34. In T.R. Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board (1994) 6 SCC 282 , the legal position in this regard was summarised as follows:- (i) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances; (ii) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion; (iii) restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion.35. As pointed out in T.R.Kothandaraman (supra), 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.