Karnataka High Court
Honble Chief Justice vs Sri C Sudhakar on 12 October, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy, Subhash B.Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13th DAY OF JUNE 2012 ®
PRESENT
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR. JUSTICE SUBHASH B ADI
WRIT APPEAL Nos. 1934 - 1938 OF 2011
AND WRIT APPEAL Nos. 2245 - 2449 OF 2011
C/W
WRIT PETITION Nos. 35072-35111 OF 2009 (S-PRO)
WRIT PETITION Nos.37825-37841 OF 2009 (S-PRO)
AND
WRIT PEITTION No.10131/2010 (S-PRO)
IN WRIT APPEAL Nos. 1934-1938 OF 2011AND
2245-2279 OF 2011
ARISING OUT OF
W.P.Nos.4683-4722/2010:
BETWEEN:
1. Hon'ble Chief Justice,
High Court of Karnataka,
Bangalore,
Represented by
Registrar General.
2
2. High Court of Karnataka,
Bangalore,
By the Registrar General. ...APPELLANTS
(By Shri. Basavaprabhu .S.Patil, Senior Advocate for Shri. A
Niranjan Kumar, Advocate )
AND:
1. Sri. C. Sudhakar,
S/o. Sri. Choodappa,
Aged about 45 years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
2. Sri. T. Ravichandra,
S/o.Sri. Thiruvenkadam.
Aged about 44 years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
3. Sri. P.V. Nagaraj,
S/o. Late Venkatappa,
Aged about 44 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
4. Sri. Kapani Gowda.
S/o. Sri Kaoanaiah,
3
Aged about 43 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
5. Sri. N.Basavaraj,
S/o. Honne Gowda,
Aged about 47 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
6. Sri. K.C.Suresh,
S/o. Sri. Chennigappa,
Aged about 40 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
7. M.G.Venkateshaiah,
S/o. Late B.Narayana,
Aged about 40 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
8. Sri. Krishnoji Rao,
S/o. Sri. Puttaswamy,
Aged about 43 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
4
9. K.R.Siddagangaiah,
S/o. Late Ramanna,
Aged about 38 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
10. T.H.Basavaraju,
S/o. Late Honnegowda,
Aged about 47 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
11. Sri. M.Shivamadappa,
S/o. Sri. Madappa,
Aged About 37 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
12. Sri. D.V.Srinivasa,
S/o. D.R.Venkataswamy,
Aged About 40 Years
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
13. Sri. Purushothama Kumar,
S/o. Chandrashekar,
Aged About 43 Years,
Working as Second Division Assistant,
High Court of Karnataka,
5
Bangalore.
14. Sri. K.Mahadevaiah,
S/o. Late Kalaiah,
Aged About 45 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
15. Sri. Onkaraswamy Y.S. ,
S/o. Sri. Siddaramaiah Y.S.,
Aged About 42 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
16. Sri. Rajkumar,
S/o. Ramesh Patel,
Aged About 37 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
17. Sri. B R Srinivasa,
S/o. K.S.Ramachandraiah,
Aged About 36 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
18. Sri. Kerimath Eshwara,
S/o. Rudraiah,
Aged About 51 Years,
6
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
19. Sri. Panchalingaiah,
S/o. Panchaiah,
Aged About 50 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
20. Sri. D.G.Purnesh,
S/o. D.M.Gopalgowda,
Aged About 38 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
21. Sri. V.Nagaraja,
S/o. S.Veerappa,
Aged About 45 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
22. Sri. Suresh,
S/o. Bommanaraiah Gowda,
Aged About 42 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
23. Sri. B.N.Harshath,
7
S/o. Late B.Narayana,
Aged About 40 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
24. Sri. P.Kumar,
S/o. Late K.Papaiah,
Aged About 34 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
25. Sri. Syed Rukhman,
S/o. Syed Rahamatullah,
Aged About 33 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
26. Sri. T.S.Shashidhar,
S/o. T.N.Srikanta Shastri,
Aged About 45 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
27. Sri. T.Ramachandra,
S/o. Thimmaiah,
Aged About 42 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
8
28. Smt. Chitra Tilgul,
D/o. D.V.Tilgul,
Aged About 48 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
29. Sri. N.K.Jagadish Kumar,
S/o. Kalaiah,
Aged About 32 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
30. Sri. H.S.Gangadharaiah,
S/o. Somaiah,
Aged About 52 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
31. Sri.G.Raghu,
S/o. Late Gurumurthy Achar,
Aged About 37 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
32. Smt. M.Valarmerdhi,
W/o. N.Raghu,
Aged About 43 Years,
Working as Second Division Assistant,
9
High Court of Karnataka,
Bangalore.
33. Sri. M.S.Revanasiddappa,
S/o. Late M.R.Shivanna,
Aged About 44 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
34. Sri. B.Nataraj,
S/o. Beeraiah,
Aged About 45 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
35. Sri. C.Shivaram,
S/o. Chowdappa,
Aged About 32 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
36. Sri. Srihari,
S/o. Late Varadaraj Iyengar G R ,
Aged About 37 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
37. Sri. Rahamatulla,
S/o. M.D.Peer,
10
Aged About 34 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
38. Sri. Gangarangaiah,
S/o. Chennaiah,
Aged About 43 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
39. Sri. Lakshmana Gowda K.N.,
S/o. Late Nanjunde Gowda,
Aged About 44 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
40. Sri. R.Rudraiah,
S/o. Babu,
Aged About 43 Years,
Working as Second Division Assistant,
High Court of Karnataka,
Bangalore.
41. Sri. T.Shivananda,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
[Respondent No.41 - retired
11
deleted vide court order dated 8.4.2011]
42. Sri. Raju.B,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
43. Sri. T.Mahalingaiah,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
44. Smt. Revathi.M,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
45. Smt. B.Suma,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
46. Smt. Divyamangala H.J.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
47. Smt. Sukanya.N,
12
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
48. Smt. Vidyavathi H.K.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
49. Smt. Nandini Rao J.V.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
50. Smt. Sampoorna.J.Karishetty ,
Major
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
51. Smt. G.S.Roopashree,
Major
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
[Respondent-51 has resigned
Deleted vide court order dated 8.4.2011]
52. Smt. Shalini.S,
13
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
53. Smt .R.Chandrakala,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
54. Smt. K.S.Mangala,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
55. Smt.H.R.Chandrakala,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
56. Sri. Govindaraju.R ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
57. Sri. Halaniak.O,
Major,
Working as First Division Assistant,
High Court of Karnataka,
14
Bangalore 560 001.
58. Smt. Akkamahdevi Bommakkannavar,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
59. Smt. Bharathi.K ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
60. Smt. Soubhagya B.A.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
61. Smt. Tanuja Rani,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
62. Smt. Leelavathi .S,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
63. Sri. M.Madhuchandra,
15
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
64. Sri. Sathish Naik T.C.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
65. Sri.Karunakara K.S.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
66. Sri. Manjunath .S,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
67. Sri. Praveen Kumar .C,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
68. Smt. Sapna.V ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
16
Bangalore 560 001.
69. Smt. Meena Bai V.N. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
70. Sri. Dharmanna Rathod,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
71. Smt. J.Sandhya,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
72. Smt. N.Nagashree,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
73. Smt. T.K.Vijayalakshmi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
74. Sri. Syed Akil Ali,
17
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
75. Sri. Syed Nadeem Ur Rehaman,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
76. Smt. Vasudha .N,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
77. Sri. Vasantha Naik,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
78. Smt. Veena G.B.,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
79. Sri. Doreswamy A.N. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
18
Bangalore 560 001.
80. Sri. Siddanagowda Nageshappa Anaji,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
81. Smt. Rajini K.P. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
82. Sri. Balappa .V.Betageri,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
83. Smt. Ramabai Naik,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
84. Smt. Thejaswini S.N. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
85. Raghu.D,
19
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
86. Ramesh P.C. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
87. Sulochana,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
88. Sri. M. Shivakumar,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
89. Smt. Sindu Molu,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
90. Sri. Siddlingeshwar .G. Patil,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
20
Bangalore 560 001.
91. Smt. Shanthala Naik.K,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
92. Smt. B.K.Shruthi,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
93. Sri. Y.Dilip Kumar,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
94. Smt. R.Manjula,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
95. Smt. K.M.Nirmala,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
96. Smt. Yashodha .G,
21
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
97. Smt. S.Gayathri,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
98. Smt. S.Bharathi,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
99. Sri. G.M. Munidevaraja,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
100. Smt. R.E.Rathnamma,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
101. Smt. Ravikala H.P. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
22
Bangalore 560 001.
102. Smt V.Vanishree,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
103. Sri. D.Krishnamurthy,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
104. Sri. N.T.Revenna Gowda,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
105. Sri. Raghu M.H.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
106. Smt. B.P.Rekha Kiran,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
107. Smt. M.R.Prasanna Kumari,
23
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
108. Smt. M.S.Preethi,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
109. Sri. K.N.Suresha,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
110. Sri. R.S.Chandra,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
111. Sri. A.R.Srinath,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
112. Sri. D.Badrinath Rao,
Major,
Working as First Division Assistant,
High Court of Karnataka,
24
Bangalore 560 001.
113. Sri. Manjunath Bhat,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
114. Sri. Satish Reddy K.V. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
115. Sri. Halijwala Bharama Apaya,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
116. Sri. U.Mahesh,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
117. Sri. Prakash .T,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
118. Smt. Smitha .K,
25
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
119. Smt. Kavitha .S,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
120. Sri. Giridhar .S,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
121. Sri. B.S.Nagaraja,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
122. Sri. Shreenivasa,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
123. Smt. Vinutha D.S. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
26
Bangalore 560 001.
124. Smt. Hamsa .V,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
125. Smt. Padmini B.L. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
126. Smt. Nalini .R,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
127. Sri. Malinath Mugalgaon,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
128. Sri. Shivanand .S. Matolli ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
129. Smt. Arathi .G. Kallihal,
27
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
130. Smt. Geetha .S. Mensinkai,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
131. Sri. Raghu K.R. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
132. Sri. Suresha,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
133. Sri. Nagesh K.S. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
134. Smt. Sunanda .C,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
28
Bangalore 560 001.
135. Smt.Yashodha .B ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
136. Sri. Sriram Narayanasa Bhavikatti ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
137. Khavajabandinavaj Tegginamani ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
138. Sri. Renukaradhya S.N. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
139. Sri. Amarappa Laxakoppa ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
140. Smt. Prema .S. Jadimath ,
29
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
141. Smt. Saroja C.M. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
142. Sri. Veerabhadragouda Patil,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
143. Smt. Geetha R.C. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
144. Sri. Suresh Murnal,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
145. Sri. Ramanjaneya .M,
Major,
Working as First Division Assistant,
High Court of Karnataka,
30
Bangalore 560 001.
146. Smt. Mahiboobi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
147. Sri. Dhakshinamurthy,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
148. Sri. Mounesh .M,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
149. Sri. Nandeesh Kumar G.B. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
150. Sri. Srinivasa .C,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
151. Smt. Rekha .M,
31
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
152. Smt. R.S.Savitha,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
153. Smt. M.K.Dechamma,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
154. Smt. G.Bhavani Bai,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
155. Sri. G.M.Yashwanth,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
156. Smt. Umme Salma,
Major,
Working as First Division Assistant,
High Court of Karnataka,
32
Bangalore 560 001.
157. Smt. M.Devika,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
158. Smt. R.Malathi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
159. Sri. K.R.Maheshwarappa,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
160. Smt. P.S.Padmavathy,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
161. Smt. Veena.G.Rao,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
162. Smt. Vijayalakshmi Gudgurmath,
33
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
163. Smt. Kavita Bandi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
164. Smt. Prashathi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
165. Smt. Manjula Gurubasappa Hubballi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
166. Smt. G.Lakshmamma,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001.
167. Smt. Y.Soumya,
Major,
Working as First Division Assistant,
High Court of Karnataka,
34
Bangalore 560 001.
168. Smt. A.T.Aparna,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore 560 001. ...RESPONDENTS
(By Shri.S.G.Bhagwan, Advocate for Respondent Nos. 1 to 40
Shri. S.V.Prakash, Advocate for Respondent Nos. 132, 134, 144,
159
Shri.N.M.Kardigudda, Advocate for Respondent Nos. 136, 137,
139, 142, 148 and 149
Respondent Nos. 41 and 51 - deleted
Notice dispensed with in respect of Respondent Nos.42 to 131,
133, 135, 138, 140, 141, 143, 145 to 147, 150 to 158, 160 to 168)
*****
IN WRIT APPEAL Nos. 2280-2310 OF 2011
ARISING OUT OF
W.P.Nos.11797-11827/2010
BETWEEN:
1.Hon'ble Chief Justice,
High Court of Karnataka,
Bangalore,
Represented by
Registrar General.
35
2.High Court of Karnataka,
Bangalore,
By the Registrar General. ...APPELLANTS
(By Shri: Basavaprabhu S.Patil, Senior Advocate for Shri.A
Niranjan Kumar, Advocate )
AND:
1. K.Siddalingaiah,
S/o. Sri. A.Kempaiah,
Aged About 54 Years,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
2. G.M.Nataraj,
S/o. Late G.R.Mahadevaiah,
Aged About 38 Years,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
3. K.A.Nanjappa Shetty,
S/o. Sri. Annappa Shetty,
Aged About 57 Years,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
4. M.S.Veerabhadraiah,
S/o. Sri. Shivanna,
Aged About 54 Years,
36
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
5. U.Jayakumar,
S/o. Sri. U.Venkataramana Acharya,
Aged About 43 Years,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
6. Rajendra .S. Tilgul,
Aged About 43 Years,
S/o. Sri. Druva Tilgul,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
7. M. Lingraju,
Aged About 43 Years,
S/o. Late Madaiah,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
8. V.Y.Hanumantharaju,
Aged about 44 Years,
S/o. Sri. Yellaiah,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
9. Anjaneya Reddy,
37
Aged about 57 Years,
S/o. Sri. Gopal Reddy,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
10. Jayaprabhu .D,
Aged About 50 Years,
S/o. Devagiriyappa,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
11. Mohammed Ghouse,
Aged About 57 Years,
S/o. Sri. Mohammed Khagim,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
12. D.Yellappa,
Aged About 43 Years,
S/o. Sri. Dasappa,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
13. K.J.Chandraprabha,
Aged About 46 Years,
S/o. Sri. K.N.Jwallanna,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
38
14. Ramaiah,
Aged About 51 Years,
S/o. Sri. Tirumala Dasappa,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
15. Ramachandraiah,
Aged About 48 Years,
S/o. Chennigappa,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
16. K.C.Annegowda,
Aged About 40 Years,
S/o. Late Chikkanna Gowda,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
17. Jayaramu,
Aged About 50 Years,
S/o. Sri. Doddamarigowda,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
18. T.S.Virupakshaiah,
Aged About 48 Years,
S/o. Late Siddagangappa,
Working as First Division Assistant,
39
High Court of Karnataka,
Bangalore.
19. A.Anand,
Aged About 37 Years,
S/o. Sri. Armugam,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
20. Mallamma Gangadharaiah,
Aged About 44 Years,
W/o. Late Gangadharaiah B.R. ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
21. K.Nagaraja,
Aged About 46 Years,
S/o. Sri. Kari Hanumantha,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
22. M.Lakshmidevamma,
Aged About 39 Years,
W/o. Sri. Manjanna,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
23. G.Ganesh,
Aged About 42 Years,
40
S/o. Sri. Narayan,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
24. T.R.Sreenivas,
Aged About 52 Years,
S/o. Sri. T.S. Raghavendra Rao,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
25. N.Nagaraj,
Aged About 40 Years,
S/o. Sri. Narasaiah,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
26. E.Ramachandra,
Aged About 46 Years,
S/o. Sri.P.Bhaskaran,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
27. P.D.Anil Kumar,
Aged About 32 Years,
S/o. Sri. P.D.Devendra Kumar,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
41
28. B.P.Yogananda,
Aged About 39 Years,
S/o. Sri. B.Prasanna Kumar,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
29. M.Lokesh,
Aged About 42 Years,
S/o. Sri. Mahadevaiah,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
30. Himavantha,
Aged About 40 Years,
S/o. Late Gangadharappa,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
31. Udayashankar,
Aged About 37 Years,
S/o Sri. M.L.Sheshagiriyappa
Working as First Division Assistant,
High Court of Karnataka,
Bangalore.
32. Sri. Raju,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
42
33. Sri. G.H.Ramesh,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
34. Smt. B.K.Sumangala,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
35. Sri. M.B.Boraiah,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
36. Sri. C.Raghavendra,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
37. Sri. Tulasappa Dasar,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
38. Smt. B.Gayathri,
Major,
43
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
39. Sri. R.Venkataraju,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
40. Sri. Virupakshaiah,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
41. Smt. Chandramma,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
42. Sri. M.Umesh,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
43. Sri. Lokesh Nayak,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
44
44. Sri. N.Rajesh,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
[as Respondent No.44 was dead
deleted vide court order dated 8.4.2011]
45. Smt. B.C.Veena,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
46. Sri. K.H.Gururaj,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
47. Sri.Prakash,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
48. Smt. G.S.Gayathri,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
45
49. Sri. Neelappa Bover,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
50. Smt. Jayaprabha,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
51. Smt. P.D.Premalatha,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
52. Sri. B.S.Suman,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
53. Sri. Metri Hanumanthappa,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
54. Sri. Jagatchandra .H,
Major,
46
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
55. Sri. Hanumanthe Gowda .L,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
56. Smt. Padmavathy .R,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560 001.
57. Sri. M.S.Prakash,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
58. Smt. Suvarna B.J. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
59. Sri. M.D.Ramachandraiah,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
47
60. Smt. R.Sudha,
Major,,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
61. Sri. S.Raghunath,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
62. Smt. C.Latha,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
63. Sri. Sudhakar Rao Kasture,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
64. Smt. Prabhavathi .P,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
65. Smt. S.Shashikala
Major,
48
Working As Senior Assistant,
High Court of Karnataka,
Bangalore-560001
66. Smt. C.N.Saraswathi,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
67. Sri. K.T.Keshava,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
68. Smt. Hemalatha .N.Nayak,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
69. Sri.V.Narayanaswamy,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
70. Smt.Sridevi Gauthramraj Maran,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
49
71. Smt. M.Kusuma,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
72. Sri. Ramesh Gurupadappa Kudri,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
73. Smt. Mamatha,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
74. Smt. Yashwanth Prabhu .R,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
75. Sri. Tanveer Raziqa,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
76. Smt. Anupama Devi K.N.,
Major,
50
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
77. Sri. Harish Kumar,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
78. Sri. Sharanappa .M.Chagashetty,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
79. Sri. Shivalingaiah,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
80. Sri. Haridas Kamath,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
81. Smt. Savitha B.K. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
51
82. Smt. Lakshmilatha K.K. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
83. Smt. Anupama .V,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
84. Smt. Shashikala .B,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
85. Smt. Shylaja .D,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
86. Smt. Usha B.S. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
87. Smt. Poornima V.K.,
Major,
52
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
88. Smt. Rekha H.R. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
89. Smt. Hemalatha .T,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
90. Smt. Kavitha K.N. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
91. Sri. Govindaraju O.S. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
92. Smt. Aarathi .D,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
53
93. Sri. Gopi N.D. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
94. Smt. Bhagya .T,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
95. Smt. Vanishree,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
96. Smt. Nirmala N.K. ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001.
97. Smt. S.Jayashree ,
Major,
Working as Senior Assistant,
High Court of Karnataka,
Bangalore-560001. ...RESPONDENTS
(By Shri. S.G.Bhaghawan, Advocate for Respondent Nos. 1 to 31
Respondent No.44 - deleted
54
Notice dispensed with in respect of Respondent Nos.32 to 43 and
45 to 97)
*****
IN W.A.Nos.2311-2340/2011
ARISING OUT OF
W.P.Nos.22155-22184/2010
BETWEEN:
1.Hon'ble Chief Justice,
High Court of Karnataka,
Bangalore,
Represented by
Registrar General.
2.High Court of Karnataka,
Bangalore,
By the Registrar General. ...APPELLANTS
(By Shri: Basavaprabhu S.Patil, Senior Advocate for Shri. A
Niranjan Kumar, Advocate )
AND:
1. Smt. J.Mamatha,
B.Lingaraju,
Aged About 38 Years,
Working in Circuit Bench Dharwad,
High Court of Karnataka Dharwad,
Dharwad.
55
2. Kum. Priya .M.Gonsalves,
D/o. H.Gonsalves,
Aged About 36 Years,
Working in Circuit Bench Dharwad,
High Court of Karnataka,
Dharwad.
3.Vinayaka B.V. ,
S/o. B.Veeranna,
Aged About 35 Years,
Working in Circuit Bench Dharwad,
High Court of Karnataka,
Dharwad.
4.Venkatarama,
S/o. Late M.G.Venkatappa,
Aged About 49 Years,
Working in Circuit Bench,
Gulbarga.
5.M.Papanna,
S/o. Late Munishamappa,
Aged About 57 Years,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
6.C.K.Chandrashekar ,
S/o. C.M.Krishnamurthy,
Aged About 49 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
56
Bangalore.
7.Smt. Shafi Ara Khanum,
W/o. Javed Khan,
Aged About 54 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
8.Smt. N.Premakumari ,
W/o. Ramesh .T,
Aged About 42 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
9.Smt. Malaprabha .G. Nekar,
W/o. Gurupadappa Nekar,
Aged About 49 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
10.Smt. Roopa .S.Kulkarni,
W/o. Gopal,
Aged About 40 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
57
Bangalore.
11.Kum. Rahimunnisa,
D/o. Mehaboobsab,
Aged About 45 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
12.Smt. B.M.Manjula,
W/o. T.Vishwanath,
Aged About 38 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
13.Smt. K.S.Jayapadma,
W/o. J.K.Jain,
Aged About 55 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
14.Smt. K.N.Mala,
W/o. A.K.Devappa,
Aged About 37 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
58
15.Smt. Anitha,
W/o. S.T.Lakshminarayan,
Aged About 43 Years,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
16.Smt. S. Bharathi Bai,
Major,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
17.G.S.Sreenath,
S/o. B.S.Subramanya Gupta,
Aged About 40 Years,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
18.Mahesh,
S/o. C.Narsimaiah,
Aged About 50 Years,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
19.Smt. Shyamala,
W/o. John Victor,
59
Aged About 45 Years,
Working as Senior Judgment Writer,
High Court of Karnataka,
Bangalore.
20.Smt. Shakambari,
W/o. Sudhir Joshi,
Aged About 43 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
21.Smt.M.V.Sheela,
W/o. Anantha Kumar,
Aged About 39 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
22.Smt.K.G.Renukamba,
W/o. Ramesh,
Aged About 41 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
23.K. Srinivasa Murthy,
S/o. Late V.A.Keshava Murthy,
Aged About 43 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
60
24.Smt. K.Sumathy ,
W/o. Late S.N.Kumareshan,
Aged About 32 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
25.Smt. Pankaja .S,
W/o. Girish K.R.,
Aged About 30 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
26.B.A.Krishnakumar,
S/o. Anjanappa,
Aged About 32 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
27.V. Balakrishna,
S/o. P.S.Shankaranarayana,
Aged About 56 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
28.Mahendra Kumar,
S/o. T. Krishnachar,
Aged About 41 Years,
Working as Judgment Writer,
High Court of Karnataka,
61
Bangalore.
29.Smt.Geetha Kumari,
D/o. Subramanya,
Aged About 42 Years,
Working as Judgment Writer,
High Court of Karnataka,
Bangalore.
30.Smt Yashoda K.L. ,
W/o. K.G.Manjunatha,
Aged About 34 Years,
Working as Stenographer,
High Court of Karnataka,
Bangalore.
31.N.Lakshminarayana,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
32.Juanitha Thejaswini,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
33.Yamuna K.L.,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
62
34.Shylaja .R,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
35.Veena B.M. ,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
36.Prema .C ,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
37.Anand. N,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
38.Manjula. H.N. ,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
39.Malthi. C.,
Major,
63
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
40.Kalamath. M.R. ,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
41.Lakshmamma .N,
Major,
Senior Judgment Writer,
Working in High Court of Karnataka,
Bangalore.
42.Venkanna .G.Ekambe,
Major,
Working as Assistant Registrar,
Working in High Court of Karnataka,
Bangalore.
43.Rama Rao Kulkarni,
Major,
Working as Assistant Registrar,
Working in High Court of Karnataka,
Bangalore.
44.K. Nagaraj,
Major,
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore.
64
45.K.S. Varalakshmi,
Major,
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore.
46.I. Amala,
Major,
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore.
47.C.L. Vijayakumar,
Major,
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore.
48.Mallikunnissa,
Major,
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore.
49.N.L. Prahalada Rao,
Major,
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore.
50.T.S. Krishna Murthy,
Major,
65
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore.
51.N Triveni,
Major,
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore.
52.B.V. Renukamma,
Major,
Working as Assistant Registrar,
High Court of Karnataka,
Bangalore. ...
RESPONDENTS
(By Shri. B.V.Krishna, Advocate for Sanmathi Associates,
Advocate for Caveator / Respondent No.5
Shri. B.V.Krishna for S.P.S. Associates, Advocate for Respondent
Nos. 1 to 30
Shri. S.V.Narasimhan, Advocate for Respondent No.44
Shri. T.S.Madavachar, Advocate for Respondent Nos. 35 and 39
Shri. V.S.Naik, Advocate for Respondent Nos. 1, 7, 11 to 15, 17 to
21, 23, 25, 26, 28 and 30
Notice dispensed with in respect of Respondent Nos. 31 to 34, 40
to 43, and 45 to 52 )
66
IN W.A.Nos.2341-2407/2011
ARISING OUT OF
W.P.Nos.35966-36032/2009
BETWEEN:
1.Hon'ble Chief Justice,
High Court of Karnataka,
Bangalore,
Represented by
Registrar General.
2.High Court of Karnataka,
Bangalore,
By the Registrar General.
3 The Registrar (Administration),
High Court of Karnataka,
High Court Buildings,
Dr.B.R.Ambedkar Veedhi,
Bangalore - 560 001. ...APPELLANTS
(By Shri: Basavaprabhu S.Patil, Senior Advocate for Shri. A
Niranjan Kumar, Advocate )
AND:
1. K Manjunath,
Aged 45 years,
S/o.Kenchappa,
Working as Peon in Karnataka
High Court, High Court Buildings,
67
Dr B.R.Ambedkar Veedhi,
Bangalore- 560001.
2. B. Srinibvasa Rao Pawar,
Aged 39 years,
S/o.Late Byroji Rao,
Working as Attender in Karnataka
High Court, High Court Buildings,
Dr B.R. Ambedkar Veedhi,
Bangalore-560001.
3.A. Narasimha Murthy,
Aged 40 years,
S/o.Anjanappa,
Working as Peon in Karnataka
High Court, High Court Buildings,
Dr B.R.Ambedkar Veedhi,
Bangalore-560001.
4.Shahnawaz Khan,
Aged 37 years,
S/o.R. Mehboob Khan,
Working as Sweeper in Karnataka
High Court, High Court Buildings,
Dr B.R. Ambedkar Veedhi,
Bangalore-560001.
5.K. Balakrishna,
Aged 40 years,
S/o.B. Krishnappa,
Working as Peon in Karnataka
High Court, High Court Buildings,
Dr. B.R. Ambedkar Veedhi,
68
Bangalore-560001.
6.Manjunatha B C,
Aged 41 years,
S/o.Chikkarevanna,
Working as Watchman in Karnataka
High Court, High Court Buildings,
Dr. B.R. Ambedkar Veedhi,
Bangalore- 560001.
7.T.K. Yoganarasimhaiah,
Aged 36 years,
S/o.Krishnappa,
Working as Peon in Karnataka
High Court, High Court Buildings,
Dr. B.R. Ambedkar Veedhi,
Bangalore-560001.
8.B. Gopalakrishna,
Aged 43 years,
S/o.Boraiah,
Working as Peon in Karnataka
High Court, High Court Buildings,
Dr.B.R. Ambedkar Veedhi,
Bangalore-560001.
9.B.N.Diwakar,
Aged 37 years,
S/o.Late K.V.Nagaraj,
Working as Peon in Karnataka
High Court, High Court Buildings,
Dr.B.R. Ambedkar Veedhi,
Bangalore-560001.
69
10.K.V.Jagannath,
Aged 34 years,
S/o.K.H.Venkataramaiah,
Working as Sweeper in Karnataka
High Court, High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560001.
11.M.V.Srinivasa,
Aged 37 years,
S/o.M. Venkateshappa,
Working as Peon in Karnataka
High Court, High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560001.
12.Chandrashekar .R ,
Aged 36 years,
S/o.M. Rajanna,
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560001.
13.Vittal,
Aged 40 years,
S/o.Venkat Rao,
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R. Ambedkar Veedhi
70
Bangalore- 560001.
14.Ramaiah,
Aged 44 years,
S/o.Ramanna,
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560001.
15.M. Somashekar,
Aged about 33 years,
S/o.N K Mahadeva Swamy
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
16.K.S.Shivaraju,
Aged about 41 years,
S/o.Late Shivananjegowda,
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
17.R.Manjula,
Aged about 35 years,
D/o.Rangappa ,
Working as Peon in
71
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
18.Sharada .R ,
Aged about 35 years,
D/o.Ramachandra .K,
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore 560001.
19.Ramakantha D.R. ,
Aged about 40 years,
S/o.D.K.Ranganath,
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
20.A. Hem Rao,
Aged about 35 years,
S/o.T. Ashwath Narayan Rao,
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
21.J. Manjunatha,
72
Aged about 31 years,
S/o.Late Javaraiah,
Working as Peon in
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
22.Ravikumar R.C. ,
Aged about 28 years,
S/o.Late Chikka Hanumanthaiah,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
23.L. Narasimhappa,
Aged about 34 years,
S/o.Lakshmaiah,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
24.Bore Gowda,
Aged about 41 years,
S/o.Karigowda,
Working as Watchman in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
73
Bangalore.
25.G. Chandrashekar,
Aged about 32 years,
S/o.M.Gopala,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
26.V.D.Manjunath,
Aged about 32 years,
S/o.Devegowda,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
27. Ramesh M.K. ,
Aged about 38 years,
S/o.Dodda Marigowda,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
28. M.P. Shantha Rajaiah,
Aged about 40 years,
S/o.M.S.Pommanna,
Working as Attender in Karnataka
74
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
29.K.S. Ananth Padmanabha,
Aged about 38 years,
S/o.K.V. Seetharamaiah,
Working as Sweeper in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
30.Chikka Siddappa,
Aged about 39 years,
S/o.Virupakshaiah,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
31.Govardhan Rao .N,
Aged about 30 years,
S/o.Late Narayan Rao,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
32.R.Lakshminarayana,
75
Aged about 40 years,
S/o.Late K.Ramakrishnappa,
Working as Watchman in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
33.S.E.Raghu,
Aged about 29 years,
S/o.Eregowda,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr.B.R.Ambedkar Veedhi,
Bangalore.
34.C. Ramesha,
Aged about 36 years,
S/o.Channaiah,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi
Bangalore.
35.Huchamma,
Aged about 41 years,
D/o.Gangaiah,
Working as Sweeper in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
76
Bangalore.
36.Basavaraju,
Aged about 39 years,
S/o.Shivalingaiah,
Working as Sweeper in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
37.Chand Pasha,
Aged about 36 years,
S/o.Dastagir Sab,
Working as Watchman in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
38.Padmavathamma,
Aged about 43 years,
D/o.Venkataramanappa,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
39.R. Geetha,
Aged about 30 years,
D/o.D.K.Ramachandra,
Working as Peon in Karnataka
77
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
40.Ramesha M.N. ,
Aged about 37 years,
S/o.Nanjappa,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
41.Kashinath,
Aged about 44 years,
S/o.Veershettu,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi
Bangalore.
42.K.M.Suresha,
Aged about 44 years,
S/o.Mayanna,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr.B.R.Ambedkar Veedhi,
Bangalore.
43.L.Asharani,
78
Aged about 24 years,
D/o.K.C.Lakshmaiah,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
44.Amjad Pasha,
Aged about 31 years,
S/o.Abdul Sattar,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr.B.R.Ambedkar Veedhi,
Bangalore.
45.K Chandrashekaraiah,
Aged about 44 years,
S/o.Kempaiah,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
46.Nagamma,
Aged about 41 years,
W/o.Narasimha Gowda,
Working as Jamedar in Karnataka
High Court ,
79
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
47.Manjunatha .K,
Aged about 39 years,
S/o.Late Krishnamurthy G.V. ,
Working as Cable Operator in Karnataka
High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
48.K.S.Giriraju,
Aged about 44 years,
S/o.K. Subbaiah,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
49.D.A.Vasudeva,
Aged about 31 years,
S/o.D.L.Ananda Rao,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr.B.R.Ambedkar Veedhi,
Bangalore.
50.S.V.Sreenivas Murthy,
Aged about 40 years,
80
S/o.Venkob Rao,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
51.B.S.Sunil Kumar,
Aged about 34 years,
S/o.S.B.Shantharaja,
Working As Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
52.Shivalingaiah .K,
Aged about 44 years,
S/o.Karigowda,
Working as Gardener in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
53.M.S.Shviakumar,
Aged about 41 years,
S/o.Siddagangaiah,
Working as Watchman in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
81
54.Harish .S ,
Aged about 28 years,
S/o.Subbanna,
Working as Watchman in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
55.B.V.Vishwanath,
Aged about 35 years,
S/o.B.Venkatesha,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
56.S.E.Puttaswamy,
Aged about 41 years,
S/o.Eraiah,
Working as Peon in Karnataka
High Court ,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
57.Nagarathanamma K.R. ,
D/o Ramanna,
Aged About 39 Years ,
Working as Peon in Karnataka High Court,
High Court Buildings,
82
Dr B.R. Ambedkar Vedhi,
Bangalore .
58.Fatha Nawaz Khan ,
S/o. R. Mahabood Khan,
Aged About 34 Years,
Working as Watchman in Karnataka High Court,
High Court Buildings,
Dr. B.R. Ambedkar Veedhi,
Bangalore.
59.K.R.Ravi ,
S/o. Late Rajanna,
Aged About 43 Years
Working as Peon in Karnataka High Court,
High Court Buildings,
Dr. B.R. Ambedkar Veedhi,
Bangalore.
60.S. Vinayaka,
S/o. Late S. Mani,
Aged About 29 Years,
Working as Peon in Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
61.Chennappa,
S/o. Chennaiah,
Aged About 42 Years,
Working as Peon in Karnataka High Court,
High Court Buildings,
Dr. B.R. Ambedkar Veedhi,
83
Bangalore .
62.Sreedhara G.J. ,
S/o. Javarayappa,
Aged About 39 Years,
Working as Peon in Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore .
63.Venkatesh Murthy G.M. ,
S/o. Late Marishetty .G,
Aged About 24 Years ,
Working as Watchman in Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
64.V. Ramakrishnappa,
S/o. Venkateshappa,
Aged About 40 Years,
Working as Peon in Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore
65.Jagadeesh Kumar,
S/o. Padmanabha Bhat,
Aged About 40 Years ,
Working as Peon in Karnataka High Court,
High Court Buildings,
Dr. B.R. Ambedkar Veedhi,
Bangalore.
84
66.M.Suresha (SR),
S/o. Madegowda ,
Aged About 41 Years,
Working as Peon in Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore.
67.Sri Raghu M.L. ,
S/o. Sri.B.Lingegowda,
Major,
Residing at No.T-5, 224, RTPS Colony,
Shanthinagar,
Raichur District .
68.Ms. K.M.Sona,
D/o. Sri K.K. Machaiah,
Major,
Residing at No.124, Shettahalli Road,
New Extension, Near Adarsha Convent,
Malavalli Town,
Mandya District .
69.Sri.Shivananjappa .B,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore - 560 001.
70.Sri. Ramalingappa K.M. ,
Major,
85
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
71.Sri Manjanna T.A. ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr.B.R.Ambedkar Veedhi,
Bangalore-560 001.
72.Ms.Umadevi ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
73.Smt. S.Suma ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
74.Sri.Gopinath B.R. ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
86
75.Smt. Mansur Pasha ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
76. Smt.Gnanambha T.S. ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
77. Smt. Hema .P ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
78. Sri.Raghavendra K.A.,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr.B.R.Ambedkar Veedhi,
Bangalore-560 001.
79. Sri. Ramakrishna Naik,
Major,
Working as Second Division Assistant,
High Court Of Karnataka,
Dr.B.R.Ambedkar Veedhi,
87
Bangalore-560 001 .
80. Sri.Venkatesh .N,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr.B.R.Ambedkar Veedhi,
Bangalore-560 001 .
81. Sri.Jayaramu .K ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
82. Sri. Manjunatha .G,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
83. Sri. Ramakrishna D.M. ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
84. Smt. Thulaja Bai,
Major,
Working as Second Division Assistant,
88
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
85. Sri. Suresha .H ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
86. Sri.Narasimahaiah .G,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
87. Sri Prasanna M.K. ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr.B.R.Ambedkar Veedhi,
Bangalore-560 001.
88. Sri. Umesh H.S. ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
89. Smt. Manjula H.C. ,
89
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
90. Sri. Raghu .L,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
91. Smt. Vanitha .S ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
92. Smt. Vidya .K ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
93. Sri. Rudranna .O ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
90
94. Smt. Prathibha K.S.,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
95. Smt. Kanaka .N ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
96. Sri.Ravishankar .B ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
97. Sri. Vinay Kumar Jha,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
98. Sri.Shashidhara P.G. ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
91
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
99. Sri.Syed Adil Khadri ,
Major,
Working as Second Division Assistant,
High Court of Karnataka,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 . ...RESPONDENTS
(By Shri. B.V.Krishna, Advocate for S.P.S. Associates, Advocates
for Respondent Nos. 1 to 7, 9, 12, 14 to 16, 20, 22 to 28, 34, 35,
37, 39, 46, 53, 58, 59 61, 63, 64
Shri. Reuben Jacob,Advocate for Respondent Nos. 8, 10, 11, 17,
19, 21, 29 to 33, 36, 38, 40 to 45, 47 to 52, 54 to 56, 60, 62, 65 and
66
Notice dispensed with in respect of Respondent Nos. 67 to 99)
*****
IN W.A.Nos. 2408-2417/2011
ARISING OUT OF
W.P.Nos.36797-36806/2009
BETWEEN:
1.Hon'ble Chief Justice,
High Court of Karnataka,
Bangalore,
Represented by its Registrar General.
2.High Court of Karnataka,
Bangalore,
By the Registrar General. ...APPELLANTS
92
(By Shri: Basavaprabhu S.Patil, Senior Advocate for Shri. A
Niranjan Kumar, Advocate )
AND:
1.Rajagopal .S,
S/o.Subrayappa,
Aged About 47 Years ,
Working as Senior Assistant
in Karnataka High Court ,
High Court Buildings ,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
2.Kodandarama .K,
S/o. Muniyappa,
Aged About 54 Years
Working As Senior Assistant
in Karnataka High Court,
High Court Buildings
Dr. B.R.Ambedkar Veedhi
Bangalore-560 001.
3.Shivanna .K,
S/o. Kempegowda,
Aged About 54 Years ,
Working as Senior Assistant
in Karnataka High Court,
High Court Buildings ,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
93
4.Jayarama Nayaka .S ,
S/o. Subbanayaka,
Aged About 40 Years ,
Working as Senior Assistant
in Karnataka High Court ,
High Court Buildings ,
Dr. B.R.Ambedkar Veedhi ,
Bangalore-560 001 .
5.Mohan Kumar .P,
S/o. K.Padmarajaiah,
Aged About 49 Years,
Working as Senior Assistant
in Karnataka High Court,
High Court Buildings ,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
6.Manjunatha Shetty M.R. ,
S/o. M.R.Rama Shetty,
Aged About 55 Years ,
Working as Senior Assistant
in Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001.
7.Rajanna .C,
S/o. Channabasavaiah ,
Aged About 58 Years ,
Working as Senior Assistant
in Karnataka High Court,
94
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
8.Shashikumar B.R. ,
S/o. S.Ramaiah,
Aged About 39 Years ,
Working as Senior Assistant
in Karnataka High Court,
High Court Buildings ,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
9.Anthony Kumar,
S/o. Mirudayappa ,
Aged About 51 Years ,
Working as Senior Assistant
in Karnataka High Court ,
High Court Buildings
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001 .
10.Kaja Munirulla Khan ,
S/o. Anwarulla,
Aged About 58 Years ,
Working as Senior Assistant
in Karnataka High Court,
High Court Buildings ,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560 001. ...RESPONDENTS
95
(By Shri. Reuben Jacob, Advocate for Respondent Nos.1 to 10)
*****
IN W.A.Nos. 2418-2449/2011
ARISING OUT OF
W.P.Nos.37218-37249/2009
BETWEEN:
1.Hon'ble Chief Justice,
High Court of Karnataka,
Bangalore,
Represented by its Registrar General.
2.High Court of Karnataka,
Bangalore,
By the Registrar General. ...APPELLANTS
(By Shri:Basavaprabhu S.Patil, Senior Advocate for Shri. A
Niranjan Kumar, Advocate )
AND:
1. Sri. Ramesh,
S/o. Annappa,
Aged About 42 Years,
Working as Second Division Assistant
in High Court of Karnataka ,
96
Bangalore - 560 001.
2. Sri. R.M.Ravindra,
S/o. Late Muniswamy,
Aged About 46 Years ,
Working as Second Division Assistant
in High Court of Karnataka,
Bangalore-560 001.
3.Sri. Mallikarjuna .M.Sali ,
S/o. Mahadevappa,
Aged About 44 Years ,
Working as Second Division Assistant
in High Court of Karnataka ,
Bangalore - 560 001.
4.Sri.T.Ramakrishnaiah,
S/o. T.Thimmaiah,
Aged About 40 Years ,
Working As Second Division Assistant
in High Court of Karnataka,
Bangalore - 560 001.
5.Sri. P.K.Singri Gowda ,
S/o. Late Kempegowda,
Aged About 49 Years,
Working as Second Division Assistant
in High Court of Karnataka,
Bangalore - 560 001.
6.Sri. N.Muddu Mohan ,
97
S/o. A.Narasimhamurthy,
Aged About 47 Years ,
Working as Second Division Assistant
in High Court of Karnataka,
Bangalore - 560 001.
7.Sri. N.Rajanna,
S/o. Nanjegowda,
Aged About 51 Years,
Working as Second Division Assistant
in High Court of Karnataka,
Bangalore - 560 001.
8.Sri. Mahadevaiah .M ,
S/o. Late Manasegowda,
Aged About 45 Years,
Working as Second Division Assistant
in High Court of Karnataka,
Bangalore - 560 001.
9.Sri. L.K.Shivanna,
S/o. Kaduvegowda,
Aged About 39 Years,
Working as Second Division Assistant
in High Court of Karnataka,
Bangalore-560 001.
10.Sri. G.Munikrishnappa,
S/o. N.Galinarasappa,
Aged about 36 Years,
Working as Second Division Assistant
in High Court of Karnataka,
Bangalore - 560 001.
98
11.Sri. Narasinga Rao,
S/o. Krishnarao,
Aged about48 Years,
Working as Second Division Assistant
in High Court of Karnataka,
Bangalore - 560 001.
12.Sri. Dhananjayan .K ,
S/o.Late Krishna Reddy,
Aged about42 Years,
Working as Second Division Assistant in
High Court of Karnataka,
Bangalore - 560 001.
13.Sri. Ravikumar .V.Hanagodimath,
S/o. Veerayya,
Aged about 42 Years,
Working as Second Division Assistant in
High Court of Karnataka,
Bangalore - 560 001.
14.Sri.B.K.Manoja Kumar,
S/o. B.K.Veerappa Goudar,
Aged about 40 Years,
Working as Second Division Assistant in
High Court of Karnataka,
Bangalore - 560 001.
15.Sri. Mallikarjun,
S/o. Basavanappa,
Aged about 40 Years,
Working as Second Division Assistant in
99
High Court of Karnataka,
Bangalore - 560 001.
16.S. Shadakshara Murthy,
S/o. Channabasavaiah,
Aged about 41 Years,
Working as Second Division Assistant in
High Court of Karnataka,
Bangalore - 560 001.
