Higher educational qualification can be a basis for barring promotion : Supreme Court
If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The Supreme Court bench consisting of  CJI S. A. Bobde, A. S. Bopanna and V. Ramasubramanian, decided upon the powers of the Chief Justice in matters of appointment and promotion in the matter of Ashok Kumar &amp; Ors. v. The State of Jammu and Kashmir &amp; Ors. [Contempt Petition (C) Nos. 392-395 of 2019]. Under Section 108 of the Constitution of Jammu and Kashmir, which is similar to Article 229 of the Constitution of India, which deals with “Officers and servants of the High Court”, sub-section (1), it is given that appointments of officers and servants of the High Court  shall be made by the Chief Justice of the Court or such other person as the Chief Justice may direct. As per sub-section (2), the conditions of the officers and the servants of the High Court is to be as prescribed by the Rules made by the Court with the approval of the Governor. In exercise of these powers. The HC issued a set of Rules known as the Jammu &amp; Kashmir High Court Staff (Conditions of Service) Rules, 1968, wherein Rule 4 stipulated that all appointments of the staff including promotions shall be made by the Chief Justice who also had the power to lay down qualifications and to determine the mode of recruitment as conferred in Rule 6. The contesting private respondent were originally appointed as peons (Class-IV) during the period 1989-1995. They were promoted as Junior Assistants and further to Senior Assistants. The appellants, on the other hand, were directly recruited as Junior Assistants and later promoted as Senior Assistants. Owing to an Officer Order with regards to the Rules as mentioned previously, persons like the appellants were promoted as Head Assistants from the post of Senior Assistants. Due to some vacancies available, the respondents who entered the service as Class-IV employees were also promoted to Head Assistants until the time the gap eligible candidates were available to fill the gap. The promotions were challenged on the grounds that the respondents were not qualified for the same and the order of promotion was set aside. The affected parties appealed, which was dismissed and as a consequence thereof, all the persons like the appellants-herein were promoted. The respondents filed a set of writ petitions again which was allowed b the High Court Judge primarily on the grounds that all the persons working as Senior Assistants constituted a homogeneous group and hence, there could not be any differentiating among them on the basis of educational qualification and that the order of the Chief Justice could affect the individuals adversely with retrospective effect. Challenging the same, the appellants herein filed the present Letter Patents Appeals.  
Challenging a common order passed in a batch of Letters Patent Appeals confirming the Judgment of the learned Single Judge quashing an administrative Order of the Chief Justice qualified as per the rules at the time of appointment have come up 2. We have heard the learned Counsel for the appellants the as peons during the period 1989­1995. They were promoted as Junior Assistants in the year 1997 and as Senior In contrast the appellants in these appeals were directly 2001 2005 2006 and 2008. The High Court of Jammu & Kashmir is a creation of the of Jammu & Kashmir which is similar to Article 229 of the Court”. Under Sub­section of Section 108 appointments of High Court as per Sub­section shall be such as may be of officers and servants of the High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the In exercise of the powers conferred by Sub­section of Section 108 the High Court issued a set of Rules known as the stipulates that all appointments of the staff of the High Court including promotions shall be made by the Chief Justice the power to lay down the qualifications and to determine the mode of from time to time lay down the qualifications of a member of of the High Court of Jammu & Kashmir issued an Office Order qualification required the experience if any and the pay scales stipulated for three posts namely the posts of Head Assistant promotion Graduate from a Two years Senior Assistants on the basis of Junior Assistants on the basis of A) 75% by direct 25% by amongst Class­IV employees on the Graduate from a 2. Since the requirement of graduation for entry into the High the service. Such officials having during this period gained sufficient experience in the working of the administration the Chief Justice may on his own or on the recommendations of committee if soconstituted relax the qualification in cases before the 25th April 1987. Further the minimum period of experience can also be relaxed in exceptional and appropriate minimum educational qualification of a graduation was not an prescribed as a qualification for promotion to the post of Head Assistant. Keeping this in mind let us now go back to the 10. On 26.10.2008 persons like the appellants who were directly graduation were promoted as Head Assistants from the post of Senior Assistants. It appears that still some vacancies were of Senior Assistants were also promoted as Head Assistants However such promotions were intended to fill up the gap till 11. Challenging the promotions so granted to the contesting respondents­herein on the ground that they were not qualified at the relevant point of time a writ petition