LPAs dismissed, Chief Justice Powers for fixing criterion of appointment of Ministerial staff rules upheld

Part-4

28/10/2016

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
LPA no.170/2013 Date of decision: 16.04.2016
c/w
LPA nos. 209//2013; 210/2013; 52/2014
i) Ashok Kumar & ors v. State of J&K & ors.
ii) Anuradha Sharma & ors v. State of J&K & ors.
iii) Syed Gulzar Ahmad & ors v. State of J&K & ors.
iv) High Court of J&K v. State of J&K & ors.
v) Ashok Kumar & ors v. State of J&K & ors.
Coram:
Mr. Justice Ali Mohammad Magrey
Mr. Justice Bansi Lal Bhat
Appearing counsel:
For Appellants: Mr. Z. A. Shah, Sr. Advocate with
Mr. A. Hanan, Advocate (in i, ii, iii & v LPAs);
Mr. R. A. Jan, Sr. Advocate, with
Ms Syed Amani, Advocate, in LPA no.52/2014;
For Respondents: Mr. B. A. Bashir, Sr. Advocate, with
Ms Farah Bashir, Advocate; and
Mr. M. Moomin Khan, Advocate;
Mr. A. Haqani, Advocate, in LPA no. v
(Continued from previous issue)……
26. Now, let the Note 2 appended to Order no.579 dated 24.10.2008 be examined. It says that since the requirement of the qualification of Graduation for entry into the High Court service was prescribed vide Notification dated 25.4.1987, at that time officials having qualification less than graduation entered the service. Such officials having during this period gained sufficient experience in the working of the administration, the Chief Justice may on his own or on the recommendations of committee, if so constituted, relax the qualification in cases of officers/officials who have made their entry into the service on or before the 25th of April, 1987. Further the minimum period of experience can also be relaxed in exceptional and appropriate cases. The officials can get only one relaxation at the time. A bare perusal of the contents of note (2) appended to the order makes it axiomatic that it has the effect of placing an embargo on the power of the Chief Justice and restricting its exercise to a specified class of persons and limiting it in point of time. Essentially, this amounts to amending and altering the Rules on the subject. On that count it cannot withstand the scrutiny of law.
27. It may also be observed here that the statement made in the aforesaid note that for entry into the High Court service the requirement of the qualification of Graduation was prescribed vide Notification dated 25.4.1987 is also factually wrong. Apart from the fact that there is no order showing that the Chief Justice had laid any such qualifications in exercise of the power under Rule 6 of the Staff Rules, except vis-à-vis the post of Deputy Registrars, it is loudly admitted that 25% of the posts of Junior Assistants are being filled in from amongst matriculate Class IV employees of the High Court. In fact, the order no.579 dated 24.10.2008, as indicated above, also makes such a provision. This has been going on since 1980 pursuant to the Circular no.13 dated 28.03.1980 issued by the Government of Jammu and Kashmir in the General Administration Department (then General Department), earmarking of 75% of the posts of Junior Assistant for direct recruitment and 25% for promotion of matriculate class IV employees to be selected on the basis of type test. The High Court also adopted the aforesaid Circular issued by the Government and eversince has been appointing/promoting matriculate Class IV employees of the High Court as Junior Assistants to the extent of 25% of the available posts from time to time. Therefore, the statement made in the note that for entry into the High Court service Graduation was prescribed vide Notification dated 25.4.1987, is wholly, factually wrong, for, the matriculate Class IV employees promoted as Junior Assistants equally have been entering the High Court service. It is nobody’s case that they are not borne on the establishment of the High Court. Therefore, there seems to be no logic in saying that for entry into High Court Service Graduation was prescribed as qualification in 1987. The note suffers from non-application of mind and is, therefore, rendered arbitrary.
28. Let us assume for a moment that, in fact, on 25.04.1987 Graduation was laid down as qualification for direct recruitment on the post of Junior Assistant, the said date could not be fixed as a cut-off date for discriminating between the matriculate staff members for grant of relaxation for purposes of future promotions on the reasoning that those appointed on or prior to the aforesaid date had gained experience. Experience is not the attribute of working on a post up to a particular date line, it is a continuous process. Those of the matriculate staff members who were appointed as Junior Assistants after 1987 have equally gained experience over the years, and, strictly speaking, going by the increase in the magnitude and variety of Court work, it would not be an exaggeration to say that their experience in all respects has been more vigorous and varied. In that view of the matter, the reasoning supplied in Note (2) appended to the order in question is wholly unjustified and unreasonable.
Fixation of cut-off date, therefore, is discriminatory, offending the mandate of Articles 14 and 16 of the Constitution.