17.Sri. B. Krishnappa,
S/o. Late Gangappa,
Aged about 45 Years,
Working as Second Division Assistant in
High Court of Karnataka,
Bangalore - 560 001.
18.Sri. Ahamed Khan,
S/o. Khaleel Ulla Khan,
Aged about 37 Years,
Working as Second Division Assistant in
High Court of Karnataka,
Bangalore - 560 001.
19.Sri. K. Gopala,
S/o. K.P.Karanakaran,
Aged about 46 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
20.Sri. Alimullah Khan,
S/o. Late Ziaullakhan,
100
Aged about 35 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
21.Smt. Annes Fathima,
W/o. Md. Aymathulla,
Aged about 35 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
22.Smt S. Sunanda,
W/o. H S Shashikumar,
Aged about 33 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
23.Smt. P.R.Nalina,
W/o. H .L.Lokesh,
Aged about 30 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
24.Smt. A.S.Bhagyalakshmi,
W/o. R.Vishwaprasad,
Aged about 43 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
101
25.Sri. P.Krishnamurthy,
S/o. N.Parvathaiah,
Aged About 43 Years ,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
26.Smt. Leela M.B. ,
W/o. H.G.Naveenkumar,
Aged About 27 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
27.Shri. Shivakumar Aradhya .N,
S/o. Nanjundaradhaya G.P. ,
Aged About 32 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
28.Sri. Gopalakrishna .B,
S/o. Basavanyappa,
Aged About 34 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
29.Sri. R.Gopalakrishna,
S/o. D.Rangaswamy,
Aged About 29 Years,
102
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
30.Sri. Dharmesh .R,
S/o. Rajanna .M,
Aged About 32 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
31.Sri. G.Umakanth Rao,
S/o. K.Gangoji Rao,
Aged About 41 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
32.Smt. Yashoda ,
W/o. K.S.Narashimaiah,
Aged About 40 Years,
Working as Typist in
High Court of Karnataka,
Bangalore - 560 001.
33.Sri .T.Shivananda,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
34.Sri. Raju .B,
Major,
103
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
35.Sri. T.Mahalingaiah ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
36.Smt. Revathi .M ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
37.Smt. B.Suma,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
38.Smt. Divyamangala H.J. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
39.Smt. Sukanya .N,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
104
40.Smt. Vidyavathi H.K. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
41.Smt. Nandini Rao J.V. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
42.Smt. Sampoorna .J. Karishetty,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
43.Smt. G. S Roopashree,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
44.Smt. Shalini .S,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
45.Smt. R. Chandrakala
Major,
105
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
46.Smt. K.S.Mangala,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
47.Smt. H.R.Chandrakala,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
48.Sri. Govindaraju .R,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
49.Sri. Halaniak .O,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
50.Smt. Akkamahadevi Bommakkannavar,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
106
51.Smt. Bharathi .K,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
52.Smt. Soubhagya B.A. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
53.Smt. Tanuja Rani,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
54.Smt. Leelavathi .S,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
55.Sri. M.Madhuchandra,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
56.Sri. Sathish Naik T.C. ,
Major,
107
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
57.Sri. Karunakara K.S. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
58.Sri. Manjunatha .S,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
59.Sri. Praveen Kumar .C,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
60.Smt. Sapna .V,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
61.Smt. Meena Bai V.N.,
108
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
62.Sri. Dharmanna Rathod,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
63.Smt. J.Sandhya,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
64.Smt. N.Nagashree,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
65.Smt. K.Vijayalakshmi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
66.Sri. Syed Akil Ali,
Major,
Working as First Division Assistant,
High Court of Karnataka,
109
Bangalore - 560 001.
67.Sri. Syed Nadeem Ur Rehaman,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
68. Sri.Vasudeva N,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
69. Sri. Vasanth Naik,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
70. Smt. Veena G.B. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
71. Sri. Doreswamy A.N. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
72. Sri. Siddanagowda Nageshappa Anaji,
110
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
73. Smt. Rajini K.P.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
74. Sri. Balappa .V. Betageri,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
75. Smt. Ramabai Naik,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
76. Smt. Thejaswini S.N. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
77. Sri. Raghu .D,
Major,
Working as First Division Assistant,
High Court of Karnataka,
111
Bangalore - 560 001.
78. Sri. Ramesh P.C. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
79. Smt. Sulochana,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
80. Sri. M. Shivakumar,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
81. Smt. Sindu Molu,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
82. Sri. Siddalingeshwar .G. Patil,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
83. Smt. Shanthala Naik .K,
112
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
84. Smt. B.K.Shruthi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
85. Sri. Y. Dilip Kumar,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
86. Smt. R.Manjula,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
87. Smt. K.M.Nirmala,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
88. Smt. Yashodha .G,
Major,
Working as First Division Assistant,
High Court of Karnataka,
113
Bangalore - 560 001.
89. Smt. S.Gayathri,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
90. Smt. S. Bharathi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
91. Sri. G.M. Mundevaraja,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
92. Smt. R.E.Rathnamma,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
93. Smt. Ravikala,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
94. Smt. V.Vanishree,
114
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
95. Sri. D. Krishnamurthy,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
96. Sri. N.T. Revanna Gowda,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
97. Sri. Raghu M.H.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
98. Smt. B.P.Rekha,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
99. Smt. M.R.Prasanna Kumari ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
115
Bangalore - 560 001.
100.Smt. M.S.Preethi,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
101.Sri. K.N.Suresha ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
102.Sri. R.S.Chandra ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
103.Sri. A.R.Srinath,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
104.Sri. D.Badarinath Rao,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
105.Sri. Manjunath Bhat ,
116
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
106.Sri. Satish Reddy K.V. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
107.Sri. Halijwala Bharama Apaya,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
108.Sri. U.M.Mahesh,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
109.Sri. Prakash .T ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
110.Smt. Smitha .K ,
Major
Working as First Division Assistant,
High Court of Karnataka,
117
Bangalore - 560 001.
111.Smt. Kavitha .S,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
112.Sri. Giridhar .S,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
113.Sri. B.S.Nagaraja,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
114.Sri. Shreenivasa ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
115.Smt. Vinutha D.S. ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
118
116.Smt. Hamsa .V,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
117.Smt.Padmini B.L.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
118.Smt. Nalini .R,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
119.Sri. Mallinath Mugalgaon,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
120.Sri. Shivanand .S. Matolli,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
121.Smt. Arathi .G. Kallihal,
Major,
119
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
122.Smt. Geetha .S. Mensinkai,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
123.Sri. Raghu K.R. ,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
124.Sri. Suresha,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
125.Sri. Nagesh K.S.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
126.Smt. Sunanda .C ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
120
127.Smt. Yashodha .B ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
128.Sri. Sriram Narayansa Bhavikatti ,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
129.Khvajabandanavaj Tegginamani,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
130.Sri. Renukaradhya S.N.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
131.Sri. Amarappa Laxakoppa,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
132.Smt. Prema .S. Jadimath,
Major,
121
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
133.Smt. Saroja C.M.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
134.Sri. Veerabhadragouda Patil,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
135.Smt. Geetha R.C.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
136.Sri. Suresh Murnal,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
137.Sri. Ramanjaneya .M,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
122
138.Smt. Mahiboobi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
139.Sri. Dakshinamurthy .C,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
140.Sri. Mounesh .M,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
141.Sri. Nandeesh Kumar G.B.,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
142.Sri. Srinivasa .C,
Major ,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
123
143.Smt. Rekha .M,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
144.Smt. R.S.Savitha,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
145.Smt. M.K.Dechamma,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
146.Smt. G.Bhavani Bai,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
147.Sri. G.M.Yashwanth,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
148.Smt. Umme Salma,
Major,
Working as First Division Assistant,
124
High Court of Karnataka,
Bangalore - 560 001.
149.Smt. M.Devika,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
150.Smt. R.Malathi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
151.Sri. K.R.Maheshwarappa,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
152.Smt. P.S.Padmavathy,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
153.Smt. Veena .G.Rao,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
125
154.Smt. Vijayalakshmi Gudgurmath,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
155.Smt. Kavitha Bandi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
156.Smt. Prashanthi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
157.Smt. Manjula Gurubasappa Hubballi,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
158.Smt. G. Lakshmamma,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
159.Smt. Y.Soumya,
Major ,
Working as First Division Assistant,
126
High Court of Karnataka,
Bangalore - 560 001.
160.Smt. A.T.Aparna,
Major,
Working as First Division Assistant,
High Court of Karnataka,
Bangalore - 560 001.
161.The State of Karnataka,
By its Chief Secretary,
Vidhana Soudha,
Bangalore - 560 001.
162.The State of Karnataka,
Department of Personnel and
Administrative Reforms,
by its Secretary,
Vidhana Soudha,
Bangalore - 560 001. ... RESPONDENTS
(By Shri: Jayakumar S.Patil, Senior Advocate for Dayananda
S.Patil, Advocate for Respondent Nos. 1 to 32
Shri. S.V.Prakash, Advocate for Respondent Nos. 124, 126, 136
and 151
Shri. N.M.Karadigudda, Advocate for Respondent Nos. 128, 131,
134, 140 and 141
Notice dispensed with in respect of Respondent Nos. 33 to 123,
125, 127, 130, 132, 133, 135, 137 to 139, 142 to 150 and 152 to
162 )
******
127
These Writ Appeals are filed under Section 4 of the
Karnataka High Court Act praying to set aside the order passed in
the Writ Petition Nos. 4683-4722/10 C/W W.P. Nos. 11797-
827/10, 22155-22184/10, 35966-36032/09, 36797-36806/09 &
37218-37249/09 dated 14/12/10.
IN W.P.Nos.35072-35111 OF 2009
BETWEEN
1. Sri. P. Subraya Naik,
S/o. Late Appu Naik,
Aged about 57 Years,
2. Sri. S.B.Albal,
S/o. Late Bheemappa,
Aged about 57 Years,
3. Sri B. Balakrissna Kumar,
S/o. Late Basavaiah,
Aged about 54 Years,
4. Sri. T.Madappa,
S/o. Sri. Thimmappa,
Aged about 56 Years,
5. Sri. M.Ramachandra Rao,
S/o. Late M. Shama Rao,
Aged about 56 Years,
6. Sri. G.Venkataswamy,
S/o. Late Gangaiah,
128
Aged about 58 Years,
7. Smt. C.B.Rajalakshmi ,
D/o. Late Bheema Rao,
Aged about 55 Years,
8. Sri. V.K.Hasyagar,
S/o.Sri.K.P.Hasyagar
Aged about 54 Years,
9 Smt. C. Chandramani,
W/o. Sri. K.Shivalingappa,
Aged about 58 Years,
10 Sri. M. Munikrishna,
S/o. Late Muni Marappa,
Aged about 56 Years,
11 Smt. T.S. Umadevi ,
W/o. Sri H R Krishna Murthy,
Aged about 58 Years,
12 Sri. Mandikar Srinivas,
S/o. Late M.B.Ranganathaiah,
Aged about 59 Years,
13 Sri. P. Murthy,
S/o. Sri. Padavattan,
Aged about 58 Years,
14 Sri. Boya Ramulu,
S/o. Late Pakeerappa,
Aged about 59 Years,
129
15 Smt. Philomina Nazareth,
W/o. Sri Rudolph Pinto,
Aged about 51 Years,
16 Sri. H.R.Ashwathanarayana,
S/o. Late H.A.Ramarao,
Aged about 58 Years,
17 Sri. B.Jayaramu,
S/o.Sri.Byatappagowda,
Aged about 58 Years,
18 Sri. C.S.Kumar,
S/o. Late Samba Murthy,
Aged about 56 Years,
19 Sri. C.S. Krishna Murthy,
S/o. Sri. Suryanarayanarao,
Aged about 55 Years,
20 Sri. S.Kumara Swamy,
S/o. Late H. Sannaiah,
Aged about 56 Years,
21 Sri. M.R.Joshi,
S/o. Late R.V.Joshi,
Aged about 55 Years,
22 Sri. M.N.Sripathy Rao,
S/o. Late M.S.Narasimha Murthy Rao,
Aged about 55 Years,
130
23 Smt. V.Nirmala,
W/o. Sri. M.D.Murthy,
Aged about 57 Years,
24 Sri. M.Suresh,
S/o. Late M. Krishnamurthy,
Aged about 56 Years,
25 Sri. K.S.Lingaraju,
S/o. Late Siddaiah,
Aged about 55 Years,
26 Sri .Danadappa Durgappa Naik,
S/o. Late Durgappa,
Aged about 58 Years,
27 Sri. Gavali Madhu Shankar,
S/o. Gavali Shankar,
Aged about 57 Years,
28 Smt. Seshamma,
D/o. Sri. M.E.Linganna,
Aged about 56 Years,
29 Sri. A.Purandara Naik,
So. Late Kunchanna Naik,
Aged about 55 Years,
30 Sri. Venkateshaiah,
S/o. Late Thimmaiah,
Aged about 47 Years,
131
31 Sri. Shivanna,
S/o.Sri. Kadaraiah,
Aged about 43 Years,
32 Sri. R. Maltesha,
S/o. Sri. K.Ramappa,
Aged about 56 Years,
33 Smt. Saraswathamma,
D/o. Late N.G.Ramarao,
Aged about 57 Years,
34 Sri. A.Nagarajappa,
S/o. Sri. R.Anjanappa,
Aged about 58 Years,
35 Smt. M.H.Umaveni,
W/o. Sri H J Shivalingaiah,
Aged about 46 Years,
36 Smt. B.E.Gangamma,
W/o. Sri. A.F.Kalbhavi,
Aged about 58 Years,
37 Sri. Nanjundaiah,
S/o. Late Chikkapapanna,
Aged about 59 Years,
38 Sri. B.V.Mohan,
S/o. Late B.K.Viswanatharao,
Aged about 58 Years,
39 Smt. S.Vijaya Kumari,
132
W/o. Sri. M.H.Lakshmaiah,
Aged about 48 Years,
40 Sri. N.Chikkabyraiah,
S/o. Late Narasimhaiah,
Aged about 56 Years,
All the petitioners are working
As Section Officers in the
Karnataka High Court,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore - 560 001. ... PETITIONERS
(By Shri.: Reuben Jacob and Shri.D P Mahesh, Advocates for
Aaren Associates, Shri. N.N.Harish and Shri.Sreenivasa,
Advocates)
AND:
1. The Hon'ble Chief Justice,
High Court of Karnataka,
High Court Buildings,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560001.
2. The Registrar General,
High Court of Karnataka,
High Court Buildings,
Dr. B.R. Ambedkar Veedhi,
Bangalore-560 001.
3. Smt. N.Triveni,
133
D/o. Sri. K.R.Nagarajappa,
Aged about 52 Years,
4. Sri. Raghavendra Upadhya,
S/o. Sri. Upadhya,
Aged about 51 Years,
5. Sri. Venkanna Ekambe,
S/o. Sri. Gundappa,
Aged About 56 Years,
6. Sri. Rama Rao Kulkarni,
S/o. Sri. Venkoba Rao Kulkarni,
Aged About 53 Years,
7. Sri. K. Nagaraja,
S/o. Sri. K.Krishnappa,
Aged About 51 Years,
8. Smt. K.S.Varalakshmi ,
D/o. Sri. K.N.Srinivasa Sharma,
Aged About 39 Years,
9. Smt. I Amala,
D/o. Sri. Irudayanathan,
Aged About 36 Years,
10. Sri. C.L.Vijayakumar ,
S/o. Sri. C.S.Lakshmana Rao,
Aged About 56 Years,
11. Smt. Mallikunnisa ,
134
D/o. Sri. T.F.Abdul Kareem,
Aged About 55 Years,
12. Sri. N L Prahalada Rao,
S/o. Sri. N. Laxmana Rao,
Aged About 58 Years,
13. Sri. T.S.Krishna Murthy ,
S/o. Sri. T.S.Ramaiah,
Aged About 57 Years,
Respondent Nos. 3 to 13 are
working as Assistant Registrars,
in the Karnataka High Court,
Dr. B.R.Ambedkar Veedhi,
Bangalore-560001. ...
RESPONDENTS
(By: Shri. Basavaprabhu .S.Patil, Senior Advocate for M/s.
Niranjan Kumar and Associates, Advocates for Respondent No.2
Shri. Pramod N.Khatavi, Advocate for Respondent Nos. 11 and 12
Shri. S.V.Narasimhan, Advocate for Respondent No.7
Respondent Nos. 1,3,4,5,6,8,9,10 and 13 - served through Hand
Summons)
*****
These Writ Petitions are filed praying to declare the High
Court of Karnataka Service (Conditions of Service and
Recruitment) (II Amendment) Rules, 2009 published vide
Notification No. HCE 221/2009, dated 28.5.2009 (Annexure-A) in
so far as it relates to the cadre of Assistant Registrar as illegal,
arbitrary and violative of Article 14 of the Constitution of India
135
and etc;
IN W.P.Nos.37825-841 OF 2009
BETWEEN
1. Smt. Manchali Rama Rao Desai,
Aged about 45 Years,
W/o. Sri. Vasanth Kumar,
2. Smt.B.M.Sarala,
Aged about 33 Years,
W/o. Suresh,
3. Smt.N.M.Asha,
Aged about 36 Years,
W/o. K.R.Murali,
4. Smt.A Janaki,
Aged about 35 Years,
W/o. B.V.Murali,
5. Smt.C.M.Triveni,
Aged about 36 Years,
W/o. T.Dayananda Swamy,
6. Smt.S.Gayathri,
Aged about 38 Years,
W/o. Ram Prasad .M,
136
7. Smt.Pushparathna. M.S.,
Aged about 38 Years,
W/o. Sri.Vasantha K.B.,
8. Smt.Soubhagya. D.J.,
Aged about 31 Years,
W/o. Sri.Amar,
9. Smt.Bharathi. K.G.,
Aged about 35 Years,
W/o. Sri.Govindaraju,
10. Sri.M. Sampathkumar,
Aged about 31 Years,
S/o. Sri.Mayanna,
11. Smt.Rohini T.N.,
Aged about 36 Years,
W/o. Sri.H.M.Ravikumar,
12. Smt.Vidya. N.A.,
Aged about 34 Years,
W/o. Sri. Srinath. G.S.,
13. Sri. Shivamallappa. G,
Aged about 35 Years,
S/o. Sri. Gurulingaiah,
14. Smt.Hemamalini. S.K.,
Aged about 35 Years,
W/o. Sri. V Umakanth,
15. Smt.Indrani. S,
137
Aged about 38 Years,
W/o. Sri.K Ramesh,
16. Sri.Arunkumar. G,
Aged about 32 Years,
S/o. Late Gangadharaiah,
17. Smt.Shailashree,
Aged about 35 Years,
W/o. Sri. A. Murthy,
All the petitioners 1 to 17 are
working as First Division Assistants,
High Court of Karnataka,
Bangalore. ... PETITIONERS
(By Shri. S G Bhagavan, Advocate)
AND:
1. The Hon'ble the Chief Justice,
High Court of Karnataka,
Dr.Ambedkar Veedhi,
Bangalore-560001.
2. The High Court of the
State of Karnataka,
Bangalore,
by the Registrar General.
3. Sri. Raju,
4. Sri. G.H.Ramesh,
138
5. Smt. B.K.Sumangala,
6. Sri. M.B.Boraiah,
7. Sri. C.Raghavendra,
8. Sri. Tulasappa Dasar,
9. Smt. B.Gayathri,
10. Sri. R.Venkataraju,
11. Sri. Virupakshaiah,
12. Smt. Chandramma,
13. Sri. M. Umesh,
14. Sri. Lokesh Nayak,
15. Sri. N.Rajesh,
16. Smt. B.C.Veena,
17. Sri. K.H.Gururaj,
18. Sri. Prakash,
19. Smt. G.S.Gayathri,
20. Sri. Neelappa Bover,
21. Smt. Jayaprabha,
139
22. Smt. P.D.Premalatha,
23. Sri. B.S.Suman,
24. Sri. Metri Hanumanthappa,
25. Sri. Jagatchandra .H.,
26. Sri. Hanumanthe Gowda. L.,
27. Smt. Padmavathy .R.,
28. Sri. M.S.Prakash,
29. Smt. Suvarna. B.J.,
30. Sri. M.D.Ramachandraiah,
31. Smt. R.Sudha,
32. Sri. S.Raghunath,
33. Smt. C. Latha
34. Sri. Sudhakar Rao Kasture,
35. Smt. Prabhavathi. P.,
36. Smt. S. Shashikala,
37. Smt. C.N. Saraswathi,
38. Sri. K.T. Keshava,
140
39. Smt. Hemalatha N. Nayak,
40. Sri. V. Narayanaswamy,
41. Smt. Sridevi Gauthramraj Maran,
42. Smt. M. Kusuma,
43. Sri. Ramesh Gurupadappa Kudri,
44. Smt. Mamatha,
45. Smt. Yashwanth Prabhu. R.,
46. Sri. Tanveer Raziqa,
47. Smt. Anupama Devi K. N.,
48. Sri. Harish Kumar,
49. Sri. Sharanappa M. Chagashetty,
50. Sri. Shivalingaiah,
51. Sri. Haridas Kamath,
52. Smt. Savitha B.K.,
53. Smt. Lakshmilatha K.K.,
54. Smt. Anupama. V.,
141
55. Smt. Shashikala. B.,
56. Smt. Shylaja. D.,
57. Smt. Usha B.S.,
58. Smt. Poornima V.K.,
59. Smt. Rekha H.R.,
60. Smt. Hemalatha. T.,
61. Smt. Kavitha T.N.,
62. Sri. Govindaraju O.S.,
63. Smt. Aarathi D.,
64. Sri. Gopi. N.D.,
65. Smt. Bhagya. T.,
66. Smt. Vanishree,
67. Smt. Nirmala. N.K.,
68. Smt.S.Jayashree,
Respondent Nos. 3 to 68 are all majors,
and working as Senior Assistants,
High Court of Karnataka,
Bangalore-560001. ...RESPONDENTS
142
(By Shri.Basavaprabhu S.Patil, Senior Advocate for M/s. Niranjan
Kumar, Associates for Respondent No.2
Kathavi and Mundarigi, Advocates for Respondent Nos. 18, 34,
50, 52, 53, 54, 56 to 58, 60, 65 and 66
Shri. N.M.Karadigudda, Advocate for Respondent Nos. 20, 43 and
45
Respondent Nos. 1, 3, 4 to 17, 19, 21 to 33, 35 to 42, 44, 46 to 49,
51, 55, 59, 61 to 64, 67 and 68 -served through Hand Summons)
*****
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India, praying to quash the proviso as
substituted at Sl.No.14 under column No.4 pertaining to the cadre
of Senior Assistant in the Notification No. HCE 221/2009, dated
29.7.2009, called the High Court of Karnataka Service (conditions
of Service and Recruitment) (V Amendment) Rules, 2009 as per
Annexure-A and etc;
IN W.P.No.10131/2010
BETWEEN:
Sri.V.Krishna,
S/o.Late Sri.C.A. Venkataramaiah,
Aged about 45 years,
Judgment Writer,
High Court of Karnataka,
143
Bangalore. ...PETITIONER
(By Shri.B.B.Bajentri, Adocate)
AND:
1.The Registrar General,
High Court of Karnataka,
Bangalore.
2.The Registrar (Administration),
High Court of Karnataka,
Bangalore.
3.Lakshminarayana. N.,
4.Juanitha Thejaswini,
5.Yamuna. K.L.,
6.Shylaja. R.,
7.Veena. B.M.,
8.Prema. C.,
9.Aishwarya,
144
[As per the Court Order dated
19.1.2011 Respondent No.9 was
deleted]
10.Anand. N.,
11.Manjula. H.N.,
12.Malathi. C,
13.Kalmath. M.R.,
14.Ramya Raghunath,
[As per the Court Order dated
19.1.2011 Respondent No.14 was
deleted]
15.Lakshmamma. N.,
Respondent Nos. 3 to 15 are all majors,
Working as Senior Judgment Writers
at Principal Bench at High Court of Karnataka,
Bangalore and Circuit Benches at Dharwad
and Gulbarga. ...RESPONDENTS
145
(By Shri.Basavaprabhu S.Patil, Senior Advocate for M/s.
A.Niranjan Kumar and Associates for Respondent Nos. 1 and 2
Shri. T.S.Madhavachar, Advocate for Respondent Nos. 7 and 12
Respondent Nos. 3, 4, 5, 6, 8 10, 11, 13 and 15 - served
Vide Court Order dated 19.01.2011 Respondent Nos. 9 and 14
deleted )
*****
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to call for the records relating to
issue of the circular dated 22.7.2009 vide Ref. No.HCE 8/2009
and after perusal of the same set aside the impugned circular at
Annexure-F dated 22.7.2009, being contrary to the Rules, 2009
and etc;
These Writ Appeals and Petitions coming on for Final
Hearing, having been heard and reserved on 19.08.2011 and also
having been heard on 'For Being Spoken to' on 09.09.2011, this
day, the Court delivered the following:-
JUDGEMENT
Per Anand Byrareddy, J These appeals and petitions are disposed of by a common judgment having due regard to the circumstance that the issues raised and the points for consideration are identical.
2. The facts leading up to these appeals are that the High 146 Court of Karnataka (Conditions of Service and Recruitment) Rules, 1973 (hereinafter referred to as 'the 1973 Rules' for brevity) having been amended by the High Court of Karnataka Service (Conditions of Service & Recruitment) (I Amendment) Rules, 2009 (vide notification dated 24.02.2009); the High Court of Karnataka Service (Conditions of Service & Recruitment) (II Amendment) Rules, 2009 (vide Notification dated 28.5.2009); the High Court of Karnataka Service (Conditions of Service & Recruitment) (III Amendment) Rules, 2009 (vide notification dated 28.5.2009); the High Court of Karnataka Service (Conditions of Service & Recruitment) (IV Amendment) Rules, 2009 (vide notification dated 28.5.2009) and the High Court of Karnataka Service (Conditions of Service & Recruitment) (V Amendment) Rules, 2009 (vide Notification dated 29.7.2009) (Hereinafter commonly referred to as "the 2009 Rules", for brevity) - to substitute the Rules prescribing qualifications in respect of certain categories of posts, and aggrieved by the same, 147 more particularly, by the provisos and the explanations to the amended Rules, which are extracted hereinafter, a large number of petitions were filed by Group-D employees, Typists, Second Division Assistants, First Division Assistants, Stenographers, Judgment Writers and Senior Judgment Writers, since the amended Rules required that they possess a higher educational qualification, to be considered, for promotion to the next higher post in each of their cases. Incidentally, they were also aggrieved by promotions being conferred on other employees, who apparently met the requisite qualification and were granted promotion. Some of the petitioners also sought for a declaration that the stipulation of a competitive test to be appointed to the post of Judgment Writers and Senior Judgment Writers and the quota reserved in respect of Senior Judgement Writers for promotion to the post of Assistant Registrars being restricted to six posts, as being arbitrary and unconstitutional.
148
3. In Writ Petitions in WP 35072-111/2009, the petitioners are Section Officers, who aspired to get promoted to the next higher cadre of Assistant Registrars till such time the very impugned Rules came into effect. The basic criteria for promotion was changed from 'Seniority-cum-efficiency' to 'Merit-cum- Efficiency'. The amendment thus takes away further promotional avenues, in spite of long service rendered by them.
4. In WP 37825-841/2009, the petitioners are First Division Assistants who were aggrieved by the promotions granted to Respondent No.3 to Respondent No.68 as Senior Assistants, overlooking the petitioners - since they did not possess a degree qualification as prescribed under the 2009 Rules.
5. In W.P.No.10131/2010, the petitioner is aggrieved by the fact that his candidature has been overlooked in making the selection and appointment of respondents 3 to 15, in the said 149 petition. The petitioner's primary grievance is that the 2009 Rules have not been followed in granting promotion to the private respondents in the petition and in by-passing the petitioner.
6. The petitions were contested by the appellants herein and some other respondents. It was canvassed before the learned Single Judge on behalf of the First Division Assistants and Second Division Assistants that the requirement of possessing a degree by the petitioners lacks the necessary criterion. The position earlier, in terms of the 1973 Rules, did not require them to possess a degree qualification for being considered for promotion to the post of First Division Assistants. The promotion of the petitioners was hampered on account of the prescription of a degree qualification and that they would stand to lose monetarily, which would have accrued to them in the usual course had they been promoted in accordance with the 1973 Rules. It was contended that the right to be considered for promotion is affected and respondents 1 and 150 2, namely, the appellants herein having allowed the 1973 Rules to be in force all along, to enforce the 2009 Rules and to hold that the petitioners could not be considered for promotion, is arbitrary and without basis. It was also urged that the proceedings did not indicate the criterion adopted in prescribing the degree qualification and the parameters that lead to the requirement of degree qualification being necessary and therefore, the right of the petitioners to be considered for promotion was taken away. It was further argued that the explanation to the proviso would indicate that the permission by the employees to take up a degree examination was not automatic and the blanket concession that a degree could be obtained within five years and subject to the discretion of the Chief Justice, in either granting or not granting permission to obtain such a degree, would render the very prescription otiose and onerous. Further, the amended Rules being given retrospective effect, the petitioners' right to promotion has been denied.
151
7. It was contended on behalf of the Judgment Writers that the requirement of a Law Degree, to be entitled for promotion was not based on any criteria and there was no nexus between the duties performed by the Judgment Writers and the requirement of a Law Degree and since it was impossible for the Judgment Writers to obtain a Law Degree, while continuing to function as Judgment Writers in the High Court, the prescription was wholly arbitrary and unjust. It was also argued that the procedure in bringing about the amendment has not been followed and that the Draft Rules, which were sent to the Governor for approval, were returned by the Governor and thereafter, the amendments were resorted to, which is highly irregular and the Rules are, therefore, rendered invalid. Though it is indicated in the Gazette Notification that the Draft Rules were approved by the Governor, it is candidly admitted by the appellants herein that the Rules were not approved by the Governor and they continue to remain as 152 Draft Rules. It was also sought to be highlighted that the service conditions sought to be altered at this point of time, does not take into account the fact that many Judgment Writers are not graduates and therefore, it would be impossible for them to obtain Law Degree without first securing a basic degree. It was also pointed out that there was no direct recruitment in respect of posts of Assistant Court Officer, Court Officer and Section Officer and no Law Degree was insisted upon for the feeder cadres and hence, requiring the Judgment Writers to obtain Law Degrees is wholly unreasonable and discriminatory.
It was further canvassed that several respondents had been promoted to vacancies, which arose prior to the coming into force of the new Rules and Hence, in respect of those vacancies that arose prior to the coming into force of the new Rules, it is the 1973 Rules which would apply. By implementing the amended Rules and holding that they apply in respect of such vacancies which arose prior to the coming into force of the 2009 Rules, is 153 whimsical and unreasonable. Therefore, promotions granted to the several respondents were liable to be quashed.
It was also contended, with reference to Article 229(2) of the Constitution of India, that the approval of the Governor was required in respect of amendment to a Rule concerning salaries, allowances, leave, pension or conditions of service, which would include promotion and therefore, prescription of a qualification for promotion under the amended Rules certainly required the approval of the Governor and hence, in the absence of the same, would not stand the test of law. It was further highlighted that it was difficult to obtain a Law Degree as a Law Degree by Correspondence Course was not recognised for any purpose and it was not possible for the petitioners to attend a full-time Law Course, which is compulsory at present in the State of Karnataka to obtain a Law Degree. It was also contended that insofar as Group-D employees are concerned, in terms of the 1973 Rules, 154 50% of the posts of Second Division Assistants was to be filled up by direct recruitment and 25% was earmarked for Group-D employees who had passed the SSLC examination, but whereas under the amended Rules, while maintaining 50% by direct recruitment, in respect of the remaining 50%, possession of a degree by Group-D employees was insisted upon. Therefore, it was contended that since the minimum qualification for the post of a Group-D employee was Seventh Standard, the petitioners who were Group-D employees had passed only the Seventh Standard and were not in a position to obtain a Bachelor's Degree within five years and therefore, the amended Rules are unreasonable and unjust. This would result in stagnation in the very same post as Group-D employees, which would have a telling effect on their morale and consequently, on efficiency of their service.
8. It was contended on behalf of the Senior Assistants, who were to be promoted to the post of Section Officers, that the 155 requirement of a Degree being possessed by Senior Assistants was also arbitrary, as in respect of none of the feeder posts, a Degree qualification was prescribed. It was thus contended that the object sought to be achieved has no nexus and there is no indication as to what weighed with the appellants in amending the Rule. It was further pointed out that some of the respondents did not have the necessary qualification and yet they were promoted, whereas if the 1973 Rules were to be applied, the very same respondents were juniors to some of the petitioners. Therefore, the promotions were arbitrary and resulted in denial of a legitimate right of the petitioners.
9. Per contra, it was contended on behalf of the appellants that insofar as the power of the Chief Justice to frame necessary Rules in respect of recruitment as well as conditions of service of the staff of the High Court is concerned, as was evident from Article 229(2) of the Constitution of India, the Chief Justice was 156 vested with the power to frame Rules in respect of promotion. It is only where conditions of service, if sought to be amended by way of Rules and which would have a financial implication, that the necessity of seeking approval of the Governor would arise. It was, therefore, contended that the five amendments brought to the 1973 Rules were within the powers of the Chief Justice and that he had the power to amend the mode of recruitment as well as to prescribe qualifications.
It was further contended that it was intended by the High Court to repeal the 1973 Rules and the Draft Rules which were proposed to replace the 1973 Rules were sent to the Governor, which were however, returned by the Governor and the said Draft Rules had thereafter been discarded and it was the 1973 Rules, which continued to hold the field. It is those Rules, which stand amended by the Chief Justice, who is competent to do so. It was emphasized that the requirement of approval being sought from the Governor would not be necessary in respect of change of 157 conditions pertaining to promotions and the prescription of a higher educational qualification is permissible in order to ensure efficiency of service and the High Court, being a Court of Record, it was imperative to ensure that efficiency was maintained at all levels and that is the main objective in prescribing different educational qualifications in respect of categories of employees. It was also contended that the prescription of criterion for promotion for appointment would fall exclusively under the domain of the employer and the exercise of the power of judicial review can be contemplated only if it is established that the Rules framed are contrary to the Constitutional provisions.
10. On these rival contentions, the following points for consideration were framed by the learned Single Judge : -
" 1. Whether the power given to the Chief Justice to make Rules under Article 229(2) of the Constitution in respect of the conditions of service of the High Court staff, can be used to validate unconstitutional 158 discrimination in promotional chances of persons belonging to the same category?
2. Is there a rational nexus between prescribing Degree/Law Degree qualifications and the object of higher efficiency to be achieved?
3. Whether the criterion fixed by the proviso to the amended Rules of 2009 is manifestly erroneous, arbitrary, unreasonable, irrational and discriminatory and thus violative of Articles 14 and 16 of the Constitution, when the right to considered for promotion is held to be a fundamental right?
4. Whether the requirements mentioned in the explanation to the proviso are arbitrary, unreasonable, impracticable and lacks rational nexus and hence violative of Article 14 & 16 of the Constitution?
5. In respect of the vacancies in the promotional posts which arose prior to the amendment in 2009, which Rule is applicable - old Rules of 1973 or amended Rules of 2009?
6. Whether the amended Rules which have 159 retrospective operation has the effect of taking away the existing right under 1973 Rules and thus the amended Rules are arbitrary, discriminatory and violative of the right guaranteed under Articles 14 and 16 of the Constitution and hence unconstitutional?
7. Whether the promotions given pursuant to the amended Rules are in consonance with the well established principles of service jurisprudence?
8. Is the procedure followed in bringing about the amended Rules of 2009 is in accordance with the well established principles and procedures applicable in respect of bringing amendments to the principles rules?"
Insofar as Point No.1 is concerned, it was held that the power of the State to make legislation in regard to conditions of service, in respect of the staff of the High Court has been conferred on the Chief Justice and the Rules made under Article 229(2) of the Constitution of India are to be held as subordinate legislation. It was also held that the approval of the Governor was 160 not necessary in respect of an amendment to a Rule concerning promotions and it was necessary only in respect of those matters which were specifically mentioned in the Proviso to Article 229(2) of the Constitution of India. And this was laid down by the apex court in the case of one M.Gurumoorthy vs. The Accountant General, Assam and Nagaland, AIR 1971 SC 1850, and with reference to case-law, it was held that the Chief Justice was the supreme authority to frame Rules in respect of recruitment as well as the conditions of service, but however, such power is subject to the limitation as contained in Article 229(2) itself and that power will have to be exercised keeping in view the limitations as expressed by the apex Court. In other words, the power cannot be used to validate unconstitutional discrimination in promotional chances of persons belonging to the same category.
With regard to Point No.2, it was held that there was no specific reason forthcoming as to why a Degree qualification was being insisted in respect of Group-D employees, Second Division 161 Assistants, First Division Assistants, Stenographers, and Judgment Writers, in order to move on to a higher post. Similarly, no specific reason was forthcoming as to why a Law Degree was insisted upon for Senior Judgment Writers.
The learned Single Judge has expressed that insofar as the nature of duties assigned to various categories of employees, as could be seen from the material that was placed before him, was concerned, Group-D employees were assigned with the work of keeping the office clean and tidy and to deliver files to other Sections. Insofar as Second Division Assistants were concerned, they were required to maintain the diary, organise the movement of files and distribution of files. Insofar as Senior Assistants and First Division Assistants were concerned, they were required to attend to the job of a case worker as per the duties assigned to them. Insofar as Stenographers, Judgment Writers and Senior Judgment Writers were concerned, they were entrusted with the 162 work of Stenography, which is entrusted to them by the Judges of the High Court, apart from receiving tappal and files. The duties of the Court Officers and Assistant Court Officers was that of arranging the case files according to the cause-list, to note the stage of the cases, according to the court proceedings and to maintain the books that are in their custody for the conduct of the proceedings. The Sections Officers were required to scrutinise the files submitted by the case-worker as per the procedure prescribed. The Assistant Registrars were required to be Branch Officers incharge of one or more sections and after scrutiny of the files submitted by the Section Officers, swearing to the letters on behalf of the High Court. Therefore, it was striking that the nature of work done by the aforesaid officials was basically clerical and was not managerial.
It was also taken note of by the learned Single Judge that at some points of time, Second Division Assistants would be required to carry out the duties of First Division Assistants 163 and the First Division Assistants, in turn, were required to carry out the duties of Senior Assistants. Similarly, the Senior Assistants were sometimes required to carry out the functions of Section Officers. So also, the Stenographers also carried out the work of Judgment Writers and the Judgment Writers, in turn, also carried out the duties of Senior Judgment Writers. Some Senior Judgment Writers were assigned with the duties of Assistant Registrars. It was this ground reality that was taken note of by the learned Single Judge in holding that, even without the possession of the requisite qualification as was prescribed under the new Rules, the work of the Court could be carried on smoothly under the 1973 unamended Rules and there was no need to disturb a system that had worked fairly well for over three and a half decades. Therefore, the learned Single Judge has concluded that there was no nexus between the objective sought to be achieved and the prescription of a higher qualification. For adopting the above reasoning, the learned Single Judge has drawn sustenance from the 164 judgments of the apex Court in Food Corporation of India vs. Om Prakash Sharma and Others, AIR 1998 SC 2682 and in B.N.Saxena vs. New Delhi Municipal Committee, AIR 1990 SC 2021. He has contended that the facts of those cases and the circumstances in the case on hand were identical.
The learned Single Judge has made a special mention of the duties of the Stenographers, Judgment Writers, Senior Judgment Writers to the effect that even without a Degree or a Law Degree qualification, they were capable of discharging their duties efficiently and effectively and possession of a Degree would make no difference insofar as the core work to be discharged by those employees was concerned and especially, since they do not carry out the function of a Research Assistant, and the prescription of a Law Degree would have no nexus to the object sought to be achieved. It was held that it was enough if those employees possessed the basic knowledge of grammar, control over vocabulary and command over language and not necessarily be 165 equipped with any special educational qualification, which would be superfluous, without those other requirements being present.
As regards Point No.3, as to whether the right to be considered for promotion is a fundamental right of the petitioners and whether the said right was affected, has been answered by the learned Single Judge with reference to the view expressed by the apex Court in cases, namely, Mohammad Shujat Ali vs. Union of India, AIR 1974 SC 1631; Manager, Government Branch Press vs. D.B.Belliappa, AIR 1979 SC 429; Ajit Singh vs. State of Punjab, (1999)7 SCC 209 and a Division Bench judgment of this court in Channe Gowda vs. High Court of Karnataka, ILR 2004 Karnataka 4633, and has concluded that the petitioners' right to be considered for promotion is a fundamental right and not a mere chance of promotion. The petitioners, many of whom, have worked for more than ten to thirty years and others similarly placed have not been promoted, only because, they did not possess 166 a Degree or a Law Degree and therefore, their right to be considered for promotion to the next higher post has been severely affected. The learned Single Judge has opined that they could not be deprived of their fundamental right to be considered for promotion by virtue of the Proviso and Explanation substituted by way of the 2009 Rules.
Points 4 and 6 have been then considered together, namely, whether the criterion fixed by the Proviso to the amended Rules was violative of Articles 14 and 16 of the Constitution of India as being unreasonable, discriminatory and irrational. It is observed by the learned Single Judge that the Explanation to the Proviso in respect of the method of recruitment for the aforesaid category of employees, requires them to obtain permission to secure a Degree or a Law Degree and that it was not automatic. The period prescribed, within which they could obtain such qualification, was five years. The permission granted was at the discretion of the Chief Justice. Therefore, there was no guarantee of every person, 167 who was desirous of obtaining such higher qualification, being granted the permission, automatically.
Secondly, a Circular dated 24.8.2010, prescribed guidelines as regards the grant of permission to pursue further studies by employees such as the petitioners, which read as follows:-
"1. The officers/officials of this Hon'ble Court who are of desirous of pursuing Degrees/LL.B/LL.M/Master's Degree / MBA by attending colleges with a view to acquiring colleges with a view to acquiring knowledge and higher education should obtain prior permission of Hon'ble the Chief Justice, subject to the following conditions:
i) that their study will not adversely effect their work and in particular the hours of study will permit them to adhere to the normal official hours;
ii) that they have passed the departmental examinations prescribed for the post held by them.
2. At one point of time not more than 10% of the officers/officials working in a particular cadre 168 shall be permitted to pursue Degree's / LL.B /LL.M / Master's Degree / MBA as stated at Sl.No.1.
3. Permission shall be granted on the basis of seniority of the officers/officials of their respective cadres and the senior shall be entitled to preference."
The learned Single Judge has opined with reference to the above, that not more than 10% of the officials working in a particular cadre would be permitted to pursue a higher Degree course and permission had to be granted on the basis of seniority. If this was read in conjunction with the Explanation to the Proviso, which provided for a maximum period of five years to obtain a higher qualification, and going by the number of employees, even 10% of such employees per cadre would clearly require more than five years to obtain such higher qualification and therefore it was totally unworkable for all the employees desirous of gaining such higher qualification within the stipulated time. Insofar as the 169 employees in Group-D or even the Second Division Assistants and First Division Assistants were concerned, many of them had moved on to the next post by way of promotion in the past. The minimum qualification required at the time of initial appointment was Seventh Standard and not even the Secondary School Leaving Certificate Examination (hereinafter referred to as ' the SSLC' for brevity). Therefore, a Group-D employee, who had passed Seventh Standard was required to obtain a Degree, to be eligible for promotion, he would first have to complete SSLC and then a Pre-University Course, before embarking on a Degree Course. This was again totally unworkable, when only a five year period was granted to the employees desirous of obtaining a higher qualification. It was also noted by the learned Single Judge that the Five year period which was to run from the date of permission granted, should always coincide with the academic year, in which the employee seeks to undertake a higher course of study, for otherwise, the five year period would be lopsided and would result 170 in an imbalance insofar as the several employees were concerned.