in Writ Petition No.1751 of the Order of the promotion dated 24.11.2008 of the contesting 12. The affected parties filed appeals in LPA Nos.45 and 84 of 2010 but those appeals were dismissed on 30.08.2011. As a consequence thereof all persons like the appellants­herein who were left out earlier were promoted on 30.08.2011 as Head 13. Finding that the benefit promotion that came to them was Order dated 24.10.2008 of the Chief Justice the contesting respondents­herein filed a set of writ petitions in Writ Petition Nos.4810 26811 23411 and 5012 14. By a common Order dated 30.08.2013 a learned Judge of the the learned Judge was that all persons working as Senior be any differentiation among them on the basis of educational qualifications that the Chief Justice’s order dated 24.10.2008 of the Chief Justice’s Order restricts the power of relaxation available to the Chief Justice only to cases of persons appointed the Chief Justice had the effect of affecting individuals adversely 15. Challenging the Order of learned Judge dated 30.08.2013 passed in favour of the contesting respondents­herein the appellants­herein filed a set of Letters Patent Appeals. These 16. On 13.05.2016 notice was ordered by this Court in the special It appears that after this Court granted an interim stay on petitions in Contempt Petition Nos.392­395 of 2019. These qualifications even within a homogenous group for the purpose of promotion to a higher post that an order passed by the Chief Chief Justice and that the order of the Chief Justice was not the learned Counsel for the appellants that as on date those contesting respondents who are now in service have all acquired a is only one of seniority. Therefore it is submitted by the learned upheld then the long standing lis can be put to an end by fixing 20. However it is contended by the learned Counsel appearing for the contesting respondents that once a person has been appointed promoted he becomes part of a homogenous class within which there can be no differentiation and that what is applicable to the case on hand is only Rule 5 of the Jammu Kashmir Civil Services Rules 1956 under which the 18 of these Rules it is for the Government to prescribe the 22. Before we proceed to analyse the rival contentions it must be the Chief Justice prescribing the qualifications for direct got promoted as Head Assistants on 24.11.2008 only because against the said Order in LPA Nos.45 and 84 of 2010 were also petition filed by the qualified candidates that the contesting respondents woke up from the slumber and initiated a second 24. As a matter of fact the Order of promotion dated 24.11.2008 clear that their appointments were only till eligible and suitable candidates are posted to these posts and that they can be considered for regularisation appointment only if they attain the qualification and experience prescribed for the post. But the contesting respondents did not choose to challenge the Order of the Chief Justice it is clear that the power of the Chief Justice by the High Court in exercise of the power conferred by Section 26. The CCA Rules 1956 will have only limited application to the employees of the High Court. These Rules by themselves do not stipulate the qualifications required for appointment to any No person shall be eligible for appointment to any service class Any of these rules made under them may for reasons to be recorded in writing be relaxed by the Government in individual Chief Justice is specifically empowered to prescribe the available with him. If the authority conferred with the power to relax chooses to regulate the manner of exercise of his own power the same cannot be assailed as arbitrary. The notification dated qualification. This is why the Chief Justice chose by his Order to for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head the Chief Justice violated Article 14 by creating a distinction 33. Way Back in 1968 the Constitution Bench of this Court held 16(1) does not bar a reasonable classification of employees or reasonable test for their selection. It was further held that the were employed as Tracers carrying out the same duties and 1 AIR 1968 SC 349 responsibilities the Bench held in that case that the classification of Tracers into two types with different grades of pay on the basis that one type consisted of matriculates and the other non­ Jammu & Kashmir vs. Triloki Nath Khosa & Ors.2 another from different sources and integrated into one class can be classified on the basis of their educational qualifications for affirmative holding that the Rule providing for graduates to be eligible for promotion to the exclusion of diploma holders is not as follows:­ Higher educational qualification is a permissible basis of classification acceptability of which will depend on the facts and circumstances Higher educational qualification can 2(1974) 1 SCC 19 3(1994) 6 SCC 282 be the basis not only for barring promotion but also for restricting 35. As pointed out in T.R.Kothandaraman the Court in service while judging the validity of the classification. Though the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher that the non graduates have had opportunities to qualify themselves which they have also done. Therefore the prescription acquired the necessary qualifications they need not be reverted at this stage. But the seniority of the appellants vis a vis the the date of their acquiring the qualification while occupying the