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 Supreme Court bench consisting of CJI S. A. Bobde, A. S. Bopanna and V. Ramasubramanian, decided upon the powers of the Chief Justice in matters of appointment and promotion in the matter of Ashok Kumar & Ors. v. The State of Jammu and Kashmir & Ors. [Contempt Petition (C) Nos. 392-395 of 2019].
Under Section 108 of the Constitution of Jammu and Kashmir, which is similar to Article 229 of the Constitution of India, which deals with “Officers and servants of the High Court”, sub-section (1), it is given that appointments of officers and servants of the High Court shall be made by the Chief Justice of the Court or such other person as the Chief Justice may direct. As per sub-section (2), the conditions of the officers and the servants of the High Court is to be as prescribed by the Rules made by the Court with the approval of the Governor. In exercise of these powers. The HC issued a set of Rules known as the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, wherein Rule 4 stipulated that all appointments of the staff including promotions shall be made by the Chief Justice who also had the power to lay down qualifications and to determine the mode of recruitment as conferred in Rule 6.
The contesting private respondent were originally appointed as peons (Class-IV) during the period 1989-1995. They were promoted as Junior Assistants and further to Senior Assistants. The appellants, on the other hand, were directly recruited as Junior Assistants and later promoted as Senior Assistants. Owing to an Officer Order with regards to the Rules as mentioned previously, persons like the appellants were promoted as Head Assistants from the post of Senior Assistants. Due to some vacancies available, the respondents who entered the service as Class-IV employees were also promoted to Head Assistants until the time the gap eligible candidates were available to fill the gap. The promotions were challenged on the grounds that the respondents were not qualified for the same and the order of promotion was set aside. The affected parties appealed, which was dismissed and as a consequence thereof, all the persons like the appellants-herein were promoted.
The respondents filed a set of writ petitions again which was allowed b the High Court Judge primarily on the grounds that all the persons working as Senior Assistants constituted a homogeneous group and hence, there could not be any differentiating among them on the basis of educational qualification and that the order of the Chief Justice could affect the individuals adversely with retrospective effect. Challenging the same, the appellants herein filed the present Letter Patents Appeals.
The High Court relying on the case of T. R. Kothandaraman v. Tamil Nadu Water Supply and Drainage Board [(1994) 6 SCC 282], held that “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 decision, the HC fell into an error in thinking that in the facts and circumstances of the case, the HC could not establish the necessity for higher posts. It is apparent from the facts and circumstances of the case that the non-graduated have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for the promotion to the post of Head Assistant cannot be held violative of Articles 14 and 16”.