TRILOK NATH KHOSA Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioners, 30 in number, who are Diploma holder Assistant Engineers Grade II (Rs. 250 -600) serving in various branches of the Engineering Service of the State have brought this petition challenging the validity of para B (1) of Rule 10 of the Jammu and Kashmir Civil Services (Revised pay), Rules, 1968, promulgated by the Governor vide Notification S.R.O. -87 dated February 27, 1968, in so far as it provides that Q -B (Qualification Bar) at Rs. 610/ - will not be crossed by the Assistant Engineers with Diploma course. They also challenge the rules made by the Governor vide Notification S.R.O. -492 dated October 12, 1970, in so far as they bar the Diploma holder Assistant Engineers from future promotion to the cadre of Executive Engineers -Class II category A and other upper category promotions set out in the schedule annexed to the Notification.

(2.) THE case of the petitioners is that before promulgation of the aforesaid rules they were governed by Gazetted Service Rules made vide order No. 1328 -C of 1939 whereunder promotions were made only on the basis of merit, ability and previous record of the candidates and no discrimination as regards qualification existed between Degree Holder and Diploma Holder Assistant Engineers, that the discrimination sought to be made by the impugned rules is arbitrary and capricious, that academic or technical qualification is germane only at the time of initial stage of recruitment i.e. selection for appointment and afterwards it is the efficiency or experience that counts, that Government service is, no doubt, contractual at its inception but once appointed to a post or office, the government servant acquires a status and his rights and obligations are governed by statute or statutory rules and that once the government appoints candidates with different academic or technical qualifications in the same cadre with the same pay scale and calls upon them to discharge similar duties they form one class and cannot be discriminated in the matter of promotion; to the higher grade or upper category posts on the basis of higher qualification. The petitioners have further averred that the aforesaid notifications impose punishment on them and tantamount to their reduction in rank and deprive them of equality of opportunity in the matter of promotion and as such are violative of Articles 14 and 16 of the Constitution of India and Section 126(2) of the Constitution of Jammu and Kashmir. The petitioners have also averred that the Governor could not by means of the impugned notifications change unilaterally their service conditions to their dis -advantage and deprive them of their vested right of promotion by giving retrospective effect to the notifications.

(3.) THE petition has been contested by the respondents inter -alia on the grounds that it is within the competence of the Government to make provision for higher salaries to persons with higher qualifications and lay down the method of recruitment and appointment to various classes and categories of posts of the Engineering Service, that notification S. R. O. 87 dated February 27, 1968 which has revised the pay scales of several caders in Engineering department ensures to the benefit of the petitioners as their emoluments instead of being decreased have been increased, that whereas formerly the petitioners were entitled to a maximum of Rs. 500/ - according to the revised pay scale they have been given the maximum grade of Rs. 610/ -, that the petition is bad for mis -joinder of the petitioners as most of them having been promoted by relaxation of the rules cannot maintain the petition, that under S.R.O. 492 dated October 12, 1970, the Governor has laid down the method of recruitment and qualifications for appointment to various classes and categories of posts of the Engineering Department keeping in view the nature of duties and responsibilities attached to the posts, that higher pay scale has been sanctioned for Assistant Engineers who possess Degree or equivalent qualification in engineering with a view to ensure efficiency in the administration of the Engineering Department, that whereas persons holding Degree or equivalent qualification are eligible for appointment as Assistant Engineers directly, Diploma Holders cannot claim to be appointed as such. That the Assistant Engineers with higher qualification form a class by themselves and on account of their better qualification provision for higher pay in their favour is justified, that the classification or promotion on the basis of qualification has an intelligible differentia and is not violative of Articles 14 or 16 of the Constitution of India or of section 126(2) of the Constitution of Jammu and Kashmir, an that the fact that the impugned rules also apply to the employees who are already in service do not make them retrospective as sought to be contended by the petitioners.