The learned Single Judge had further relied upon a decision of the apex Court in State of Tamil Nadu vs. P.Krishna Murthy, (2006)4 SCC 517, wherein the apex Court, while considering the circumstances under which a subordinate legislation could be challenged, has held that violation of fundamental rights guaranteed under the Constitution of India and violation of any provision of the Constitution of India or manifest arbitrariness and unreasonableness to an extent where the court might well say that the Legislature never intended to give authority to make such Rules and held that this decision would clearly be applicable to the present case on hand. It was also noticed that there were graduates as well as non-graduates working in various categories of posts and no distinction was made in the past when they were promoted to the higher cadre and that no Degree qualification or a Law degree was prescribed in 171 respect of feeder posts and only Group-D employees, Second Division Assistants, First Division Assistants, Senior Assistants, Stenographers, Judgment Writers and Senior Judgement Writers were required to possess a Degree or a Law Degree qualification and the present requirement, as prescribed, would run counter to the decision of the apex court in the case of State of Mysore vs. Krishna Murthy, AIR 1973 SC 1146, wherein it has been held that two classes of members of the same service, belonging to the same cadre for the purpose of creating a difference in promotional opportunities would clearly violate Articles 14 and 16 of the Constitution of India. It was further held that the power to make Rules under Article 309 of the Constitution of India cannot be used to validate unconstitutional discrimination in promotional chances of Government Servants, who belonged to the same category. Thus, the learned Single Judge has held that the respective persons in the categories mentioned were appointed under the 1973 Rules and belonged to the same category and they 172 cannot be discriminated by insisting upon possession of a higher Degree qualification, which apparently is impossible to be achieved within the period prescribed, in view of other restrictions that are imposed under the aforementioned Circular and has proceeded to answer Points 4 and 6 in the affirmative.
The next point as regards the effect of the amended Rules, the learned Single Judge has found that there was no controversy between the parties insofar as the promotions effected in respect of vacancies that arose prior to the amendment. This is apparent from the record and placing reliance on the decisions of the apex Court in Y.V.Rangaiah vs. J.Sreenivasa Rao, (1983) 3 SCC 284; Arjun Singh Rathore vs. B.N.Chaturvedi, (2007)11 SCC 605 and State of Rajasthan vs. R.Dayal, (1997) 10 SCC 419, it is held that the petitioners cannot be deprived of being considered for promotion by virtue of the Proviso now substituted to the 1973 Rules, whereas, on the contrary, the posts which the petitioners 173 would have occupied by way of promotion under the original Rules, have now been conferred on persons who are promoted pursuant to the 2009 Rules. This, according to the learned Single Judge, is giving effect to the Rules with retrospective effect in respect of vacancies, which arose prior to the coming into force of the 2009 Rules. He has cited with approval, the opinion of the author N.S.Bindra in the "Interpretation of Statutes", Eighth Edition, at Page 776, to the effect that every Statute which took away or impaired vested rights acquired under existing laws, or which created a new obligation or imposed a new duty or attached a new disability would be presumed to be intended not to have a retrospective effect.
Therefore, the learned Single Judge has held that the amendment has taken away not only the rights of the petitioners under the existing Rules, but has also deprived them of the benefit of stepping up of pay, Time Bound Increments and Senior Scale 174 of Pay, as all of them would have been eligible for promotion, but for the amendment.
Insofar as Point No.7 is concerned, in relation to the justification of the orders of promotion, the learned Single Judge has held that persons belonging to Group-D category, though did not possess a Degree qualification, had been promoted and some of them, who were juniors to the petitioners, were also promoted to the next cadre by virtue of the qualification prescribed. In respect of one official, it was noticed that the requirement of a Degree qualification was relaxed as a one time measure and this has prompted the learned Judge to observe that if such relaxation is given to an employee, as a one time measure, it could be considered in respect of other petitioners as well, who, for various reasons, economical or otherwise, were not fortunate enough to have secured a Degree or a Law Degree when they entered the service, several decades ago.
175
Insofar as Point No.8 is concerned, the learned Judge has examined the procedure followed in bringing about the amendment and notices that in the preamble to the Gazette Notification, by which, the amended Rules were published in the Gazette, it is stated that the Chief Justice had secured the approval of the Governor of Karnataka, insofar as the amended Rules are concerned. But, it was conceded by the learned Counsel appearing for the respondents 1 and 2 therein, before the learned Single Judge, that the Draft Rules, which were sent for approval of the Governor, were returned without any such approval. In that light, the learned Single Judge has observed that if the Draft Rules, on being published in the Gazette, were to be taken as the Rules having come into force in view of the provisions of the General Clauses Act, the effect as per Rule 26 would be repeal of the 1973 Rules. If this is to be the position, then the question of bringing amendment to the 1973 Rules would not arise. Therefore, the learned Single Judge has held that the Draft Rules 176 as well as the amended Rules were not in consonance with the well established canons of law and the precepts and practice that is to be followed in respect of amending an Act and accordingly has allowed all the writ petitions, holding that the Proviso as well as the Explanation to the amended Rules of 2009, requiring higher qualifications are to be quashed and the orders of promotion granted to the named respondents also were quashed. It was further held that the quota restriction for Senior Judgment Writers to the post of Assistant Registrars was not considered for the time being and it was left open. The Chief Justice was directed to redo the entire process of promotion of the posts in accordance with the 1973 Rules. It is that which is under challenge in the present appeals.
11. The learned Senior Advocate, Shri Basavaprabhu S. Patil, appearing for the Counsel for the appellants contends as follows:-
177
In terms of Article 215 of the Constitution of India, the High Court is a Court of Record. Article 229 provides that the Chief Justice of a High Court or such other judge or officer of the High Court as he may direct, shall appoint officers and servants of a High Court. In terms of Clause - (2) of Article 229, subject to the provisions of any law made by the State Legislature, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by Rules made by the Chief Justice. The Rules made in Clause- (2) of Article 229 of the Constitution of India, insofar as they may relate to salaries, allowances, leave or pension, would require the approval of the Governor of the State. In exercise of the power thus conferred by Articles 229(1) and (2) of the Constitution of India, the Chief Justice of the High Court of Karnataka, had made the 1973 Rules.
Rule 6 thereof prescribes that there shall be such number of permanent and temporary posts of employees in the categories in Group - A,B,C and D, as is specified in the first three columns of 178 Schedule-II to the Rules. The rates of scales of pay of the said posts are as specified in the fourth column of the said Schedule.
The Chief Justice may amend Schedule-II by increasing or decreasing the number of posts. Rule-7 provides for recruitment to a post or class of posts as enumerated in Schedule-III. The Chief Justice has the power to amend the method of recruitment by general or special order. Under Rule 8, the qualification required for appointment to the various categories of posts shall be such as the Chief Justice may by general or special order specify.
In terms of Rule 11, in respect of such matters pertaining to conditions of service of employees of the High Court, for which no provision has been made, Rules and orders for the time being in force, applicable to servants holding the posts in the Government of Karnataka would also regulate the conditions of service of the employees of the High Court service, subject to such modifications or exceptions, if any, as the Chief Justice may specify, except the rules relating to salaries, allowances, leave or 179 pension, which the Chief Justice may do so with the previous approval of the Governor. It is stated that with a view to provide speedy and effective dispensation of justice and to enhance the quality and efficiency of service as well as to provide promotional opportunities to employees, Draft Rules entitled the High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 2009 (hereinafter referred to as ' the Draft Rules' for brevity) were framed, proposing to repeal the 1973 Rules and to substitute the same with the Draft Rules as approved by the Chief Justice on 25.3.2009. The Draft Rules contemplated creation of new posts, prescription of a higher educational qualification for appointment and promotion to various existing posts and this was in line with the prevailing rules applicable in respect of other High Courts in the country. Since the Draft Rules contemplate the creation of new posts and increase in the number of existing posts, in view of the financial implications, the same were also sent to the Governor for approval and were published in the Karnataka Gazette dated 180 13.5.2009. Pursuant to which, objections were received from various quarters and the said objections were placed before a committee constituted for recommending amendments to the Draft Rules. The Committee, at its meeting on 18.8.2009 suggested certain modifications. This was accepted by the Chief Justice and the modified Rules were also sent to the Government for approval. After further exchange of correspondence, the Government did not accept the proposal to create additional posts.
Therefore, the Draft Rules did not receive the approval of the Governor. It is however stated that by an order dated 24.2.2009 published in the Karnataka Gazette on 26.2.2009, an amendment was issued to the 1973 Rules entitled the High Court of Karnataka Service (Conditions of Service and Recruitment) (I Amendment) Rules 2009, seeking to amend the method of recruitment contained in Schedule-III applicable to the posts of Senior Judgment Writers, Judgment Writers, Stenographers and Second Division Assistants. The Senior Advocate would draw 181 attention to the particulars of the amendment which is reproduced herebelow in a tabular form :-
Sl Cadre Method of Method of
No. recruitment Recruitment as
under Principal Amended
Rules
13A Senior By promotion by 1) 60% of the total
Judgment selection from the cadre strength of Senior
Writer of Judgment Writers Judgment Writers shall
working in the High be recruited by
Court office on the promotion by selection
basis of a test conducted from the cadre of for the purpose, giving Judgment Writers the weight for seniority working in the High and service records as Court office on the basis prescribed. of a test conducted for the purpose, giving the weightage for seniority and service records as prescribed; provided that they shall satisfy the following conditions hereunder:
a) They shall possess Law Degree from the recognised university or equivalent examination.
Explanation: 1. The present members who are working as Senior Judgment Writers and who do not possess the required qualification, shall qualify themselves, 182 without affecting the regular work, with prior permission of Hon'ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion.
The permission is not
automatic, but subject to
the interest of the
institution. Such
permission shall not take
away the Rights of the
senior employees and
does not confer the undue
privileges on the junior
employees. The
qualification obtained
without following the
above norms would not
be taken into
consideration, till they
come within the zone of
consideration.
Note:- 1) For securing
minimum qualification
prescribed for this cadre
within stipulated time, the
permission may be
liberally granted.
2) The period of time
prescribed for securing
minimum qualification
(i.e., five years) starts
from the date of
183
permission.
3) If no eligible candidate
is available for
promotion, such vacant
post may be filled up by
direct recruitment.
4) The candidate shall
possess a Certificate
Course in Word
Processing or equivalent.
2) Remaining 40% of
the posts shall be
recruited by Direct
Recruitment by
Selection (after calling
application and holding
a competitive test and
interview) and the
Judgment Writers as
well as Stenographers
working in the
establishment of the
High Court of
Karnataka /
Subordinate Courts are
also eligible for the
Direct Recruitment,
provided they shall
obtain necessary
permission from the
Competent Authority.
Minimum
Qualifications
(for Direct Recruitment)
184
1. Must possess Degree
in Law from the
recognised University or
equivalent examination
and,
2. i) Senior Grade
examination in English
Shorthand in First
Class; or the Proficiency
Grade Examination in
English Shorthand; and
ii) Senior Grade
examination in
Typewriting in English
conducted by the
Department of Public
Instruction of
Karnataka Secondary
Education Board or
equivalent examination.
3. Certificate in
Computer Word
Processing or
equivalent.
Note: 1) Preference will
be given to those
candidates who possess
the qualification of
Senior Grade
examination in
Typewriting and
Shorthand in Kannada
Language also.
185
2) The procedure for
conducting test which
was followed previously
for the promotion to the
cadres of Senior
Judgment Writers shall
also be followed for the
Direct Recruitment to
the said posts.
20 Judgment By promotion by 1) 60% of the total
Writer strength shall be
selection from among: recruited by promotion
by selection from
among:
a) Stenographers
working in the High
Court Establishment a) Stenographers
who have put in not less working in the High
than one year of service Court Establishment
as such; or who have put in not less
than one year of service
b) Judgment Writers or as such; or
Selection Grade
Stenographers working
in Sub-ordinate Courts b) Judgment Writers or on the basis of a test Selection Grade conducted for the Stenographers working purpose, giving due in Sub-ordinate Courts weight for inter- on the basis of a test seniority and service conducted for the records as prescribed. purpose, giving due weight for inter-
seniority and service records as prescribed.
Provided that they shall possess Degree from a 186 recognised university or equivalent examination.
NOTE: Preference will be given for Law Graduates.
Explanation: 1. The present members who are working as Judgment Writers, who do not possess the required qualification shall qualify themselves without affecting the regular work with prior permission of Hon'ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion.
The permission is not
automatic, but subject to
the interest of the
Institution. Such
permission shall not take
away the Rights of the
senior employees and
does not confer the undue
privileges on the junior
employees. The
qualification obtained
without following the
above norms would not
be taken into
187
consideration, till they
come within the zone of
consideration.
Note: 1) For securing
minimum qualification
prescribed for this cadre
within stipulated time, the
permission may be
liberally granted.
2) The period of time
prescribed for securing
minimum qualification
(i.e., five years) starts
from the date of
permission.
3) If no eligible candidate
is available for
promotion, such vacant
post may be filled up by
direct recruitment.
4) The candidate shall
possess a Certificate
Course in Word
Processing or equivalent.
2) Remaining 40% of
posts shall be recruited
by Direct Recruitment
by Selection (after
calling application and
holding a competitive
188
test and interview)
Minimum
Qualifications
(For Direct
Recruitment)
1) Must possess Degree
from a recognised
University or equivalent
examination.
NOTE: Preference will
be given to the Law
Graduates.
2) i) Senior Grade
examination in English
Shorthand in First
Class; or the Proficiency
Grade Examination in
English Shorthand; and
ii) Senior Grade
examination in
Typewriting in English
conducted by the
Department of Public
Instruction of
Karnataka Secondary
Education Board or
equivalent examination.
189
3) Certificate in
Computer Word
Processing or equivalent
Note: 1) Preference will
be given to those
candidates who possess
the qualification of
Senior Grade
examination in
Typewriting and
Shorthand in Kannada
Language also.
2) The procedure for
conducting test which
was followed previously
for the promotion to the
cadres of Senior
Judgment Writers shall
also be followed for the
Direct Recruitment to
the said posts.
3) For Direct
Recruitment inservice
candidates may also
compete.
21 Steno- (a) By promotion by 1) By promotion by
grapher selection from amongst selection from amongst
Typists who have passed Typists who have passed Senior Grade in both Senior Grade Typewriting and examination in both Shorthand conducted by Typewriting and the Department of Shorthand conducted by 190 Public Instruction of the the Department of Public Karnataka Secondary Instruction of the Education Board or Karnataka Secondary equivalent examination Education Board or working on the equivalent examination establishment of the working on the High Court or from establishment of the High amongst the Court or from amongst Stenographers working the Stenographers in the Subordinate working in the Courts, or by both, on Subordinate Courts, or by the basis of a Test both, on the basis of a conducted for the Test conducted for the purpose, due weight purpose, due weight being given to seniority being given to seniority and service records, as and service records, as prescribed; or prescribed:
provided that they shall
(b) By direct possess Degree from a recruitment by selection recognised university or (after calling for equivalent examination.
applications and holding a competitive test and interview). Explanation: 1. The present members who are Minimum working as Stenographers Qualifications: and who do not possess the required qualification, (for direct shall qualify themselves recruitment) without affecting the regular work with prior
1. Must have passed the permission of Hon'ble the SSLC examination Chief Justice, within a conducted by the period of five years, Karnataka Secondary failing which they shall Education Board or not be entitled for further equivalent examination. promotion.
Note: Preference will 191 be given to those who The permission is not are graduates. Must automatic, but subject to have passed. the interest of the Institution. Such
1. The Senior Grade permission shall not take Examination in English away the Rights of the Shorthand in first class; senior employees and or does not confer the undue privileges on the junior The Proficiency Grade employees. The Examination in English qualification obtained Shorthand; and without following the above norms would not
2. Senior Grade be taken into Examination in consideration, till they Typewriting in English come within the zone of conducted by the consideration.
Department of Public Instruction of the Karnataka Secondary Note: 1) For securing Education Board or minimum qualification
equivalent qualification. prescribed for this cadre within stipulated time, the permission may be liberally granted.
2) The period of time
prescribed for securing
minimum qualification
(i.e., five years) starts
from the date of
permission.
3) If no eligible candidate
is available for
promotion, such vacant
post may be filled up by
192
direct recruitment.
4) The candidate shall
possess a Certificate
Course in Word
Processing or equivalent.
Or
2) By direct recruitment
by selection (after calling
for applications and
holding a competitive test
and interview)
Minimum
Qualifications
(For Direct
Recruitment)
1. Must possess a Degree
from a recognised
University or equivalent
examination.
2. The Senior Grade
examination in English
Shorthand with 60% of
aggregate marks; or
The Proficiency Grade
193
Examination in English
Shorthand; and
3. Senior Grade
examination in
Typewriting in English
conducted by the
Department of Public
Instruction of the
Karnataka Secondary
Education Board or
equivalent examination.
4. Certificate in
Computer Word
Processing or equivalent.
Note: 1) Preference will
be given to those
candidates who possess
the qualification of
Senior Grade
examination in
Typewriting and
Shorthand in Kannada
Language.
2) The procedure for
conducting test which
was followed previously
for the promotion to the
cadres of Stenographers
shall also be followed
for the Direct
Recruitment to the said
194
posts.
19. Second (a) 50% by direct (a) 50% by direct
Division recruitment by selection recruitment by selection
Assistant after calling for after calling for
application and application and
interviewing the interviewing the
applicants. The applicants. The
minimum qualification minimum qualification
for direct recruitment for direct recruitment
shall be a degree of a shall be a degree in
recognised University Science / Arts /
with minimum of 55% Commerce / Business
marks in the aggregate Management of a
for candidate belonging recognised University
to General Category and with minimum of 55%
a minimum of 45% marks in the aggregate
marks in the aggregate for candidate belonging
to Schedule Caste and to General category and
Schedule Tribes. a minimum of 45%
marks in the aggregate
(b) 25% Promotion on to Schedule Caste and the basis of seniority- Schedule Tribes.
cum-merit from the
cadre of Group D
officials working in the (b) 50% Promotion on High Court the basis of seniority-
Establishment and who cum-merit from the have passed degree cadre of Group D examination of officials working in the recognised University High Court and who have put in not Establishment and who less than one year of have passed degree service. examination of recognised University
(c) 25% by promotion and who have put in not on the basis of seniority- less than two years of cum-merit from the service: .
195cadre of Group D officials working in the Explanation: 1. The High Court present members who are Establishment and who working as Second have passed the SSLC Division Assistants and or Equivalent who do not possess the examination and who required qualification, have put in not less than shall qualify themselves, 3 years of Service. without affecting the regular work, with prior
(d) If any vacancy permission of Hon'ble the cannot be filled up by Chief Justice, within a promotion for want of period of five years, suitable candidate from failing which they shall the cadre of Group D not be entitled for further Officials possessing promotion.
degree qualification, the same shall be filled up by promoting suitable The permission is not candidate from the cadre automatic, but subject to of Group D Officials the interest of the Possessing SSLC or Institution. Such
equivalent qualification. permission shall not take away the Rights of the
(e) If any vacancy senior employees and meant for Group D does not confer the undue Officials cannot be filed privileges on the junior up by promotion for employees. The want of suitable qualification obtained candidate the same shall without following the be filled by direct above norms would not recruitment. be taken into consideration, till they come within the zone of consideration.
Note:- a) For securing
minimum qualification
196
prescribed for this cadre
within stipulated time, the
permission may be
liberally granted.
2) The period of time
prescribed for securing
minimum qualification
(i.e., five years) starts
from the date of
permission.
3) If no eligible candidate
is available for
promotion, such vacant
post may be filled up by
direct recruitment.
There was yet another Notification dated 28.5.2009 duly published in the Karnataka Gazette entitled the High Court of Karnataka Service (Conditions of Service and Recruitment)(II Amendment) Rules, 2009, whereby Schedule-III of the 1973 Rules were further amended as regards the method of recruitment to the posts of Assistant Registrars/ Assistant Registrar - Protocol and a further Notification similarly entitled as the High Court of 197 Karnataka Service (Conditions of Service and Recruitment)(III Amendment) Rules, 2009, which brought about the following changes as indicated in the tabular form:
Sl. Cadre Method of Method of
No. recruitment Recruitment as
under Principal Amended
Rules
6. Assistant By promotion on By promotion by
Registrar / the basis ofselection basis of
Assistant seniority-cum- Merit-cum-efficiency
Registrar efficiency from the from the cadre of (Protocol) cadres of Section Section Officers, Court Officers, CourtOfficers and Senior Officers, and Senior Judgment Writers who Judgment Writers possess Degree in Law from the University
(i) The quote of established under Law Senior Judgment in the ratio of 2:1:1.
Writers has been increased from 5 to If no eligible candidate 6 is available among the section officers/ court
(ii) The ratio officers/ senior between Court judgment Writers, by Officers and Section deputation among the Officers for Judicial Officers in the promotions to the cadre of Civil Judge remaining 18 posts (Senior Dvn).
shall be maintained at 2:1 respectively Explanation: 1. The for a period of three present members who do years, the ratio shall not possess Law Degree, stand reverted to 1:1 shall qualify themselves between Court without affecting the Officers and Section 198 Officers. regular work with prior permission of Hon'ble
(iii) Cadre review Chief Justice, within a shall be done at the period of five years, end of three years. failing which they shall not be entitled for (Out of the total further promotion.
number of posts of Assistant Registrar, 1/5th posts shall be The permission is not reserved for being automatic but subject to filled up from the the interest of the cadres of Senior Institution. Such Judgment Writers. permission shall not take However, initially away the Rights of the the existing and senior employees and future vacancies does not confer the shall be filled up in undue privileges on the the ratio 2:2:1 from junior employees. The the cadres of qualification obtained Section Officers, without following the Court Officers and above norms would not Senior Judgment be taken into Writers, consideration, till they respectively, till the come within the zone of quote reserved for consideration.
senior judgment writers is realised and thereafter Note:- 1) For securing whenever a post minimum qualification held by an prescribed for this cadre
incumbent coming within stipulated time, from the cadre of the permission may be senior judgment liberally granted.
writers fall vacant, such vacancy shall be filled up only 2) The period of time from the cadre of prescribed for securing Senior Judgment minimum qualification 199 Writers. The other (i.e., five years) starts vacancies shall be from the date of filled up from the permission.
cadres of Section Officers and Court Officers by rotation.
NOTE: The
seniority of Senior
Judgment Writers
posted as Section
Officers of Judicial
Wing Typing Pool,
Paper Book Section
and copying
Branches I and II, if
any, shall be
counted for purpose
of seniority in the
cadre of Senior
Judgment Writers.
There were also Fourth and Fifth Notifications dated 28.5.2009, 29.7.2009 and 30.7.2009 pertaining to the posts of Assistant Court Officers, Section Officers, Senior Assistants and First Division Assistants and Audit Clerks, which are also reproduced hereunder:-
200
Sl. Cadre Method of Method of
No. Name recruitment Recruitment as
under Amended
Principal Rules
9. Section (a) By promotion By promotion on the
Officer on the basis of basis of seniority-cum
seniority-cum- efficiency from the
efficiency from the cadre of Senior
cadre of Senior Assistants borne on the
Assistants, Senior establishment of the
Statistical High Court on the basis
Assistant, and of length of service in
Audit that particular cadre.
Superintendents
borne on the Provided that they shall
establishment of possess a Degree from
the High Court on any University
the basis of length established by Law in
of service in that India or equivalent.
particular cadre.
Explanation: 1. The
Provided that the present members who do
post of Section not possess Degree shall
Officers of Judicial qualify themselves,
Wing Typing Pool, without affecting the
Paper Book regular work, with prior
Section and permission of Hon'ble
Copying Branches the Chief Justice, within
I and II may be a period of five years,
filled up by posting failing which they shall
senior-most of the not be entitled for further
Senior Judgment promotion.
Writers. (method
of recruitment for The permission is not
Section Officers automatic, but subject to
except (i) Section the interest of the
201
Officer, Judicial Institution. Such
Wing Typing Pool permission shall not take
(ii) Section away the Rights of the
Officer, Paper senior employees and
Book Section (iii) does not confer the
Section Officer, undue privileges on the
Copying Branch- junior employees. The
I, (iv) Section qualification obtained
Officer, Copying without following the
Branch-II). above norms would not
be taken into
(b) By transfer of a consideration, till they Senior Judgment come within the zone of Writer working in consideration.
the High Court.
(method of Note:- 1) For securing recruitment of minimum qualification
Section Officers prescribed for this cadre of Judicial Wing within stipulated time, Typing Pool, the permission may be Paper Book liberally granted.
Section, Copying Branch I and 2) The period of time Copying Branch- prescribed for securing II). minimum qualification (i.e. five years) starts
(c) Initially the from the date of posts of Senior permission.
Protocol Officers which are upgraded as Section Officers (Protocol) shall be filled up by shifting the lien of Sriyuths D.R. Balakrishna and K.S.Ragavendra Rao, Section 202 Officers to these upgraded posts of section officers (Protocol). Note:- (a) The posts of Section Officers (Protocol) shall be upgraded to that of an Assistant Registrar when an Officer in the Cadre of Section Officer of all Sections who has put in equal or lesser number of years of service in that than the Section Officers (Protocol) gets promotion as Assistant Registrar, the incumbents shall continue in the upgraded posts of Section Officers (Protocol) as long as they hold the said posts of Section Officers (Protocol) shall stand downgraded to the original cadre. (b) Initially the upgradation shall be for a period of 2 203 years and the approval shall be obtained for further continuance of the upgraded posts of Section Officers (Protocol), if the incumbents continue in the upgraded posts for more than 2 years. By transfer of Section Officers of all sections having aptitude in protocol work. (method of recruitment to the post of Section Officer (Protocol). 14. Senior By promotion on By promotion on the Assistant the basis of basis of seniority-cum- seniority-cum- efficiency from the efficiency from cadre of First Division the cadre of First Assistants, Audit Division Clerks, Assistant Assistants, Librarians working in Accountants, the High Court. Audit Clerks, Provided they shall Assistant possess a Degree from Librarians and any university Junior Statistical established by Law in Assistant working India or equivalent. in the High Court. Explanation: 1. The present members who are working as Senior Assistants and who do 204 not possess the required qualification, shall qualify themselves, without affecting the regular work, with prior permission of Hon'ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the Rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note:- 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 205 2) The period of time prescribed for securing minimum qualification (i.e., five years) starts from the date of permission. 15. First By promotion from By promotion from the Division the cadres of SDAs cadres of SDAs and Assistants and Typists in the Typists in the ratio of 6:4 and Audit ratio of 6:4 (6 (6 SDAs and 4 Typists) Clerks SDAs and 4 as far as possible; Typists) as far as Provided that, an official possible; Provided of one of the above two that, an official of cadres shall not be given one of the above promotion to the cadre of two cadres shall First Division not be given Assistants / Audit Clerks, promotion to the earlier to the promotion cadre of First of the officials of the Division Assistants other cadre who had / Audit Clerks, become members of that earlier to the cadre prior to the date on promotion of the which the former official officials of the became a member of other cadre who his / her cadre. had become members of that cadre prior to the Provided they shall date on which possess a Degree from former official any university became a member established by Law in of his / her cadre. India and Certificate Course in Computer Application. Explanation: 1. The 206 present members who are working as First Division Assistants and who do not possess the required qualification, shall qualify themselves, without affecting the regular work, with prior permission of Hon'ble the Chief Justice within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the Rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note:- 1) For securing minimum qualification prescribed for this cadre within stipulated time, 207 the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e., five years) starts from the date of permission. Note: For the posts of Audit Clerks preference will be given to the officials who possess Bachelor's Degree in Commerce.
The learned Senior Advocate would contend that the aforesaid amendments were aimed at securing better efficiency and better functioning of the court. This was made having regard to the nature of work performed by the respective officers. The stipulation of a Law Degree, for instance, for the post of Assistant Registrar or a University degree for different posts is on par with identical stipulations in Service Rules applicable to other High Courts, such as the High Court of Kerala, the High Court of Andhra Pradesh and the High Court of Madras and the stipulation 208 of a University Degree for promotion to the cadre of Second Division Assistants, is in line with the qualification that were prescribed for direct recruitment to the said cadre. Though the Draft Rules, aforesaid, also contemplated these stipulations and remained with the Government without being approved, this did not impede the Chief Justice to amend the Principal Rules since the amendments did not relate to creation of new posts and increase in the number of existing posts, which alone, would have required the approval of the Governor. The learned Senior Advocate would contend that the opinion expressed by the learned Single Judge on the first point for consideration namely, whether the power given to the Chief Justice under Article 229(2) of the Constitution of India could be exercised to validate unconstitutional discrimination, proceeds on a presumption that there existed an unconstitutional discrimination. The learned Single Judge had ignored the contention of the appellants that the stipulation of a higher educational qualification for promotion 209 was to bring in more efficiency in the working of the establishment of the High Court and this definitely had a nexus with the said objective and did not result in any discrimination. He would hence contend that the very point no.1 framed for consideration is erroneous and did not arise at all. The learned Single Judge had called for the records, which indeed reflected the background and the circumstances warranting the above amendments and the said records have been completely ignored and negated in the learned Single Judge concluding that there was no reason assigned as to why there was insistence of a higher educational qualification. The obvious reason being that it aimed at securing a more efficient and better functioning of the court, which was not taken into consideration. It was also overlooked that the State Government having declined a critical need for increase of the existing number of posts, it had a telling effect on the efficiency and speedy discharge of work and hence, the prescription of a higher educational qualification was made with 210 due regard to the nature of work performed by the respective officers and which had been adopted uniformly by several other High Courts as already stated. The learned Senior Advocate would further contend that the learned Single Judge has not confined himself to examining the decision making process, which alone is the scope of judicial review, but, has proceeded to consider the merits of the decision and has substituted his own opinion, as to the nature of work performed by various categories of employees, in concluding that the nature of work executed by them was purely clerical and not managerial. The further subjective opinion that has been expressed was that since the work of the High Court has been carried on from 1973 without the respective employees possessing a higher degree qualifications that are now prescribed by way of amendment, the higher educational qualifications prescribed have no nexus with the object sought to be achieved. This assertion of the learned Single Judge ignores the primary circumstance that the amendments were 211 in the nature of subordinate legislation under a rule making power and therefore, in the absence of any statutory requirement, the learned Single Judge proceeding to hold that no specific reasons were assigned by the competent authority as to what higher educational qualification is insisted upon is clearly erroneous. If the said reasoning is allowed to stand, it would follow that any amendment, stipulating prescription of a higher education is foreclosed. The reasoning of the learned Single Judge is not based on any material that was available before the court, except the pleadings of the petitioners, in concluding that a higher educational qualification was not necessary for the several categories of employees.
The learned Single Judge had also ignored that there was no right created by a mere chance of promotion. The reasoning that some of the employees may not be able to attain the prescribed qualification and the reference to the method of recruitment which 212 contemplates permission by the Chief Justice for acquiring higher educational qualification not being automatic and that there was no guarantee of such permission being granted etc., overlooks the fact that there is only a reduction in the chance of acquiring such qualification and does not impinge upon any vested right of the employees. Amendments I to V could not have been invalidated in view of the Circular dated 24.8.2010, which prescribes guidelines regarding grant of permission by the Chief Justice to the employees to pursue further studies, when neither the circular nor the specific exercise of power thereunder, having been impugned. The learned Single Judge has proceeded on an exaggerated hypothesis as to the mechanism of employees seeking permission and the Chief Justice granting permission to pursue higher studies, as being impracticable. The learned Single Judge has proceeded to hold that the Draft Rules did not come into force at all though the learned Single Judge was informed and it was taken on record that the Draft Rules did not come into force at all 213 and the learned Single Judge further held that if the Draft Rules, on being published in the Gazette are taken as having come into force, the effect would be the repeal of the 1973 Rules. Therefore, the question of amendments to the 1973 Rules would not arise. This, on the face of it, is not tenable. The further opinion that the procedure followed for Draft Rules as well as the amended 2009 Rules is not in consonance with the well-established cannons of law, is stated without indicating the specific requirement of law that was not complied with. It is contended that the learned Single Judge having proceeded to quash the proviso as well as the explanation to the amended Rules, requiring higher qualifications, the consequent direction to re-do the promotions to all the posts in accordance with the 1973 Rules without reference to the amended Rules of 2009, is wholly improper and the further direction to re- do the entire process of promotions within a fixed time frame is without reference to the prerogative of the employer to decide whether to confer such promotions or not. Further, the 214 observation that the ratio provided for direct recruitment as per the amended Rules for the post of Judgment Writers and Senior Judgment Writers could not be addressed, since all the direct recruitees are not parties and then for the learned Single Judge to proceed to hold that as the court has directed the entire process to be repeated in accordance with the 1973 Rules, no further clarification was necessary, is also inconsistent as the amendment relating to 40% ratio provided for the direct recruitment not having been disturbed, it is incongruous to negate the said amendment. The learned Senior Advocate while referring to a large number of decisions would submit that though the learned Single Judge has referred to the said decisions, the ratio laid down therein has not been adverted to and no reasons are forthcoming as to how the same would not apply to the present case on hand.
12. In the light of the above findings of the learned Single Judge and the contentions now put-forth, the points that arise for 215 consideration by this bench would be as follows:-
1) Whether the above amended Rules, framed in exercise of power under Article 229(2) of the Constitution of India, are arbitrary and violative of the Constitution of India?
2) Whether the prescription of higher educational qualifications under the amended Rules, permanently disables the several classes of employees for being considered for promotion, and is hence violative of Articles 14 and 16 of the Constitution of India?
3) Whether the reasoning of the learned Single Judge that owing to the nature of duties to be discharged by the employees, the prescription of higher educational qualifications, not being reasonable as there was no nexus with the object sought to be achieved, is bad in law?216
4) Whether the impugned order runs counter to the law with reference to the several authorities cited by the learned Counsel for the appellants?
In considering Point no.1 above, it has been contended that the learned Single Judge could not examine the wisdom behind the object sought to be achieved by the amended Rules. The reasonableness of such subordinate legislation would not depend upon the court's own view, under legislative policy. It has also been contended that a mere chance of promotion does not create a vested right in the employees. Therefore, the very petitions were not maintainable. It has also been contended that the prescription of a educational qualification for promotion to a higher post is a valid and reasonable criterion and the learned Single Judge's subjective opinion that the nature of work involved did not call for such higher educational qualification is a blatant substitution of his opinion for that of the competent authority. Further, the reasoning of the learned Single Judge that the mechanism 217 provided under the amended Rules to enable the employees to acquire the requisite educational qualification to be eligible for promotion, results in the same being unfairly trashed, as being unworkable.
13. Reliance is placed on the following authorities:-
(a) Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh and others, (1984) 4 SCC 27 It is laid down in the said decision as follows:-
"..... whether a rule or regulation or other type of statutory instrument - is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the Court to substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes of 218 the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act.
xxxxx
21. The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than "is necessary" or that it does not incorporate certain provisions which, in the opinion of the Court, would have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the Judges do not approve of it. Unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make bye-laws must ordinarily be presumed to know what is necessary, reasonable, just and fair."219
(b) Union of India and another vs. Azadi Bachao Andolan and another, AIR 2004 SC 1107 This decision also lays down the law to the same effect as in Paritosh, supra.
(c) Mohammad Shujat Ali and others vs. Union of India and others, AIR 1974 SC 1631 It is laid down that chances of promotion are not conditions of service and reduction in a mere chance of promotion does not constitute a variation in the condition of service.
(d) State of Jammu and Kashmir vs. Shiv Ram Sharma and others, AIR 1999 SC 2012 It is laid down that it is permissible for the employer to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put-forth on behalf of the respondents was that when they joined the service, the 220 requirement of passing the Matriculation was not needed and while they were in service, such prescription was made was to their detriment. But, it is clear that there is no indefensible right in the respondents to claim promotion to a higher grade, to which qualification could be prescribed and there is no guarantee that those Rules framed by the employer in that behalf would always be favourable to them. Further, it is held that the principle of avoiding stagnation in a particular post would not be with reference to a particular individual employee, but with reference to the conditions of service, as such and that as long as the Rules provide for conditions of service making avenue for promotion to higher grades, there is no illegality.
(e) Chandra Gupta, IFS vs. The Secretary, Government of India, Ministry of Environment and Forests and others, AIR 1995 SC 44 On a review of the entire case-law, as regards the principle whether a mere chance of promotion would be a condition of 221 service, the apex Court has laid down that it cannot be considered as a condition of service.
(f) The State of Jammu and Kashmir vs. Triloki Nath Khosa and others, AIR 1974 SC 1 The learned Senior Advocate would draw attention to the following observations and the law laid down by a Constitutional Bench of the apex Court in the said decision to the following effect:-
A Rule which classifies existing employees for promotional purposes undoubtedly operates on those who entered service before the framing of the rule which may have an effect on their promotional prospects, but it operates in future, in the sense that it governs the future right of promotion of those who are already in service. It will not affect a promotion already made or reduce a pay-scale already granted. The rule may provide for a classification by prescribing a qualitative standard and the measure 222 of that standard being educational attainment and it is founded on such a consideration, which may suffer from a discriminatory vice is besides the point. But the rule cannot be assumed to be retrospective and then be struck down, for the reason that it may violate the guarantee of equal opportunity by extending its arm over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should remain immutable and schemes of compulsory retirement would be unworkable. It was held that it is well-settled that rights and obligations are required to be determined under statutory or constitutional authority, the exercise of which may not require reciprocal consent. The competent authority can alter the terms and conditions of its employees unilaterally. The plea of discrimination would require a petitioner to plead and prove through cogent and convincing evidence that every factor, which is relevant or material, had not been taken into account in formulating the classification. Though formal 223 education may not always produce excellence, a classification founded on variant educational classifications would not be unjust on the face of it. The discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis.
This is echoed in State of Bihar and others vs. Bihar State +2 Lecturers Association and others, AIR 2007 SC 1948, wherein it is held that Article 14 does not forbid classification. What it prohibits is discrimination and not classification. If otherwise, such classification is legally valid and reasonable.
Attention is also drawn to T.R.Kothandaraman and others vs. Tamil nadu Water supply and Drainage Board and others, (1994) 6 SCC 282, with particular reference to Paragraph -16 which reads as follows:-
" 16. From what has been stated above, the following legal propositions emerge regarding educational qualification being a basis of classification 224 relating to promotion in public service:
1) Higher educational qualification is a
permissible basis of classification,
acceptability of which will depend on the facts and circumstances of each case.
2) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion.
3) Restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later."
Attention is drawn to P.U.Joshi and others vs. Accountant General Ahmedabad and others, (2003) 2 SCC 632 wherein it has been laid down that the State, by appropriate rules, is entitled to amalgamate departments, bifurcate departments, constitute different categories of posts or cadres, by undertaking further 225 classification, abolishing the existing cadres etc. There is no right in any employee of the State to claim that the rules governing conditions of his service should be for ever the same as the one when he entered service for all purposes, except for ensuring or safeguarding rights or benefits already earned, acquired, or accrued at a particular point of time. A Government Servant has no right to challenge the authority of the State to amend, alter and bring into force new Rules relating to the existing service.
To the same effect, is the decision in Union of India vs. Pushpa Rani and others, 2008 AIR SCW 6564 wherein the settled legal position has been reiterated to the effect that matters relating to creation and abolition of posts, formation and structuring or restructuring of cadres prescribing the source or mode of recruitment and qualifications, criteria of selection, evaluation of service records etc., fall within the exclusive domain of the employer. What steps should be taken for improving the 226 efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. It has no role in determining the methodology of recruitment or laying down the criteria of selection. It cannot also make a comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.
In a more recent judgment in Transport and Dock Workers Union and others vs. Mumbai port Trust and another, (2011) 2 SCC 575, an attempt has been made by the apex Court to 227 formulate the new test of social conduciveness as regards the doctrine of classification on the premise that "Article 14 of the Constitution of India is a slippery slope and a fine balancing act must be done by the court to avoid slipping down the slope" and has expounded as follows:-
" 22. Thus the classification would not violate the equality provision contained in Article 14 of the Constitution if it has a rational or reasonable basis. However, the question remains: what is "rational" or "reasonable"? These are vague words. What may be regarded as rational or reasonable by one Judge may not be so regarded by another. This could lead to chaos in the law.
23. Should this vagueness or uncertainty be allowed to remain so that Judges may have total freedom or discretion? We think not. The law should be, as far as possible, clear and certain so that people know where they stand and conduct their affairs accordingly. Also, if total freedom is given to Judges to decide according to their own individual notions and fancies the law will run riot. Hence, in our opinion an attempt should be made to clarify the meaning of the words "reasonable" or "rational".228
24. Numerous decisions of this Court on Articles 14 and 19 of the Constitution have no doubt held certain classifications to be reasonable while other classifications have been held to be unreasonable. But what is reasonable and what is unreasonable does not appear to have been discussed in depth by any decision of this Court, and no tests have been laid down in this connection. All that has been said is that it is not prudent or pragmatic to insist on a mathematically accurate classification covering diverse situations and all possible contingencies in view of the inherent complexities involved in society, vide State of Karnataka v. Mangalore University Non-Teaching Employees' Assn.10 SCC para 10, Ombalika Das v. Hulisa Shaw 11 SCC para 11, etc.
25. In our opinion while it is true that a mathematically accurate classification cannot be done in this connection, there should be some broad guidelines. There may be several tests to decide whether a classification or differentiation is reasonable or not. One test which we are laying down and which will be useful in deciding this case, is: is it conducive to the functioning of modern society? If it is then it is certainly reasonable and rational.
26. In the present case, as we have noted, the purpose of the classification was to make the activities of the Port competitive and efficient. With the introduction of privatisation and setting up private ports, the respondent had 229 to face competition. Also, it wanted to rationalise its activities by having uniform working hours for its indoor and outdoor establishment employees, while at the same time avoiding labour disputes with employees appointed before 1.11.1996. In the modern world businesses have to face competition with other businesses. To do so they may have to have longer working hours and introduce efficiency, while avoiding labour disputes. Looked at from this point of view the classification in question is clearly reasonable as it satisfies the test laid down above.
27. We do not mean to say that the above is the only test to decide what is reasonable, but in our opinion it is certainly one of the tests to be adopted if we want our country to progress. We have to take a practical view of the matter instead of relying on abstract, a priori notions of equality."
14. On the other hand, of the several authorities cited by the learned counsel for the respondents, the following may have a bearing in application of the law to the present case on hand.
