STATE OF MAHARASHTRA Vs. CHHAYA

JUDGEMENT

(1.) Leave granted.

(2.) Respondents filed writ petitions in the High Court of Jammu and Kashmir seeking quashing of the Rules published vide notification No. SRO 328 dated November 22, 1992 to the extent it related to qualification bar in Class A categories I and II and for further direction to fill up the posts on the basis of seniority irrespective of qualifications. Respondent Nos. 1 and 2 were initially appointed as Rig-man in the months of March, 1967 and November, 1967 respectively. Respondent Nos. 3, 4 and 5 were initially appointed as Boring Mistry, Grade II in February, 1984, July, 1984 and January, 1984 respectively. Respondent Nos. 1 and 2 were promoted in the month of February, 1983 from the post of Rig-man which was later on re-designated as Boring-Mistry, Grade I and again re-designated as Drill Operator, Grade I in the year 1990. Respondent Nos. 3, 4 and 5 were working on the post of Drill Operator, Grade II. On November 22, 1990 Rules were promulgated under Section 124 of the Constitution of Jammu and Kashmir styled as "Jammu and Kashmir Geology and Mining (Subordinate) Service Recruitment Rules, 1990". The Rules were to come into force from the date of their publication in the Government Gazette, which, it is said, was done on November 22, 1990. Under these Rules, the requisite qualification for promotion of a Drilling Assistant was prescribed as "matriculation with five years service as Boring Mistry, Grade I or Drill Operator, Grade I. For promotion to the post of Boring Mistry, Grade I/Drill Operator, Grade I, the minimum basic qualification prescribed was matriculation with seven years service on Boring Mistry, Grade II or Drill Operator, Grade II.

(3.) Recruitment to the post of Rig-man, that is, Drill Operator, Grade II and Assistant Drilling (Now Drilling Assistant) were made partly by appointment from State subjects whose academic qualification was matriculation and above and partly on contract basis from non-State subjects possessing vast experience in drilling but without necessary academic qualification. The services of these persons appointed on contract basis was subsequently regularised by a Government order with all benefits of promotion, pension, etc. It was notice that in the higher promotional posts the incumbents had to shoulder higher responsibilities, such, as., maintaining log books, keeping records of inventories and do other techincal and administrative tasks for which qualification of matriculation was considered necessary. None of the respondents possessed the qualification of matriculation. Therefore, they could not be promoted to higher grades. The High Court took the view that when respondent Nos. 1 and 2 had been promoted last in the year 1983 insistence on matriculation qualification for promotion to a higher post was illogical and for such posts service experience should be the sole criteria. On that basis, the learned single Judge allowed the writ petitions. The Division Bench, to which the appeal was preferred, also took the similar view and it was stated that the respondents were promoted in the year 1983 and therefore, they are facing complete stagnation not because of absence of promotional avenues but because of the requirement of matriculation qualification. By the time they reach that stage they would be at the fag end of their career and insistence on the passing of the matriculation would be fatal as it is impossible for them to take such an examination now and it was observed that the Rules have to be amended suitably to avoid stagnation and adverted to the decision of this Court in T. R. Kothandaraman v. Tamil Nadu Water Supply and Drainage Board, (1994) 6 SCC 282 .