PETITIONER:
ASHOK KUMAR UPPAL & ORS.
Vs.
RESPONDENT:
STATE OF J & K AND ORS.
DATE OF JUDGMENT: 14/01/1998
BENCH:
S.SAGHIR AHMAD, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
JUDGMENTS. SAGHIR AHMAD. J.
The appellants as also respondents 2 to 7 were permanent Junior Scale Stenographers in the Secretariat and other Government Departments. For promotion to the post of Senior Scale Stenographer, they were required to possess a speed of 80 words per minute in shorthand and 40 words per minute in typewriting. They could not attain that standard, but the spate of litigation filed by them against each other in quick succession, did really match their speed, whatever it be, in shorthand and typewriting. Without showing sings of fatigue and breathlessness, they started the litigation in 1984 and now in 1998 they seem to be, today, at the and of the litigative race. 2. Promotion from Junior Scale Stenographers to the Senior Scale Stenographers are made in terms of the Rules knows as "J&K Secretariat (Subordinate) Service Recruitment Rules, 1972" made by the State Government in exercise of its power under the Provision to Section 124 of the Constitution of Jammu & Kashmir. Rule 5(1)(B) thereof, relating to the method of appointment/recruitment to the post of Senior Scale Stenographers, originally provided as under :
"Senior Scale Stenographers (340-
700) :
(i) 75% by selection from class II
category ‘B’ having not less than 3
years service in that category and
on the basis of a test in shorthand
and typewriting for which minimum
speed should be 80 and 40 words per
minute respectively :
Provided that in the case of such
Junior Scale Stenographers of the
Civil Secretariat as have attained
the age of fifty years or above,
the Government may consider, on
individual basis and with due
regard to merit, seniority and
suitability, their appointment to
the posts of Senior Scale
Stenographers without appearing in
the prescribed test.
(ii) 25% by direct recruitment from
the in-service candidates having
not less than 5 years service in
the category of Junior
Stenographers and on the basis of a
test in shorthand and typewriting
for which the minimum speed should
be 80 and 40 words per minute
respectively. 3. In 1984, a number of vacancies in the cadre of Senior Scale Stenographer were available. Since the Rule contemplated a test for the selection of suitable candidates for appointment as Senior Scale Stenographer, a requisition was sent by the State Government to the State Recruitment Board constituted under the J&K Civil Service (Decentralised Recruitment to Non-Gazetted Cadres) Rules, 1969 to hold the test. 4. Out of 100 candidates drawn from Secretariat and other Government department, who were called for the test held on 4.12.1984, only 78 appeared in the test of which the result was communicated to the Government by the Secretary of the STATE Recruitment Board on 2.1.1985, indicating that only six had qualified in the test as they alone were found to possess a speed of 80 words per minute in shorthand and 40 words per minute in typewriting. The names of those six candidates were consequently recommended for appointment as Senior Scale Stenographer. The Recruitment Board, however, made a further recommendation as under:
"Since the number of available
vacancies in the discussions held
with the Deputy Secretary General
Department is far greater than the
number intimated earlier by the
General Department, the State
Recruitment Board would suggest
that 26 candidates (listed in
annexure to the letter in order of
merit) who are nearer to the
prescribed standard may also be
considered for appointment as
Senior Scale Stenographers fin
relaxation prescribed standard
against the available vacancies." 5. The Board suggested the names of 26 more candidates whose performance (Between 71 to 79 words per minute in shorthand) was found to be nearest to the proscribed standard for their appointment as Senior Scale Stenographers by relaxing the standard prescribed under the Rules. 6. The State Government considered the matter, but, although it appointed the six persons who had qualified in the test as Senior Scale Stenographers, it took no decision with regard to those twenty six other candidates who then represented to the Government and prayed that in terms of the recommendation of the STATE Recruitment Board, they may be also promoted to the post of Senior Scale Stenographers. When their representation remained undisposed of, they approached the High Court and files Writ Petition No. 193 of 1985 praying for a direction to the State Government to appoint them as Senior Scale Stenographers. They also prayed for the interim relief that no promotions on the post of Senior Scale Stenographers be made during the pendency of the Writ Petition which relief, incidentally, was granted by the High Court by order dated 23.2.1985. This order was, however, vacated on 23.4.1985 when the writ Petition itself was dismissed by the High Court with the following observations:
"Having considered the arguments
advanced in the facts and
circumstances of the present case
we find that the authority of their
Lordships of the Supreme Court is
distinguishable on facts in the
present case, although the
principle cannot be denied that
once the selection is made by the
Recruitment Board in accordance
with the Rules prescribed, the
qualification and the result of the
test for selection, Government can
reject the recommendation for the
reasons to be recorded otherwise if
the appointments are made, the
select list in accordance with the
rules shall have to be adhered to.