In State of Mysore vs. Krishna Murthy and others, AIR 230 1973 SC 1146, which was a case pertaining to two persons, who had joined the Accounts Service in the Comptroller's office of the former Mysore State as First and Second Division Clerks. Consequent upon the abolition of the Comptroller's office, the petitioners began working as Accounts Clerks under the Chief Engineer, Public Works Department. In the year 1955, a Divisional Accounts' Cadre was created by the Mysore Government under the administrative control of the Chief Enigneer. Both the petitioners passed the prescribed examinations and were absorbed in the Divisional Accounts' cadre. It appears that in April 1959, the Public Works Department Re-organisation Committee had recommended the transfer of the Public Works Department Accounts' Branch in toto, to the newly set up Controller of State Accounts. In accordance with this recommendation, the petitioners came under the administrative control of the Controller and the designation of their office was changed to that of "Accounts' Superintendent". In May 1959, the 231 two formerly separate units of the Accounts Service , namely, the Public Works Department Accounts Unit under the Chief Engineer of Public Works Department and the Local Fund Audit Unit known also as the "State Accounts" Department came under the common administrative control of the Controller of the State Accounts. On 26th May, 1959, the Mysore State Accounts Services' Cadre and Recruitment Rules were issued and combined cadre strengths were fixed. The result of the rules of 1959 was that an artificial distinction based on mere separate control had been abolished so that both units came under the legally single administrative control of the Accounts' Department in-charge of the Controller of State Accounts. The two employees concerned became absorbed in what was legally a single permanent service regulated by the uniform rules. But in the case of promotion, they were discriminated against simply because, they had worked in the Public Works Department Accounts Unit, which had ceased to exist. The High Court held that the petitioners' grievances were 232 justified. The matter was before the apex court and the apex Court has held as follows:-
"8. The High Court rightly relied on State of Mysore v. Padmanabhacharya, AIR 1966 SC 602 to hold that the power of making rules relating to recruitment and conditions of service under the proviso to Article 309 could not be used to validate unconstitutional discrimination in promotional chances of Government servants who belong to the same category. It must be understood that Government servant whose case is considered for promotion but who fails to be selected on an application of just and reasonable criteria, such as that found in the merit-cum-seniority rule found in the Rules of 1959, cannot complain of discrimination. But, what the petitioners had complained of and established was that their cases for promotion were not considered at all under these Rules on the false premise that they belong to a class which disables them from obtaining equal consideration for promotion to the offices to which they considered themselves entitled. The effect of the order of the Mysore High Court was only that cases of the petitioners, now respondents before us, will be 233 considered, in accordance with Rules of 1959, in preparing the seniority list on merit-cum-seniority basis. All that the order of the High Court enjoins is that the petitioners before it must not be ignored simply on the assumption that the source of their initial recruitment debars the consideration of their merits for promotion.
xxxx
11. Other cases mentioned by the Mysore High Court i.e. State of Punjab v. Joginder Singh, AIR 1963 SC 913 and K.M. Bakshi v. Union of India, 1965 Supp (2) SCR 169, also show that inequality of opportunity of promotion, though not unconstitutional per se, must be justified on the strength of rational criteria correlated to the object for which the difference is made. In the case of Government servants, the object of such a difference must be presumed to be a selection of the most competent from amongst those possessing qualifications and backgrounds entitling them to be considered as members of one class. In some cases, quotas may have to be fixed between what are different classes or sources for promotion on grounds of public policy. If, on the facts of a particular case, the classes to be considered are really different, inequality of opportunity in promotional chances may be justifiable. On the contrary, if the 234 facts of a particular case disclose no such rational distinction between members of what is found to be really a single class no class distinctions can be made in selecting the best. Articles 14 and 16 (1) of the Constitution must be held to be violated when members of one class are not even considered for promotion. The case before us falls, in our opinion, in the latter type of cases where the difference in promotional opportunities of those who were wrongly divided into two classes for this purpose only could not be justified on any rational grounds. Learned Counsel for the State was unable to indicate any such ground to us. We, therefore, think that the Mysore High Court rightly held that the impugned notifications were unconstitutional." (Emphasis supplied) In State of Andhra Pradesh and others vs. J.Srinivasa Rao and others (1983)3 SCC 285, the apex Court was dealing with the case of persons working as Lower Division Clerks in the Department of Registration and Stamps, Andhra Pradesh. In terms of the relevant rules and instructions governing them, a list of approved candidates should have been prepared as on a particular date for making appointments to the cadre of Sub-Registrars 235 Grade-II by transfer. The grievance of the petitioners was that contrary to the rules and instructions, a list of the approved candidates was not prepared as on that particular date and it was considerably delayed and drawn up only later, when an amendment to the Rules had been incorporated, whereby the original rules providing for consideration of Lower Division Clerks for appointment as Sub-Registrars Grade-II were done away with and promotion or transfer to that category was to be made from amongst Upper Division Clerks employed in the Registration and Stamps Department. The complaint of the petitioners was that by delaying the preparation of list of approved candidates till after the rules were amended their chances for consideration for appointment to the higher post were adversely affected. The claims were resisted on the ground that the competent authority was not obliged to prepare any such list annually though he was obliged to prepare the panels of the Sub-
Registrars from time to time and that the delay in the preparation 236 of the panel was not actuated by any motive, but it was consequent upon the implementation of the new rule and that the allocation of posts and personnel among the Zones had to be made by the Government. The apex Court held that if a panel had been prepared every year in September as required under the old rules, transfer or promotion would have been available to the petitioners out of that panel and if that occurred, the petitioners, who ranked higher than the respondents, would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended Rules would be governed by the old rules and not by the amended rules and therefore, the question of filling the vacancies that occurred prior to the amended rules undoubtedly would be governed by the old rules and not by the new rules.
In Abdul Basheer and others vs. K.K.Karunakran and others, 1989 Supp(2) SCC 344, the appellants before the apex Court were graduate Excise Inspectors, who were aggrieved by 237 the judgment of the High Court holding that the amendment to Special Rule 2 of the Kerala Excise and Prohibition Subordinate Services Rules as being ultra vires. Writ petitions were filed by non-graduate Excise Inspectors alleging that the amendment to Sub-rule 2 of the aforesaid Rules violated Articles 14 and 16 of the Constitution inasmuch as an invidious discrimination had been made between graduates and non-graduates by prescribing a ratio between them in the matter of promotion from the post of Excise Preventive Officer to that of Second Grade Excise Inspectors. The appellants had contended before the High Court that preference shown to graduates under the amended Special Rule 2 the ratio 1:3 represents the recognition of graduation as a standard of merit and it was urged that the officers with more merit in the post of Excise Inspectors would promote administrative efficiency. It was also contended that the amendment to the Special Rules is the result of an historical background which justifies preferential promotion. It was pointed out that as graduates or non-graduates had all along 238 been treated differently in the matter of promotion to the post of Excise Inspector, the classification brought about by amending Special Rule 2 could not be regarded as unreasonable. The apex Court thereafter set up historical background out of which the controversy arose tracing it back to the year 1935 in the erstwhile State of Travancore. After referring to the judgments in Mohammad Shujat Ali, supra; Triloki Nath Khosa, supra; S.L.Sachdev vs. Union of India, (1980)4 SCC 562 and Col.A.S.Iyer vs. V.Balasubramanyam, (1980)1 SCC 634, the apex court held that the history of the evolution of the Kerala Excise and Prohibition Subordinate Service had shown no uniformity either in approach or in object. The history had varied with the circumstances prevailing before and after the re-organisation of the State in the year 1956. Originally, when more emphasis was laid on the induction of graduates, the ratio of graduate to non- graduate officers was maintained at 3:1. But, from the year 1974, the ratio was changed inversely to 1:3. More non-graduates were 239 now inducted into the service. The trend showed that it ran in favour of absorbing more non-graduates. The conditions pertaining to the service and respecting which the constitution of service varied from time to time showed fluctuations. A consistent or coherent policy in favour of graduates was absent and it was not a case where the cadre of officers was kept in two divisions. It was a single cadre and they were all equal members of it and that the High Court had noted that the nature of the duties of Preventive Officers, whether graduate or non-graduate was identical and both were put to field work. Non-graduate Preventive Officers were regarded as competent as Graduate Preventive Officers. There was no evidence of any special responsibility being vested in Graduate Preventive Officers. Once they were promoted as Excise Inspectors, there was no distinction between graduate and non-graduate Excise Inspectors. And the apex Court affirmed the judgments of the learned Single Judge as well as the Division bench of the High Court.
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In Kothandaraman vs. Tamil Nadu Water Supply and Drainage Board and others, (1994)6 SCC 282, the apex Court was concerned with Article 14 and one of its facets as embodied in Article 16 which concerns equality of opportunity in matters of public employment and the Court proceeded to consider the several Constitution Bench decisions and has reiterated the ratio of the several judgment as under :
In Triloki Nath Khosa, supra, the sum and substance of what was stated in the leading judgment was that the guarantee of equality is precious and the theory of classification may not be allowed to be extended so as to subvert or submerge the same.
And while being called upon to decide whether the classification in question is constitutionally permissible, excellence in service has also to be borne in mind so too the fact that excellence and equality are not friendly bed fellows and a pragmatic approach was therefore required to harmonise the requirements of public 241 services with the aspirations of public servants. The apex court further proceeds to refer to a quotation of Justice Krishna Iyer, who had stated that the social meaning of Articles 14 and 16 is neither dull uniformity nor specious 'talentism.' Further, the soul of Article 16 is the promotion of the common man's capabilities, opening up full opportunities to develop without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule. But, then, personal policy does require an eye on efficiency and so, though "chill penury" should not repress "their noble rage" , technical proficiency cannot be sacrificed at the altar of wooden equality. All these call for a striking of a balance between the long hunger for equal chance of the lowlier and the disturbing concern of the community for higher standards of performance. Even so, mini-classifications based on micro-
distinctions are false to our egalitarian faith and overdoing of classification would be undoing of equality. The court has to function always as a sentinel on the qui vive. Though there was 242 difference in the underlying thoughts as above, the Bench was unanimous on the question that educational qualifications can form the basis of a valid classification. In coming to this conclusion, the Khosa Bench, noted earlier decisions rendered in State of Mysore vs. P.Narasing Rao, AIR 1968 SC 349, and Union of India vs. Dr.(Mrs.)S.B.Kohli, (1973) 3 SCC 592. The apex court also took note of the judgment in Mohammad Shujat Ali, supra where it was pointed out that though educational qualifications can form the basis of classification, it could not be laid down as an invariable rule that whenever any classification is made on such basis, the same must be held to be valid, irrespective of the nature and purpose of the classification or the quality and extent of the difference in the educational qualifications. A particular observation that life has relations not capable always of division into inflexible compartments was made. It was also observed that in a case it may be perfectly legitimate for the administration to say that having regard to the nature of the 243 functions and duties attached to the post, for the purpose of achieving efficiency in public service in which degree-holders shall be eligible for promotion and not Diploma or Certificate-
holders. It was then observed that though this distinction may be permissible, for deciding the question of eligibility for promotion, it would be difficult consistently with the claim for equal opportunity to lay down a quota of promotion for each and give a preferential treatment to graduates over non-graduates in the matter of fixation of the quota. Shujat Ali Bench ultimately took the stand that to permit discrimination based on educational attainments, not obligated by nature of the duties of the higher posts is to stifle the social thrust of equality clause. Even so, the Bench did not strike down the quota rule challenged before it because of the historical background. It was then observed that the aforesaid decisions have been understood and applied differently by different courts including the apex court. The apex Court has also referred to the decisions which had been rendered 244 thereafter and which took note of either Khosa or Shujat Ali, in Punjab State Electricity Board vs. Ravinder Kumar Sharma, (1986) 4 SCC 617; Shamkant Narayan Deshpande vs. Maharashtra Industrial Development Corporation, 1993 Suppl.
(2) SCC 194, and in N.Abdul Basheer vs, K.K.Karunakaran, 1989 Supp.2 SCC 344. Thereafter the apex Court has referred to Roop Chand Adlakha vs.Delhi Development Authority, 1989 Supp.(1) SCC 116, which took note of both Khosa and Shujat Ali and some others as well. It observed that if diploma-holders, on the justification of job-requirements and in the interest of maintaining a certain quality of technical expertise in the cadre could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited to two, namely, either to consider them eligible or not eligible. The Bench then stated that the State is not precluded from conferring eligibility on diploma-
holders conditioning it by other requirements like varying period 245 of length of experience, which in the case of Roop Chand, supra was ten years for the diploma-holders and eight years for the degree-holders and it was concluded that Article 16 would not prevent the State from formulating a policy, which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service experience. It is on that footing that the rule in question laying down different period of service experience for diploma-holders and degree-holders was not found violative of Articles14 and 16.
Thereafter, attention was drawn to V.Markendeya vs. State of Andhra Pradesh, (1989) 3 SCC 191, in which differentiation of non-graduate Supervisors and graduate Supervisors for the purpose of pay-scales was held not to have violated Articles 14 and 16 and it was noted that in coming to that decision, the historical background was kept in mind.
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Yet another decision in Government of Andhra Pradesh vs. P.Dilip Kumar, (1993) 2 SCC 310, wherein it was held that the classification on the basis of higher educational qualifications to achieve higher administrative efficiency is permissible under our Constitutional scheme and it was held that no fault could be found giving of preference to post-graduates as a class in promotion.
Thereafter, attention is drawn to P.Murugesan vs. State of Tamil Nadu, (1993) 2 SCC 340, wherein it was held that placing of restriction on diploma-holders by limiting their chances of promotion to one out of four promotions after the graduate engineers and diploma-holder engineers constituting one class and performed same duties and discharged same responsibilities, would not be justified, was a 'too simplistic way of looking at the issue'. It was observed that if the diploma-holders could be barred altogether from promotion, it was difficult to appreciate how and why the rule making was precluded from restricting the 247 promotion. It was pointed out that the rule making authority may be of the view, having regard to the efficiency of the administration and other relevant circumstances that while it is not necessary to bar the diploma-holders from promotion altogether, their chances of promotion should be restricted. It was then stated that on principle, there was no basis for the contention that only two options are open to the rule-making authority to either bar the diploma-holders or allow then unrestricted promotion on a par with the graduates.
It was observed that the Murugesan Bench thereafter noted the hallmark of Shujat Ali, case supra, which required that the historical background of the service to be kept in mind and while noticing the decisions in Shamkant, Ravinder Kumar and Abdul Basheer, supra, the bench upheld the validity of ratio of 3:1 between graduates and diploma-holders in promotion. So also, the longer qualifying period of service by the diploma-holders. The 248 apex Court also noted the decision in Nageshwar Prasad vs. Union of India, which was unreported as on that date in C.A.3985/1984 wherein the bench after taking note of the decisions in Roop Chand, Dilip Kumar, Murugesan and Shujat Ali, supra did not find fault with the prescription of 50% quota for the diploma-holders. The apex Court then held that the aforesaid bird's eye view of the important decisions of the apex Court on the question of prescribing quota in promotion to a higher post based on the educational qualification makes it clear that such a qualification can in certain cases be a valid basis of classification and the classification need not be relatable only to the eligibility criteria but to restrictions in promotions as well. Further, even if in a case the classification would not be acceptable to the court on principle, it would before pronouncing its judgment bear in mind the historical background. It is apparent that while judging the validity of the classification the Court shall have to be conscious about the need for maintaining efficiency in service and also 249 whether the required qualification is necessary for the discharge of duties in the higher post. The apex Court then proceeded to hold that the aforesaid propositions though undisputed, two proposals were projected or in its words, to introduce "two more spokes in the wheel." They are a call of social justice and importance of education.
While drawing attention to the importance of justice, reference is made to Unni Krishnan J.P. vs. State of Andhra Pradesh, (1993)1 SC 645 and has quoted with approval an observation that " a preparation for living and for life, here and hereafter" and that education is "at once a social and political necessity" and that "[v]ictories are gained, peace is preserved, progress is achieved, civilization is built up and history is made not on the battlefields ... but in educational institutions which are seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. Therefore, the Apex Court has 250 concluded that any view taken should not play down the importance of education and then it goes on to observe that at the same time, it would have to be remembered that the diploma- holders are drawn mainly from poorer families and they are incapable of making the degree grade. The "chill penury" should not, therefore, be allowed to "repress their noble rage". Social justice would not permit to do so. It may be that social justice is not a fundamental right , but there is little doubt that social justice being a requirement of directive principles of our Constitution. The same would have to be the desideratum in any case and has laid down the following legal propositions regarding the educational qualification, being a basis of classification relating to promotion in public service:
1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case.
2) High educational qualification can be the basis not only 251 for barring promotion, but also for restricting the scope of promotion.
3) Restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable.
Reasons for this are being indicated later.
The Apex Court then has proceeded to address the facts of the case, which is reproduced hereunder for ready reference:-
"19. The writ petitioners/ appellants of this service have two grievances. The first is that the proviso to Regulation 19(2)(b) of Tamil Nadu Water Supply and Drainage Board Service Regulations, 1972 is violative of Article 16 of the Constitution. Secondly, what has been provided in Rule 2(b) of the Special Rules for the Tamil Nadu Agriculture Engineering Service brought into force with effect from 1.2.1981 is similarly infirm. We proposed to examine these two grievances separately.252
20. The purport of the first challenge is that the proviso permits diploma-holders Assistant Engineers to become eligible for promotion to the post of Executive Engineer only if they were to have "exceptional merit" in work; otherwise a diploma- holder is not eligible for such promotion. This challenge has to fail because of what was held in Khosa case, according to which diploma-holders being less educationally qualified than degree- holders can be made non-eligible for promotion to higher post. The proviso really takes out the rigour by permitting the diploma-holders to be considered for promotion in case they were to show exceptional merit in their work. The proviso being thus favourable to the diploma-holders has really to be welcomed by them, instead of inviting their wrath.
21. The validity of aforesaid Rule 2(b) which has prescribed the ratio of 3:2 for direct recruits and promotees - the former being degree-holders and latter diploma holders - is challenged as violative of the guarantee of quality embodied in Article 16. The counsel for the respondents has, inter alia, drawn our attention to the fact that this differentiation is ancient as mentioned in the counter affidavit filed by the State, a part of which has been quoted at Pages 13 to 253 16 of SLP (C) No.10645 of 1989. A perusal of the same shows that the degree-holder Assistant Engineers were designated as Assistant Engineer (Agriculture Engineering) and given gazetted status, whereas diploma-holders were denied the same. This apart, the degree-holders were given higher scale of pay. The affidavit further shows that the post of Executive Engineer (Agricultural Engineering) calls for higher skill, administration, planning and evolving of proposals and drafting. In these aspects most of the diploma holders were found lacking. It has been mentioned in this affidavit that the degree- holders had studied for six years at college level after leaving school stage, whereas diploma holders have only three years' study at the level of Institute of Technology after school stage. Because of this, higher technical calibre in degree-holders is presumed. Insofar as the common seniority list is concerned, the submission in the counter-affidavit is that the same "did not allow (sic) to give preference in promoting graduates to the level of Assistant Executive Engineer (Agricultural Engineering) in the department". The further averment is that in other departments where separate lists were being maintained, ratio adopted was 3:1, whereas in the department at hand ratio of 3:2 was recommended 254 taking into account large number of diploma-holders.
22. The aforesaid shows that higher educational qualification has relevance insofar as the holding of higher promotional post is concerned, in view of the nature of the functions and duties attached to that post. The classification has, therefore, nexus with the object to be achieved. This apart, history also supports the differentiation sought to be made by the rule in question. We, therefore, uphold the classification as valid.
23. The next question to be examined is about the extent of the preference given to the degree-holders. At this stage, we may first give our reasons as to why this aspect is amenable to examination. The rule- making authority having made a diploma-holder eligible for promotion, it follows that a diploma- holder does not suffer from such an infirmity as to make him totally unfit for holding the higher post. If that is so, question is whether the ratio could be made so inequitable as to mock at the guarantee of equality? The right which has been conferred by one hand cannot be taken away by another; nor can the right be converted to a husk. It must continue to be a meaningful right. Too much emphasis on 255 higher education may even cause dent to cause of social justice, as it would be the poorer section of the society which would be deprived of its legitimate expectations. The preference given to the degree- holders would, at the same time, give fillip to the desire to receive higher education, as such persons would always be favourably placed as compared to the lesser educated ones. A harmony would thus be struck, by maintaining reasonableness in the ratio, between the call of social justice and the need for higher education, without in any way jeopardising the principal object of classification. But then, no particular ratio can be spelt out which would satisfy these requirements; the reasonableness of the ratio shall depend on facts of each case.
(Emphasis supplied)
24. In the present cases the ratio is 3:2 and we regard the same as reasonable in view of what has been stated above relating to adoption of this ratio. Having felt satisfied about the permissibility of the classification also, the cases challenging the constitutionality of the quota for promotion as fixed in this service have to be dismissed.
TAMIL NADU ELECTRICITIY BOARD SERVICE 256 CASES
25. The writ petitioners and appellants, among whom is the Engineering Diploma-holders' Association, have challenged the decision of the Tamil Nadu Electricity Board which amended the Board's Service Regulations fixing ratio of 3:1 for promotion to the post of Assistant Engineers (Electrical) between the Junior Engineer (Electrical) and Supervisors (Electrical Grade-I) - the former being degree- holders and latter diploma-holders.
26. The aforesaid shows that the classification is based on higher educational qualification and the same has to receive our approval because for certain types of work the Supervisors are not sufficiently qualified, whereas Junior Engineers are. The nature of the work performed by the two classes of post holders and the higher educational qualification of the degree-holders did permit the Electricity Board to classify the two groups differently for the purpose of their promotion. As to the ratio of 3:1, we have applied our mind and we have come to the conclusion that we may not interfere with the same because of the fact that any different view would create almost a chaotic situation in the working of the Board as the 257 Board's decision, which is of 1974 has held the field for about two decades and any disturbance at this stage would not to be conducive to the functioning of the Board inasmuch as the number of persons to be affected would be in thousands, as it has been stated in paragraph 22 of the counter-affidavit filed on behalf of the Board in CA No. 559 of 1991 that the number of qualified diploma-holders and degree- holders in all branches would be in region of 1000; Junior Engineers Grade-I about 2000 and Assistant Engineers also 2000.
27. The aforesaid being the position, we do not find any constitutional infirmity in the classification and would not interfere with the ratio as prescribed because of the aforesaid special facts."
Therefore, in view of the above judgment, which has taken note of all the important decisions on the aspect of the matter, it is to be held that the educational qualification is a valid basis of classification. But, at the same time, it is to be kept in view that the need for maintaining efficiency in service would not be jeopardised if non-graduates and persons without a Law degree 258 and who have put in long years of service were also to be considered for promotion without the insistence of their acquiring such educational qualification, if otherwise, they are found to be efficient and suitable for promotion having regard to the length of service and a good track record. Therefore, the amended Rules ought to have provided adequate scope by introducing a quota for such candidates, which may progressively be tapered off in time and it could then be ultimately ensured that only persons with higher educational qualifications filled the rank and file. Hence, the first point for consideration would have to be answered in the affirmative, in that, the rule making authority has permanently shut out those employees, without the requisite educational qualifications as prescribed, for promotion. This is notwithstanding the mechanism provided enabling such employees to acquire the necessary educational qualification. However, it is not within the realm of this court to take upon itself the exercise of prescribing the appropriate quota in respect of employees without 259 the requisite educational qualification vis-à-vis the quota prescribed for direct recruitment. But, the Proviso as well as the Explanation to the amended Rules of 2009 requiring higher qualifications shall not be applicable to employees already in service and shall be read down to that effect.
Further, it is relevant to note that providing for a mechanism are as per the guidelines formulated under the Circular dated 24.8.2010. On the face of it, the same appears to be impracticable, where it provides that the officers who are desirous of pursuing degrees by attending Colleges with a view to acquire knowledge and higher education, should obtain prior permission of the Chief Justice and subject to condition that their study will not adversely affect their work and it would permit them to adhere to the normal office hours, apparently contemplates a situation where they undertake Correspondence Courses or attending part- time courses and that not more than 10% of the officers working in a particular cadre would be so permitted to pursue their courses 260 of study. It is also stated that the degrees to be obtained ought to be recognised for appointment or promotion to a post in the High Court or the Government. It is to be noticed, as observed by the learned Single Judge, that there may be a handful of officers, who may take recourse to this avenue in availing of promotion. Senior officials with decades of experience under their belt and who may not be inclined to take up a course of study late in their lives, would hardly be motivated to continue to work efficiently and when there is no longer any scope for promotion, may even contemplate discontinuing their service. And therefore, it is not a mechanism which provides for an avenue of promotion and is wholly impracticable. The morale of the rank and file of the employees would be completely destroyed if this is the only avenue of availing promotion or being eligible for promotion without any guarantee of such promotion, even after they obtain such higher qualification. Judicial notice is taken of the fact that there are no longer part-time LL.B Degree courses available in the 261 State of Karnataka and any Correspondence course may not be recognised by any University nor would they be eligible for employment under the State Government.
The view of the learned Single Judge that not more than 10% of the officials working in a particular cadre would be permitted to pursue a higher Degree course and permission has to be granted on the basis of seniority is pertinent. If this is read in conjunction with the Explanation to the Proviso, which provides for a maximum period of five years to obtain a higher qualification, going by the number of employees, even 10% of such employees per cadre would clearly require more than five years to obtain such higher qualification and therefore it is totally unworkable for all the employees desirous of gaining such higher qualification within the stipulated time. Insofar as the employees in Group-D or even the Second Division Assistants and First Division Assistants are concerned, many of them had moved on to the next post by way of promotion in the past. The minimum 262 qualification required at the time of initial appointment was Seventh Standard and not even SSLC. Therefore, a Group-D employee, who has passed the Seventh Standard is required to obtain a Degree, to be eligible for promotion, he or she would first have to complete SSLC and then a Pre-University Course, before embarking on a Degree Course. This is again totally unworkable, when only a five year period is granted to the employees desirous of obtaining a higher qualification. It is hence to be held that the mechanism provided to enable the employees to acquire the necessary educational qualification is not sustainable.
Further, it is to be noted that there was no controversy between the parties insofar as the promotions effected in respect of vacancies that arose prior to the amendment. This is apparent from the record and placing reliance on the decisions of the apex Court in Y.V.Rangaiah vs. J.Sreenivasa Rao, (1983) 3 SCC 284; Arjun Singh Rathore vs. B.N.Chaturvedi, (2007)11 SCC 605 and 263 State of Rajasthan vs. R.Dayal, (1997) 10 SCC 419, it is held that the petitioners cannot be deprived of being considered for promotion by virtue of the Proviso now substituted to the 1973 Rules, whereas, on the contrary, the posts which the petitioners would have occupied by way of promotion under the original Rules, have now been conferred on persons who are promoted pursuant to the 2009 Rules. The view of the learned Single Judge in this regard is affirmed.
It is to be kept in view that the general rule, of the court not being in a position to impose its view of facts and circumstances, on a competent authority, may not be strictly applicable in the present case on hand. The peculiarity being that the court was dealing with a case where it has first hand knowledge of the nature of duties of officers concerned and the difference any higher educational qualification would make on the efficiency of service rendered by the respective employees; to ignore that reality - on a nicety of law would be rather naive.
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This court is alive to the strict rule that the court cannot normally substitute its view on the basis of mere pleadings, without the necessary material to substantiate the pleadings. But to ignore the reality in the present case on hand would not only deprive the concerned employees of a consideration but would also result in overlooking the valuable experience, expertise and efficiency of the employees, to the peril of the Institution.
The view of the learned Single Judge that if in the case of any one candidate, the competent authority could exercise his discretion to relax the requirement of a higher educational qualification, without indicating any other special qualification being recognised - such a consideration ought to be extended to all suitable candidates who are not graduates or Law graduates - notwithstanding the 2009 Rules, is to be fully endorsed.
In the absence of a challenge to the amendment providing for 40% ratio in respect of direct recruitment to the posts of 265 Judgment Writers and Senior Judgement Writers having been set at naught, by implication, would follow from the reasoning of the learned Single Judge. When the learned Single Judge has directed the rule making authority to redo the entire process, it would necessarily have to address the quota so prescribed and it is for this reason, that the learned Single Judge has while clarifying by a subsequent order, opined that it may not require any such clarification and since we have also opined that the rule making authority would have to accommodate the employees without the requisite educational qualification, the same result would follow.
Insofar as the judgment of the learned Single Judge being contrary to the law laid down by the Apex Court in the several decisions referred to hereinabove, the reasonableness of the classification always depend on the facts of each case and to read an embargo as applicable to all fact situations without reference to other situations, such as, the historical background and the denial 266 of equal opportunity, it cannot be said that the learned Single Judge has committed any error as he has thought it fit to follow a line of cases decided by the apex Court in supporting his conclusions, just as it is thought fit, in arriving at this opinion, to follow the reasoning of the Apex Court in Kothandaraman's case, which has taken a bird's eye view of the entire case law on the subject relating to educational qualifications forming the basis of classification.
15. In the light of the aforesaid discussion and answers to the points raised for consideration, the appeals and the petitions are disposed of on the following terms:-
a) The Proviso as well as Explanation to the amended Rules of 2009 requiring higher qualifications are constitutionally valid, but shall be read down as not being applicable to the existing employees.
b) The orders of promotion in respect of vacancies that arose 267 prior to the coming into force of the 2009 Rules - impugned in WP Nos.4683-4722/2010, WP Nos.11797-11827/2010, WP Nos.22155-22184/2010, WP Nos.35966-36032/2009 and WP 37218-37249/2009, WP 35072-35111/2009 and WP 37825-
37841/2009 stand quashed.
c) Consequent to the quashing of the orders of promotion, it is also necessary in the interest of the work of the High Court that no hardship is caused from the point of view of ensuring the smooth administration of the work of the High Court and hence, the persons, whose promotions are now quashed shall, however, be permitted to continue in their respective posts as an incharge arrangement, till promotions are made in terms as above.
d) As the 2009 Rules are upheld, subject to the condition as aforesaid, the 40% ratio provided for direct recruitment for the posts of Judgment Writers and Senior Judgment Writers - is left undisturbed, unless the competent authority deems it 268 necessary to vary the same.
e) Having regard to the complaint of the petitioner in WP 10131/2010 -who is not aggrieved by the 2009 Rules, the same is delinked and directed to be posted before the bench having the roster, to be heard in due course.
Sd/-
JUDGE nv 269 Per SUBHASH B. ADI J., I have gone through the opinion of my learned brother Justice Anand Byrareddy, respectfully, I am not in complete agreement with, on some of the issues. Hence, I have rendered separate judgement.
Writ Appeal Nos.1934 to 1938 of 2011 and 2245 and 2449 of 2011 are by the Chief Justice of High Court of Karnataka questioning the common order passed by the learned single Judge dated 14.12.2010 in W.P. Nos.4683-4722/2010 and connected cases. Writ Petitions are by the employees of the High Court of Karnataka. Since common question of law is involved in all these cases, they are taken up for disposal by this common judgement.
2. Petitioners before the learned single Judge had called in question the constitutional validity of High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 2009. Learned single Judge by the common order has struck down the said rules holding that they are unconstitutional and unenforceable. It is against the said order, the Chief Justice of the High Court is in appeal. To appreciate the question of law raised in these appeals and connected cases, it is appropriate to refer to the brief facts leading to these cases: 270
3. That under Article 229 of the Constitution, the Chief Justice of High Court has been conferred with power to appoint Officers and servants of the High Court and frame rules prescribing conditions of service and method of recruitment subject to the provisions of any law made by the Legislature of the State.
4. In so far as the rules relating to salaries, allowances, leave, pensions payable to or in respect of officers and servants of the High Court are concerned, the same is subject to approval of the Governor of the State.
5. The Chief Justice, in exercise of power conferred under Article 229 of the Constitution framed rules called the High Court of Karnataka Service (Conditions of Service and Recruitment) Rules, 1973 (for brevity, called `the Principal Rules`). Since then, the service conditions of the employees of the High Court were governed by and under the said rules.
6. In 2009, the Chief Justice, invoking the provisions of Article 229(2) of the Constitution, amended the Principal Rules relating to conditions of service and the method of recruitment of the officers and servants of the High Court vide notifications dated 24.02.2009, 28.05.2009, 09.06.2009, 16.07.2009 and 29.07.2009 inter alia called as High Court Service (Conditions of Service and Recruitment) ( Amendment) Rules, 2009 (Amendment - I to V). These rules will 271 be hereinafter referred to as the "amended rules of 2009".
7. By the said amendments, method of recruitment prescribed in Schedule III to the Principal Rules was amended, mainly prescribing higher educational qualification as a criterion for promotion to the next higher cadre in respect of certain categories of posts. Most of the employees felt aggrieved by the said amendment as their promotion to the next higher cadre was subject to possessing requisite higher qualification, which was not initially prescribed at the time of the recruitment.
8. Being aggrieved by the said amendments, large section of the employees working in various Sections and categories, who did not possess higher educational qualification and who were required to acquire higher educational qualification in stipulated period subject to certain conditions and whose right to be considered for promotion was affected, filed several writ petitions questioning the constitutional validity of the 2009 amended rules.
9. W.P. Nos.35072-350711/2009 were filed by the Section Officers inter alia on the ground that, their right to be considered for promotion to the next higher cadre of Assistant Registrar has been fatally affected on account of requirement of higher educational qualification of Law Degree, which hitherto was 272 not prescribed under the Principal Rules but for the amendment, they were eligible to be considered for promotion on the basis of seniority-cum-efficiency, contending that the amended rules would deny their right to be considered for promotion, despite having put in long service.
10. W.P. Nos.37825-37841/2009 were by the First Divisional Assistants on the similar grounds. They allege that their right to be considered for promotion to the post of Senior Assistant would be denied in view of the amended rules, as they did not possess the requisite qualification prescribed under the amended rules. They also questioned promotions of respondents No.3 to 68 in their writ petitions, who were promoted under the amended rules.
11. Another set of writ petitions were filed questioning promotions given to some of the employees without following the amended rules. Their grievance was that the promotions must be in accordance with the amended 2009 rules only.
12. 2009 rules require a Degree qualification from recognized University or equivalent qualification for promotion from the post of SDA to FDA., which otherwise was not required under the principal rules. Since some of the petitioners had not possessed the Degree qualification, they sought for declaration 273 that the 2009 amended rules are unconstitutional. It is contended that the amended rules would not only hamper their chance of promotion but would deny their right to be considered for promotion, as a result it would affect their right to livelihood.
13. Similarly, the Senior Judgement Writers, Section Officers who were aspiring to be considered for promotion to the next higher cadre alleged that their right to be considered for promotion is denied on account of prescribing Law Degree from recognized University as criterion for promotion.
14. The principal contention that was raised before the learned single Judge was that, the amended rules create discrimination based on unreasonable classification and takes away the right to be considered for promotion to the next higher post and as such, they are arbitrary and unreasonable, and there is no nexus between the object sought to be achieved and the amended rules.
15. The explanation to the proviso to the amended rules is arbitrary, unworkable, unreasonable as permission that would be granted by the Chief Justice to acquire higher educational qualification of Degree or Law Degree was subject to the discretion of the Chief Justice and at a time only 10% of employees from each cadre were allowed to acquire higher educational qualification. Having regard to the strength of the officers and servants in different cadres, the method of granting 274 permission to 10% employees in each cadre to complete Degree or Law Degree within five years is not only unworkable, but is impossible as employees from Group `C` and `D` cadres, were appointed on the basis of the minimum educational qualification of 7th Standard or SSLC., and it would not be possible for them to acquire the Degree or Law Degree within five years, and it is too late in their service career to acquire the requisite qualification.
16. That the procedure followed in bringing amended rules is contrary to Article 229, as draft rules were sent to the Governor, however, the same were not approved by the Governor and they remained as draft rules, as such they are unenforceable.
17. That the vacancies arose prior to coming into force of the amended rules. Some of the employees have been promoted to the next higher post which had become vacant. The amended rules have no retrospective effect. That the vacancies, which arose prior to the coming into force of the amended rules have to be filled only under the Principal rules and not under the amended rules.
18. That for more than three decades, service conditions of the employees have been governed by and under the principal rules without the requirement of higher educational qualification. Employees have been promoted 275 based on seniority-cum-efficiency from time to time, and they have been functioning in different cadres at different levels. So far, there has been no grievance of lack of efficiency or lack of quality, as such, without even higher educational qualification as criterion for promotion to higher cadre, the employees have been rendering efficient service.
19. On behalf of the Chief Justice, it was contended that the Chief Justice under Artilce 229 of the Constitution is vested with power to frame rules relating to the service conditions and method of recruitment of officers and servants of the High Court and only in respect of matters pertaining to salary, allowances, pensions and leave, the rules framed by the Chief Justice was subject to the approval of the Governor of the State. The Chief Justice exercises the legislative function as a delegate. He is competent to frame rules. No approval of the Governor is necessary as the amended rules do not relate to the salary or allowances or pensionary benefit or leave. Rules, which involve financial implication require the approval of the Governor and not otherwise.
20. Even under the Principal rules, the Chief Justice has power to prescribe the method of recruitment. He has power to prescribe higher educational qualification as a criterion for promotion to the next higher cadre. Just because some of the employees do not possess requisite qualification and being not eligible 276 for promotion, they cannot be said to be aggrieved by the amended rules, as there is no vested right of promotion. Higher educational qualification is prescribed to ensure the efficiency at all levels and more so, in respect of higher posts, where responsibility is higher. Having regard to the changed circumstances and to achieve speedy disposal and to improve quality and efficiency at all levels, higher educational qualification is prescribed. There is no arbitrariness nor it creates any unreasonable classification nor it takes away rights of the employees to be considered for promotion. Amended rules has made a provision for granting reasonable time to the employees for acquiring higher educational qualification and Chief Justice would liberally consider the request for grant of permission to acquire higher educational qualification. Power to amend the rules is within the exclusive domain of the employer. Judicial review of such rules can only be on the grounds of having no nexus to the object sought to be achieved, unreasonableness and arbitrariness and neither of these grounds are available as the amended rules have been framed taking into account all the circumstances and done in the interest of the establishment.
21. Learned single Judge framed the following points for determination:
" 1. Whether the power given to the Chief Justice to make Rules under Article 229(2) of the Constitution in respect of the conditions of service of the High Court staff, 277 can be used to validate unconstitutional discrimination in promotional chances of persons belonging to the same category?
2. Is there a rational nexus between prescribing Degree/Law Degree qualifications and the object of higher efficiency to be achieved?
3. Whether the criterion fixed by the proviso to the amended Rules of 2009 is manifestly erroneous, arbitrary, unreasonable, irrational and discriminatory and thus violative of Articles 14 and 16 of the Constitution, when the right to considered for promotion is held to be a fundamental right?
4. Whether the requirements mentioned in the explanation to the proviso are arbitrary, unreasonable, impracticable and lacks rational nexus and hence violative of Article 14 & 16 of the Constitution?
5. In respect of the vacancies in the promotional posts which arose prior to the amendment in 2009, which Rule is applicable - old Rules of 1973 or amended Rules of 2009?
6. Whether the amended Rules which have retrospective operation has the effect of taking away the existing right under 1973 Rules and thus the amended Rules 278 are arbitrary, discriminatory and violative of the right guaranteed under Articles 14 and 16 of the Constitution and hence unconstitutional?
7. Whether the promotions given pursuant to the amended Rules are in consonance with the well established principles of service jurisprudence?
8. Is the procedure followed in bringing about the amended Rules of 2009 is in accordance with the well established principles and procedures applicable in respect of bringing amendments to the principal rules?"
and answered the said points as under:-
"i) The proviso as well as explanation to the amended Rules of 2009 requiring higher qualifications are quashed as being violative of Articles 14 and 16 of the Constitution and hence unconstitutional.
ii) The orders of promotions as per Annexure-B in W.P.Nos.
4683-4722/2010, Annexure-B in W.P.Nos. 11797-11827/2010, Annexures-G, H, J & K in W.P.Nos. 22155-22184/2010, Annexures-C, D, E & F in W.P.Nos. 35966-36032/2009 and Annexure-C in W.P.Nos. 37218-37249/2009 given to the respective respondents, whose promotions are assailed in the respective writ petitions stand quashed.
iii) Consequent to the quashing of the orders of promotion, 279 it is also necessary in the interest of the work of the High Court that no hardship is caused from the point of view of ensuring the smooth administration of the work of the High Court and hence, the persons, whose promotions are now quashed shall, however, be permitted to continue in their respective posts as an incharge arrangement, till the promotions are made in accordance with the 1973 Rules, after considering the cases of the petitioners also for promotion.
iv) As regards the relief sought by the petitioners in W.P.Nos. 22155-22184/2010 with regard to quota restriction for Senior Judgment Writers to the post of Assistant Registrar is concerned, in view of the writ petitions filed by the Section Officers in W.P.Nos. 35072-111/2009 being pending involving the same question, the said relief sought is not considered for the time being and it is left open.
v) The second respondent is directed to redo the entire process of promotions to all the posts in accordance with old Rules of 1973, and necessary steps in this regard shall be taken within eight weeks from the date of receipt of a copy of this order."
22. Sri Basava Prabhu Patil, learned senior counsel addressed his arguments on behalf of the Chief Justice. On behalf of the employees aggrieved by the amended rules, Sri S.P. Shankar and Sri Jayakumar S. Patil, learned senior counsels and Sri S.G. Bhagwan, Sri V.S. Naik and another and Sri B.V. Krishna, 280 learned counsel for the respondents addressed their arguments.
23. Sri Basava Prabhu Patil, learned senior counsel submitted that the High Court is the highest Court in a respective State. Chief Justice is the administrative head of the High Court. Under Article 229 of the Constitution, the Chief Justice exercises the legislative power as a delegate, he has power to frame rules governing the service conditions and method of recruitment of officers and servants of the High Court. Power to frame rules includes power to amend. Service conditions also includes prescribing higher educational qualification.
24. Supporting the amendments prescribing higher educational qualification, it was submitted that the stipulation of educational qualification of Degree or Law Degree as eligibility criterion for promotion to various posts was with the object of enhancing the quality and efficacy. The High Court, being Court of record, for efficient and smooth functioning, it is necessary that the officers and servants should possess the higher educational qualification to render effective service. To meet the changing challenges, the educational qualification is essential. The higher qualification is prescribed in the interest of the High Court. There is nothing arbitrary or unreasonability.
25. For posts of Senior Assistants, Senior Judgement Writers, Section 281 Officers, Court Officers, Degree of law is prescribed as a criterion for promotion to the next higher cadre as the nature of work discharged by them requires legal knowledge to handle the scrutiny, verification, limitation and court fee etc., which per se require proper legal knowledge. Similarly, Court Officers, who deal with the Court files and assist Court in providing law books and journals and providing information, maintaining the case diary to keep track of the disposed of cases, writing the note of the proceedings of the day are the essential features of the functioning of the Court officer. The Court officer without the qualification of Law Degree, may not render an effective service to the Court and may affect the speedy and effective justice delivery system.
26. To achieve the higher standard, quality and efficiency in the justice delivery system, the rules are amended prescribing requisite higher educational qualification corresponding to the nature of work discharged. It was contended that the Chief Justice as a delegatee has exercised the legislative function. Prescribing higher educational qualification cannot be termed as arbitrary or unreasonable. The object behind the amendment being to achieve higher standard and quality, which has direct nexus to the effective and speedy dispensation of justice. The object being not discriminatory, arbitrary or unreasonable and has direct nexus to the object sought to be achieved. Hence, it is neither violative of Articles 14, 16 or 21 of the Constitution nor it is beyond the power of subordinate legislation. 282
27. It is further contended that, for better and smooth functioning of the High Court with the object of achieving the efficient administration to ensure the quality justice delivery system, in the larger interest of litigant public, rules are amended. Prescribing the higher educational qualification is based on intelligible differentia having direct nexus to the object sought to be achieved. Proportional educational qualification has been prescribed according to the need, having regard to the nature of work discharged by the respective officers and servants of the High Court.
28. The Constitution itself has delegated the legislative power to Chief Justice. Legislation cannot be questioned on the ground of hardship. No employee has a right to claim that he /she should be governed only by such rules, as existed on the date of his / her entry into service. Depending upon the need and for enhancing the performance, the rules are required to be amended from time to time. For the efficiency of the service, the rules have been amended. However, to protect the interest of the employees, who do not possess such educational qualification, an opportunity is given to them to acquire educational qualification in reasonable time, to become eligible for promotion to the next higher cadre. It is also made clear that such requests would be considered liberally.
29. On the other hand, the learned senior counsel representing the 283 employees were to contend that amending the Rules would retrench the promotions once for all. The right of employees to be considered for promotion is taken away. The discretionary power given to the Chief Justice granting permission does not subserve the purpose. Employees entered into service with hope and promise of further promotions has been denied as a result, the employees would be frustrated due to the reason of stagnation. Further, acquiring higher educational qualification is unworkable and has no reasonable nexus to the object sought to be achieved. Learned counsel further contended that the nature of work and functioning of the employees do not warrant such a higher educational qualification, as the qualification prescribed at the entry level with their experience is sufficient to discharge their function in the promotional post, as it has been working for several years. Since the amended rules are based on unreasonable classification, having no rational nexus are violative of Articles, 14, 16 and 21 of the Constitution of India. The requirement of higher qualification has no relevance nor essential for promotion as the promotions are based on seniority, work experience with good track record.
30. Having not prescribed such educational qualification at the entry level, such rules cannot be amended for promotion at the time of their appointment, such rules cannot be amended as same would be hit by the principles of estoppel. 284
31. Before adverting to the rival contentions, it would be better to refer to the reasoning and findings in the order of the learned single Judge supporting the conclusion.
32. As regard to whether, the power given to the Chief Justice to make Rules under Article 229(2) of the Constitution in respect of the conditions of service of the High Court staff, can be used to validate unconstitutional discrimination in promotional chances of persons belonging to the same category, the learned single Judge relying on various judgements, has observed at para 56 of the order as under:
"56. It is thus clear from the aforesaid position in law that while the Chief Justice is the supreme authority to frame the Rules in respect of recruitment as well as conditions of service, the power of the Chief Justice is, however, subject to the limitation as contained in Article 229(2) itself and the power will have to be exercised keeping in view the aforesaid limitations as expressed by the Apex Court in the aforementioned cases as well as by the Division Bench of this court in Channegowda's case. In other words, the said power cannot be used to validate unconstitutional discrimination in promotion chances of persons belonging to the same category."
