BHAWANI PRASAD Vs. RAJESH KUMAR

JUDGEMENT

(1.) The Letters Patent Appeals on hand are directed against the writ Court judgment dated 22nd April, 2010 in SWF no 1751/2008, titled Rajesh Kumar and ors, v. High Court of Jammu and Kashmir and ors, whereby the writ court allowed the writ petition and quashed High Court order No. 667 dated 24th November, 2008, to the extent it related to adjustment of respondents 3 to 13 in the writ petition, as Head Assistants in their own pay and grade. The facts relevant to the disposal of the writ appeal may be summarized in the first instance.

(2.) The petitioners and respondents 3 to 13 are members of Jammu and Kashmir High Court Staff. On 24th November, 2008, respondents 3 to 13 serving as Senior Assistants in the grade of Rs. 4000-6000, were adjusted as Head Assistants in their own pay and grade till further orders. Their colleagues--respondents 1 to 8 herein, serving as Senior Assistants, assailed the High Court order No. 667 dated 24-11-2008 to the extent it related to "adjustment" of the appellants in their own pay and grade as Head Assistants, primarily on the ground that the appellants did not fulfill eligibility criteria laid down in High Court order No. 579 dated 24-10-2008. The writ petitioners/respondents case before the writ Court was that in terms of the aforementioned High Court order, the minimum qualification required for the post of Head Assistant is graduation from a "recognized University" and that none of the appellants had a Bachelors degree to his credit. The writ petitioners/respondents insisted that though the Chief Justice in terms of High Court order No. 579 dated 24-10-2008 was competent to relax the qualification on his own or on the recommendation of a Committee, yet as the power was restricted to the officers/officials who had made their entry into the service on or before 25th April, 1987, such relaxation could not be made in favour of the appellants, who had admittedly entered service after 25th April, 1987.

(3.) The writ petition was opposed on the ground that the order impugned was made by the Acting Chief Justice on the recommendations of the Judges Committee for smooth functioning of the Registry and not to confer any rights on the appellants. It is pleaded that as the appellants were senior to the writ petitioners, they were considered for adjustment on stop gap basis till the posts were filled up by eligible and suitable candidates and they were to be considered for their regularization/appointment to the post of Head Assistants only after they would attain the requisite qualification/experience prescribed for the posts. The appellants in their reply to the writ petition insisted that in terms of Rule 4 of Jammu and Kashmir High Court Staff (condition of service) Rules 1968, the appointments to the Staff of High Court including promotions are to be made by the Chief Justice with the power to delegate any of the powers other than power of appointment/promotion of gazetted officers, to the Registrar or any Judge of the High Court and in terms of Rule 6, the Chief Justice has the power to lay down the qualification of the members of the service and determine the mode of recruitment. It is pleaded that the Chief Justice in the background of the rule position is competent to relax any condition for recruitment/promotion as he may deemed fit in the circumstances of a case and thus competent to order adjustment of the appellants as Head Assistants in their own pay and grade, subject to filling of the posts of Head Assistants by eligible candidates. The appellants further contended that in terms of Circular No. 13, 1980 dated 26th March, 1980, 25% of the posts are to be filled up by promotions of matriculate employees and that the appellants stand promoted as Head Assistants on the basis of their seniority and having regard to the quota fixed in terms of Circular 13, 1980 dated 26th March, 1980. It is pleaded that as a matter of practice observed for long in the High Court, the officials with less than prescribed qualification prescribed under High Court order No. 579, have been promoted even up to the rank of Joint Registrar and there is no reason to depart from said practice in case of the appellants. The appellants also oppose the writ petition on the ground that the High Court Order No. 579 dated 24.10.2008 lays down the guidelines for direct recruitment and not for promotion and thus was not to govern promot-ions in questions.