In the present case in accordance
with the letter Annexure-R-I of the
Recruitment Board, it is pertinence
to note that the list of 26
candidates suggested by the
Recruitment Board the respondents
shall take into account the list,
which has been recommended by the
Recruitment Board otherwise in
further selection they will adhere
to the rules subject to which the
selections are made.
With the above said observations,
we don’t find any merit in the
present writ petition, the petition
is, therefore, dismissed as
premature and also the connected
CMPs. The stay order passed by this
court on February 2, 1985 CMP NO.
365 of 1985 stands vacated." 7. It may be stated that the State Government, during the pendency of the above Writ Petition, and, significantly, just two days after the interim order dated 23.2.1985 was passed, amended the Rules by SRO 76 dated 25.2.1985. by substituting the following in place of existing Rule 5(1) (B) :
"B - Senior Scale Stenographers
(825-1240):
By selection form Class I Category
‘B’ having not less than three
years service in that category and
on the basis of a qualifying test
in shorthand and type-writing for
which the minimum speed should be
80 and 40 words respectively :
Provided that in case the number of
available vacancies exceeds the
number of qualified officials
recommended by the test holding
agency, the remaining vacancies
after accommodating those who have
qualified in the test should be
filled up by promotion on the basis
of seniority." 8. The amended Rule, specially its Provision, thus opened the door to promotion on the posts of Senior Scale Stenographer merely on the basis of seniority irrespective of the speed in shorthand and typewriting, but promotion in this manner could be made only if there were more vacancies that the names recommended by the State Recruitment Board with the result that additional vacancies, after accommodating those who had qualified in the test, could be filled up on the basis of seniority alone. 9. On 13.5.1985, the State Government issued SRO 177 by which the amendments introduced by SRO 76 were given retrospective effect by providing that the Rule shall be deemed to have been amended with effect from 4.12.84. This date is the date on which the test was held by the State Recruitment Board. On the same day, namely, on 13th May, 1985, the State Government promoted 33 Junior Scale Stenographers to the posts of Senior Scale Stenographers on the basis of their seniority. These 33 Stenographers did not include any of the 26 Stenographers regarding whom the STATE Recruitment Board had suggested that they may be promoted by relaxing the Rules. 10. Five of these 26 Stenographers made a representation to the State Government that they, having been recommended by the State Recruitment Board for promotion to the posts of Senior Scale Stenographers, may be promoted on those posts by accepting the suggestion of the Board that the Rules in their cases may be relaxed. The Government accepted their representation and promoted them to the posts of Senior Scale Stenographers, may be promoted on those posts by accepting the suggestion of the Board that the Rules in their cases may be relax. The Government accepted their representation and promoted them to the posts of Senior Scale Stenographers by order dated 19th December, 1986 by relaxing the requirement of possessing the speed of 80 words per minute in shorthand and 40 words per minute in typewriting. This order was challenged by G.R. Sharma and others in W.P. No. 101 of 1987 on the ground that they being the next into he seniority list, should have been promoted as Senior Scale Stenographers on the basis of their seniority, in place of those 5 persons who were promoted by relaxing the Rules. 11. SRO 177 of 1985, which gave retrospective effect to SRO 76, was challenged in Writ Petition No. 1341 of 1986 on the ground that the Government was not competent to give retrospective operation to SRO 76 of 1985. 12. Both the Writ Petitions, namely, Writ Petition NO, 1341 of 1986 and 101 of 1987, were heard by a Single Judge (Chief Justice, S.S. Kang) and by judgment dated December 21, 1990, Writ Petition No, 1341 of 1986 was dismissed with the finding that the Government could give retrospective effect to the Service Rules made by it in exercise of the power conferred upon it by the Proviso to Section 124 of the Constitution of Jammu and Kashmir. Writ Petition No. 101 of 1987 was, however, allowed and the appointment of 5 persons on the basis of the recommendation of the State Recruitment Board that they may be promoted by relaxing the Rules, was set aside with the finding that such a recommendation could not have been legally made by the State Recruitment Board nor could those persons be treated as persons selected for appointment. It was also held that the Government had no power to relax the prescribed standard particularly as no Rule, empowering the State Government to relax the prescribed standard, was brought to the notice of the court. 