33. As regard to whether there is a rational nexus between prescribing 285 Degree/Law Degree qualifications and the object of higher efficiency to be achieved, the learned single Judge referring to the amended rules observes at para No.59 as under:
"59. From the submissions made by the learned counsel/senior counsel for the petitioners as well as learned senior counsel for Respondents 1 and 2 and after going through the records that are produced for my perusal by the learned senior counsel for the Respondents 1 and 2, there appears to be no specific reasons being given as to why Degree is insisted in respect of persons, who are in Group-D, SDA, FDA, Stenographers and Judgment Writers, for them to move to the higher post and likewise, no specific reasons are forthcoming as to why the Law Degree is insisted upon the Senior Judgment Writers. "
These observations are made by the learned single Judge by perusing the records placed before him and the learned single Judge found that there is no specific reason assigned as to why degree or law degree is prescribed as a criterion for promotion to the next higher post.
34. Learned single Judge has observed that the nature of job or the duties assigned to various categories of employees, which were brought to his notice shows that, the duties of the Group-D employees include that of keeping the office neat and tidy and deliver tappals to other sections and SDAs are required to 286 maintain the diary, organize the movements of receipt of files and distribution of files and, Senior Assistants and FDAs, are required to attend case files as per the duties assigned to them.
35. As far as the Stenographers, Judgment Writers and Senior Judgment Writers are concerned, they are entrusted with the work of stenography entrusted to them by the Hon'ble Judges, apart from receiving the tappals and files. The duties of the Court Officers and Assistant Court Officers are that of arranging the case files according to the cause list, to note the stage of the case according to the court proceedings and keep all the law books that are received for the conduct of proceedings. Section Officers are required to scrutinize the files submitted by the case worker as per the procedure prescribed. Assistant Registrars are required to be the Branch Officers in charge of one or more sections and after the scrutiny of the files submitted by the Section Officers to the Assistant Registrars.
36. The nature of work discharged by employees such as SDAs., FDAs., Stenographers, Judgement Writers, Senior Judgement Writers, Section Officers, Assistant Court Officers, Court Officers and Assistant Registrars, is purely clerical and not managerial.
37. Learned single Judge on the basis of his personal assessment of the 287 nature of work of the staff, observes that some times, SDAs will do the work of FDAs, FDAs., will do the work of Senior Assistants and Senior Assistants, in turn, will do the work of Section Officers. Likewise, Stenographers will be posted to work in place of Judgement Writers and Judgement Writers will be posted to work in place of Senior Judgement Writers and Senior Judgement Writers also look after the work of the Assistant Registrars.
38. Learned single Judge by considering the nature of work assigned to the various categories of staff and the fact that one category of officials can do the work of another category at times, has further observed that:
"It thus appears that even without possessing the required qualification as is now prescribed under the new Rules, work of the High Court has gone on smoothly right from the time of coming into force, the 1973 Rules."
It is further observed that, for the last three and half decades, the different categories of staff have gone on discharging their duties with the qualification as prescribed under 1973 Rules and even employees from Group-D category have been able to reach the post of Assistant Registrar in course of time.
39. To support his findings, the learned single Judge relied on the decision of the Apex Court in the matter of FOOD CORPORATION OF INDIA 288 Vs. OM PRAKASH SHARMA AND OTHERS (AIR 1998 S.C.2682), wherein the Apex Court, after going through the job description of various categories of employees, found that the duties performed by the persons holding AG III posts could be assigned with the same work as required to be performed by AG I and AG II and the Typists and Telephone Operators were also expected to perform duties listed in AG III category and thus the duties performed by the Typists and Telephone Operators as well as persons holding AG III posts were found to be similar. The Apex Court, taking note of the fact that non- Graduates were also performing same duties as of Graduates, held that the amendment incorporating five years of service as eligibility criterion for non-Graduates, as the classification made by the Amendment, is violative of equality clause. The Apex Court referred to various decisions in this connection and ruled that the amendments to the Regulations making a differentiation between Graduates and non-Graduates in the matter of promotions of the posts of AG-I and AG-II offend the equality clause and are, therefore, unconstitutional.
40. Having regard to the nature of work discharged by the employees of the High Court, the learned single Judge has observed that to do the clerical work or stenography work, Graduation or law degree is unnecessary.
41. Learned single Judge has further observed that as far as 289 Stenographers, Judgement Writers and Senior Judgement Writers are concerned, their basic duty is that of taking dictation given by the Judges, transcribing the dictation and placing the draft or fair copy for signature of the Judge. Even without Degree or Law Degree qualification, they are discharging their duties all these years and possession of Degree / Law Degree would not make any difference so far as the core work discharged by the Stenographers, Judgement Writers and Senior Judgement writers is concerned, it is observed that:
"It may be proper for a Research Assistant to have a Law Degree because the nature of work of the said Research Assistant requires him to take note of the arguments addressed by the learned counsel in the court and look to the decisions and place reported decisions in the light of the arguments noted by him or her, to enable the Judge concerned to render judgments at the earliest. The Stenographers, Judgment Writers and Senior Judgment Writers are not doing the functions of a Research Assistant and, therefore, asking them to have a Law Degree has no nexus between the object sought to be achieved and possession of Law Degree."
It is further observed that Stenography is a skill or talent acquired, improvised and perfected by a layman, aided and assisted by basic knowledge of grammar and control over vocabulary, ability to construct sentences i.e, syntax, command over language, unrelated to the educational qualifications. The art, skill and talent possessed by the Stenographers has no other parallel in any service jurisprudence 290 and, as such, these qualities will make a person a good Stenographer or Judgment Writer or Senior Judgment Writer, rather than the educational qualification. At para No.70, the learned single Judge refers to the experience and observes as under:
"70. It may also have to be mentioned that it has been the experience of many Judges, including the author of this judgment, that there are Stenographers, Judgment Writers and Senior Judgment Writers possessing only SSLC qualification, but they are turning out outstanding work of taking dictation flawlessly and transcribing the material into draft or fair copy, to perfection."
Therefore, the learned single Judge held that requirement of Degree qualification in respect of Group 'D', Second Division Assistants, First Division Assistants, Senior Assistants, Stenographers and Judgment Writers and requirement of Degree of Law in respect of Senior Judgment Writers has no bearing whatsoever in respect of the work to be turned out by the respective categories of employees. To support the said observation, the learned single Judge has relied upon the judgement in the case of T.R Kothandaraman Vs. Tamil Nadu Water Supply & Drianage BD, reported in (1994)6 SCC 282, and held that prescription of higher qualification under the amended rules and explanation has no nexus with the object sought to be achieved.
42. As regard to whether the criterion fixed by the proviso to the 291 amended Rules of 2009, it is held that it is manifestly erroneous, arbitrary, unreasonable, irrational and discriminatory and thus violative of Articles 14 and 16 of the Constitution, as the right to be considered for promotion is held to be a fundamental right. Learned single Judge has relied on: the judgement of Constitutional Bench of the Supreme Court in the case of Mohammad Shujat Ali Vs. Union of India, reported in AIR 1974 SC 1631; The Manager, Govt. Branch Press Vs. D.B.Belliappa, reported in AIR 1979 SC 429; another decision of Constitutional Bench of Apex Court in the case of Ajit Singh vs. State of Punjab, reported in (1999)7 SCC 209 and decision of Division Bench of this court, in the case of Channe Gowda Vs. High Court of Karnataka, reported in ILR 2004 Karnataka 4633. Learned single Judge has observed at para No.85 as under:-
"85. In the light of the aforesaid law laid down by the Constitution Bench of the Apex Court and a Division Bench of this court, the petitioners' right to be considered for promotion is, therefore, a fundamental right and it is not a mere chance for promotion. The petitioners who have been working between 10 to 30 years, as could be seen in the writ petition averments, and persons who are similarly placed like the petitioners, have not been promoted only because they have no a Degree qualification or Law Degree, and thus the right of the petitioners for being considered for promotion to the next higher post, has been severely affected. The petitioners cannot be deprived of their fundamental right to be considered for promotion by way of proviso and explanation 292 substituted by way of 2009 amendment Rules to 1973 Rules."
Learned single Judge has held that right to be considered for promotion is a fundamental right and it is not a mere chance of promotion and thus, amended rules are violative of Articles 14 and 16 of the Constitution of India.
43. As regard to whether the requirements mentioned in the explanation to the proviso to the amended rules are arbitrary, unreasonable, impracticable and lacks rational nexus and hence violative of Articles 14 & 16 of the Constitution and whether the amended Rules which have retrospective operation has the effect of taking away the existing right under 1973 Rules and thus the amended Rules are arbitrary, discriminatory and violative of the right guaranteed under Articles 14 and 16 of the Constitution and hence unconstitutional is concerned, the learned single Judge by referring to the discretionary power conferred on the Chief Justice in granting permission, has observed that, the explanation to the proviso in respect of the method of recruitment provides that even to pursue higher studies, i.e., to obtain degree or a law degree, permission has to be granted and it is not automatic and the period prescribed to obtain qualification is 5 years and thus, grant of permission is not automatic and it is also subject to the discretion of the Chief Justice and, as such, there is no guarantee of every person seeking permission, being given permission automatically because, the very explanation says the permission is not 293 automatic. The Circular at Annexure 'M" dated 24.8.2010, stipulates that at a time not more than 10% of the officers/officials working in a particular cadre shall be permitted to pursue Degree's/LL.B/LL.M/Master's Degree/MBA.
44. Group `D` employees, who have been recruited into service with a minimum qualification of 7th Standard, may take more than eight years to acquire Degree or Law Degree. The learned single Judge, relying on the judgement of the Apex Court, in the case of State of T.N. Vs. P.Krishna Murthy, reported in (2006)4 SCC 517 and in the case of N.Abdul Basheer Vs. K.K Karunakaran, reported in 1989 Supp. (2) SCC 344, has observed that there is no consistent policy followed in treating graduates and non-graduates and it amounts to creating two classes of employees belonging to the same cadre for the purpose of creating difference in promotional opportunities and is violative of Articles 14 and 16 of the Constitution of India. Learned single Judge further held that explanation to proviso is unworkable, unreasonable, imposes restriction on the right to be considered for promotion and it is violative of Articles 14 and 16 of the Constitution of India.
45. As regard to which Rule is applicable - old Rules of 1973 or amended Rules of 2009, in respect of the vacancies in the promotional posts which arose prior to the amendment in 2009, the learned single Judge has relied on the decisions of the Apex Court: in the case of Y.V.Rangaiah Vs. J.Sreenivasa Rao, 294 reported in ((1983)3 SCC 284); Arjun Singh Rathore Vs. B.N.Chaturvedi, reported in (2007)11 SCC 605and in the case of State of Rajasthan Vs. R.Dayal, reported in (1997)10 SCC 419, and has held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. Learned single Judge has held that the amended Rules have taken away not only the rights of the petitioners under the existing Rules of 1973, but also deprive them of the benefits of stepping up, time bound increments and senior scale of pay, as all of them would have been eligible for promotion but for the amendment and the amendment by way of proviso and explanation is, therefore, arbitrary, discriminatory, irrational and violative of the rights guaranteed under Articles 14 and 16 of the Constitution and hence unconstitutional.
46. As regard to whether the promotions given pursuant to the amended Rules are in consonance with the well established principles of service jurisprudence, the learned single Judge has held that special relaxation is given to one candidate as one time measure without any criterion and the promotions given to the persons, whose orders of promotion are called in question, are contrary to the well established principles of service jurisprudence and cannot be upheld in law as the said promotions are in violation of the fundamental rights of the petitioners.
47. As regard to whether the procedure followed in bringing about the 295 amended Rules of 2009 is in accordance with the well established principles and procedures applicable in respect of bringing amendments to the principal rules, the learned single Judge has held that the procedure followed both in respect of draft rules and amended rules, 2009 is not in consistence with the well established principles of law.
48. Having regard to the reasoning and findings of the learned single Judge and the rival contentions addressed by the learned counsel appearing for the respective parties, I formulate the following points for determination:
1. Whether the amended rules of 2009 violate the provisions of Article 229 of the Constitution of India?
2. Whether the amended rules of 2009 requiring higher educational qualification as eligibility criterion for promotion to the next higher cadre is violative of Articles 14, 16 and 21 of the Constitution ?
3. Whether the amended rules are applicable to the vacancies that existed prior to coming into force of the amended rules of 2009?
4. Whether the hardship caused to the employees in acquiring higher educational qualification could be a ground to declare the amended rules as arbitrary, unreasonable and violative of articles 14 and 16 of the Constitution of India ?296
49. Having regard to the several contentions raised by the respective counsel, it would be appropriate to consider:-
1) Nature and scope of the power of the Chief Justice under Article 229 of the Constitution of India;
2) Scope and extent of power of judicial review of legislative power of the Chief Justice;
3) Constitutionality of the amended rules;
4) Rights of the employees for promotion to the next higher cadre;
50. Re. Power of Chief Justice under Article 229 of the Constitution of India:
The Chief Justice is delegated with legislative power under Article 229 of the Constitution of India. He exercises the legislative power as a delegate.
Article 229 of the Constitution of India reads as under:
"229. Officers and servants and the expenses of High Courts (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
Provided that the Governor of the State may by rule require that in 297 such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State (3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund."
51. Article 229 has three folds: (1) the Chief Justice of the Court or such other Judge or officer of the Court as he may direct, shall have the power to appoint officers and servants of the High Court (2) power to frame rules governing the conditions of service of the employees of the High Court subject to the provisions of any law made by the Legislature of the State and (3) to frame rules relating to 298 salaries, allowances, leave, pension, subject to the approval of the Governor of the State.
52. Sri Jayakumar S. Patil, learned senior counsel contended that the amended rules require the approval of the Governor.
53. To my mind, I do not find any such requirement, except for rules relating to salary, allowance, leave and pension. The Apex Court had an occasion to consider the scope of the power of the Chief Justice under Article 229 of the Constitution.
54. In a judgement reported in AIR 1990 SC 334 in the matter of SUPREME COURT EMPLOYEES WELFARE ASSOCIATION VS. UNION OF INDIA AND OTHERS considering the scope of Article 146 conferring power on the Chief Justice of Hon`ble Supreme Court and Article 229 conferring power on the Chief Justice of the High Court, Apex Court has held that, the rules relating to salary, allowances, pension, leave as payable to the servants require the approval of the Governor. Apex Court at para 40 has referred to the opinion of Dr. Ambedkar in constitutional debate on Articles 146 and 229 of the Constitution, which reads thus:
" 40. In State of U.P. Vs. J.P. Chaurasia, AIR 1980 SC 19 299 this Court observed as follows (at p.25 of AIR):-
"The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it. The Court should not try to tinker with such equivalent unless it is shown that it was made with extraneous consideration."
55. The power of the Chief Justice under Article 229 of the Constitution of India has been elaborately considered by the Apex Court in the judgement reported in AIR 1998 SC 1079 in the matter of HIGH COURT OF JUDICATURE FOR RAJASTHAN VS. RAMESH CHAND PALIWAL AND ANOTHER, observing that, Article 229 makes the Chief Justice of High court the 300 supreme authority in the matter of appointment of the High Court officers and servants. This Article also confers rule making power on the Chief Justice for regulating the conditions of service of officers and servants of the High Court subject to the condition that if the Rules relate to salaries, allowances, leave and pension, they may have to have the approval of the Governor of the State. If the legislature has made any law, the rules made by the Chief Justice would operate subject to the law made in the State. At para 40 of the said judgement, it is observed as under:-
"Under the constitutional scheme, Chief Justice is the supreme authority and the other Judges, so far as officers and servants of the High Court are concerned, have no role to play on the administrative side. Some Judges, undoubtedly, will become Chief Justice in their own turn one day, but it is imperative under constitutional discipline that they work in tranquility. Judges have been described as "hermits". They have to live and behave like "hermits" who have no desire or aspiration, having shed it through penance. Their mission is to supply light and not heat. This is necessary so that their latent desire to run the High Court administration may not sprout before time, at least, in some cases."
In a later decision, the Apex Court has cautioned as to the arbitrary exercise of power by the Chief Justice in the matter of appointment of staff for the subordinate Court, in a decision reported in AIR 1991 SC 295 in the matter of H.C. 301 PUTTASWAMY AND OTHERS VS. THE HON`BLE CHIEF JUSTICE OF KARNATAKA HIGH COURT, BANGALORE AND OTHERS, inter alia holding that the Chief Justice has no power to appoint the staff of the subordinate Court. At para 11, Supreme Court observed thus:
" The judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the Courts must also take account of the totality of the Judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice, but collectively they are not trivial. They constitute, in our opinion, a substantial part of the mosaic which represents the ordinary man's perception of what the courts are and how the judges go about their work. The Chief Justice is the prime force in the High Court. Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the Court as may be directed by the Chief Justice. The object of this Article was to secure the independence of the High Court, which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. There can no 302 disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free-wheeler. He must operate in the clean world of law, not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethoes and traditions of his calling. We need hardly to say that those who are expected to oversee the conduct of others must necessarily maintain a higher standard of ethical and intellectual rectitude. The public expectations do not seem to be less exacting."
Apex Court has held that, the power of the Chief Justice in the matter of appointment is confined to the High Court only.
56. Distinction has been drawn in the matter of appointment of officers and servants of the High Court and subordinate Court. In so far as High Court is concerned, to secure independence of the High Court, which cannot be regarded as fully secured unless an authority to appoint supporting staff with complete control over them is vested in the Chief Justice.
57. Article 229 of the Constitution expressly confers legislative power. 303 Chief Justice exercises the legislative function as delegatee. There is no excessive delegation nor the rules prescribing the service conditions and method of recruitment is beyond the scope of delegated legislation. Rules framed and amendments are well within the power of delegated legislative power of the Chief Justice.
58. Thus, it leaves no doubt that, the Chief Justice has power to make the rules prescribing conditions of service and method of recruitment of the officers and servants of the High Court and the same do not require approval of the Governor as these rules do not relate to the salary, allowance, pension and leave.
59. Re. The Scope and extent of power of judicial review of legislative function of the Chief Justice.
Under Article 229 of the Constitution, the Chief Justice exercises delegated legislative function. The power of judicial review of the legislative function is limited. While considering the judicial review of legislative power, Court must consider the rational nexus between the rules framed or amended and the object sought to be promoted.
60. To further appreciate, I also refer to some of the provisions of `the 304 Principal Rules`.
61. Rule 7 of the Principal Rules provides for the recruitment to a post or a class of posts shall be made by the Chief Justice in consonance with the procedure prescribed under Schedule III to the rules. The said rule also confers power to the Chief Justice to modify the method of recruitment from time to time by general or special order.
62. Under Rule 8 of the Principal Rules except as otherwise provided in the said rules, the qualifications required for appointment to the various categories of posts by departmental promotion or otherwise shall be such as the Chief Justice may, prescribe from time to time, by general or special order.
63. From 1973, the service conditions of the officers and the servants of the High Court have been governed under the Principal Rules. However, the Chief Justice, in exercise of his power conferred on him under Article 229 of the Constitution, ordered for issue of notification amending the Principal Rules relating to the method of recruitment. Amongst the others, higher educational qualification was prescribed as an eligible criterion for promotion to the next higher cadre.
64. By notification dated 24.02.2009, schedule III was amended in 305 respect of posts relating to: Senior Judgement Writer; Judgement Writer; Stenographer; Second Division Assistant and the Computer operator / Typist.
65. In respect of Senior Judgement Writers, amended rule requires that 60% of the total strength of the Senior Judgement Writers shall be by promotion by selection from the cadre of Judgement Writers working in the High Court office on the basis of a test conducted for the purpose, giving weightage for seniority and service records as prescribed; provided that they shall satisfy the educational qualification of possessing Law Degree from the recognized University or equivalent examination. The remaining 40% of the posts shall be recruited by Direct Recruitment by selection after calling for applications and holding a competitive test and interview. Judgement Writers as well as Stenographers working in the High court of Karnataka / Subordinate Courts were also eligible for the Direct Recruitment provided they obtain necessary permission from the Competent Authority under whom they were serving, subject to competitive test and interview. The minimum educational qualification prescribed was Degree in Law, Senior Grade Examination in English Shorthand in First Class or the Proficiency Grade Examination in English Shorthand and Senior Grade Examination in Typewriting in English etc.
66. Similarly, in respect of the Judgement Writers, 60% of the total 306 strength were to be filled up by promotion. Amongst others, minimum educational qualification of Degree from the recognized University or equivalent examination was prescribed. Remaining 40% shall be filled up by direct recruitment by selection after calling applications from candidates who have passed Senior Grade Examination in English Shorthand in First class or Proficiency Grade Examination in English Shorthand and holding a competitive test and interview, with the further qualification of Degree from a recognized University.
67. In respect of Stenographers, they shall possess a Degree from a recognized University or equivalent examination, apart from other qualifications.
68. In respect of Second Division Assistants, 50% of the posts to be filled up by direct recruitment by selection, with minimum educational qualification of Degree and the remaining 50% of the posts to be filled up by promotion on the basis of seniority-cum-merit from the cadre of Group `D` officials working in the High Court Establishment with minimum educational qualification of degree from recognized University or equivalent.
69. In respect of Computer Operator / Typist (Sl. No.22), 85% of the posts to be filled up by direct recruitment and the remaining 15% by promotion from the Group `D` officials. However, for both, minimum educational 307 qualification of Degree from recognized University or equivalent was prescribed.
70. Before the amended rules of 2009, the method of recruitment to the posts of Senior Judgement Writer and the Judgement Writer was by promotion from the post of Judgement Writer and Stenographer respectively on the basis of a test conducted for the said purpose, by giving due weightage to the seniority and service records as prescribed. In respect of judgement writers, the feeder cadre was the Stenographers, who have put in not less than one year of service or the Judgement Writers or Selection Grade Stenographers working in Sub-ordinate Courts on the basis of a test conducted for the purpose, by giving due weight for inter-seniority and service records.
71. Posts of Stenographers were filled by promotion by selection from amongst Typists, who had passed Senior Grade in both Typewriting and Shorthand exams conducted by the Department of Public Instruction of the Karnataka Secondary Education Board or equivalent examination with minimum qualification of SSLC, or direct recruitment with similar qualification.
72. In respect of posts of Typists, 85% posts were filled up by direct recruitment and 15% by promotion by selection of Group `D` officials. 308
73. However, the method of recruitment was altered by amending rules by issue of notification dated 24.02.2009. Under the amended rules, for the promotion to the post of Senior Judgement Writer, apart from other requirement was subject to possessing his/her qualification of Law Degree from a recognized University, which hitherto was not prescribed under the principal rules. Similarly, for the promotion to the post of Judgement Writer and Stenographer, the higher educational qualification of Degree from a recognized University was prescribed as a criterion. For post of Second Division Assistant also, Degree from a recognized University was prescribed as a criterion for promotion from the post of Group `D` employees. Before amendment to the Schedule III to the rules, no higher educational qualification was prescribed as a criterion for the purpose of promotion to the next higher cadre.
74. Similarly, in respect of the post of Assistant Registrar / Assistant Registrar Protocol, which were filled up by promotion by selection at the ratio of 2:1:1 from the cadre of Section Officers, Court Officers and Senior Judgement Writers provided they possess the higher educational qualification of Degree in Law from a recognized University. However, no higher educational qualification was prescribed under the Principal Rules.
75. For the first time, the higher educational qualification was prescribed 309 as eligibility criterion for promotion to the next higher cadre in the High Court by amending the rules relating to the method of recruitment. Since no such eligibility was prescribed earlier, and those who were not possessing the higher educational qualification, their service conditions were got affected and their chances of promotion were diminished, they challenged the constitutional validity of these amended rules of 2009.
76. Promotions are granted to the higher post to avoid stagnation as well as frustration among the employees. The subordinate legislation relating to promotion must be judged keeping in view the object and purport thereof. It must subserve the object rather than subverting the same. If a Rule has the effect of seriously jeopardising the chances of promotion, such rule may amount to imposing unreasonable restriction. However, it depends on facts and circumstances of each case.
77. The Apex Court in the judgement reported in ((2008) 5 SCC 416) in the matter of A. SATYANARAYANA AND OTHERS VS. S. PURUSHOTHAM AND OTHERS while considering the fixing of ratio for promotion to the next higher cadre from two different cadre, has held that the judicial review of the subordinate legislation is permissible if the rule suffers from arbitrariness, irrationality, unreasonableness or has no nexus with the object, which is sought to 310 be achieved. Though, legislation is presumed to be reasonable, but the legislation must be capable of being taken to a logical conclusion. Para 33 of the said judgement reads as under:-
"We have no doubt in our mind that before a rule is declared ultra vires, the same must be held to be wholly arbitrary or irrational. In any event a plea of discrimination based on adequate pleadings therefor would be essential. What, however, must be noticed by us is that the impugned rule does not take into consideration the events which may take place in future, as for example, increase in the strength in the cadre. If the number of posts for promotion is limited to 10, even in a case like the present one where the number of posts has gone up, only 10 posts can be filled up from the cadre of the PSs although the same would contravene the ratio of 14:1. If the Government intends to change the ratio, it may do so. It may also provide for separate rules providing for maintenance of two different cadres at all levels. But what is impermissible is laying down a condition subsequent to adoption of a policy decision which defeats the object and purport thereof."
78. While exercising the power of judicial review, the Court is entrusted with the task of examination as to, whether the decision taken by the authority is proportionate and is well balanced and harmonious. To this extent, the Court may indulge merit review and if the Court finds that the decision is proportionate, it seldom interfere with the decision taken and if it finds that the decision is 311 disproportionate i.e., if the Court finds that it is not well balanced or harmonious and does not stand to reason, it tends to interfere.
79. The Apex Court in a decision reported in (2010 SCC (6) 614) in the matter of CHAIRMAN, ALL INDIA RAILWAY RECRUITMENT BOARD AND ANOTHER VS. K. SHYAM KUMAR AND OTHERS at paras 36 and 37 has observed thus:
"36. Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to "assess the balance or equation" struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straitjacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future.312
37. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The Court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere."
80. To understand as to whether the decision maker has achieved more or less the correct balance or equilibrium, and to examine the proportionality, it is necessary to consider the facts and circumstances of these cases. It is submitted on behalf of Chief Justice that the requirement of higher educational qualification is reasonable and has rational nexus to the object sought to be achieved and does not create discrimination.
81. To appreciate this contention, it is proper to refer to the rules relating to the method of recruitment prior and after amendment.
"The existing method of recruitment and amendments to be 313 substituted in place of the earlier method of recruitment, in respect of the petitioners herein, with reference to Notification No.HCE 221/2009 dated 29.7.2009 published in the Gazette, are as under:
THE HIGH COURT OF KARNATAKA SERVICE (CONDITIONS OF SERVICE AND RECRUITMENT) (V AMENDMENT) RULES, 2009.
Method of Recruitment to the posts of First Division Assistants from Second Division Assistants and Typists:
Existing method Amendment to be
Sl.No. Cadre Name of Recruitment substituted in the place
of existing method of
recruitment
1. To the Cadre By promotion By promotion from the
of First from the cadres cadres of SDAs and
Division of SDAs and Typists in the ratio of
Assistants Typists in the 6:4 (6 SDAs and 4
ratio of 6:4 (6 Typists) as far as
SDAs and 4 possible; Provided that,
Typists) as far as an official of one of the
possible; above two cadres shall
Provided that, an not be given promotion
official of one the to the cadre of First
above two cadres Division Assistants/
shall not be given Audit Clerks, earlier to
promotion to the the promotion of the
cadre of First officials of the other
Division Assist- cadre who had become
ants/Audit Cler- members of that cadre
ks, earlier to the prior to the date on
promotion of the which the former official
officials of the became a member of
other cadre who his/her cadre.
had become
members of that Provided they shall
cadre prior to the possess a Degree from
314
date on which the any University
former official established by Law in
became a India and Certificate
member of Course in Computer
his/her cadre. Application.
Explanation: 1. The
present members who
are working as First
Division Assistants and
who do not possess the
required qualification,
shall qualify themselves
without affecting the
regular work, with prior
permission of Hon'ble
the Chief Justice, within
a period of five years,
failing which they shall
not be entitled for
further promotion.
The permission is not
automatic, but subject
to the interest of the
Institution. Such
permission shall not
take away the rights of
the senior employees
and does not confer the
undue privileges on the
junior employees. The
qualification obtained
without following the
above norms would not
be taken into
consideration, till they
come within the zone of
consideration.
Note: 1) For securing
minimum qualification
prescribed for this cadre
within stipulated time,
the permission may be
315
liberally granted.
2) The period of time
prescribed for securing
minimum qualification
(i.e. five years) starts
from the date of
permission.
Note: For the posts of
Audit Clerks preference
will be given to the
officials who possess
Bachelors' Degree in
Commerce.
Method of Recruitment to the posts of Senior Assistants from First Division Assistants:
Existing method Amendment to be
Sl.No. Cadre of Recruitment substituted in the place
of existing method of
recruitment
1. To the cadre By promotion on By promotion on the
of Senior the basis of basis of seniority-cum-
Assistants seniority-cum- efficiency from the cadre
efficiency from of First Division
the cadre of First Assistants, Accountants,
Division Audit Clerks, Assistant
Assistants, Librarians working in
Accountants, the High Court.
Audit Clerks,
Assistant Provided they shall
Librarians and possess a Degree from
Junior Statistical any university
Assistant working established by Law in
in the High India or equivalent.
Court.
Explanation: 1. The
present members who
are working as Senior
316
Assistants and who do
not possess the required
qualification, shall
qualify themselves
without affecting the
regular work, with prior
permission of Hon'ble
the Chief Justice, within
a period of five years,
failing which they shall
not be entitled for
further promotion.
The permission is not
automatic, but subject
to the interest of the
Institution. Such
permission shall not
take away the rights of
the senior employees
and does not confer the
undue privileges on the
junior employees. The
qualification obtained
without following the
above norms would not
be taken into
consideration, till they
come within the zone of
consideration.
Note: 1) For securing
minimum qualification
prescribed for this cadre
within stipulated time,
the permission may be
liberally granted.
2) The period of time
prescribed for securing
minimum qualification
(i.e. five years) starts
from the date of
permission.
317
Method of Recruitment to the posts of Stenographers from Typists, Judgment Writers from Stenographers and Senior Judgment Writers from Judgment Writers:
Existing method Amendment to be
Sl.No. Cadre of Recruitment substituted in the place
of existing method of
recruitment
1. To the cadre (a) By promotion By promotion by
of by selection from selection from amongst
Stenographers amongst Typists Typists who have passed
who have passed Senior Grade
Senior Grade in examination in both
both Typewriting Typewriting and
and Shorthand Shorthand conducted by
conducted by the the Department of
Department of Public Instruction of
Public the Karnataka
Instruction of the Secondary Education
Karnataka Board or equivalent
Secondary examination working on
Education Board the establishment of the
or equivalent High Court or from
examination amongst the
working on the Stenographers working
establishment of in the Subordinate
the High Court or Courts, or by both, on
from amongst the the basis of a Test
Stenographers conducted for the
working in the purpose, due weight
Subordinate being given to seniority
Courts, or by and service records, as
both, on the prescribed; provided
basis of a Test that they shall possess
conducted for the Degree from a
purpose, due recognised university or
weight being equivalent examination.
given to seniority
and service Explanation: 1. The
records, as present members who
prescribed: or are working as
Stenographers and who
318
(b) By direct do not possess the
recruitment by required qualification,
selection (after shall qualify themselves
calling for without affecting the
applications and regular work, with prior
holding a permission of Hon'ble
competitive test the Chief Justice, within
and interview). a period of five years,
failing which they shall
Minimum not be entitled for
Qualifications: further promotion.
(for direct
recruitment) The permission is not
automatic, but subject
1. Must have to the interest of the
passed the SSLC Institution. Such
examination permission shall not
conducted by the take away the rights of
Karnataka the senior employees
Secondary and does not confer the
Education Board undue privileges on the of equivalent junior employees. The Examination qualification obtained without following the Note: Preference above norms would not will be given to be taken into those who are consideration, till they graduates. Must come within the zone of have passed: consideration.
2. 1. The senior Note: 1) For securing grade minimum qualification examination in prescribed for this cadre English within stipulated time, Shorthand in the permission may be first class; or liberally granted.
The 2) The period of time
Proficiency
Grade prescribed for securing
Examination minimum qualification
in
English (i.e. five years) starts
Shorthand; and from the date of
permission.
2. Senior Grade 3) If no eligible
Examination in candidate is available
319
Typewriting in for promotion, such
English vacant post may be filled
conducted by the up by direct
Department of recruitment.
Public
Instruction of the 4. The candidate shall Karnataka possess a Certificate in Secondary Word Processing or Education Board equivalent.
or equivalent or qualification. 2. By direct recruitment by selection (after calling for applications and holding a competitive test and interview).
Minimum Qualifications:
(for direct recruitment)
1. Must possess a degree from a recognized university or equivalent examination.
2. The Senior Grade Examination in English Shorthand with 60% of aggregate marks; or The Proficiency Grade Examination in English Shorthand; and
3. Senior Grade Examination in Typewriting in English conducted, by the Department of Public Instruction of the Karnataka Secondary Education Board or equivalent qualification.
4. Certificate in Computer Word 320 Processing or equivalent.
Note: 1) Preference will be given to those candidates who possess the qualification of Senior Grade examination in Typewriting and Shorthand in Kannada language.
2) The procedure for conducting test which was followed previously for the promotion to the cadres of Stenographers shall also be followed for the Direct Recruitment to the said posts.
2. To the cadre By promotion by 1) 60% of the total of Judgment selection from strength shall be Writers among: recruited by promotion by selection from
(a) Stenographers among:
working in the High Court (a) Stenographers Establishment working in the High who have put in Court Establishment not less than one who have put in not less year of service as than one year of service such; or as such; or
(b) Judgment (b) Judgment Writers or Writers or Selection Grade Selection Grade Stenographers working Stenographers in Sub-ordinate Courts working in Sub- on the basis of a test ordinate Courts conducted for the on the basis of a purpose, giving due test conducted weight for inter-seniority for the purpose, and service records as 321 giving due weight prescribed.
for inter-seniority and service Provided that they shall records as possess Degree from a prescribed. recognized university or equivalent examination.
Note: Preference will be
given for Law
Graduates.
Explanation: 1. The
present members who
are working as
Judgment Writers and
who do not possess the
required qualification,
shall qualify themselves
without affecting the
regular work, with prior
permission of Hon'ble
the Chief Justice, within
a period of five years,
failing which they shall
not be entitled for
further promotion.
The permission is not
automatic, but subject
to the interest of the
Institution. Such
permission shall not
take away the rights of
the senior employees
and does not confer the
undue privileges on the
junior employees. The
qualification obtained
without following the
above norms would not
be taken into
consideration, till they
come within the zone of
consideration.
322
Note: 1) For securing
minimum qualification
prescribed for this cadre
within stipulated time,
the permission may be
liberally granted.
2) The period of time
prescribed for securing
minimum qualification
(i.e. five years) starts
from the date of
permission.
3) If no eligible
candidate is available
for promotion, such
vacant post may be filled
up by direct
recruitment.
4) The candidate shall
possess a Certificate
Course in Word
Processing or
equivalent.
2) Remaining 40% of
posts shall be recruited
by Direct Recruitment
by Selection (after
calling application and
holding a competitive
test and interview)
Minimum Qualifications
(for Direct Recruitment)
1) Must possess Degree
from a recognised
University or equivalent
examination.
Note: Preference will be
given to the Law
323
Graduates.
2) i) Senior Grade
examination in English
Shorthand in First
Class; or the Proficiency
Grade Examination in
English Shorthand; and
ii) Senior Grade
examination in
Typewriting in English
conducted by the
Department of Public
Instruction of Karnataka
Secondary Education
Board or equivalent
examination.
3) Certificate in
Computer Word
Processing or
equivalent.
Note: 1) Preference will
be given to those
candidates who possess
the qualification of
Senior Grade
examination in
Typewriting and
Shorthand in Kannada
language.
2) The procedure for
conducting test which
was followed previously
for the promotion to the
cadres of Judgment
Writers shall also be
followed for the Direct
Recruitment to the said
posts.
3) For Direct
324
Recruitment inservice
candidates may also
compete.
3. To the cadre By promotion by 1) 60% of the total
of Senior selection from the strength of Senior
Judgment cadre of Judgment Writers shall
Writer Judgment be recruited by
Writers working promotion by selection
in the High Court from the cadre of
office on the Judgment Writers
basis of a test working in the High
conducted for the Court office on the basis
purpose, giving of a test conducted for
the weight for the purpose, giving the
seniority and weightage for seniority
service records as and service records as
prescribed. prescribed; provided
that they shall satisfy
the following conditions
hereunder:
a) They shall possess
Law Degree from the
recognized University or
equivalent examination.
Explanation:
1. The present members
who are working as
Senior judgment Writers
and who do not possess
the required
qualification, shall
qualify themselves
without affecting the
regular work, with prior
permission of Hon'ble
the Chief Justice, within
a period of five years,
failing which they shall
not be entitled for
further promotion.
325
The permission is not
automatic, but subject
to the interest of the
Institution. Such
permission shall not
take away the rights of
the senior employees
and does not confer the
undue privileges on the
junior employees. The
qualification obtained
without following the
above norms would not
be taken into
consideration, till they
come within the zone of
consideration.
Note: 1) For securing
minimum qualification
prescribed for this cadre
within stipulated time,
the permission may be
liberally granted.
2) The period of time
prescribed for securing
minimum qualification
(i.e. five years) starts
from the date of
permission.
3) If no eligible
candidate is available
for promotion, such
vacant post may be filled
up by direct
recruitment.
4) The candidate shall
possess a Certificate
Course in Word
Processing or
equivalent.
326
2) Remaining 40% of the
posts shall be recruited
by Direct Recruitment
by Selection (after
calling application and
holding a competitive
test and interview) and
the Judgment Writers as
well as Stenographers
working in the
establishment of the
High Court of
Karnataka/Sub-ordinate
Courts are also eligible
for the Direct
Recruitment, provided
they shall obtain
necessary permission
from the Competent
Authority.
Minimum Qualifications
(for Direct Recruitment)
1. Must possess Degree
in Law from the
recognised University or
equivalent examination
and,
2. i) Senior Grade
examination in English
Shorthand in First
Class; or the Proficiency
Grade Examination in
English Shorthand; and
ii) Senior Grade
examination in
Typewriting in English
conducted by the
Department of Public
Instruction of Karnataka
Secondary Education
Board or equivalent
327
examination.
3. Certificate in
Computer Word
Processing or equivalent
Note: 1) Preference will
be given to those
candidates who possess
the qualification of
Senior Grade
examination in
Typewriting and
Shorthand in Kannada
Language also.
2) The procedure for
conducting test which
was followed previously
for the promotion to the
cadres of Senior
Judgment Writers shall
also be followed for the
Direct Recruitment to
the said posts.
Method of recruitment to the posts of Second Division Assistants from Group 'D' officials.
Existing method Amendment to be
Sl.No. Cadre of Recruitment substituted in the place
of existing method of
recruitment
1. To the cadre (a) 50% by direct (a) 50% by direct
of Second recruitment by recruitment by selection
Division selection after after calling for
Assistants calling for application and
application and interviewing the
interviewing the applicants. The
applicants. The minimum qualification
328
minimum for direct recruitment
qualification for shall be a degree in
direct Science/Arts/Commerce
recruitment shall /Business Management
be a degree of a of a recognised
recognised University with
University with minimum of 55% marks
minimum of 55% in the aggregate for
marks in the candidate belonging to
aggregate for General category and a
candidate minimum of 45% marks
belonging to in the aggregate to
General Category Schedule Caste and
and minimum of Schedule Tribes.
45% marks in the
aggregate to (b) 50% promotion on
Schedule Caste the basis of seniority-
and Schedule cum-merit from the
Tribes. cadre of Group D
officials working in the
(b) 25% High Court
promotion on the Establishment and who
basis of seniority- have passed degree
cum-merit from examination of
the cadre of recognised University
Group D officials and who have put in not
working in the less than two years of
High Court service.
Establishment
and who have Explanation: 1. The
passed degree present members who
examination of are working as Second
recognized Division Assistants and
University and who do not possess the
who have put in required qualification,
not less than one shall qualify themselves
year of service. without affecting the
regular work, with prior
(c) 25% by permission of Hon'ble
promotion on the the Chief Justice, within
basis of seniority- a period of five years, cum-merit from failing which they shall the cadre of not be entitled for Group D officials further promotion.
working in the 329 High Court The permission is not Establishment automatic, but subject and who have to the interest of the passed the SSLC Institution. Such or equivalent permission shall not examination and take away the rights of who have put in the senior employees not less than 3 and does not confer the years of service. undue privileges on the junior employees. The (d) If any vacancy qualification obtained cannot be filled without following the up by promotion above norms would not for want of be taken into suitable consideration, till they candidate from come within the zone of the cadre of consideration. Group D officials possessing degree Note: 1) For securing qualification, the minimum qualification same shall be prescribed for this cadre filled up by within stipulated time, promoting the permission may be suitable liberally granted. candidate from the cadre of 2) The period of time Group D officials prescribed for securing possessing SSLC minimum qualification or equivalent (i.e. five years) starts qualification. from the date of permission. (e) If any vacancy meant for Group 3) If no eligible D officials cannot candidate is available be filled up by for promotion, such promotion for vacant post may be filled want of suitable up by direct candidate the recruitment. same shall be filled by direct recruitment. 330
Method of Recruitment to the posts of Section Officers from Senior Assistants:
Existing method Amendment to be
Sl.No. Cadre of Recruitment substituted in the place
of existing method of
recruitment
1. To the cadre (a) By promotion By promotion on the
of Section on the basis of basis of seniority-cum-
Officers seniority-cum- efficiency from the cadre
efficiency from of Senior Assistants
the cadre of borne on the
Senior establishment of the
Assistants, High Court on the basis
Senior Statistical of length of service in
Assistant, and that particular cadre.
Audit
Superintendents Provided that they shall
borne on the possess a Degree from
establishment of any university
the High Court established by Law in
on the basis of India or equivalent.
length of service
in that particular Explanation: 1. The
cadre. present members who
are working as Section
Provided that the Officers and who do not
post of Section possess the required
Officers of qualification, shall
Judicial Wing qualify themselves
Typing Pool, without affecting the
Paper Book regular work, with prior
Section and permission of Hon'ble
Copying the Chief Justice, within
Branches I and II a period of five years,
may be filled up failing which they shall
by posting senior not be entitled for
most of the further promotion.
Senior Judgment
Writers. (method The permission is not
of recruitment for automatic, but subject
Section Officers to the interest of the
except (I) Section Institution. Such
Officer, Judicial permission shall not
331
Wing Typing Pool take away the rights of
(ii) Section the senior employees
Officer, Paper and does not confer the
Book Section (iii) undue privileges on the Section Officer, junior employees. The Copying Branch- qualification obtained I, (iv) Section without following the Officer, Copying above norms would not Branch-II) be taken into consideration, till they
(b) By transfer of come within the zone of a Senior consideration.
Judgment Writer working in the Note: 1) For securing High Court. minimum qualification (method of prescribed for this cadre recruitment of within stipulated time, Section Officers the permission may be of Judicial Wing liberally granted. Typing Pool, Paper Book 2) The period of time
Section, Copying prescribed for securing Branch I and minimum qualification Copying Branch- (i.e. five years) starts II). from the date of permission.
(c) Initially the posts of Senior Protocol Officers which are upgraded as Section Officers (Protocol) shall be filled up by shifting the lien of Shriyuths D.R.Balakrishna and K.S. Raghavendra Rao, Section Officers to these upgraded posts of Section Officers (Protocol). 332 Note:- (a) The posts of Section Officers (Protocol) shall be upgraded to that of an Assistant Registrar when an Officer in the Cadre of Section Officer of all Sections who has put in equal or lesser number of years of service in that cadre than the Section Officers (Protocol) gets promotion as Assistant Registrar, the incumbents shall continue in the upgraded posts of Section Officers (Protocol) as long as they hold the said posts of Section Officers (Protocol) shall stand downgraded to the original cadre. (b) Initially the upgradation shall be for a period of 2 years and the approval shall be obtained for further continuance of the upgraded posts of Section Officers 333 (Protocol), if the incumbents continue in the upgraded posts for more than 2 years. By transfer of Section Officers of all sections having aptitude in protocol work. (method of recruitment to the post of Section officer (Protocol).
82. For the post of First Division Assistant, the principal rules prescribe 6:4 ratio from the cadre of Second Division Assistant and Typist. All the posts of First Division Assistant are filled up only by promotion. However, no additional educational qualification was prescribed under the principal rules for promotion. Under the amended rules, Degree from the University established by law and Certificate of Computer Applications is must.