29. Essentially, therefore, in view of the fact that Note 2 has the effect of discriminating between similarly placed employees of the High Court on the basis of an imaginary classification, founded on a cut-off date, it, in reality, is not a case where laying down of higher qualifications is in dispute. Had Note 2 with the above embargo not been appended thereto, the private respondents would automatically be entitled to the identical treatment as has been given to those matriculates who were appointed on or prior to the imaginary cut-off date. Strictly speaking, this, therefore, is not a case where classification on the basis of higher qualification is an issue. Even otherwise, it is settled law that higher qualification must have nexus with the nature of the job. It is nobody’s case that the Graduates so far appointed by the High Court have any special qualifications commensurate to or connected with the nature and the requirements of the job one needs to perform in the High Court. The Court can take judicial notice of the fact that the official language of the State and so also of the Courts in the State is Urdu. Normally, every student is pursuing medical, non-medical and other subjects beyond matriculation. Thus they study Urdu only upto matriculation, like a person who stops studies after matriculation. Naturally, therefore, higher studies and qualifications in science subjects, like, physics, chemistry, botany, biology, zoology and the like would not impart them any specialization in writing, or filling in the relevant columns of the format, of a summons in Urdu, nor would higher studies in these subjects make them more proficient in maintaining and managing the court files. It is a misnomer that Graduates are, or have been, more proficient in the working of the Courts than matriculates. At least nothing has been brought on record to establish either that the matriculates have failed to perform any job assigned to them or that Graduates have increased the administrative efficiency of the High Court.
30. So far as the argument regarding administrative efficiency is concerned, it is not the plain higher education that increases the administrative efficiency; it is the experience and specialized training courses imparted to the employees. And given the fact scenario as delineated by the learned Writ Court in para 32 of the judgment impugned herein, such a submission should not lie in anybody’s mouth. Paragraph 32 of the judgment is quoted hereunder:
“32. 1n paragraph 33 of the writ petition, the petitioners have given the particulars of some of the officers / officials who on the date of filing of the writ petition were holding higher posts. It would be profitable to reproduce these details hereunder:
i) Shri K. K. Wattal, who is only a Matriculate, holding the post of Joint Registrar in the Administrative Wing of the High Court;
ii) Shri G. M. Parray, a Matriculate, holding the post of Deputy Registrar. He was initially appointed as an orderly;
iii) Shri Ram Singh, a Matriculate, holding the post of Deputy Registrar;
iv) Shri Bua Datta, a Matriculate, holding the post of Deputy Registrar, Administration, Main Wing of the High Court;
v) Shri K. K. Sharma, Matriculate, holding the post of Assistant Registrar, Civil Section, Jammu Wing. He was initially appointed as Orderly;
vi) Shri Shanker Dass, Matriculate, holding the post of Assistant Registrar. He, too, was initially appointed as an Orderly;
vii) Shri Kuldeep Raj, a Matriculate, holding the post of Section Officer;
viii) Shri Parveen Singh, Matriculate, holding the post of Section Officer;
ix) Shri Mian Rafiq, a Matriculate, Section Officer;
x) Shri Mohammad Akbar, a Matriculate, holding the post of Section Officer. He was initially appointed as Orderly and later as Junior Assistant on 7.4.1995, i.e., after the cut-off date;
xi) Shri Altaf Ahmad, Matriculate, holding the post of Section Officer. He too was initially appointed as Orderly and later as Junior Assistant on 7.4.1995, i.e., after the cut-off date.
As already noted hereinabove, respondent No. 2 has, in his reply affidavit, dubbed these facts and figures as misconceived. These facts and figures are based on the orders issued by respondent No. 2, from time to time, copies whereof have been appended with the petition. This only demonstrates the casual manner in which the whole matter has been dealt with by respondent No. 2. Be that as it may, the anomaly that has resulted from operation of the impugned order dated 24.10.2008 and the prejudice caused to the rights and interests of the petitioners is writ large. Petitioners have been meted out invidious discrimination, without any reasonable cause or justification.”
Further, it is not denied that Graduates and these matriculates have been performing identical jobs and different tables and counters are interchangeable between them.
31. As regards the arguments of Mr. Z. A. Shah that classification on the basis of higher qualifications is permissible because higher qualification promotes efficiency; that promotion can be denied to employees having lesser qualifications; and that if matriculates are allowed to be promoted, same would set a wrong precedent across the board, we find that these have been effectively dealt with by the learned Writ Court in the impugned judgment. Nothing new has been made out in this appeal before us by the learned counsel. It would be appropriate to quote hereunder the relevant paragraphs of the impugned judgment.
“23. During the course of arguments, it was repeatedly, rather, strenuously submitted by Mr. Shah, learned Senior Counsel, that classification on the basis of higher educational qualification is permissible in order to achieve efficiency in the service. Learned counsel for the petitioners on the other hand submitted that there is nothing on record to show that the promotional posts required any higher efficiency which could be expected only of graduates and that, in any case, the impugned order dated 24.10.2008 does not disclose that as a reason. On the contrary, it has, admittedly, equated experience with higher qualification of Graduation. Learned counsel further submitted that experience could not be construed to have been the attribute of only a group of employees on the basis of a cut off date, but it is a general phenomenon relatable to years of service rendered, and that such experience has been gained by petitioners as well. Reliance in this regard is placed on a judgment of the Supreme Court in Food Corporation of India v Om Prakash Sharma, AIR 1998 SC 2682.

Share This Story


Comment On This Story

 

Photo Gallery

  
BSE Sensex
NSE Nifty