83. Similarly, to the post of Stenographers and Judgement Writers, higher qualification of Degree has been prescribed as eligibility criterion for promotion to the next higher cadre. In respect of the posts of Senior Judgement Writers, Section Officers, Court Officers, Assistant Registrars, Degree of Law has been prescribed as eligibility criterion for promotion to the said posts. 334
84. It was contended that, once the educational qualification is prescribed at the entry level, the rules existed then, will alone regulate the service conditions of such employees, if the higher educational qualification was not prescribed as eligibility criterion for promotion, then the authority is estopped from prescribing the higher educational qualification as a criterion for promotion by means of the principles of promissory estoppel.
85. As regards the contention that the amended rules are hit by principles of promissory estoppel, to my mind, I am clear that there cannot be any estoppel against the law much less against the exercise of legislative function. Hence, I find no merit in this contention.
86. Employee has no right to claim that, the rules existed at the time of entry into service should remain the same for ever. To support the same, I rely on decision of the Apex court reported in ((2003) 2 SCC page 632) in the matter of P.U. JOSHI AND OTHERS VS. ACCOUNTANT GENERAL, AHMEDABAD AND OTHERS in a case where Supervisors in Accountant General (Accounts and Entitlement) who had not passed Section Officers Grade Examination, though getting pay scale similar to the Section officer, it was held that they cannot be treated on a par with Sections Officers merely because a common seniority list was prepared. Even though a common seniority list was prepared, such Supervisors 335 were required to pass SOG examination for promotion to the post of Section Officer and it is as such, Section Officers were considered senior to the unqualified Supervisors and for promotion to the higher post Assistant Accounts Officers only Section Officers are considered eligible. Same was questioned by the Supervisors. The Apex Court, having regard to the prescribing of qualification as a criterion for promotion, has observed thus:-
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and 336 constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
(Underlining supplied by me)
87. It is settled law that, when the Courts dealing with the subordinate legislation, it has no choice but to consider the validity of the statute only under the constitutional scheme. Whether it likes it or not, it has to go by the purport of the legislative intention. Court should interpret the provision to sustain its validity by giving such meaning to the provisions which advances the object sought to be achieved.
88. The Apex Court in a judgement reported in AIR 1987 SC page 117 in the matter of CHANDAVARKAR SITA RATNA RAO VS. ASHALATA S. GURAM, has observed thus:
337
"64. In finding out the meaning of the expressions used, the Courts must find out what is legal, not what is right. It may not be inappropriate to refer to the observations of Burger, C.J. in TVA v. Hill, U.S. Supreme Court Reports, (1978) 57 Lawyers' Ed.2d 117, 119 at 146 as follows:
"Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here."
Wisdom does not lie with the Court to substitute its personal view to the intention of the legislation.
89. In another case, the Apex Court, while considering the extent of power under delegated legislation, in a case reported in ((1984) 4 SCC page 27) in the matter of MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION AND ANOTHER VS. PARITOSH BHUPESHKUMAR SHETH AND OTHERS, has observed as under: 338
"The question whether a particular piece of delegated legislation -- whether a rule or regulation or other type of statutory instrument -- is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the court to substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the 339 impugned regulations fall within the scope of the regulation- making power conferred on the delegate by the Statute. Though this legal position is well established by a long series of decisions of this Court, we have considered it necessary to reiterate it in view of the manifestly erroneous approach made by the High Court to the consideration of the question as to whether the impugned clause (3) of Regulation 104 is ultra vires."
(underlining supplied by me)
90. Having regard to the principles enunciated by the Apex Court in its decision in P.U. Joshi`s case and Maharashtra State Board of Secondary and Higher Secondary Education`s case, I may refer to the reasoning given by the learned single Judge declaring the amended rules 2009 as ultra vires and unconstitutional. The learned Judge at paras 69 to 72 of his order has observed thus:
"69. As far as Stenographers, Judgment Writers and Senior Judgment Writers are concerned, their basic duty is that of taking dictation given by the Judge, transcribing and placing the draft or fair copy for the signature of the Judge. In other words, Stenographers and Judgment Writers and Senior Judgment Writers, even without Degree/Law Degree qualification are discharging their duties all these years and possession of said degrees would make no difference, so far as the core work to be discharged by the Stenographers and Judgment Writers and Senior Judgment Writers is concerned. It may be proper for a Research Assistant to have a Law Degree because the nature of work of the said Research Assistant requires him to take note of the arguments addressed by 340 the learned counsel in the court and look to the decisions and place reported decisions in the light of the arguments noted by him or her, to enable the Judge concerned to render judgments at the earliest. The Stenographers, Judgment Writers and Senior Judgment Writers are not doing the functions of a Research Assistant and, therefore, asking them to have a Law Degree has no nexus between the object sought to be achieved and possession of Law Degree. In this connection, it may not be out of place to refer to the nature of work of Stenographers, Judgment Writers and Senior Judgment Writers which have been referred at paragraph 1.4 in W.P.Nos. 22155-185/2010 and it is rightly stated in the said paragraph that stenography is a skill or talent acquired, improvised and perfected by a layman, aided and assisted by basic knowledge of grammar and control over vocabulary, ability to construct sentences i.e, syntax, command over language, unrelated to the educational qualifications. The art, skill and talent possessed by the Stenographers has no other parallel in any service jurisprudence and, as such, these qualities will make a person a good Stenographer or Judgment Writer or Senior Judgment Writer, rather than the educational qualification.
70. It may also have to be mentioned that it has been the experience of many Judges, including the author of this judgment, that there are Stenographers, Judgment Writers and Senior Judgment Writers possessing only SSLC qualification, but they are turning out outstanding work of taking dictation flawlessly and transcribing the material into draft or fair copy, to perfection. As such, the averments made in paragraph 1.4 of the aforementioned 341 Writ Petitions carry substance and moreover they have not been controverted by Respondents 1 and 2 in their objections. Therefore, requirement of Degree qualification being obtained by Group 'D', SDA, FDA, Senior Assistant, Stenographers and Judgment Writers and Degree of Law being insisted on the Senior Judgment Writers has no bearing whatsoever in respects of the work to be turned out by the respective categories of employees.
71. The Apex Court, in the case of T.R Kothandaraman Vs. Tamil Nadu Water Supply & Drianage BD, reported in (1994)6 SCC 282, has held that while classification based on higher educational qualification is permissible but total restriction cannot be imposed so as to block the chances of promotion. The Court also held that while determining validity of the classification, historical background, efficiency in service, need for higher education and social justice, have to be kept in mind and approach should be in consonance with Articles 14, 16 and 21 of the Constitution of India. The Apex Court at paragraph-16 of the aforesaid decision laid down the following legal propositions with regard to the educational qualification being a basis of classification relating to promotion in pubic service:
"(1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case;
(2) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the 342 scope of promotion;
(3) Restriction placed cannot however go to the extent of seriously jeopardizing the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later."
72. Apart from this, even in the records placed for my perusal, no specific reasons are assigned as to why the Degree is insisted upon Group 'D', SDA, FDA, Stenographers and Judgment Writers and LL.B. Degree is insisted upon Senior Judgment Writers. Accordingly, the point for consideration is answered holding that prescription of higher qualifications under the amended rules and explanation has no nexus with the object sought to be achieved."
91. From the above observations and the reason assigned by the learned single Judge, it appears that, the learned single Judge has taken into consideration his personal experience, to form an opinion as to whether prescribing the higher educational qualification as a criterion for promotion is necessary or not. Apex Court in the matter of `Ramesh Chand Paliwar` has held that the Chief Justice is the supreme authority so far as administration of the High Court is concerned and the other Judges have no role to play on the administrative side.
92. It may be pertinent to mention that the Chief Justice exercises 343 delegated or subordinate legislative function. It is well within his power to prescribe such conditions as he deems fit and rational. It is the wisdom of the policy maker to decide as to what should be the policy to meet the administrative exigencies. It must be left to the wisdom of the subordinate legislative authority. Court cannot sit in appeal over the policy decisions, except considering as to whether the impugned subordinate legislation is unconstitutional as it violates the fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution. The judicial review of the legislative function is limited.
93. In a judgement reported in ((2000) 9 SCC 412) in the matter of TECHNICAL EMPLOYEES` ASSOCIATION OF RAILWAYS AND ANOTHER Vs. MINISTRY OF RAILWAYS AND OTHERS, the Apex Court has observed as under:-
"3. The petitioner`s contention is that Khalasi who are already in service, did not possess the aforesaid qualification and if such a circular is allowed to operate, there will be stagnation and, therefore, the impugned circular be quashed being hit by Articles 14 and 16 of the Constitution of India. Prescribing higher qualification for the purpose of promotion whether permissible under law no longer remains res integra. As early as in the case of Union of India Vs. S.B. Kohli (Dr.) in a matter relating to the Central Health Service Rules, this Court has held that it would be open for the employer to prescribe qualifications both for direct 344 recruitment as well as for promotion. To the same effect, the judgement of this Court in Mohd. Shujat Ali Vs. Union of India and the decision of this Court in T.N. Water Supply case. For maintaining efficiency of service, the higher qualification is required for discharge of the duties in the higher positions and therefore, prescribing such qualifications cannot be held to be arbitrary or irrational. In the case in hand, the Board has issued circular in consonance with the recommendation of the Pay Commission. In that view of the matter, we see no infirmity with the impugned circular so as to be interfered with by this Court. The writ petition is accordingly dismissed."
(underlining supplied by me) In the said case also, the contention of the petitioners was that Khalasi, who are already in service did not possess the required qualification prescribed under the circular and if such circular is allowed to operate, there will be stagnation and therefore, the circular is liable to be quashed as hit by Articles 14 and 16 of the Constitution of India. The Apex Court relying on the judgements reported in (1973) 3 SCC 592 in the matter of Union of India Vs. S. B. Kohli, (1975) 3 SCC 76 in the matter of Mohd. Shujat Ali Vs. Union of India (1994) 6 SCC 282 in the matter of T.R. Kothandaraman Vs. T.N. Water Supply and Drainage Board, has observed that for maintaining the efficiency of service, higher qualification is required for discharge of the duties in the higher positions and therefore, prescribing such qualifications cannot be held to be arbitrary or irrational. 345
94. In T.R. Kondandaraman`s case ((1994) 6 SCC 282), the Apex Court has approved the classification of employees based on educational qualification, however, has observed that it depends on the facts and circumstances of each case. Learned single Judge has at para 71 of his order has relied on the decision in T.R. Kodandaraman`s case, but the said decision was considered in Technical Employees case reported in (2009) 9 SCC 412 (supra) and it has been held that, prescribing of higher educational qualification as a criterion for promotion for maintaining the efficiency of service for discharge of duties in the higher positions is well within the domain of the employer.
95. High Court is the final Court in the State. It deals with several thousands of cases, the officer discharging duties must be efficient, higher the position greater the responsibility, efficiency is the motto of speedy and quality discharge of responsibility and duties. Standard and quality cannot be compromised because somehow it is being managed. This will adversely affect the justice delivery system. In era of fast changing world, the things have to move fast for timely justice. If lack of higher educational qualification affects the effective administration, then the policy prescribing higher qualification for efficiency of service cannot be called as arbitrary and unreasonable.
96. No doubt, the Apex Court, in a decision reported in AIR 1990 SC 346 page 2021 in the matter of B.N. SAXENA VS. NEW DELHI MUNICIPAL COMMITTEE AND OTHERS, comparing experience and qualification of diploma and relying on the decision reported in AIR 1989 SC page 19 in the matter of U.P. Vs. J.P. Chaurasia, has observed as under:
"It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen without any Diploma qualification should acquire such diploma qualification for further promotion. Such a view would not be consistent and coherent with the revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter."
In the facts and circumstances of the said case, post of Head Draftsman of Municipal Corporation, qualification of Diploma was prescribed since the candidate in the said case was a senior Drafts man, his experience gained itself was treated as a qualification. However, the observations are based on the interpretation of the rules therein, observing that the intentment of the rule is to treat the experience as qualification.
97. In catena of decisions, Apex Court has considered as to whether the 347 higher educational qualification could be prescribed as the basis for promotion to the next higher cadre. It is consistent view that, the authority in exercise of delegated legislative power can prescribe the higher educational qualification as criterion for promotion to the next higher cadre. Prescribing the higher educational qualification by itself does not become unreasonable or arbitrary exercise of power or amounts to unreasonable restriction. However, higher educational qualification should have rational nexus and should not violate the constitutional limitation.
98. In a case reported in AIR 1998 SC 2682 in the matter of FOOD CORPORATION OF INDIA VS. OM PRAKASH SHARMA AND OTHERS, the Apex Court considering the decision in STATE OF JAMMU AND KASHMIR VS. TRILOKI NATH KHOSA ((1974) 1 SCC 19), has approved prescribing the eligibility on the basis of educational qualification by observing that the higher educational qualification is required for achieving administrative efficiency and it cannot be said to rest on any fortuitous circumstance. This Constitutional Bench decision was followed in subsequent decisions reported in AIR 1987 SC 367 in the matter of Punjab State Electricity Board, Patiala Vs. Ravinder Kumar Sharma and in 1989 Supp(1) SCC 116 in the matter of Roop Chand Adlakha Vs. Delhi Development Authority.
99. The Constitutional Bench decision is also followed in Food 348 Corporation of India`s case, wherein Apex Court approved the policy prescribing the higher educational qualification as has relevance in so far as the holding of higher promotional post, having regard to the nature of duties and responsibility attached to the post. The classification on the basis of educational qualification, therefore, has nexus to the object sought to be achieved.
100. The Apex Court, in a decision reported in (2008) 5 SCC 416 in the matter of A. SATYANARAYANA AND OTHERS VS. S. PURUSHOTHAM AND OTHERS (referred supra), while considering the power of judicial review of validity of quota rule, has observed as under:-
"23. We, however, are of the opinion that the validity or otherwise of a quota rule cannot be determined on surmises and conjectures. Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ordinarily be interfered with and the Superior Courts, while exercising their power of judicial review, shall not consider as to whether such policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the ground of being violative of Article 14 of the Constitution of India. {See Vasu Dev 349 Singh Vs. Union of India [(2006) 12 SCC 753] and State of Kerala Vs. Unni [(2007) 2 SCC 365].
xxx
28. The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. [See Food Corporation of India and Ors. Vs. Parashotam Das Bansal and Ors. ((2008) 5 SCC 100). The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of Accelerated Career Progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same.
xxx
30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India."
(underlining supplied by me) 350
101. In a recent decision of the Apex Court reported in (2011) 2 SCC 575 in the matter of TRANSPORT AND DOCK WORKERS UNION AND OTHERS VS. MUMBAI PORT TRUST AND ANOTHEr, the Apex Court, while considering the scope of Articles 14 and 19 in understanding the reasonable classification, has observed as under:
"22.Thus the classification would not violate the equality provision contained in Article 14 of the Constitution if it has a rational or reasonable basis. However, the question remains: what is `rational' or `reasonable'? These are vague words. What may be regarded as rational or reasonable by one Judge may not be so regarded by another. This could lead to chaos in the law.
23. Should this vagueness or uncertainty be allowed to remain so that Judges may have total freedom or discretion? We think not. The law should be, as far as possible, clear and certain so that people know where they stand and conduct their affairs accordingly. Also, if total freedom is given to Judges to decide according to their own individual notions and fancies the law will run riot. Hence in our opinion an attempt should be made to clarify the meaning of the words "reasonable" or "rational".
24. Numerous decisions of this Court on Articles 14 and 19 of the Constitution have no doubt held certain classifications to be reasonable while other classifications have been held to be unreasonable. But what is reasonable and what is unreasonable 351 does not appear to have been discussed in depth by any decision of this Court, and no tests have been laid down in this connection. All that has been said is that it is not prudent or pragmatic to insist on a mathematically accurate classification covering diverse situations and all possible contingencies in view of the inherent complexities involved in society, vide State of Karnataka vs. Mangalore University Non-Teaching Employees` Association (2002) 3 SCC 302 (para 10), Ombalika Das vs. Hulisa Shaw (2002) 4 SCC 539 (para 11) etc.
25. In our opinion while it is true that a mathematically accurate classification cannot be done in this connection, there should be some broad guidelines. There may be several tests to decide whether a classification or differentiation is reasonable or not. One test which we are laying down and which will be useful in deciding this case, is : is it conducive to the functioning of modern society? If it is then it is certainly reasonable and rational.
26. In the present case, as we have noted, the purpose of the classification was to make the activities of the Port competitive and efficient. With the introduction of privatization and setting up private Ports, the respondent had to face competition. Also, it wanted to rationalize its activities by having uniform working hours for its indoor and outdoor establishment employees, while at the same time avoiding labour disputes with employees appointed before 01.11.1996. In the modern world businesses have to face competition with other businesses. To do so they may have to have longer working hours and introduce efficiency, while avoiding 352 labour disputes. Looked at from this point of view the classification in question is clearly reasonable as it satisfies the test laid down above.
27. We do not mean to say that the above is the only test to decide what is reasonable, but in our opinion it is certainly one of the tests to be adopted if we want our country to progress. We have to take a practical view of the matter instead of relying on abstract, a priori notions of equality."
(underlining supplied by me)
102. Before a rule is declared as ultra vires, the rule must be held to be wholly arbitrary or irrational. If a plea of discrimination is raised, it must be based on adequate pleadings.
103. To find out as to whether there is a rational nexus in prescribing the higher educational qualification as criterion for promotion to the next higher cadre, I deem it proper to consider the method of promotions under the principal rules. The chart below roughly shows the method of promotion from one cadre to another higher cadre.
353 Assistant Registrar Assistant Registrar 100% by promotion Protocol 100% by promotion Section Officer Court Officer Senior Judgement Writer At the ratio of 2:1:1 Judgement Writer 100% Assistant by Audit Senior promoti Superintendent Statistical on Stenographer Assistant Court Senior Assistant Officer Sheristedar FDA/Audit Subordinate Clerk Court 354 First Divisional Senior Judgement Assistant/ Audit/clerk Writer SDA 6:4 Typist Judgement writer/ selection grade Stenographer Stenographer from Subordinate Court 50% direct 50% recruitment promotion By promotion of 25% from Typist - Senior 25% seniority cum grade + Senior merit with Group `D` SSLC grade shorthand Degree qualification conducted by KSEB or equivalent with SSLC Typist - 85% Direct recruitment - 15% by promotion With SSLC Educational Qualification
104. The above chart indicates that the lowest feeder cadre such as Typist, 355 Second Division Assistant, Stenographer and Group `D` employees, would be eligible for promotion with minimum educational qualification of SSLC. They might reach the post of Assistant Registrar also.
105. By amended rules 2009, the Law Degree is prescribed as criterion for promotion to the Post of Assistant Registrar from the post of Court Officer, Section Officer, Senior Judgement Writer.
106. Court Officer, Section Officer and Senior Judgement Writer are the feeder cadre to the post of Assistant Registrar.
107. Assistant Registrar would be in charge of few Sections. He has a supervisory power. He would be dealing with the various subject matter such as scrutiny, verification as to the objections relating to Court fees, limitation and jurisdiction etc. before the case file is assigned to the respective Courts. Office note on the order sheet will guide the learned Judge as to whether the case file is in order. Court will be dependent on the office note on the order sheet.
108. To ascertain, whether the case is filed within limitation, proper Court fee is paid and the Court has jurisdiction. Person in charge of scrutiny will make a office note. The Section officer and the Assistant Registrar will verify the same. 356 Inefficiency or lack of legal knowledge may result in wrong noting.
109. Similarly, the Section officer is further responsible for his section.
110. Court Officer would be the custodian of the files. His job is not just arranging the files, but also effectively assisting the Court in timely arranging the law books, journals connected or cited in the case, entry into the office note and keeping the records, providing information of similarly decided cases etc. Effective assistance requires sound legal knowledge. If the Court officer lacks the legal knowledge, unable to trace the relevant provision and law book, it would vitally affect the court proceedings. Effective court proceedings depends on the efficient court management by the Court officer.
111. So also the Senior Judgement Writer, who would be working as Private Secretaries to the Judges who are required to prepare draft of the judgement which involve legal words, interpretation, decision, one small mistake may change the nature of the decision. They have to not only follow the dictation but must also understand the meaning of the words in the context. They must effectively follow the dictation. Their responsibility is to transcribe correct and accurate text of the dictation. Hence, following of legal terms and context is must. Private Secretaries have to be confidential, alert, effective and capable of understanding the legal terms 357 and phrases and interpretation. A good Senior Judgement Writer or Judgement Writer are boon to the Court and the Judge and would be an asset to the Institution.
112. From the available material and with the bird`s eye view of the functions of these officers, the Law degree would undoubtedly enhance the quality and efficacy. It cannot be said that, for achieving the higher standard and efficacy prescribing the Law Degree as a qualification for promotion to these important posts is unreasonable or arbitrary. In changing world, to suit the modern world, for the effective justice dispensation, if the policy makers have thought it fit to prescribe the higher educational qualification, as a criterion, it cannot be said to be unreasonable or arbitrary.
113. The Apex Court in Technical Employees` case reported in (2000) 9 SCC 412 (supra) has held that, for maintaining the efficiency of service, the higher qualification is required for discharge of duties in higher position and therefore, prescribing such qualification cannot be held to be arbitrary or unreasonable. In the said case, diploma was prescribed as the required qualification for promotion to the next higher cadre.
114. Though wisdom does not lie with the Court to assess the decision of the policy maker, but for considering the rational nexus to the object of prescribing 358 the higher educational qualification, broadly, I referred to the functions and duties of some of the officers. Prescribing the higher educational qualification has the rational nexus for achieving the higher efficiency and standard.
115. The amended rules 2009 do not create discrimination, as no different yardstick is applied in the method of promotion amongst the employees in the same cadre. It only prescribes the educational qualification for promotion. No two classes are created in the same cadre, all will be eligible from the same cadre provided they possess the educational qualification.
116. Learned single Judge has held that the amended rules create classification, but I do not find any classification. Prescribing educational qualification is different from creating classification amongst the employees of the same cadre for fixing quota based on graduates and non-graduates. In this case, no one will be eligible if he/she does not possess the requisite qualification. Hence, there is no discrimination.
117. I may also mention that similar higher educational qualification is prescribed in different High Courts.
118. The High Court of Judicature of Andhra Pradesh and High Court of 359 Kerala have also prescribed higher educational qualification as one of the requisite qualification for promotion. Having regard to the development, the Chief Justice has amended the rules relating to the method of recruitment to fall in line with the modern society.
119. No doubt, the experience of an employee is also an important factor required to be considered in the matter of promotion. However, experience by itself is not, all and is. That alone cannot be a criterion for promotion. Even in case of experience or seniority, the seniority alone will not enable the employee for promotion, if he lacks the merit, or has no good track record, in such event, promotion is only mere chance and not a right. He is not sure of promotion.
120. I may also take note of the development in technology, computerisation of the Court, converting the traditional system to e-court, it cannot be said that with whatever qualification acquired by the employees at the entry level would be sufficient and things can go on. The Information Technology has developed so vast, the judiciary cannot remain static as mute spectator to the fast developing world. It must move on, and provide timely and quality justice. To achieve the same, one must have necessary infrastructure including talent and effective staff support.
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121. From cadre of Group `D`, one may reach the post of Assistant Registrar. The educational qualification prescribed for Group `D` employee is S.S.L.C. One has to visualise, as to whether he would effectively hold and discharge the functions of Assistant Registrar.
122. Some how, the system is working and the Institution can live with the same forever cannot be an answer. Certainly, for example, good Stenographer with sound English language is a boon and asset to the justice delivery system. The higher educational qualification certainly enhances the efficiency and quality. Only on the ground that the higher qualification is likely to affect some, can the interest of the High Court be compromised?. The promotion is based on higher educational qualification, seniority and good service record.
123. It is open to the State and the employer to prescribe higher educational qualification. It is exclusively within the province of the legislature and its delegate to determine the policy for better administration. It is for the policy maker as to how the rules could be best implemented and what manner and measures both procedural as well as the substantive could be incorporated in rules for efficacious achievement of the object and purpose. The Court cannot substitute its view, wisdom lies with the policy maker and not with the Court. 361
124. Having regard to the facts and circumstances and the principles enunciated by the Apex Court in catena of decisions, I have no doubt that the legislature or its delegate is well within its domain to prescribe the higher educational qualification in the matter of recruitment by promotion or direct.
125. I also hold that prescribing the higher educational qualification as a criterion for promotion to the next higher cadre is neither unreasonable nor is arbitrary nor violative of Articles 14 and 16 of the Constitution.
126. Re: Whether the amended rules 2009 has a retrospective effect?
All rules, regulations made would be presumed to be prospective unless the rules or regulations expressly provide for retrospective application.
127. It is neither the case of the appellant nor the amended rules prescribe for retrospective application.
128. Amended rules are prospective in nature. The rules are made applicable from the date on which they are notified. Hence, if the post had already become vacant and was available for promotion at the time of issue of notifications, certainly the said post was available for promotion under the existed rules 362 (principal rules). Hence, such posts have to be filled up only under the existed rules (principal rules).
129. The question as to whether such post could be filled up under the amended Rules or existing Rules was considered by the Apex Court in a decision reported in 1983 (3) SCC page 285 in the matter of State of Andhra Pradesh and others Vs. J. Sreenivasa Rao and others, has observed as under:-
"The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the state-wide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. "
The Apex Court has observed that the vacancies accrued or fell vacant before the amendment have to be filled up under the rules then existed. Similar view is taken in another judgement reported in (1997) 10 SCC 419 in the matter of State of Rajasthan Vs. R. Dayal and Others, wherein the Apex Court has observed as under: 363
"It is contended by Shri Das that one of the persons, namely, H.L. Meena was appointed against a carried-forward post as per the existing Rules and, therefore, his appointment cannot be challenged. We find it difficult to give acceptance to the contention. Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government. As on that date, when the appointment came to be made, the selection was required to be made on the basis of the Rules as existing on the date the vacancy arose. Since, admittedly, that has not been done, the appointment of Shri Bhatnagar and H.L. Meena must be treated to be only temporary appointments pending consideration of the claims of all the eligible persons belonging to General and Reserved quota separately as per Rules. "
130. Further, the Apex Court, in a decision reported in (2007) 11 SCC page 605 in the matter of Arjun Singh Rathore an Others Vs. B.N. Chaturvedi and others, following the decision in State of R. Dayal`s case and also J.Sreenivasa Rao`s case has observed at para 5 as under:
"5. Mr. Calla, the learned senior counsel for the appellants has argued that the matter was fully covered by the judgment of this Court in State of Rajasthan Vs. R.Dayal (1983) 3 SCC 284, wherein it had been held that the vacancies to be filled by promotion were to be filled under the rules which were in operation on the date when the vacancies had occurred. Relying on 364 and referring to an earlier judgment in Y.V.Rangaiah vs. J.Sreenivasa Rao (1983 SCC (L & S) 382) it was opined as under:
(SCC p.422, para 8) "8. This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose."
6. The above legal position has not been seriously disputed by the learned counsel for respondents 6 and 7. We are therefore of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein. We are therefore of the opinion that the judgement of the learned single Judge needs to be restored. We order accordingly. "
However, Y.V. Rangaiah`s case (AIR 1983 SC 852) fell for consideration before the Hon`ble Supreme Court in a judgement reported in 2011 AIR SCW 2138 in the matter of DEEPAK AGARWAL AND ANOTHER Vs. STATE OF UTTAR 365 PRADESH AND OTHERS, wherein the Apex Court considering the decision reported in AIR 1983 SC 852 in the matter of Y.V. RANGAIAH AND OTHERS Vs. J. SREENIVASA RAO AND OTHERS, has held that even if there are vacancies as on the date of coming into force of the amended rules, the vacancies by themselves do not confer any right on the employees nor any right be accrued to them. The right to be considered for promotion would be accrued only on the date of consideration for promotion not earlier, unless there is a clear statutory duty, which mandates the determination of vacancies every year. When the Government takes a conscious decision and amends the Rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place. Paragraphs 21, 22 and 24 of the said judgement read as under:
" 21. We are of the considered opinion that the judgment in Y.V. Rangaiah's case (supra) would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In 366 these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amendment rules would be governed by the old rules and not the amended rules. In the present case, there is no statutory duty cast upon the respondents to either prepare a year-wise panel of the eligible candidates or the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable rules. The requirement to identify the vacancies in a year or to take a decision how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules.
22. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the 'rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible 367 candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah's case, (AIR 1983 SC 852) (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants have been taken away by the amendment. The judgments cited by learned counsel for the appellants namely B.L. Gupta Vs. MCD, (1998 AIR SCW 3969) (supra), P. Ganeshwar Rao Vs. State of Andhra Pradesh, (AIR 1988 SC 2068) (supra) and N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission & Ors, (AIR 1990 SC 1233) (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (AIR 1983 SC 852) (supra).
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24. In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in the case of Dr. K. Ramulu (AIR 1997 SC 1803: 1997 AIR SCW 1152) (supra). In the aforesaid case, this Court considered all the judgments cited by the learned senior counsel for the appellant and held that Y.V. Rangaiah's case, (AIR 1983 SC 852) (supra) would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the Rules, the promotions have to be made in accordance with the rules prevalent at the time when the 368 consideration takes place. "
(underlining supplied by me) The objection statement on behalf of the Chief Justice or the contentions do not say that the vacancies were not determined or existed as on the date of the amended rules. It is also not the case of the Chief Justice that the said vacancies were not required to be filled up under the 1973 Rules. If there were vacancies and eligible candidates were required to be considered for promotion before the amended rules, then such vacancies have to be filled only under the 1973 Rules. Though the Supreme Court has held that the consideration for promotion should be based on the rules that existed as on the date of consideration, treating that the vacancies have been determined as on the date of the amended rules and those vacancies, having been determined, such vacancies create right in the employees for promotion to the next higher cadre. Hence, in so far as the vacancies that existed as on the date of the amended rules have to be filled up only under the 1973 rules.
131. Having regard to the nature of rules, and its application, and in the light of the decisions of the Apex Court, I hold that all the posts which became vacant as on the date of notifying the amended rules shall have to be filled only under the principal rules and not under the amended rules. 369
132. Re. Hardship caused to the officers and servants in acquiring the higher educational qualification in terms of explanation to the proviso to the amended rules renders the amendment as unconstitutional I find it proper to refer to some of the observations of the learned single Judge.
133. The learned single Judge at paras 89 and 97 observed that, it is impossible to acquire Degree or Law Degree and is unworkable and unreasonable. Paras 89 and 97 of the order of the learned single Judge read as under:-
"89. What is clear from the aforesaid conditions prescribed in the circular is that, at one point of time, not more than 10% of the officials working in a particular cadre shall be permitted to pursue Degree/LL.B/LL.M/Master's Degree/MBA and permission also shall be on the basis of seniority. If this condition is read in conjunction with the explanation to the proviso which puts a maximum of 5 years period to obtain degree, as rightly submitted by the learned senior counsel Shri S.P.Shankar, many of the employees will not be able to obtain degree qualification at all, as 10% of the employees per cadre would require more than 5 years to obtain degree or law degree, as the case may be. xxx 370
97. In the case on hand also, as the respective persons in the categories mentioned above were appointed under the same recruitment Rules, 1973 and belong to the same category and they cannot be discriminated by insisting upon possession of Degree/Law Degree qualifications, which is impossible to be achieved by them within the period prescribed in the explanation to proviso and in the light of restriction imposed by the circular at Annexure 'M'. Therefore, notwithstanding the submission made by learned senior counsel Shri Basava Prabhu Patil that, some of the employees are pursuing degree/law degree courses, that itself will not give room to take the view that the proviso and explanation to the amended Rules are free from the vices of they being arbitrary, unreasonable, discriminatory, irrational and thus unconstitutional."
134. Apex Court in a recent judgement reported in AIR 2009 SC 2497 in the matter of High Court of Delhi and another Vs. A.K. Mahajan and others has considered the right of an employee of benefit of consideration and has observed thus:
"There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence, it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our 371 opinion inconsequential. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of the employer."
135. I have held that, prescribing of higher educational qualification is neither arbitrary, unreasonable nor it is discriminatory in nature. There is rational nexus with the object sought to be achieved.
136. Having held that the amended rules 2009 do not violate the constitutional scheme, hence amended rules cannot be treated as arbitrary and unreasonable on the ground of hardship.
137. No legislation can be struck down as arbitrary and unconstitutional merely because it causes hardship if implemented. If the object is rational, the hardship cannot be a ground to declare the rules as unconstitutional.
138. Rule prescribing higher educational qualification as criterion for promotion is different from providing an opportunity to the employees, who have not acquired higher educational qualification. The rules prescribing higher educational qualification cannot be nullified as the benefit or the opportunity given to the employees to acquire higher educational qualification causes hardship. 372 However, having regard to the provision made giving benefit to the employees to acquire higher educational qualification, to become eligible for promotion to the next higher cadre, I thought it fit to make observation leaving it to the option of the decision making authority to take into consideration such circumstances. When the decision making authority itself has provided such opportunity and it should be meaningful and effective.
139. However, having held that the constitutional validity of the amended rules being prospective in nature, such rules are applicable to all vacancies that arose after the amended rules came into force. The explanation to the proviso under the amended rules only gives benefit to the officers and servants of the High Court to acquire the requisite qualification to enable them to become eligible to be considered for promotion. Since the main proviso is held to be valid, merely because some of the employees find it difficult to acquire requisite qualification, the main proviso cannot be termed as arbitrary and unreasonable.
140. Interpretation of a statute requires giving effect to the main provision. The benefit / opportunity to acquire requisite qualification is provided as an exception to the main rule under the explanation to the proviso. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview 373 of the enactment. The proper function of a proviso is to except and deal with a case, which would otherwise fall within the general language of the main enactment. It is a qualification of the preceding enactment. A proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. If the language of the enacting part of the statute does not contain the provisions which are said to occur in it, the Court cannot derive these provisions by implication from a proviso.
141. Apex Court in a judgement reported in (2004) 1 SCC 574 in the matter of Haryana State Cooperative Land Development Bank Ltd., Vs. Haryana State Cooperative Land Development Banks Employees Union and another on interpretation of a proviso, has observed thus:
"9. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728); when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the 374 main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso."
Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647)(HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. (AIR 1991 SC 1406), Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. (AIR 1991 SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. and Ors. (1994 (5) SCC 672)."
(underlining supplied by me)
142. A proviso to a section cannot be interpreted to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso. There is no ambiguity in the main provisions of the rules and only meaning that can be derived is that higher educational qualification is required for promotion to the next higher cadre.
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143. No doubt, there arises certain difficulties in acquiring the requisite qualification to become eligible for promotion. However, merely because explanation to proviso leads to some anomalous results, the Court has no option but to give effect to it and leave it to the legislature to amend or alter the law.
144. Apex Court in a judgement reported in AIR 1959 SC 422 in the matter of N.T. Veluswami Thevar Vs. G. Raja Nainar and others, has observed thus:
"13. There is another difficulty in the way of accepting this argument of the respondent. A candidate may be subject to more than one disqualification, and his nomination paper may be questioned on all those grounds. Supposing that the returning officer upholds one objection and rejects the nomination paper on the basis of that objection without going into other objections, notwithstanding that under s.36(2) he has to decide all the objections, is it open to the respondents in the election petition to adduce evidence on those objections ? According to the respondent, it is not, so that if the decision of the returning officer on the objection on which he rejected the nomination paper is held to be bad, the Tribunal has no option but to set aside the election under s. 100(1)(c), even though the candidate was, in fact, disqualified and his nomination paper was rightly rejected. Mr. Sinha for the respondent concedes that the result would be anomalous, but he says that the Law of Election is full of anomalies, and this is one of them, and that is no reason for not 376 interpreting the law on its own-terms. It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies. Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a question is raised in an election petition as to the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in s. 36(2)"
(underlining supplied by me)
145. It is also not the case that, the main provision or proviso gives two different meanings. The contention that explanation is not workable and it would cause hardship, however this cannot be accepted as the explanation cannot control the main provision to render it arbitrary.
146. The Court should try to interpret the statute to sustain its validity and give such meaning to the provision, which advances the objects sought to be 377 achieved by the enactment. Court should not approach the enactment with a view to pick hole or to search defects of drafting, which makes its working impossible. Effort should be made in construing the different provisions so that each provision will have its play and in the event of any conflict, a harmonious construction should be made.
147. Having found the constitutional validity of the main rule, there is no provision to interpret the explanation in such a manner as to take away the very purpose for which rules have been framed.
148. Further, the external aid or Internal aid or reading in between is necessary only when it is not possible to give meaning to the main provision or it cannot be enforced, implement, but for an external aid or internal aid, when the provision is unambiguous and clear, no reason to import external or internal aid. The amended rules are clear and unambiguous. The plain meaning is that, from the date of coming into force of the amended rules, the promotions would be subject to the requisite qualification as prescribed under the amended rules.
149. Hence, amended rules are applicable to all the officers and servants covered under the amended rules for promotion in respect of vacancies that arose from the date of coming into force of the amended rules. 378
150. However, it is always open to the policy maker to take into consideration the difficulties and grievances of the employees, if any to modify the rules suitably.
151. The Apex Court, while considering the doctrine of reasonable classification in 1989 Supp (1) SCC 116 in the matter of Roop Chand Adlakha and Others Vs. Delhi Development Authority and Others, has observed as under:-
"18. A large number of authorities were cited on either side. We may first examine the cases relied upon by the High Court in support of its conclusion. The inherent distinction between a person with a Degree and one who is merely a Diploma-Holder is much too obvious. But the question that falls for consideration, in the context such as the present one, is whether the differences have a reasonable relation to the nature of the office to which the promotion is contemplated. The idea of equality in the matter of promotion can be predicated only when the candidates for promotion are drawn from the same source. If the differences in the qualification have a reasonable relation to the nature of duties and responsibilities, that go with and are attendant upon the promotional post, the more advantageous treatment of those who possess higher technical qualifications can be legitimised on the doctrine of classification. There may, conceivably, be cases where the differences in the educational qualifications may not be sufficient to give any preferential treatment to one class of candidates as against another. Whether the classification is 379 reasonable or not must, therefore, necessarily depend upon facts of each case and the circumstances obtaining at the relevant time. When the state makes a classification between two sources, unless the vice of the classification is writ large on the face of it, the person assailing the classification must show that it is unreasonable and violative of Article 14. A wooden equality as between all classes of employees irrespective of all distinctions or qualifications, or job-requirements is neither constitutionally compelled nor practically meaningful. This Court in G.M. South Central Railway Vs. A.V.R. Siddhanti, (1974) 4 SCC 335 observed (SCC p.343, SCC(L & S) p.298, para 20) "....A wooden equality as between all classes of employees regardless of qualifications, kind of jobs, nature of responsibility and performance of the employees is not intended, nor is it practicable if the administration is to run. Indeed, the maintenance of such a 'classless and undiscerning 'equality' where, in reality, glaring inequalities and intelligible differentia exist, will deprive the guarantee of its practical content. Broad classification based on reason, executive pragmatism and experience having a direct relation with the achievement of efficiency in administration, is permissible ....
In T. Devadasan v. The Union of India,[1964]4 SCR 680 at 689 & 690, this Court observed:
"....What is meant by equality in this Article is, equality amongst equals. It does not provide for an absolute equality of treatment to 380 all persons in utter disregard in every conceivable circumstance of the differences such as age, sex, education and so on and so forth as may be found amongst people in general. Indeed, while the aim of this Article is to ensure that invidious distinction or arbitrary discrimination shall not be made by the State between a citizen and a citizen who answer the same description and the differences which may obtain between them are of no relevance for the purpose of applying a particular law reasonable classification is permissible. It does not mean anything more.
19. But then the process of classification is in itself productive of inequality and in that sense antithetical of equality. The process would be constitutionally valid if it recognises a pre-existing inequality and acts in aid of amelioration of the effects of such pre- existent inequality. But the process cannot in itself generate or aggravate the inequality. The process cannot merely blow up or magnify insubstantial or microscopic differences on merely meretricious or plausible differences. The overemphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its precious content and end in replacing doctrine of equality by the doctrine of classification. The presumption of good faith in and of constitutionality of a classification cannot be pushed to the point of predicating some possible or hypothetical but undisclosed and unknown reason for a classification rendering the precious guarantee of equality "a mere rope of sand".381
152. The Apex Court in a decision reported in 1993(1) SCC 645 in the matter of Unni Krishnan J. P. and others Vs. State of Andhra Pradesh and Others has observed that education is "a preparation for a living and for life, here and hereafter". Education is "at once a social and political necessity". Educational institutions are the seed-beds of culture, where children in whose hands quiver the destinies of the future are trained.
153. Apex Court, considering the educational qualification has observed that "it would have to be borne in mind that diploma holders are drawn mainly from the poor families and they are incapable of making up to the Degree grade. Chill penury should not be written, therefore, be allowed to repress their noble rage". It may be that social justice is not fundamental right, but there is a little doubt that social justice being a requirement of directive principle of Constitution, same would have to be desideratum in any case. Legal principles regarding the educational qualification being basis of classification relating to promotion in public service:
1. Higher educational qualification is permissible basis of classification, acceptability of which will depend on the facts and circumstances of the case.
2. Higher educational qualification can be the basis not only for barring promotion but also for restricting the scope of promotion.382
3. The restriction placed cannot go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of the restriction shall have also to be looked into, to ascertain whether it is reasonable.
154. The Apex Court has held that, prescribing higher educational qualification as the basis for classification for promotion and restricting promotion and the said restriction should not go to the extent of seriously jeopardising the chances of promotion. However, such is not the case here.
155. It appears from the explanation to the proviso of the amended rules that option given to the employees to pursue higher education under the amended rules and the guidelines formulated under the Circular dated 24.08.2010 require prior permission of the Chief Justice to pursue higher education subject to the condition that their study will not adversely affect office work and would permit them to adhere to office hours. Also, at a time only 10% of the employees working in a particular cadre would be permitted to pursue their course.
156. It is required to be noticed that some of the officers who have put in long service with the experience of several years service and for whom, it may not be possible to undertake the courses because of age and other constraints, the requirement of higher educational qualification for promotion to the next higher 383 cadre may morally degrade, discourage and demotivate them from continuing to work efficiently.
157. Five years period is prescribed to obtain higher qualification. At a time, only 10% of employees from a cadre would be permitted to pursue higher education. If 10% of the employees as against the strength of the employees are permitted, having regard to the number of employees not having higher educational qualification, there is possibility of many of them may not even getting a chance to acquire higher educational qualification.
158. If the intention of the rule making authority was to give opportunity to employees, who do not possess higher educational qualification, it is open to the rule making authority to consider the same to alter or amend the provisions.
159. I am clear in my mind that the Court has no role to substitute its opinion or suggest as to what would be the correct policy. However, if the provision is made for the benefit of the employees to acquire higher educational qualification, to give effect to the same, authority may consider the same to subserve the purpose for which it is made.
160. For the reasons stated above, I allow the writ appeals filed by the 384 Chief Justice of the High Court of Karnataka in part and accordingly, I dispose of the connected writ petitions except W.P. No.10131/2010 and in modification of the common order of the learned single Judge, I hold that:-
1. The Chief Justice as a delegate under Article 229 of the Constitution has power to amend the rules prescribing higher educational qualification as a criterion for promotion to the next higher cadre.
2. Amended Rules of 2009 do not require approval from the Governor of the State.
3. Amended Rules of 2009 prescribing higher education qualification as criterion for promotion to the next higher cadre are not violative of Articles 14, 16 or 21 of the Constitution.
4. Amended rules of 2009 are prospective in nature.
They will not be applicable to the vacancies that existed prior to coming into force of the amended rules of 2009. All the vacancies, which arose prior to coming into force of the amended rules, 2009 have to be filled up under the principal rules.
5. All promotions in respect of vacancies that arose subsequent to coming into force of the amended rules of 2009 have to be filled up under the amended rules.
6. Interpretation of explanation to the proviso to the 385 amended rules of 2009 causing hardship to the employees in acquiring higher educational qualification cannot be a ground to declare the amended rules of 2009 as arbitrary, unreasonable and thus, violative of Articles 14 and 16 of the Constitution.
7. It is always open to the policy maker to consider the grievances and hardship of the employees.
8. The order of promotion in respect of vacancies that arose prior to coming into force of amended rules of 2009, if any, made under the amended rules shall stand quashed. Similarly, promotions, if any, made under the Principal rules in respect of the vacancies, which arose after the coming into force of the amended rules of 2009 also stand quashed.
9. Writ Petition No.10131/2010 is delinked to be posted before the Bench having roster to be heard in due course.
10. Consequent to quashing orders of promotions, to prevent any hardship that is likely to be caused and in ensuring smooth administration of the work of the High Court, persons, whose promotions have been quashed shall, however be permitted to continue in their respective posts as incharge arrangement till the promotions are made to the said posts in terms of this order.
(Sd/-)
JUDGE
sma
386
Reserved for Judgment: 25.8.2012
Pronounced on: 14.9.2012
JUDGMENT: (DILIP B. BHOSALE J.)
1. The Hon'ble Chief Justice has made a reference to this Court in view of the divergent opinions recorded by learned Judges in a Division Bench which heard the writ appeals arising from a batch of writ petitions filed by the officials / officers of the High Court (for short "the employees"). The writ petitions were basically directed against the amendments to the High Court of Karnataka (Conditions of Service & Recruitment) Rules, 1973 (for short `the principal rules'), on the ground they affected their further promotions in the employment.
2. In the writ petitions, constitutional validity of the amended Rules was under challenge. The learned single Judge quashed the provisos as well as explanations introduced by way of an amendment, requiring higher educational qualifications, as being violative of Articles 14 & 16 of the Constitution of India and issued consequential 387 directions. The Judgment and Order of the learned single Judge was challenged in these writ appeals by the Hon'ble the Chief Justice and the High Court (for short "the appellants"). The learned Judges in the Bench (Anand Byrareddy and Subhash B. Adi JJ.) heard the appeals and rendered separate Judgments expressing divergent opinions on certain points after having unanimously held that the amendments to the principal rule are not violative of Articles 14 and 16 of the Constitution of India. It is in this backdrop these appeals are placed before this Court (the third Judge).
3. The two Judgments written by the learned Judges in the Division Bench will be hereinafter referred to as the "first Judgment", written by Anand Byrareddy J., and the "second Judgment", written by Subhash B. Adi J., for the sake of brevity. Similarly, the learned judges also will be hereinafter referred to as the "first judge" and the "second judge" for short.
388
4. Both the learned Judges delivered separate Judgments narrating the facts / background facts in detail and have quoted the relevant principal rules and the amended rules in tabular form, and therefore, I would not like to burden this Judgment, in repeating the facts in detail and quoting comparative table of the principal rules and the amended rules in this Judgment.
4.1 It appears that the separate opinions of both the Judges in the Division Bench were read out and signed in the Court on 13.06.2012 and on the same day they passed the following order:
" In view of the difference of opinion expressed, the office is directed to place these matters before the Honourable Chief Justice, to take appropriate steps."
The Karnataka High Court Act, 1961, the High Court of Karnataka Rules, 1959, and the Writ Proceedings Rules, 1977, do not provide for making reference to a third Judge if divergent opinions are recorded by the learned Judges in a Division Bench.
3894.2 Rule 39 of the Writ Proceedings Rules, 1977, however, provides that the provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958, and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under Article 226 and / or Article 227 and writ appeals in respect of matters for which no specific provision is made in these rules. In view thereof, my attention was invited to the provisions contained in section 98 of the Code of Civil Procedure, which provides for the procedure to be adopted where appeal is heard by two or more Judges. It provides that where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority, (if any) of such Judges. However, where there is no such majority which concurs in a Judgment varying or reversing the decree appealed from, such decree shall be confirmed, provided that where the Bench hearing the appeal is composed of two or other even 390 number of Judges belonging to a Court consisting of more Judges than those constituting the Bench, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, the such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it. Thus, it appears that the reference is made under section 98 of the Code of Civil Procedure.
5. In the present case, the learned Judges did not frame the points on which they differed, though in their independent Judgments they framed points for consideration and after exhaustively dealing therewith, answered the questions / points. In view thereof, with the assistance of learned counsel for the parties, I have gone through the Judgments of both the learned Judges carefully, to find out where they exactly differ so as to formulate the question / point for determination by this Court (the third Judge).
391
6. The Hon'ble Chief Justice in exercise of the powers under Article 229 of the Constitution of India amended the Principal rules relating to the Conditions of Service and the Method of Recruitment of the Officers and other Employees of the High Court vide notifications dated 24.2.09, 28.5.09, 9.6.09, 16.7.09 and 29.7.09 inter alia called as the High Court Service (Conditions of Service and Recruitment)(amendment) Rules, 2009 (amendment - I to V) (for short `the amended Rules, 2009). By these amendments, method of recruitment prescribed in schedule III to the Principal rules was amended, mainly prescribing higher educational qualification as a criterion for promotion to the next higher cadre in respect of the following posts: Senior Judgment Writers (sl. No.139); Judgment Writers (sl. No.20); Stenographers (sl. No.21); Second Division Assistants (sl. No.19); Computer Operators (sl. No.22); Asst. Registrars / Asst. Registrar (Protocol) (sl. No.6 & 6(a); Asst. Court Officers (sl. No.14(a); Section Officers (sl. Nos.9, 10 & 10(a)); Senior 392 Assistants (sl. No.14) and First Division Assistants / Audit Clerks (sl. No.14).
7. Feeling aggrieved by the amendments prescribing higher educational qualification, the employees in different categories filed petitions challenging constitutional validity of the amended Rules, 2009. The grievance of the petitioners in all the writ petitions was similar. In short, they contend that the amended Rules have affected their right to / chances of promotion to the next higher cadres badly. These rules, they contend, deserve to be quashed, being unconstitutional, on the ground of hardship, and so also being unreasonable, impracticable and unworkable. The nature of their grievance and the grounds of challenge would be further clear from the subsequent narration of factual matrix, and therefore, I am avoiding further reference thereto at this stage.
8. All the writ petitions were heard by learned single Judge (V. Jagannathan J.). He framed the following points for determination:
393
" 1. Whether the power given to the Chief Justice to make Rules under Article 229(2) of the Constitution in respect of the conditions of service of the High Court staff, can be used to validate unconstitutional discrimination in promotional chances of persons belonging to the same category?
2. Is there a rational nexus between prescribing Degree/Law Degree qualifications and the object of higher efficiency to be achieved?
3. Whether the criterion fixed by the proviso to the amended Rules of 2009 is manifestly erroneous, arbitrary, unreasonable, irrational and discriminatory and thus violative of Articles 14 and 16 of the Constitution, when the right to consider for promotion is held to be a fundamental right?
4. Whether the requirements mentioned in the explanation to the proviso are arbitrary, unreasonable, impracticable and lacks rational nexus and hence violative of Articles 14 & 16 of the Constitution?
5. In respect of the vacancies in the promotional posts which arose prior to the amendment in 2009, which Rule is applicable - old Rules of 1973 or amended Rules of 2009?
6. Whether the amended Rules which have retrospective operation has the effect of taking away the existing right under 1973 Rules and thus the amended Rules are arbitrary, discriminatory and violative of the right guaranteed under Articles 14 and 16 of the Constitution and hence unconstitutional?394
7. Whether the promotions given pursuant to the amended Rules are in consonance with the well established principles of service jurisprudence?
8. Is the procedure followed in bringing about the amended Rules of 2009 in accordance with the well established principles and procedures applicable in respect of bringing amendments to the Principal rules?"
8.1 The answers to the points/questions framed by the learned single Judge have been summarised in the second Judgment rendered in the writ appeals, which read as follows:
"i) The proviso as well as explanation to the amended Rules of 2009 requiring higher qualifications are quashed as being violative of Articles 14 and 16 of the Constitution and hence unconstitutional.
ii) The orders of promotions as per Annexure-B in W.P.Nos.4683-4722/2010, Annexure-
B in W.P.Nos. 11797-11827/2010, Annexures-G, H, J & K in W.P.Nos. 22155-22184/2010,Annexures-C, D, E & F in W.P.Nos. 35966-36032/2009 and Annexure- C in W.P.Nos. 37218-37249/2009 given to the respective respondents, whose promotions are assailed in the respective writ petitions stand quashed.
iii) Consequent to the quashing of the orders of promotion, it is also necessary in the interest of the work of the High Court that no hardship is caused from the point of view of ensuring 395 the smooth administration of the work of the High Court and hence, the persons, whose promotions are now quashed shall, however, be permitted to continue in their respective posts as an incharge arrangement, till the promotions are made in accordance with the 1973 Rules, after considering the cases of the petitioners also for promotion.
iv) As regards the relief sought by the petitioners in W.P.Nos. 22155-22184/2010 with regard to quota restriction for Senior Judgment Writers to the post of Assistant Registrar is concerned, in view of the writ petitions filed by the Section Officers in W.P.Nos. 35072-111/2009 being pending involving the same question, the said relief sought is not considered for the time being and it is left open.
v) The second respondent is directed to redo the entire process of promotions to all the posts in accordance with old Rules of 1973, and necessary steps in this regard shall be taken within eight weeks from the date of receipt of a copy of this order."
(emphasis supplied)
9. In the first Judgment, the learned Judge having considered the facts in detail, the Principal rules and the amended Rules, 2009, and so also having heard the arguments advanced by learned counsel appearing for the parties, in the backdrop of several judgments of the Supreme Court, framed the following questions for consideration:
396
1) Whether the above amended Rules, framed in exercise of power under Article 229(2) of the Constitution of India, are arbitrary and violative of the Constitution of India?
2) Whether the prescription of higher educational qualifications under the amended Rules, permanently disables the several classes of employees for being considered for promotion, and is hence violative of Articles 14 and 16 of the Constitution of India?
3) Whether the reasoning of the learned Single Judge that owing to the nature of duties to be discharged by the employees, the prescription of higher educational qualifications, not being reasonable as there was no nexus with the object sought to be achieved, is bad in law?
4) Whether the impugned order runs counter to the law with reference to the several authorities cited by the learned Counsel for the appellants?
9.1 After considering the arguments advanced by learned counsel for the parties and adverting to the facts and the law laid down by the Supreme Court and High Courts in various Judgments, the first Judge disposed of the writ appeals by recording the following conclusions / opinion to the aforementioned points framed by him for determination:
a) The Proviso as well as Explanation to
the amended Rules of 2009 requiring
higher qualifications are
constitutionally valid, but shall be read 397 down as not being applicable to the existing employees.
b) The orders of promotion in respect of vacancies that arose prior to the coming into force of the 2009 Rules - impugned in WP Nos.4683-4722/2010, WP Nos.11797- 11827/2010, WP Nos.22155-22184/2010, WP Nos.35966-36032/2009 and WP 37218- 37249/2009, WP 35072-35111/2009 and WP 37825- 37841/2009 stand quashed.
c) Consequent to the quashing of the orders of promotion, it is also necessary in the interest of the work of the High Court that no hardship is caused from the point of view of ensuring the smooth administration of the work of the High Court and hence, the persons, whose promotions are now quashed shall, however, be permitted to continue in their respective posts as an incharge arrangement, till promotions are made in terms as above.
d) As the 2009 Rules are upheld, subject to the condition as aforesaid, the 40% ratio provided for direct recruitment for the posts of Judgment Writers and Senior Judgment Writers - is left undisturbed, unless the competent authority deems it necessary to vary the same.
(emphasis supplied)
10. In the second Judgment, the learned Judge after having considered the arguments advanced by 398 learned counsel appearing for the parties, framed the following points for consideration:
1. Whether the amended rules of 2009 violate the provisions of Article 229 of the Constitution of India?
2. Whether the amended rules of 2009 requiring higher educational qualification as eligibility criterion for promotion to the next higher cadre is violative of Articles 14, 16 and 21 of the Constitution ?
3. Whether the amended rules are applicable to the vacancies that existed prior to coming into force of the amended rules of 2009?
4. Whether the hardship caused to the employees in acquiring higher educational qualification could be a ground to declare the amended rules as arbitrary, unreasonable and violative of articles 14 and 16 of the Constitution of India ?
(emphasis supplied) 10.1 The second Judge recorded his conclusions / opinion as follows:
1. The Chief Justice as a delegate under Article 229 of the Constitution has power to amend the rules prescribing higher educational qualification as a criterion for promotion to the next higher cadre.
2. Amended Rules of 2009 do not require approval from the Governor of the State.399
3. Amended Rules of 2009 prescribing higher education qualification as criterion for promotion to the next higher cadre are not violative of Articles 14, 16 or 21 of the Constitution.
4. Amended rules of 2009 are prospective in nature. They will not be applicable to the vacancies that existed prior to coming into force of the amended rules of 2009. All the vacancies, which arose prior to coming into force of the amended rules, 2009 have to be filled up under the Principal rules.
5. All promotions in respect of vacancies that arose subsequent to coming into force of the amended rules of 2009 have to be filled up under the amended rules.
6. Interpretation of explanation to the proviso to the amended rules of 2009 causing hardship to the employees in acquiring higher educational qualification cannot be a ground to declare the amended rules of 2009 as arbitrary, unreasonable and thus, violative of Articles 14 and 16 of the Constitution.
7. It is always open to the policy maker to consider the grievances and hardship of the employees.
8. The order of promotion in respect of vacancies that arose prior to coming into force of amended rules of 2009, if any, made under the amended rules shall stand quashed. Similarly, promotions, if any, made under the Principal rules in respect of the vacancies, which arose after the coming into force of the amended rules of 2009 also stand quashed.400
9. Writ Petition No.10131/2010 is delinked to be posted before the Bench having roster to be heard in due course.
10. Consequent to quashing orders of promotions, to prevent any hardship that is likely to be caused and in ensuring smooth administration of the work of the High Court, persons, whose promotions have been quashed shall, however be permitted to continue in their respective posts as incharge arrangement till the promotions are made to the said posts in terms of this order.
(emphasis supplied)
11. A bare perusal of the questions / points framed by both the learned Judges for determination, would show that the first question framed in the second Judgment in respect of the powers of the Chief Justice under Article 229 (2) of the Constitution of India in fact was not framed at all in the first Judgment. I was informed, across the Bar by learned counsel appearing for the parties, that the contention in respect thereof was given up by the respondents before the Division Bench in appeals. Now there is no dispute that the Chief Justice, as a delegate under Article 229 of the Constitution of India, has powers 401 to amend the Rules and such amendments do not require approval from the Governor of the State.
12. The first point framed in the first Judgment and the second point framed in the second Judgment, though the language differs to some extent, are similar. Learned Judge in the first Judgment opined that the proviso as well as the explanation to the amended Rules, 2009, requiring higher qualification are constitutionally valid, but read down as not being applicable to the existing employees. He also observed that educational qualification is a valid basis for classification.
13. The learned Judge in the second Judgment answered the second point holding that the amended Rules, 2009, prescribing higher educational qualification as criterion for promotion to the next higher cadre are not violative of Articles 14, 16 or 21. He further observed that they are neither unreasonable, nor arbitrary. 402
14. The effect of answers to the second point framed in the first Judgment and the second and the fourth points framed in the second Judgment is similar. The first Judge while dealing with the second point framed by him observed that proviso as well as the explanation to the amended Rules, 2009, requiring higher qualification shall not apply to the employees already in service and shall be read down to that effect. He further observed that mechanism provided to enable the employees to acquire necessary educational qualification is impracticable / unworkable and that the petitioners, cannot be deprived of being considered for promotion. Having so observed he quashed the orders of promotion in respect of vacancies that arose prior to the coming into force of the amended Rules, 2009.
15. Insofar as the second Judgment is concerned, while answering the second and fourth questions, the learned Judge observed that the amended Rules, 2009, do not violate the constitutional scheme and the same cannot 403 be treated as arbitrary and unreasonable on the ground of hardship. Learned Judge further held that interpretation of the explanation to the proviso to the amended Rules, 2009, causing hardship to the employees in acquiring higher educational qualification cannot be a ground to declare the amended Rules as arbitrary, unreasonable and thus, violative of Articles 14 & 16. It was further observed that amended Rules, 2009, are prospective in nature and they will not apply to the vacancies that existed prior to coming into force of the amended Rules, 2009, and hence those vacancies should be filled up under the Principal rules.
16. Insofar as the vacancies that arose prior to the amendment are concerned, though the effect of the findings recorded in both the judgments is same, the views expressed cannot be stated to be concurring. The first Judge holds that the amended rules are not applicable to "the existing employees", whereas the second Judge holds that the amended rules are not applicable to the 404 "vacancies that existed" prior to coming into force the amended Rules. In other words, the first Judge read the amended rules down so as to completely exclude the existing employees from its preview, whereas the second Judge relying upon the judgements of the Supreme Court held that the vacancies that arose prior to the amendment should be filled up under the Principal rules. The Second Judge did not read the Rules down to extend any benefit/advantage to the existing employees in respect of those vacancies, as has been done by the first Judge.
17. The 3rd and 4th questions framed by the learned Judge in the first Judgment, though were not answered clearly, it appears to me that in the light of the Judgment of the Supreme Court in T.R. KOTHANDARAMAN AND OTHERS v. TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD AND OTHERS (1994) 6 SCC 282 the first Judge observed that the reasonableness of classification always depends on the facts of each case and to read an embargo as applicable to 405 all fact situations without reference to other situations, such as, the historical background and the denial of equal opportunity, it cannot be said that the learned single Judge has committed any error as he thought it fit to follow a line of cases decided by the Supreme Court in support of his conclusions, just as it thought fit, in arriving at this opinion.
18. Thus, both the learned Judges having accepted that educational qualification as the valid basis for classification have differed as to applicability of the amendments to the existing employees. In short, the first Judge holds that the amended Rules would apply to the "future employees", whereas the second Judge holds that it would apply to the existing and future employees and so far as the vacancies that were existing on the date of amendment are concerned, they will be filled up under the principle rules.
19. If the opinion of the first judge, reading down the amended rules, is ultimately upheld, the existing employees shall continue to be governed by the Principal 406 rules till they retire. He read the amended rules down, as he found the mechanism provided in the amended Rules, 2009, and the guidelines framed under circular dated 24.8.2010 providing for promotion is impracticable / unworkable and many of the employees may not be inclined to take up a course of study late in their lives. He then observed that there is no controversy between the parties as regards promotions effected in respect of vacancies that arose prior to the amendments and the petitioners cannot be deprived of consideration for promotion, by virtue of amendment, to those vacancies. Then, he observed that the Court was dealing with the case where it has first hand knowledge of the nature of duties of officers concerned and the difference which any higher educational qualification would make on efficiency of service rendered by the respective employees. Further, he observed that to ignore reality in the present case would not only deprive the concerned employees of a consideration but would also result in over-looking the 407 valuable experience, expertise and efficiency of the employees to the peril of the institution.
20. On the other hand, the second Judge after upholding the amended Rules, 2009, in entirety has opined that they will not apply to the vacancies that existed prior to coming into force of the amendment. The learned Judge further observed that "the contention that once educational qualification is prescribed at entry level, the rules as existing then, will alone regulate the service conditions of such employees and the authorities are estopped from prescribing higher educational qualification as a criteria for promotion cannot be accepted as there cannot be any estoppel against law, muchless against the exercise of legislative function." Then it was observed that "the Courts while dealing with subordinate legislation, have no choice but to consider the validity only under constitutional scheme. Before Rule is declared ultra vires, it must be held to be wholly arbitrary or irrational and if a plea of discrimination is raised, it must be raised on adequate pleadings." The second Judge did not see any 408 discrimination having been made by the amended Rules, 2009, as no different yardstick could be applied in the method of promotion amongst the employees of the same cadre. The learned Judge did not find the proviso and the explanation prescribing higher educational qualification as the criterion for promotion to the next cadre unreasonable, arbitrary and violative of Articles 14 & 16 of the Constitution.
20.1 The second Judge, after holding that the amended Rules, 2009, are prospective in nature, observed that they apply from the date on which they are notified and hence the posts already vacant / available for promotion on the date when the amended Rules, 2009, were brought into force had to be filled up under the principal rules. He then proceeded to observe that prescribing higher educational qualification as a criterion for promotion is different from providing an opportunity to an employee who has not acquired higher educational qualification. Since the main proviso is held valid, it cannot become arbitrary or unreasonable merely because 409 it would be difficult to some of the employees to acquire requisite qualifications as per the explanation.
21. In short, the difference of opinion between the two Judges, seems to be only on the point whether the amended Rules, 2009, would cover the existing employees. The first Judge holds that the existing employees would continue to be governed by the Principal rules till they retire from the service. The effect of the view taken by the first judge is that, the vacancies that arose before the amendment and that would arise after the amendment have to be filled up as per the principal rules, insofar as the existing employees are concerned. The second Judge, has specifically observed that the amended Rules, 2009, are prospective in nature, in the sense, the amended Rules, 2009, would govern the existing employees also but shall not cover the vacancies that existed prior to coming into force of the amended Rules, 2009, and those vacancies have to be filled up under the Principal rules. All the vacancies as per the second judgment, which arose prior to coming into force of 410 the amended Rules, 2009, have to be filled up under the Principal rules and that all promotions in respect of the vacancies that arose and would arise subsequent to coming into force of the amended Rules, 2009, have to be filled up under those Rules.
22. I have heard learned counsel for the parties at great length and with their assistance gone through the Judgments of both the learned Judges, so also the Judgment of the learned single Judge. I have also perused the relevant Rules and the Judgments cited by learned counsel for the parties.
22.1 It is against this backdrop, I have framed the following question with the assistance of learned counsel for the parties:
"Having upheld validity of the amended Rules, 2009, on the ground that prescribing higher educational qualification is a valid criteria for promotion, whether the applicability of the same should be to all or only future employees, and if it is applicable to all the employees, should it apply to all the vacancies or only to the vacancies that have arisen subsequent to the amendment?"411
22.2 In my opinion, the aforesaid question, is impregnated with the following two questions:
a) "Whether after having upheld the amended Rules, 2009, prescribing higher educational qualifications, is it possible to read down the Rules, so as to exclude the existing employees from its purview on the ground that they are impracticable, unworkable and unreasonable?
b) Whether after having upheld the
amended Rules, 2009, prescribing higher
educational qualification as criterion for
promotion to the next higher cadre, the
vacancies that arose before the amendments were brought into force and remained vacant till then have to be filled up as per the Principal rules?"
23. I have heard Mr. Basava Prabhu Patil, learned Senior Advocate for the appellants and Mr.Naik, Mr.Bhagwan, Mr.Jacob, Mr.Kardigudda and Mr.Madhavachar, learned counsel for the respondents in different appeals. Except these five advocates, no other advocate turned up though I heard these appeals on three 412 days. The leading arguments on behalf of the respondents were advanced by Mr.V.S.Naik, the advocate for respondent Nos.266, 272, 276-280, 282-286, 288, 290- 293 in W.A.Nos.1934-1938/11.
24. Mr. Basava Prabhu Patil, learned senior Advocate for the appellants, at the outset submitted that after having upheld validity of the amended rules, 2009, on the ground that prescribing higher qualification is a valid criteria for promotion, the rules cannot be read down and they would apply to all vacancies that arose before and after the amendment and that will be arising in future. 24.1 Mr. Patil, then submitted that reduction in mere chance of promotion, which is distinct from being considered for promotion, does not constitute variation in condition of service. There is no vested / indefeasible right in mere chance of promotion. Mere hardship on account of diminishing of chance of promotion of individual employees is not a ground to declare law ultra vires or to read it down. Moreover, it cannot be overlooked that the 413 amended rules enable the existing employees to acquire the educational qualification prescribed therein for further promotions. He submitted that the rules are prospective in application and merely because they apply to existing employees they do not become retrospective. The amended rules, he submitted, would not affect the promotions given prior to the amendment. He submitted that the right to be considered for promotion accrues only on the date of consideration of the eligible candidates. Therefore, even the vacancies, that arose prior to coming into force of the amended rules, will have to be filled up under those rules and not under the principle rules. 24.2 After taking us through certain observations made by learned Judges in both the Judgments, Mr. Patil submitted that the role of the Court in judicial review of subordinate legislation is limited and the Court cannot substitute its views. A policy decision cannot be struck down on the ground that it is erroneous or on the ground that a better, fairer and wiser alternative is available. He submitted that once the amendments are found to be 414 constitutionally valid, on plain construction apply to all existing as well as future employees, their application cannot be read down as regards existing employees. Therefore, the amended rules need to be upheld in entirety and further must be held as applicable to all employees and all vacancies that arose before and after the amendment.
24.3 In rejoinder, Mr. Patil submitted that the judicial notice of the facts that may be taken under section 56 of the Evidence Act are enumerated under section 57. Personal experience of learned Judge as to performance of a few employees cannot form the basis of reading down a law, which is held to be based on valid classification. In short, he submitted that the amendment which is otherwise held to be valid cannot be read down on the ground of mere hardship. He then submitted, that the contention urged on behalf of the respondent-employees that their rights are affected on account of the amendment in relation to the promotion is untenable for the reason that what is affected is mere chance of promotion and not 415 their right for being considered for promotion. It was submitted that there is no right in mere chance of promotion and it does not constitute a condition of service. On the other hand, to be considered for promotion, though is a right, the same is available only to those who are qualified / eligible as prescribed. Mr. Patil placed reliance upon several Judgments in support of his contentions, to which I propose to make a reference at appropriate places in the course of this Judgment.
25. At the outset, Mr.Naik, relied upon the judgment of the Supreme Court in UNNIKRISHNAN J.P.
-vs- STATE OF ANDHRA PRADESH (1993) 1 SCC 645 and submitted that having regard to the principles laid down by the Supreme Court in this judgment, it is clear that the restriction placed by way of prescribing higher educational qualification cannot go to the extent of seriously jeopardizing the chances of promotion and to decide this, the extent of the restriction shall have to be looked into, to ascertain whether it is reasonable. He 416 submitted that the first judge was right in holding that the amended rules, 2009 being mandatory in nature, are unreasonable, unworkable and impracticable. The rules would diminish the chances of promotion and might end up in no promotion at all for no fault of the employees. Hence, he submitted, that the first Judge has rightly "read down" the rules so as to exclude the existing employees from the purview of the amended rules,2009.
25.1 He then submitted that the argument advanced by learned Senior Advocate appearing on behalf the appellants that there is no scope for placing reliance on the personal views, while dealing with the legal issue deserves to be rejected outright. He submitted that neither the single Judge who decided the writ petitions nor the first judge committed any error in examining the fact situation based on their personal views. The issue before the Court was with regard to constitutional validity of the amended rules and its applicability to the existing employees. While examining the constitutional validity, the learned Single Judge as well as the first Judge did not 417 exceed any limits while making reference to their experience as well as experience of many judges with regard to the work being turned out by the Stenographers, Judgment Writers, Senior Judgment Writers possessing only SSLC qualification and doing outstanding work of taking dictation.
25.2 Mr.Naik, then, after inviting my attention to the observations made by the first Judge on page 262 and paragraph-130 at page 368 by the second Judge, submitted that in fact there was no controversy between the parties insofar as the promotions effected in respect of the vacancies that arose prior to the amendment. Though, he so submitted, he agreed for the point/question formulated by me in this judgment for consideration. 25.3 Mr. Naik submitted that the arguments advanced on behalf of the respondents that mere hardship on account of diminishing the chances of promotion of individual employees is not a ground to declare law ultra virus requires to be distinguished in as much as existing 418 Rules held the field in the matter of recruitment and promotion of the employees of the High Court ever since 1973 i.e., for almost four decades. He submitted that in view of the embargo placed under the Amended rules requiring the employees to obtain Law Degree/Degree so as to become eligible for promotion not only diminishes the chance of promotion but the same shuts the doors of promotion forever. According to him, the mechanism provided, allowing the employees to acquire degree is unworkable and impracticable as has been observed by the first Judge. In view thereof, the submission advanced on behalf of the appellants, he submitted that the contentions urged on behalf of the appellants deserve to be rejected. 25.4 He, then, invited my attention to the judgment of Supreme Court in BRIJ MOHAN LAL -vs- UNION OF INDIA (2012) 6 SCC 502 and submitted that the amended Rules, 2009 are both unreasonable and unfair and hence, the judicial review is permissible and the opinion expressed by the first Judge that the amended Rules cannot be applied to the existing employees requires 419 to be upheld. Lastly, he submitted that the amended rules should be applied only for future employees.
26. Mr. Bhagavan, learned counsel appearing for the respondents submitted that in the light of the judgment of the Supreme Court in BRIJ MOHAN LAL's case this Court will have to consider the nature of posts that the respondents held after their appointments under the Principal rules and that the matter pertaining to framing of rules and policy decision by the concerned authority can be adjudicated upon by the Courts. He submitted that the requirement of good governance is that the Government should frame policies which are fair and beneficial to the public at large and if the policy decisions are arbitrary, capricious and unreasonable, the Courts can exercise the power of judicial review in relation to such matters. In short, he submitted that the policy should not be opposed to basic rule of law or statutory law in force. The policy decision of the State should be in public interest and taken objectively. In the light of settled principles of 420 law, he submitted that the amended rules are arbitrary, capricious and unreasonable and, thus are against the public policy.
26.1 He then submitted, the High Court should act as a model employee which would be consistent with the role in the administration of justice. It cannot be ignored that the right of eligible employees to be considered for promotion is a part of their fundamental right guaranteed under Article 16 of the Constitution. It is clear from the amended rules that legitimate expectations of the respondents of being considered for promotion has been defeated by the acts of the appellants. He, then, submitted that the Doctrine of Promissory Estoppel also requires to be expanded so as to do justice to the existing employees of the High Court. In support, Mr. Bhagvan placed reliance upon few judgments, to which I propose to make reference in the later part of the judgments.
27. Mr. Reuben Jacob, learned counsel for the respondents-employees submitted that the amended rules 421 2009 have the effect of taking away the fundamental right of the existing employees to be considered for promotion for ever and therefore, they are unconstitutional. He submitted that the amended rules 2009 have not only taken away their chances of promotion but their right is foreclosed for ever and hence the amendment is manifestly unjust, outrageous, artificial, impracticable, unworkable, unreasonable, and therefore, unsustainable. He submitted that though prescription of higher educational qualification is a valid classification, it renders unconstitutional being unreasonable as they take away/foreclose the right of the existing employees to be considered for promotion for ever. In view thereof, he submitted that the first judge was right in reading down the amended rules.
27.1 He submitted that the first Judge has rightly read down the amended rules. In support he placed reliance upon judgments of the Supreme Court to which I would refer at appropriate stages.
422
28. Before I proceed further, it would be profitable to consider the scope of judicial review in cases, as the one in hand. Learned Counsel for the parties invited my attention to several judgments of the Supreme Court. On behalf of the appellants a reliance was placed on the judgment of the Supreme Court in MAHARASHTRA STATE BOARD OF SECONDARY EDUCATION AND ANOTHER -vs- PARITOSH BHUPESHKUMAR SHETH AND OTHERS (1984) 4 SCC 27 in support of the proposition that the Court cannot substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Rules and to sit in judgment over the wisdom and effectiveness of the rule making authority and declare the rules to be ultra virus merely on the ground that, the impugned amendment will not help to serve the object. In short, it was contended that the Court cannot examine the wisdom, merits or efficaciousness of the policy of Legislature or its delegate to see if it effectuates 423 the purpose of the Act. The relevant observations made by the Supreme Court in paragraph No.14 and 21 read thus:
14. .............. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power 424 conferred on the delegate by the statute..........
21. The legal position is now well-
established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than "is necessary"
or that it does not incorporate certain provisions which, in the opinion of the court, would have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the judges do not approve of it. Unless it can be said that a bye law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make by laws must ordinarily be presumed to know what is necessary, reasonable, just and fair.............
(emphasis supplied) 28.1 Similar view was reiterated by the Supreme Court in DIRECTORATE FILM FESTIVALS AND OTHERS
-vs- GAURAV ASHWIN JAIN AND OTHERS (2007) 4 SCC 737 in paragraph 16, the Supreme Court observed thus:
16. "The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts 425 advisors to the executive on matters of policy which the executive is entitled to formulate.
The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review (vide Asif Hameed v. State of J & K, Sitaram Sugar Co. Ltd. v. Union of India, Khoday Distilleries Ltd. v. State of Karnataka, BALCO Employees' Union v. Union of India, State of Orissa v. Gopinath Dash and Akhil Bharat Goseva Sangh (3) v. State of A.P.) (emphasis supplied) 28.2 A heavy reliance was placed upon the judgment of the Supreme Court in BRIJ MOHAN LAL's case on behalf of the respondents in support of their submissions. In that case, the Fast Track Courts had been established under a scheme/public policy for a limited period and since it was discontinued with effect from particular date the aggrieved presiding officers challenged discontinuation thereof by way of writ petitions in different States. The writ petitions were ultimately clubbed and decided by the Supreme Court in this case. The 426 observations made by the Supreme Court, which are relevant for our purpose, read thus:
"100. Certain tests, whether this court should or not interfere in the policy decisions of the sate, as stated in other judgments, can be summed up as:
(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II) The Change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc. (IV) If the policy is found to be against any statute or the constitution or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or legislations.
(VI) If the delegate has acted beyond its power of delegation.
103. The correct approach in relation to the scope of judicial review of policy decisions of the state can hardly be stated in absolute terms. It will always depend upon the facts and circumstances of a given case. Furthermore, the court would have to examine any elements of arbitrariness, unreasonableness and other constitutional facets in the policy decision of the State before it can step in to interfere and pass effective orders in such cases."
42728.3 Mr.Jacob, learned counsel for the respondents placed heavy reliance upon the judgments of the Supreme Court in MAHALAXMI SUGAR MILLS COMPANY LIMITED -vs- UNION OF INDIA (2009) 16 SCC 569 case and STATE OF T.N. -vs- P.KRISHNAMURTHY (2006) 7 SCC 517 to contend that subordinate legislation does not carry the same degree of immunity which is enjoyed by a statue passed by a competent legislature. It can be questioned on the ground that it is unreasonable, not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.
28.4 In MAHALAXMI SUGAR MILLS COMPANY LIMITED's heavy reliance was placed on the observations made in paras-51, which reads thus:
51. .............Noticing the decision of this Court in Indian Express Newspapers (Bombay) (P) Ltd.
v. Union of India it was held that subordinate legislation can be questioned on any ground on which the primary legislation can be questioned. The premise of judicial review may be glanced from the following observations made by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) -vs- Bombay Environmental Action Group (SCC p.488, para
104).
428
"104. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation, whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such, legislation, however, must not be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith."
(emphasis supplied) 28.5 In P.KRISHNAMURTHY's case, my attention was invited to the following observations of the Supreme Court:
"15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds:
a) Lack of legislative competence to make the subordinate legislation.
b) Violation of fundamental rights guaranteed under the Constitution of India.
c) Violation of any provision of the Constitution of India.429
d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that is, any enactment.
f) Manifest arbitrariness / unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules) (emphasis supplied)
17. In Indian Express Newspapers (Bombay) (P) Ltd. -vs- Union of India this Court referred to several grounds on which a subordinate legislation can be challenged as follows: (SCC p. 689 para 75) "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation.
It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary."
18. In Supreme Court Employees' Welfare Assn. -vs- Union of India this Court held that the validity of a subordinate legislation is open to question if it is ultra vires the 430 Constitution or the governing Act or repugnant to the general principles of the laws of the land or is so arbitrary or unreasonable that no fair minded authority could ever have made it. It was further held that the Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to be unauthorised and/or violative of the general principles of law of the land or so vague and that it cannot be predicted with certainty as to what it prohibited or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith."
(emphasis supplied) Keeping the principles laid down by the Supreme Court in view, I would now like to consider the questions that fall for my consideration in these appeals.
29. In the present case, there is no dispute that the Chief Justice as a delegate under Article 229 of the Constitution has power to amend the rules prescribing higher educational qualification as a guidelines for promotion to the next higher cadre and the rules framed by the Chief Justice do not require approval from the Governor of the State. The amended rules 2009, prescribing higher educational qualification for promotion 431 to the next higher cadre, as has been held by both the learned judges are not violative of Articles 14 and 16 of the Constitution. In view thereof and keeping the principles laid down by the Supreme Court in the aforesaid Judgments in mind, I would now like to examine whether the amended rules are unreasonable, unworkable and impracticable and that they not only diminish the chances of promotion but also might end up in no promotion at all, as contended on behalf of the respondents.
30. At the outset, I would like to consider the question / point whether vacancies that arose prior to coming into force of the amended Rules, 2009, and which remained vacant till then, should be filled up as per the Principal rules. I would consider this point in view of divergent reasons / opinions recorded by both the learned Judges while dealing with the point. For different reasons, as has been seen earlier, the first Judge holds that the amendment would not apply to the "existing employees"
till they retire, whereas the second Judge holds that the amendment would apply to both, the existing and the 432 future employees and further, that it would not apply to the "existing vacancies" that arose prior to coming into force of the amended rules.
31. Mr. Patil, Learned Senior Advocate appearing for the appellants placed heavy reliance upon the judgment of the Supreme Court in DEEPAK AGARWAL AND ANR. -vs- STATE OF U.P. & ORS. 2011 AIR SCW 2138 case to contend that the judgments in Y.V.RANGAIAH -vs- J. SREENIVASA RAO (1983) 3 SCC 282; STATE OF ANDHRA PRADESH & ORS. -vs- J.
SREENIVASA RAO (1983) 3 SCC 285; STATE OF RAJASTHAN -vs- R. DAYAL (1997) 10 SCC 419; and ARJUN SINGH RATHORE -vs- B.N. CHATURVEDI (2007) 11 SCC 605 are of no avail to the respondents. He submitted that the aforesaid judgments were rendered on the interpretation of the rules which fell for the consideration of the Supreme Court. The rules therein provided for preparation of a panel for eligible candidates every year and that was a statutory duty cast upon the concerned authorities and hence the exercise was required 433 to be conducted each year. Insofar as the principal rules and the Amended Rules, 2009 are concerned, they do not provide preparation of panel every year and, hence the law laid down in Y.V.RANGAIAH has no application to the facts of the present case.
32. Mr.Jacob, learned counsel appearing for the respondents vehemently submitted that this Court (the third Judge) cannot examine this question, since both the learned Judges held that there was no controversy, insofar as the vacancies that arose prior to the amendment are concerned. He further submitted that in view of the directions issued by both the learned Judges in respect of the pre-amendment vacancies, the only course open to the appellants is to challenge the said finding in the Supreme Court.
33. Mr. Naik, learned counsel for the respondents invited my attention to the observations made by learned Judge in the first Judgement on page 262 and submitted that, there was no controversy between the parties insofar as vacancies that arose prior to the amendment are 434 concerned. The relevant observations on page 262 in the first Judgment read thus:
" Further, it is to be noted that there was no controversy between the parties insofar as the promotions effected in respect of vacancies that arose prior to the amendment. This is apparent from the record and placing reliance on the decisions of the apex Court in Y.V. Rangaiah -vs- J. Sreenivasa Rao (1983) 3 SCC 284; Arjun Singh Rathore -vs- B.N. Chaturvedi (2007) 11 SCC 605 and State of Rajasthan -vs- R. Dayal, (1997) 10 SCC 419, it is held that the petitioners cannot be deprived of being considered for promotion by virtue of the proviso now substituted to the 1973 Rules, whereas, on the contrary, the posts which the petitioners would have occupied by way of promotion under the original Rules, have now been conferred on persons who are promoted pursuant to the 2009 Rules. The view of the learned single Judge in this regard is affirmed."
(emphasis supplied) Then my attention was invited to somewhat similar observations in the second Judgment in paragraph 130, in support of this contention. The relevant observations read thus:
"The objection statement on behalf of the Chief Justice or the contentions do not say that the vacancies were not determined or existed as on the date of the amended rules. It is also not the case of the Chief Justice that the said vacancies were not required to be filled up under the 435 1973 Rules. If there were vacancies and eligible candidates were required to be considered for promotion before the amended rules, then such vacancies have to be filled only under the 1973 Rules. Though the Supreme Court has held that the consideration for promotion should be based on the rules that existed as on the date of consideration, treating that the vacancies have been determined as on the date of the amended rules and those vacancies, having been determined, such vacancies create right in the employees for promotion to the next higher cadre. Hence, in so far as the vacancies that existed as on the date of the amended rules have to be filled up only under the 1973 rules."
(emphasis supplied) On the basis of these observations Mr.Naik, vehemently submitted that it is not open to this Court to enter into a question whether the vacancies that arose before the amended Rules, 2009, have to be filled up only under the Principal rules.
34. In my opinion, the submissions advanced by Mr. Naik and Mr. Jacob deserve to be rejected outright. It appears that right from inception, the question whether vacancies that arose prior to coming into force of the amended Rules, 2009 should be filled up under those 436 rules, was under consideration. The learned single Judge in writ petitions had framed the question to that effect being point no.5 and held that the vacancies that arose prior to the amendment have to be filled up as per the principal rules. In view thereof, a specific ground was taken by the appellants in these appeals whether the vacancies arose earlier should be filled up as per the principal rules/the amended rules being ground no.34 in W.A. No. 1934-38/2011 c/w 2245-49/2011. That apart, in the second Judgment, a specific point to that effect was framed by the second Judge being point no.3. It is also evident from the Judgments cited on behalf of the appellants, viz. the Judgment in DEEPAK AGARWAL clearly demonstrates that the point was not only raised but it was also considered by both the learned Judges. The first Judge, though did not refer to the Judgment of the Supreme Court in DEEPAK AGARWAL, did consider the Judgments of the Supreme Court in Y.V. RANGAIAH, SRINIVAS RAO, R. DAYAL and ARJUN SINGH RATHORE while dealing with the point. Thus, I am 437 satisfied that it cannot be stated that it was admitted by the appellants that the vacancies that arose before the amendment have to be filled up in accordance with the principal rules. Learned counsel for the parties, in particular, learned counsel for the appellant not only raised the point but also vehemently argued at length placing reliance upon several Judgments of the Supreme Court including the Judgment in DEEPAK AGARWAL in support of their contentions in respect of those vacancies.
35. Both the learned Judges while expressing their opinion on the question, placed reliance upon the Judgments of the Supreme Court in Y.V. RANGAIAH, J. SREENIVASA, R. DAYAL and ARJUN SINGH RATHORE. The second Judge also considered the Judgment of the Supreme Court in DEEPAK AGARWAL.
35.1 In DEEPAK AGARWAL, the Supreme Court was considering the question "whether the appellants were entitled to be considered for promotion on the post of Deputy Excise Commissioner under the 1983 Rules, on the vacancies, which occurred prior to the amendment in the 438 1983 Rules on 17.5.99." The question / point that falls for my consideration is similar.
35.2 The second Judge, after having considered the judgment in DEEPAK AGARWAL and so also the judgment of the Supreme Court in Y.V. RANGAIAH, has taken a view that all promotions in respect of vacancies that arose prior to coming into force of the amended Rules, 2009 have to be filled up under the principal rules. The first Judge did not consider this question independently. He even did not frame the question, as was framed by the second judge being point number 3 in the second judgment.
36. I have carefully gone through the judgment of the Supreme Court in DEEPAK AGARWAL and I find that the judgments in R.DAYAL AND Y.V.RANGAIAH were also considered by the Supreme Court in this case, apart from several other judgments. The Supreme Court after considering the ratio in Y.V.RANGAIAH has observed that it would not be applicable to the facts of that case (DEEPAK AGARWAL). The observations relevant for our 439 purpose would find place in paragraph Nos.22 to 26 and 28 which reads thus:
"22. ........By virtue of the amendment in sub- rule 3 of Rule 5, the appellants have been deprived of the right to be considered for promotion on the post of Deputy Excise Commissioner. Respondents have been promoted by the impugned order dated 26th May, 1999 under the amended Rules.
23. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions to the 12 vacancies have been made on 26th May, 1999 under the amended Rules. The High Court rejected the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in the case of Y.V. Rangaiah. The High Court has relied on the judgment of this Court in Dr. K. Ramulu.
24. We are of the considered opinion that the judgment in Y.V. Rangaiah's case would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year.
Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was 440 observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment.
The vacancies which occurred prior to the amended rules would be governed by the old rules and not the amended Rules.
25. In the present case, there is no statutory duty cast upon the respondents to either prepare a year-wise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules.
26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the `rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates.441
Unless, of course, the applicable rule, as in Y.V. Rangaiah's case lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.
28. In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in the case of Dr. K. Ramulu. In the aforesaid case, this Court considered all the judgments cited by the learned senior counsel for the appellant and held that Y.V.Rangaiah's case would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the Rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place."
(emphasis supplied)
37. Based on the judgment of the Supreme Court in DEEPAK AGARWAL, Mr. Patil learned counsel for the appellants submitted that the vacancies which arose before the amended Rules 2009, were brought into force and were vacant as on the date of the enforcement of the 442 amended rules, will have to be filled up as per the existing / amended rules, 2009.
38. Mr. Patil also placed reliance upon the Judgment of the Supreme Court in DR. RAMULU AND ANOTHER v. DR. S. SURYAPRAKASH RAO AND OTHERS AIR 1997 SC 1803 in support of the very same contention. In this case, the Supreme Court observed that in the absence of rules to the contrary, notification of vacancies for appointment does not vest indefeasible right to be appointed and notification only amounts to an invitation to qualified candidates to apply for recruitment. In that case, the employees were seeking promotion under A.P. Animal Husbandry Service Rules. In HIGH COURT OF DELHI AND ANOTHER -vs- A.K. MAHAJAN & OTHERS - AIR 2009 SC 2497 the Supreme Court observed that law regarding retrospectivity or retroactive operation regarding the rules of selection is that where such amended rules affect the benefit already given, then alone such rules would not be permissible to the extent of retrospectivity. In P.K. JAISWAL -vs- DEBI 443 MUKHERJEE AIR 1992 SC 749 the Supreme Court observed that right of selection crystallizes only after a candidate is called for interview pursuant to advertisement.
39. On the other hand, learned counsel appearing for the respondents relying upon the Supreme Court judgments, vehemently submitted that the amended Rules,2009 have prospective application requiring the pre- amendment vacancies to be considered under the principal rules. I would like to consider the judgments relied upon by the respondents.
39.1 IN Y.V.RANGAIAH, the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976 was under consideration. That rule provided for preparation for a panel of eligible candidates every year in the month of September. That was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel 444 had been prepared for the year 1976. Subsequently, the rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by the Supreme Court in this case that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amendment would be governed by the old rules and not by the amended rules.
39.2 In R.DAYAL, the Supreme Court held that even a carry forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government. As on that date, when the appointment came to be made, the selection was required to be made on the basis of the rules as existing on the date of vacancy arose. Since, admittedly, that had not been done, the appointment of the said employee, Supreme Court held that it must be treated as temporary appointment pending consideration of the claims of the eligible persons belonging to general and reserved quota 445 separately as per the Rules. The Supreme Court, in this case, was considering the Rajasthan Service of Engineers (building and roads branch) rules, 1954. Those rules were amended w.e.f. 24.7.95. Under Rule 9 of those rules, subject to the provisions therein, the appointing authority was required to determine as on the first day of the financial year i.e., commencing from 1st April of ensuing year and ending with 31st March of successive year, the number of vacancies, actual or anticipated, occurring during the financial year. They were required to be considered by the DPC constituted in that behalf as per the criteria prescribed in Rule 23 of those rules. It is against this backdrop, the Supreme Court, after considering the ratio in Y.V.RANGAIAH observed that the vacancies that arose subsequent to the amendment of the Rules are required to be filled up in accordance with law as on the date when the vacancies arose.
39.3 From bare perusal of this judgment in R. DAYAL it is clear that there was a statutory duty cast upon the concerned authority to prepare panel of eligible 446 candidates or selected candidates for promotion. In our case, no such statutory duty cast upon the respondent by the Principal rules and / or the amended rules, 2009. 39.4 In ARJUN SINGH RATHORE, the appellants before the Supreme Court, were initially promoted in September 2000 under the old rules of 1988. But their promotions were reconsidered in November 2005 because of ensuing litigation wherein the High Court held that promotions should have been made according to new Rules of 1998 instead of 1988 Rules. All of them were re- promoted except one, on the ground that charge-sheet had been issued to him on 9.11.2005. The results of fresh promotions were declared later on 22.11.2005. Subsequently, the Supreme Court confirmed those promotions under the 1988 rules holding that they were rightly made, and that the 1998 rules were not applicable. The question, therefore, fell for consideration of the Supreme Court was whether the person in whose case sealed cover procedure had been applied, was entitled to benefit of the Supreme Court judgment.
44739.5 In that case, the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1998 were under consideration. Those rules were amended in 1988. In the backdrop of the facts in that case, the Supreme Court after referring to its judgments in Y.V.RANGAIAH and R.DAYAL in paragraph 7 observed thus:
7. "It has however been pointed out that Ram Narayan Meena had been subjected to a charge-
sheet dated 9.11.2005 on the basis of a complaint dated 16.6.2005, that is, long after the promotions had been made under the Rules of 1988, and as such he to should be given the benefit of this judgment insofar as the promotion was concerned though subject to the outcome of the proceedings against him. We find merit in this plea as well. It needs to be highlighted that the promotion under the Rules of 1988 had been made way back in September 2000 i.e. long before the complaint had been made against Ram Narayan Meena. We are therefore of the opinion that he too should be given the benefit of this judgment subject to the outcome of the disciplinary proceedings."
39.6 In SREENIVASA, the very same rules which were considered by the Supreme Court in Y.V.RANGAIAH fell for consideration of the Supreme Court. After quoting 448 the relevant rule i.e., 4(a)(1)(I) and Rule 34, the Supreme Court observed that it requires the list of approved candidates for appointment by transfer, where the Public Service Commission is not consulted on suitability of a candidate, shall be prepared in the month of September every year so as to be in force until the list of approved candidates for the succeeding year is prepared and for the purpose of preparing the said list the claims of as many eligible candidates as such authority considers necessary shall be considered.
40. From the judgments of the Supreme Court, referred to above, in my opinion, the following principles emerge:
a) A candidate has the right to be considered for promotion in the light of the existing rules, which implies the "rule in force" on the date the consideration takes place. The requirement of filling up old vacancies under the old rules is inter-linked with the candidate having acquired right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, 449 the applicable rule lays down particular time frame, within which the process of promotion is to be completed.
b) If the rules cast statutory duty on the concerned authority for preparation of a panel for the eligible candidates every year in a particular month, it is necessary to conduct such exercise each year. The subsequent amendment to the rules, rendering the existing employees ineligible to be considered for promotion, will not affect their right for promotion as per the rules in force before amendment. In other words, if the rules cast statutory duty upon the concerned authority for preparation of a panel for the eligible candidates every year in a particular month the subsequent amendment rendering the existing employees ineligible will not affect the right of such employees for promotion under the original rules.
40.1 In the first judgment, the Judgment of the Supreme Court in DEEPAK AGARWAL was not considered though the other judgments were referred to and considered. In the second judgment, paragraphs-21 to 24 from the judgment of DEEPAK AGARWAL are quoted. Paragraphs-25, 26 and 28 make the position of law further clear, which in my opinion, squarely covers the 450 point/question raised in the present case. As a matter of fact, in DEEPAK AGARWAL, the question framed by Hon'ble Judges of the Supreme Court was the one as in the present case. The second judgment, however, did not distinguish the ratio laid down in DEEPAK AGARWAL.
41. In the present case there is no statutory duty which the appellants could be mandated to perform under the principal rules requiring preparation of a panel for the eligible candidates every year. Admittedly, no panel was prepared for the year before the amended rules were brought into force on 29.7.2009, as no such duty was cast upon the appellants under the principal rules. Subsequently, the rules were amended, which rendered the respondent employees ineligible to be considered for promotion on those vacancies as per the principal rules. It is now well settled that an employee has the right to be considered in the light of the existing rules, which implies the 'rule in force' on the date the consideration takes place.
45141.1 The requirement of filling up of vacancies under the old rules is always inter-linked with the candidates having acquired right to be considered for promotion. Having regard to the principal rules, it cannot be stated that the respondents had acquired any right on the vacancies that arose prior to the amended rules came into force. The right to be considered for promotion accrues on the date of consideration of the eligible candidates, unless of course, the applicable rules, as in Y.V. RANGAIAH, lay down any particular time frame, within which the selection process has to be completed. No such time frame has been laid down in the principal rules and hence it cannot be accepted that any 'accrued' or 'vested' right of the respondent employees had been taken away by the amendment. Thus, in my opinion, the vacancies that arose prior to coming into force of the amended rules and which remained vacant till then have to be filled as per the said rules. In other words, the vacancies that arose prior to coming into force of the 452 amended rules, and which remained vacant, as claimed by the respondents, should not be filled as per the principal rules.
42. I would now like to deal with the submissions urged on behalf of the respondents that the amended rules, prescribing higher educational qualification for promotion to the next higher cadre are unreasonable, impracticable and unworkable. In this connection, several Judgments were relied upon by learned counsel appearing for the parties dealing with chance of promotion / right of promotion, condition of service etc.
43. The five Judges Bench of the Supreme Court in STATE OF JAMMU & KASHMIR -vs- TRILOKNATH KHOSA AIR 1974 SC 1 was considering the question if persons drawn from different sources are integrated into one class can they be classified for purposes of promotion on the basis of their educational qualifications? In this judgment Y.V. Chandrachud J. speaking for himself and on 453 behalf of Ray, C.J., and Palekar J. in paragraph 22 observed thus:
"An argument which found favour with Mufti Bahauddin J., one of the learned Judges of the Letters Patent Bench of the High Court, and which was repeated before us is that the "retrospective"
application of the impugned rules is violative of Arts. 14 and 16 of the Constitution. It is difficult to appreciate this argument and impossible to accept it. It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned rules do not recall a promotion already made or reduce a pay-scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot even operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have founded on the rock of retroactivity. But such is not the implication of service rules nor is it their true description to say 454 that because they affect existing employees they are retrospective. It is well settled that though employment under the Government like that under any other master may have a contractual origin the Government servant acquires `status' on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which, for its exercise, requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matter relating to public services is often attempted to be achieved consent is not a pre- condition of the validity of rules of service, the contractual origin of the service notwithstanding."
(emphasis supplied) 43.1 In MOHAMMAD SHUJAT ALI & OTHERS -vs-
UNION OF INDIA AIR 1974 SC 1631 the Supreme Court observed that rule which mainly affects chances of promotion cannot be regarded as varying a condition of service. It would be relevant to notice that the Supreme Court observed in paragraph 15, which reads thus:
15. In the first place, it is not correct to say that there was any variation in the condition of service in regard to promotion applicable to; non graduate Supervisors from the erstwhile State of Hyderabad immediately prior to 1st November, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this 455 Court on the point and particularly the decision in Mohammed Bhakar v. Krishna Reddy(1) where this Court, speaking through Mitter, J., said : "Any rule which affects the promotion of a person relates to his condition of service." But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion-the latter would certainly not be a condition of service. This Court point out in State of Mysore v. G. B. Purohit(2) that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G. B. Purohit(2) was that the district wise seniority of Sanitary Inspectors was changed to State wise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to section 115, sub-section (7). This contention was negatived and Wanchoo, J., as he then was, speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage.
We see no force in this argument because chances of promotion are not conditions of service." Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to non-graduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced :
originally it was fifty per cent, then it became thirty- three and one third per cent, then one in eighteen and ultimately one in twenty-four. The right to be considered for promotion was not affected but 456 the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to 1st November, 1956 and the proviso to section 115, sub-section (7) was not attracted. This view is completely supported by the decision of a Constitution Bench of this Court in Ramchandra Shankar Deodhar & Ors. v. The State of Maharashtra."
(emphasis supplied) 43.2 Then the Supreme Court, in this Judgment, further observed that higher educational qualifications are relevant considerations for fixation of higher pay scale for tracers who have passed the SSLC examination and the classification of two grades of tracers in Mysore State, one for matriculate tracers with higher pay scale and the other for non-matriculate tracers with lower pay scale cannot be said to be violative of Article 14 or 16. Then, it was observed that whenever any classification as made on the basis of variant educational qualifications, such classification must be held to be valid irrespective of the nature and purpose of the classification or the quality and extent of the differences in the educational qualifications.
In short, it was held that when we speak of a right to be 457 considered for promotions, we must not confuse with mere chance of promotion - the latter would certainly not be a condition of service.
43.3 In RESERVE BANK OF INDIA -vs- C.T. DIGHE (1981) 3 SCC 545 Supreme Court observed that it is well settled that a rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of promotion only. Again in STATE OF MAHARASHTRA -vs- CHANDRAKANT ANANT KULKARNI (1981) 4 SCC 130 and in RESERVE BANK OF INDIA -vs- C.N. SAHASRANAMAN 1986 (Supp) SCC 143 the principle as laid down by the Supreme Court in SUJAT ALI was reiterated.
43.4 In STATE OF JAMMU & KASHMIR -vs- SHIV RAM SHARMA & ORS. AIR 1999 SC 2012 the Supreme Court in paragraph 6 observed thus:
"The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service the requirement of passing the matriculation was not needed and while they are in 458 service such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them. In Roshan Lal Tandon -vs- Union of India, 1968(1) SCR 185, it was held by this Court that once appointed an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to respondents. The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as rules provide for conditions of service making an avenue for promotion to higher grades the observations made in T.R.Kothandaraman's case [supra] stand fulfilled. In that view of the matter, we do not think the High Court was justified in allowing the writ petitions filed by the respondents."
(emphasis supplied) 43.5 In T.R. KOTHANDARAMAN the Supreme Court while holding classification based on educational qualification as valid, in paragraph 16 observed thus: 459
16. From what has been stated above, the following legal propositions emerge regarding educational qualification being a basis of classification relating to promotion in public service:
(1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case.
(2) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion.
(3) Restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable.
43.6 Learned counsel for the respondents placed reliance upon the judgment of the Supreme Court in P.MURUGESAN -vs- STATE OF T.N. (1993 2 SCC
340). In that case, the Supreme Court, after considering its various judgments, in particular, the judgment in KHOSA case, in paragraph 11, observed that placing of restriction on diploma holders by limiting their chances of promotion to one out of four promotions, as was done by the impugned amendment, after the graduate engineers 460 and diploma holder engineers constituted one class and performed same duties and discharged same responsibilities, would not be justified, was "too simplistic way of looking at the issue". Having said so, the Bench noted the ratio of Khosa case and observed in paragraph 14 that, if diploma holders can be barred altogether from promotion, it was difficult to appreciate how and why the rule-making was precluded from restricting the promotion. It was pointed out that the rule making authority may be of the view, having regard to the efficiency of the administration and other relevant circumstances, that while it is not necessary to bar the diploma holders from promotion altogether, their chances of promotion should be restricted. It was then stated that on principle there is no basis for the contention that only two options are open to rule making authority-either bar the diploma holders altogether or allow them unrestricted promotion on a par with the graduates. Thereafter, the Bench, noted the hallmark of Shujat Ali case. Decisions in Shamkant (1993 Supp (2) SCC 194), Ravinder Kumar (1986) 4 SCC 627 461 and Abdul Basheer 1989 Supp (2) SCC 344 were then traversed and the Bench in Murugesan case, upheld the validity of ratio of 3:1 between graduates and diploma holders in promotion; so also, the longer qualifying period for service for diploma holders. This judgment in fact supports the contentions urged by Mr. Patil, and not by the learned counsel for the respondents.
43.7 In RAJASTHAN STATE ELECTRICITY BOARD ACCOUNTANTS ASSOCIATION, JAIPUR -vs-
RAJASTHAN STATE ELECTRICITY BOARD AND ANOTHER (1997) 3 SCC 103 the Supreme Court
considered its several Judgments including the Judgments in SHUJAT ALI, KHOSA, KOTHANDARAMAN, MURUGESAN and held that educational qualifications can be made the basis for classification of employees in the State service in the matter of pay scales, promotions, etc. In the matter of promotions, classification based on educational qualifications so as to deny eligibility for promotion to a higher post to an employee possessing 462 lesser qualification or requiring longer experience for those possessing lesser qualification has been held valid. 43.8 In UNION OF INDIA & ANOTHER -vs-
HEMRAJ SINGH CHAUHAN & ORS. (2010) 4 SCC 290 the respondents therein were expecting promotion to Indian Administrative Service under the promotion quota and that there was a delay due to inaction on the part of the State Government for consideration for promotion quota. High Court in that case held that cadre review done in 2005 should be deemed to have been done in 2003 and the respondents be considered for promotion accordingly. Affirming the directions of the High Court, the Supreme Court in exercise of its powers under Article 142 of the Constitution held that the statutory duty which is cast on the State Government and the Central Government to undertake cadre review exercise every 5 years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Lethargy, inaction, an absence of a sense of responsibility cannot fall within the category of just exceptions. It was further observed that legitimate 463 expectation for being considered for promotion defeated due to inaction on the part of State Government in conducting cadre review in time despite reminders from the Central Government. This Judgment in my opinion relied upon by Mr. Reuben Jacob, learned counsel for the respondents is of no avail to the respondents. 43.9 In STATE OF TRIPURA & ORS. -vs- K.K. ROY (2004) 9 SCC 65, the respondent who held a Master's Degree and a Degree in Law was appointed as Law Officer-cum-Draftsman in the Directorate of Cooperation, Government of Tripura in 1982. It was a single cadre post with no promotional avenues. The High Court in that case directed the State to provide "the graded scale" with pay scale equivalent to Grade I & Grade II Officer of Tripura Judicial Service. In this backdrop, the Supreme Court observed that appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondents having regard to its constitutional obligations adumbrated in Articles 14 & 16 of the Constitution. Despite its 464 constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the office of appointment, knowing fully well that there was no avenue for promotion, he cannot resile therefrom. This Judgment also in my opinion, relied upon on behalf of the respondents, is of no avail.
43.10 In FOOD CORPORATION OF INDIA & ORS. -vs- PARASHOTHAM DAS BANSAL (2008) 5 SCC 100 the Supreme Court observed that an employee of a State although has no fundamental right of promotion, it has a right to be considered therefor. What is necessary is to provide an opportunity of advancement, promotion being a normal incidence of service. Further, it was observed that when employees are denied opportunity of promotion for long years (in that case 30 years) on the ground that they fall within a category of employees excluded from promotional prospect, the superior Court will have the jurisdiction to issue necessary directions. In SHIV RAM SHARMA's case the Supreme Court observed that:
465
".......................... The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as the rules provide for condition of service making an avenue for promotion to higher grades, the observations made in T.R. KOTHANDARAMAN's case stand fulfilled.
44. The position of law that emerges from the above judgments is thus:
a) It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rules but it operates in future, in the sense that it governs the future right of promotion of those who are already in service.
Such rule does not recall a promotion already made.
b) A rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. A mere chance of promotion would certainly not be a condition of service and therefore, the 466 rule which merely affects chance of promotion cannot be regarded as varying condition of service.
c) Higher educational qualifications are relevant considerations for promotion. Whenever any classification is made on the basis of variant educational qualifications, such classification must be held to be valid, irrespective of the nature and purpose of the classification or the quality and extent of the differences in the educational qualifications. It is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts.
d) There is no indefeasible right in the employees to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that the rules framed by the Government in that behalf would always be favourable to them.
e) The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such.
467
f) In the matter of promotion, classification on the basis of educational qualifications so as to deny eligibility for promotion to a higher post to an employee possessing lessor qualification or requiring longer experience for those possessing lesser qualifications is perfectly valid.
45. In the present case, the second Judge while holding that all the vacancies, which arose prior to coming into force of the amended rules, 2009 have to be filled up under the Principal rules, has observed that the amended rules are prospective in nature. Though he so expressed, what he means, in my opinion, is that they would not be applicable to the vacancies that existed prior to coming into force of amended rules, 2009. The first Judge though has not used the expression either "prospective" or "retrospective", held that the amended rules shall not apply to the existing employees as on the date of amendment or even in future. In other words, he holds that the existing employees as on the date on which the 468 amendment was brought into force will continue to be governed by the principal rules till they retire. 45.1 In my opinion, it is wrong to characterise the operation of the amended rules either as 'retrospective' or 'prospective'. These rules, which validly classify the employees for promotional purposes, undoubtedly would cover the existing employees i.e. the employees who entered service before framing of the amended rules, but they would operate in future, in the sense that they would govern the future right of promotion of the existing employees. The amended rules do not either recall the promotions already made or reduce the pay scale already granted. They simply provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. The classification made on the basis of the educational attainment, as has been observed by both the learned judges, is neither discriminatory nor arbitrary. Similarly, the amended rules cannot be characterised as "prospective", in the sense they would apply only to future employees. The amended rules 469 will apply to both, the employees in service on the date of the amendment and to the future employees. In that sense, they can be characterised, both "retrospective" and "prospective".
45.2 The Principal rules conferred right of promotion or a right to be considered for promotion on the existing employees without prescribing higher educational qualification. That right, it may be true, has been disturbed or withdrawn. However, merely because the amended rules prescribe higher qualification, they cannot be stated to have taken away the "right" of promotion and / or permanently 'shut out' those employees from promotion. Any rule which affects chances of promotion does not change the condition of service. A right to be considered for promotion is a condition of service, mere chances of promotion are not. The amended rules merely affect chances of promotion and not a right of actual promotion or a right to be considered for promotion. Hence, the amended rules cannot be regarded as varying a condition of service, and therefore, unreasonable. I would 470 like to consider whether the amended rules, as observed by the first Judge, are impracticable and unworkable and, therefore unreasonable little later.
45.3 In any case, the right to be considered for promotion cannot be stated to have been affected by the amended rules though they have reduced the chances of promotion severely. The classification on the basis of education once having been held valid, it is not open to challenge on the ground that the chances of promotion have been severely reduced. It is well settled that whenever any classification is made on the basis of variant educational qualifications, such classification must be held to be valid irrespective of the nature and purpose of classification or the quality and extent of the difference in the educational qualification. When we speak of a right to be considered for promotion, we must not confuse it to mere chance of promotion.
45.4 The law is well settled that it is permissible to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. This 471 proposition has not been disputed by learned counsel for the respondents. The case putforth on behalf of the employees in Group 'D' is that it would not be possible for them to obtain a degree within a period of five years as contemplated by the circular dated 24.8.10. Similar contention was raised on behalf of even other employees contending that LL.B degree course being full time course and since no University in the State of Karnataka has recognised part time LL.B degree course, the mechanism provided under the circular is impracticable and unworkable. I would like to make my comments in respect of the mechanism provided under the circular little later. At this stage, suffice it to observe that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which a qualification could be prescribed and it is not necessary that the amended rules prescribing higher qualification should be favourable to them. The employee once appointed has no vested right in regard to the terms of services. Once having held that educational qualification can be made the basis for 472 classification of the employees in the matter of promotions to a higher post, denial of promotion to an employee possessing lessor qualification cannot be stated to be unreasonable. Whether acquiring qualification is impracticable / unworkable is a matter, which can be sorted out by mutual understanding. In the present case, to acquire higher educational qualification, is not impracticable or impossible. I would make further observations in respect thereof, while dealing with the mechanism provided vide the circular dated 24.8.2010. I have no hesitation in holding that the amended rules, which prescribe higher educational qualification, are not unreasonable/impracticable.
46. Next I would like to consider the Judgments of the Supreme Court relied upon on the point of "hardship". It was submitted that hardship cannot be a ground for striking down the rules or for that matter, even reading down the rules. The following Judgments of the Supreme Court were relied upon by learned counsel for the parties:
R.N. GOYAL -vs- ASHWANI KUMAR GUPTA & ORS.473
(2004) 11 SCC 753; PRAFULLA KUMAR DAS & ORS. -
vs- STATE OF ORISSA (2003) 11 SCC 164 and DEVI PRASAD & OTHERS -vs- GOVERNMENT OF ANDRA PRADESH 1980 (SUPP) SCC 206. The relevant paragraph no.5 in R N GOYAL; paragraph no.45 in PRAFULLA KUMAR DAS and paragraph 7 in DEVI PRASAD read thus:
R.N.GOYAL "5.For the aforesaid reason, we are in agreement with the view taken by the High Court that the appellant did not possess the requisite qualification for being appointed as the Technical Expert (Mechanical Engineering). Learned counsel then challenged the validity of the Rules on the ground that it is unreasonable and violative of Article 14 of the Constitution. We do not find any merit in the submission where the Rules framed under Article 309 of the Constitution, if it is for general good, causes hardship to an individual, the same could not be a ground for striking down the Rules. The Rules framed are valid and do not suffer from any vice of unreasonableness".
PRAFULLA KUMAR DAS
45. "In this case, the petitioners seek benefit to which they are not otherwise entitled. The legislature, in our opinion, has the requisite jurisdiction to pass an appropriate legislation which would do justice to its employees. Even otherwise a 474 presumption to that effect has to be drawn. If a balance is sought to be struck by reason of the impugned legislation, it would not be permissible for this Court to declare it ultra vires only because it may cause some hardship to the petitioners. A mere hardship cannot be a ground for striking down a valid legislation unless it is held to be suffering from the vice of discrimination or unreasonableness. A valid piece of legislation, thus, can be struck down only if it is found to be ultra vires Article 14 of the Constitution of India and not otherwise. We do not think that in this case, Article 14 of the Constitution is attracted." DEVI PRASAD
7. Ultimately, it is a matter of government policy to decide what weightage should be given as between two categories of government servants rendering somewhat similar kind of service. In the present case, there may be truth in the case of appellants that they are hard hit because of the new rule. Dr. Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby. But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal. ........"
(emphasis supplied)
47. From perusal of the aforesaid observations, it is clear that a rule cannot be declared ultra vires only because it may cause some hardship to the employees. In other words, mere hardship cannot be a ground for either 475 striking down a valid legislation or reading it down unless it is held to be suffering from a vice of discrimination or unreasonableness. Mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal.
48. In the present case, the second Judge holds that the amended rules cannot be struck down on the ground of hardship. The first Judge though did not use the term hardship, has in terms stated that the amended rules are impracticable and that the mechanism provided under the circular is unworkable. In other words, the first Judge also holds that the amended rules are likely to cause hardship to the employees, in particular, the senior employees. He has observed that `senior officials' with decades of experience under their belt and who may not be inclined to take up the course of study late in their lives would hardly be motivated to continue to work efficiently and when there is no scope for promotion may even contemplate to discontinue their service. The observation 476 on the face of it, may be true but the question is whether that could be a ground to read down the rules. If the amended rules are for general good, merely because they are likely to cause hardship to an individual or a class of employees such as `senior officials', the same cannot be a ground for reading down the rules, if otherwise it is not suffering from the vice of discrimination or unreasonableness. In the present case, both the learned Judges after considering the amended rules in depth, in the light of the provisions of the Constitution and various Judgments of the Supreme Court, have held that the amended rules, prescribing higher educational qualification for promotion to the next higher cadre, are not violative of Articles 14 & 16 of the Constitution. That being so, in my opinion rules cannot be read down.
49. I have already considered whether vacancies that arose before the amendments were brought into force, should be filled up as per the principal rules. Keeping that in view and considering the difference of opinion expressed by learned Judges on the point whether 477 it is possible to exclude the existing employees from the purview of the amendments, I would like to consider whether that can be done by reading down the provisos and the explanations to the amended rules.
50. Both the Judges held that the amended rules, 2009, requiring higher educational qualification are constitutionally valid. Learned counsel for the parties are ad-idem that there is a concurrence insofar as validity of the rules is concerned. The questions / points therefore, now fall for my consideration are whether the amended rules can be read down on the ground that they permanently shut out the existing employees who do not hold requisite educational qualifications as prescribed for promotion; and whether they are impracticable; and would cause hardship to the existing employees since the mechanism provided is unworkable.
51. The appellants have provided a mechanism by issuing the circular dated 24th August, 2010 whereby the guidelines are formulated with regard to the grant of permission to pursue further studies to the employees of 478 the High Court. The guidelines, as reflected in the circular dated 24th August, 2010 read thus:
1. The officers/officials of this Hon'ble Court who are of desirous of pursuing Degree's / LL.B / LL.M / Master's degree / MBA by attending colleges with a view to acquiring knowledge and higher education should obtain prior permission of Hon'ble Chief Justice, subject to the following conditions:
(i) that their study will not adversely effect their work and in particular the hours of study will permit them to adhere to the normal office hours:
(ii) that they have passed the departmental examinations prescribed for the post held by them.
2. At one point of time not more than 10% of the officers/officials working in a particular cadre shall be permitted to pursue Degree's / LL.B /LL.M / Master's degree/MBA as stated at Sl.No.1.
3. Permission shall be granted on the basis of seniority of the officers/officials of their respective cadres and the senior shall be entitled to preference.
4. Request for grant of permission to pursue Degree's/LL.B/LL.M/Master's degree/MBA should be submitted by the interested officers/officials on or before 31st May of every year.
5. Permission to pursue Degree's /LL.B/ LL.M / Master's degree/MBA Course shall be granted subject to the condition that the degree pursued is such which is recognized for appointment/promotion to a 479 post in this Hon'ble Court, or under the Government, or a University in Karnataka.
6. Notwithstanding anything contained at Sl.No.01 to 05 as stated above, Hon'ble the Chief Justice shall have power to grant permission to any officer/official to pursue further studies.
52. In view of these guidelines, at the request of learned counsel for the respondents, this Court had directed the appellants to place on record a list of employees pursuing different degree courses after the amended rules were brought into force. The list placed on record shows that about 113 employees have taken admission to pursue degree course / law degree in Bangalore and 54 & 6 at Dharwad and Gulbarga, respectively. The existing strength of the staff is about 1062 and the employees affected by the amended rules are about 560. Out of 560 employees, 173 (almost 1/3rd) as of today are pursuing their further education for promotion as per the amended rules. These figures, in my opinion, nullify the effect of submissions advanced on behalf of the respondents that the mechanism provided is impracticable and unworkable. 1/3rd of the employees 480 affected by the amended rules have already taken admission and are pursuing education after obtaining necessary permission as per the circular.
52.1 This Court was also informed that they were given permission on the basis of seniority of their respective cadres and that the seniors are given preference. It is not necessary that every employee should seek permission to pursue education at one and the same time. One would need to take permission / admission and acquire the degree / law degree, before he/she enters the zone of consideration. It cannot be stated that in view of the guidelines only 10% of the employees working in a particular cadre shall be permitted to pursue their education and, therefore, injustice is likely to be done to an employee/employees because permission cannot be granted to him/her/them to pursue degree / law degree course. Paragraph 6 of the circular gives ample power to the Hon'ble Chief Justice to grant permission to any employee to pursue further studies notwithstanding anything contained in paragraphs 1 to 5 of the circular. 481 Moreover, no such grievance is made in these petitions with reference to any particular employee/employees. 52.2 It would not be out of place to mention that the students who are pursuing LL.B course, who desire to join profession of law, need to join either 5 or 3 years full time law course. Those who do not intend to join profession of law and desire to acquire degree in law, for better prospects in the employment, cannot be equated with those who pursue law course for joining the profession. Moreover, the LLB is not the only degree course in law. For further prospects in the employment. there are courses like BBL, MBL, BGL, etc. available and can be pursued by the employees who desire to compete for promotions. Even if it is assumed that some clauses in the circular are not suitable or harsh, it is always open to the employees to make proper representation to the Hon'ble Chief Justice who, in my opinion, would definitely consider it favourably. In any case the mechanism provided under the amended rules, 2009 and the circular cannot be stated to be impracticable / unworkable. 482 52.3 Merely because the amended rules prescribed higher educational qualification, which some employees may find it difficult to acquire, cannot be a ground to read the rules down so as to exclude such employees from its purview. The mechanism provided in the amended rules, 2009 and under the circular dated 24.8.10 in my opinion does provide an opportunity to all those employees who desire to seek promotion, when they are due for promotion.
53. Personal experience of Judges as to performance of few employees, in my opinion, cannot be the basis for reading down the amended rules which are held to be based on valid classification. It is true that the Courts are empowered to take judicial notice of facts as contemplated by Section 56 of the Evidence Act, but at the same time the provisions of Section 57 cannot be overlooked which stipulates as to on which facts the Court can take judicial notice of. From bare perusal of Section 57 it is clear that the judicial notice of the knowledge of a Judge regarding personal staff/or any other employee/s 483 working in the Court cannot be taken for deciding the points/questions concerning the employees at large. It may be true that the personal experience of Judges in respect of some members of the staff is extremely good. Undoubtedly, there are outstanding employees working in this High Court but the question is whether Judges, acting on the judicial side, can take judicial note of their personal experience of such employee/s for reading down the amended rules. Moreover, the experience of Judges, in respect of every employee, may not be the same. Therefore, that cannot be a criteria for reading the provisions down so as to exclude such employees. In PARITOSH BHUPESHKUMAR SHETH, it is settled that the Court cannot substitute its own opinion, for that of the legislature or its delegate and sit in Judgment over the wisdom and effectiveness of the rule making authority.
54. The Principal rules, more particularly Rule 20 thereof, in my opinion, are capable enough to take care of an outstanding / extraordinary employee. Rule 20 confers unbridled powers on the Hon'ble Chief Justice to take just 484 and reasonable decision in respect of any particular court servant / employee and nothing in these rules either limits or abridges the said power. In any case the rules which are amended for the general good cannot be read down merely because some employees are likely to be affected adversely.
55. Further, though in my opinion, it is not possible to hold that the amended rules either permanently shut out the existing employees from being considered for promotion or they are impracticable and unworkable, in any case the amended rules cannot be read down on that ground after having held that the educational qualification is a valid basis of classification.
56. In this connection, I would now like to consider the Judgments relied upon by learned counsel for the parties in support of their contentions on the point of reading down. The Supreme Court in UOI & ORS. -vs- IND-SWIFT LABORATORIES LTD. (2011) 4 SCC 635 observed that a statutory provision is generally read down in order to save the said provision from being declared 485 unconstitutional or illegal. The rule of reading down is in itself a rule of harmonious construction in a different name. It is generally utilised to straighten out the crudities or ironing out the creases to make a statute workable. In that case the Supreme Court was considering rule 14 of CENVAT Credit Rules, 2004, which provide that where CENVAT credit has been taken or utilised wrongly or has been erroneously refunded, the same along with interest would be recovered from the manufacturer or the provider of the output service. The issue as to whether the aforesaid word "or" appearing in rule 14, twice, could be read as "and" by way of reading it down as was done by the High Court. The Supreme Court after considering the provisions contained in rule 14 carefully, held that High Court erroneously held that interest cannot be claimed from the date of wrong availment of CENVAT credit and that it should only be payable from the date when the CENVAT credit was wrongly utilised. It is in this backdrop the Supreme Court made the aforesaid observations in respect of the rule of reading down.
486
56.1 In ELECTRONICS CORPORATION OF INDIA
LTD. & ORS. -vs- SECRETARY, REVENUE
DEPARTMENT, GOVERNMENT OF ANDHRA PRADES & ORS. (1999) 4 SCC 458 the Supreme Court while reading down the provisions of section 2 (j) and section 12 of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963, observed that the question of reading down comes in if it is found that those provisions are ultra vires as they stand.
56.2 In RATHINASWAMI & ORS. -vs- STATE OF TAMIL NADU & ORS. (2009) 5 SCC 625 in paragraphs 28 & 29, the Supreme Court observed thus:
"28. It is well settled that to save a statutory provision from the vice of unconstitutionality sometimes a restricted or extended interpretation of the statute has to be given. This is because it is a well-settled principle of interpretation that the Court should make every effort to save a statute from becoming unconstitutional. If on giving one interpretation the statute becomes unconstitutional and on another interpretation it will be constitutional, then the Court should prefer the latter on the ground that the Legislature is presumed not to have intended to have exceeded its jurisdiction.
(emphasis supplied) 487 The Federal Court was considering the validity of the Hindu Women's Right to Property Act, 1937.
56.3 In INDRA DAS -vs- STATE OF ASSAM (2011) 3 SCC 380 the Supreme Court observed that the Constitution is the highest law of the land and no statute can violate it. If there is a statute which appears to violate it, the Court can either declare it unconstitutional or can read it down to make it constitutional. The first attempt of the Court should be to try to sustain the validity of the statute by reading it down. (Also see GOVT. OF AP -vs-
P. LAXMI DEVI (2008) 4 SCC 720, R L ARORA -vs-
STATE OF U.P. AIR 1964 SC 1230).
56.4 This principle was examined in some detail by the Federal Court in Hindu Women's Right to Property Act, 1937. The question that arose was whether the Act was ultra vires the powers of the central legislature. The Federal Court held the Act intra vires by construing the word "property" as meaning "property other than agricultural lands". In that case, it was further observed that there is a general presumption that a legislature does 488 not intend to exceed its jurisdiction ... and there is ample validity for proposition that general words in a statute are to be construed with reference to the powers of the legislature which enacts it. In section 6 (a) of the Hindu Minority & Guardianship Act, 1956, which provides that the natural guardian of a minor's person or property will be "the father and after him, the mother", the words "after him" were construed not to mean "only after the lifetime of the father" but to mean "in the absence of", as the former construction would have made the section unconstitutional being violative of the constitutional provision against sex discrimination.
56.5 In MODERN DENTAL COLLEGE AND RESEARCH CENTRE -vs- M.P. (2009) 7 SCC 751 the Supreme Court while considering the provisions of the M.P. Niji Vyasayik Shikshan Sanstha (Praqvesh Ka Viniyaman Avam Shulk ka Nircharan) Adhiniyam, 2007 (for short "the Act of 2007") read down its provisions and the rules to make them constitutional observing that such reading down of a statute is permissible since it is well settled that 489 the Court should make all efforts to sustain the validity of a statute even if that involves reading its language down vide G.P. Singh's Principles of Statutory Interpretation, 9th Edn., 2004, pp. 496-503.
57. Thus, the rule of reading down is generally utilised to save a statutory provision from being declared unconstitutional or illegal. It is well settled principle of the interpretation of law that the Court should make every effort to save the statute from becoming unconstitutional. If on giving one interpretation the statute becomes unconstitutional and on another interpretation constitutional, then the Court should prefer the latter. Further, ordinarily Court should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provisions unconstitutional, the Court can depart from it so that the provision becomes constitutional. In short every effort should be made by the Court to try to uphold the validity of the statute by reading it down, in order to make it constitutional.
490
58. In the present case, both the learned Judges have opined that the proviso as well as the explanation to the amended rules, requiring higher qualifications are constitutionally valid and that the educational qualification is a valid basis of classification. Having so observed / opined, in my opinion, it is not open to read down the amended rules. It cannot be stated that the amended rules were read down by the first Judge in order to save the legislation from being declared unconstitutional or illegal. Such is not the opinion / reason rendered in the first judgment for reading down the amended rules. The question of reading down would arise only if it is found that the provisions under consideration are ultra vires as they stand and in that situation alone, the Court is expected to make every effort to save a statute from becoming unconstitutional. In the result, in my opinion, the amended rules cannot be read down so as to exclude the existing employees from its purview. Reading down also would be inconsistent with the finding that the educational qualification is a valid basis of classification. 491 Hence, in my opinion, the amended rules cannot be read down, so as to exclude the existing employees from its purview.
59. Thus, I answer the points formulated by me as under:
The point framed in paragraph 22.1 of this Judgment is answered as follows:
The amended rules shall apply to all employees i.e. the existing and the future, and the vacancies that arose and remained vacant till the amended rules were brought into force, have to be filled up as per the amended rules.
In other words, the amended rules, 2009 cannot be read down, so as to exclude the existing employees from its purview on the ground that they are impracticable, unworkable and unreasonable. Consequently, the points
(a) and (b) framed in paragraph 22.2 of this Judgment stand answered in the negative.
60. I cannot resist a temptation to make some observations, before I part, in respect of the nomenclature of two cadres viz. 'Judgment Writers' and 'Senior 492 Judgment Writers'. If we take literal meaning of the expression `Judgment Writer', perhaps that would mean Judges and not their Stenographers/ Personal Secretaries. They simply transcribe the Judgments dictated by Judges. They are not supposed to prepare / write 'draft Judgments'. They are not supposed to make any corrections / changes, without permission of the Judge, even in the draft Judgments, transcribed as per the dictation given by Judges. I am stating so in view of the observations made by the second Judge in paragraph 111 in the second Judgment that "the senior Judgment Writers who would be working as Private Secretaries to the Judges, who are required to prepare draft of the Judgment which involve legal words, interpretation, decision, one small mistake may change nature of the decision". I do not have slightest doubt in my mind that while making such observations what the learned Judge meant was, `they transcribe the Judgments as dictated by Judges'. To the best of my information none of the High Courts has such a nomenclature to the cadre of Private Secretaries. I 493 take this opportunity to request the learned Chief Justice to consider to change the nomenclature of this cadre which is presently known as 'Judgment Writers' or 'Senior Judgment Writers' in the rules.
61. The registry is directed to place these appeals, along with the opinion recorded by this Court, before the Division Bench (Anand Byrareddy and Subhash B. Adi JJ.), for passing the final order. The Registry shall also bring the observations made in paragraph 60 of the Judgment to the notice of the Hon'ble Chief Justice.
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JUDGE Sak/tl 494 ABJ & SBAJ:
12.10.2012 WA 1934-38/2011 & con.matters ORDER Following our direction to the Registry to place our judgments before the Honourable Chief Justice to take appropriate steps, it transpires that the matters were referred to a third judge for his opinion, who in turn, treated the reference as one made under Section 98 of the Code of Civil Procedure, 1908.
Noticing that this bench had not chosen to frame the points on which we differed, he had proceeded to frame the following questions :
a) Whether after having upheld the amended Rules, 2009, prescribing higher educational qualifications, is it possible to read down the Rules, so as to exclude the existing employees from its purview on the ground that they are impracticable, unworkable and unreasonable?
b) Whether after having upheld the amended Rules, 2009, prescribing higher educational qualification as criterion for promotion to the next higher 495 cadre, the vacancies that arose before the amendments were brought into force and remained vacant till then have to be filled up as per the Principal rules?"
The said questions have been answered by him.
Our conclusions are necessarily to follow the opinion expressed by the third judge on the said questions. Firstly, we choose to ignore certain incidental observations of the learned Judge, on the lack of clarity and non-application of mind, as found by him, as regards one judgment by one of us. They were totally out of place, in an otherwise considered opinion. Secondly, the opinion expressed by the learned Judge on the issue whether the amended Rules of 2009 would be applicable to the vacancies that existed prior to coming into force of the amended Rules and which vacancies continued to exist as on the date of the amended Rules coming into force is concerned, the same has been addressed by the learned Judge to hold that it is the amended Rules that would govern the same. We are negating this finding as there was no complete disagreement between us on this 496 issue. The difference of opinion on the issue can be termed as one of degree only. Hence was not a question that could be framed for consideration by the learned Judge. We, therefore, proceed to reconcile the opinion of the learned third Judge to the extent it would require the same to be incorporated and followed in our conclusions.
Therefore, it has become necessary to re-formulate and re-
arrange the points of consideration to deliver our final opinion.
The summary of the points for consideration are as under:
(1) Whether the amended Rules of 2009 are in violation of Articles 229 of the Constitution of India ?
(2) Whether the amended Rules of 2009 requiring higher educational qualification as the eligibility criterion for promotion to the next higher cadre is violative of Article 14,16 and 21 of the Constitution of India?
(3) Whether the amended Rules of 2009 are to be applied to the vacancies that arose before the amendments were brought into force and had 497 remained vacant till the coming into force of the said Rules or are to be filled up as per the principal rules?
(4) Whether the hardship caused to the employees in acquiring higher educational qualification could be a ground to declare the amended Rules as unreasonable and violative of Articles 14 and 16 of the Constitution of India, and whether the same could be read down as not being applicable to the existing employees ?
Our final opinion on these points is as under:-
(1) The Chief Justice, as a delegate under Article 229 of the Constitution, has power to amend the Rules prescribing higher educational qualification as a criterion for promotion to the next higher cadre.
(2) The amended Rules of 2009 prescribing higher educational qualification as a criterion for promotion to the next 498 higher cadre are not violative of Articles 14 or 21 of the Constitution of India.
(3) The vacancies that arose prior to the coming into force of the amended Rules and which remained vacant till then shall be filled up as per the Principal Rules and not the amended Rules of 2009.
(4) The amended Rules cannot be declared as ultra vires, merely because, the same caused hardship to the employees and therefore, the same cannot be struck down or read down, when otherwise the Rules are found to be valid and not violative of Articles 14 and 16 of the Constitution of India.
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JUDGE Sd/-
JUDGE nv