13. The Letters Patent Appeal, filed against the above judgment, was dismissed in limine by the Division. Bench on 1st March, 1991. It is in these circumstances that the matter is now before us. 14. We are informed by Mr. D.D. Thakur, that during the pendency of this appeal, Gobind Ram Sharma, who had filed Writ Petition No. 101 of 1987, had already been promoted a Senior Scale Stenographer. We are also informed that the Rule of promotion was again amended in 1995 and the requirement of a qualifying test, prescribed under the Rule for making promotion to the post of Senior Scale Stenographer, has been completely dispensed with ant it has been provided that promotion shall be made only on the basis of seniority. Thereafter, all the appellants were promoted as Senior Scale Stenographers and are working as such. 15. Normally, since all the appellants have already been promoter as Senior Scale Stenographers, we would have dismissed the appeal as infectors but Mr. D.D. Thakur, Senior Counsel appearing on behalf of the appellants, has contended that it is not a matter of mere promotion to the posts of Senior Scale Stenographers but it is the question of seniority of the appellants, a matter of prime importance, which is involved as an important factor in this appeal. It is contended by him that if it is held ultimately by this Court that their appointment as Senior Scale Stenographers by the State Government on 19th December, 1986 by relaxing the prescribed standard, as recommended by the State Recruitment Board was properly mad, they shall be treated to have been promoted as Senior Scale Stenographers with effect from that date and will, in that even, rank senior to all those who were promoted to that cadre subsequent to their promotion. This is a question which is not directly in issue in this petition as the only question with which we are concerned in this appeal is whether the Government could, in the particular circumstances of this case, specially when there was already a suggestion of the State Recruitment Board, relax the prescribed standard and promote the appellants to the posts of Senior Scale Stenographers. If that promotion is upheld, what would be its effect on the question of seniority and further whether any person, senior to the appellants, who was promoted subsequent to the promotion of the appellants, would region his original seniority, a questions which cannot be decided by us in this appeal. However, as contended by Mr. D.D. Thakur, we would definitely examine the validity of the order of promotion, concerning the appellants, made by the State Government on 19th December, 1986 by relaxing the prescribed standard. 16. As pointed out above, the service conditions of all the Stenographers, Senior Scale as also Junior Scale, are regulated J&K Secretariat (Subordinate) Service Recruitment Rules, 1972. Rule 12 of these Rules provides as under:-
"12. Residuary matters.- In regard
to matters not specifically covered
by these rules or by a special
order, the members of the service
shall be governed by the rules,
regulations and order applicable to
the STATE Civil Service in
general." 17. Power to relax the Rules or any requirement thereof is not contained in these Rules and, therefore, it become a "Residuary matter" within the meaning of Rule 12 above compelling us to look to other Rules applicable to the State Civil Services in general. 18. Our attention has been drawn to the J&K Civil Service (Decentralization of and Recruitment to Non-Gazetted Cadres) Rules, 1969, Specially Rule 1 (2) thereof, which is quoted below:-
"1.(1).............................
............
(2) Unless otherwise expressly
provided in these rules shall apply
to all non-gazetted posts under the
Government except such posts in the
Police Department." 19. These Rules are thus applicable to all the Non-Gazetted posts which will obviously include the posts of Senior Scale Stenographers as the applicability of these Rules has not been expressly excluded by the J&K Secretariat (Subordinate) Service Recruitment Rules, 1972. 20. Rule 14 of the 1969 Rules provides as under :
"14. Power to issue instructions.-
The Government may from time to
time, issue such directives or
instructions, as may be necessary,
for the purpose of carrying out the
provisions of these rules.
The Government may, where it is
satisfied that the operation of any
provision of these rules causes
undue hardship in any particular
case or class of cases, by order,
dispense with or relax the
requirements of that rule as it may
consider necessary." 21. This Rule gives specific power to the Government to relax the Rules in case of undue hardship, either in a particular case or class of cases. 22. The next question is whether the power to relax the Rules was exercised by the Government for justifiable reasons or was it exercised arbitrarily only to give appointment on higher posts to the appellants. 23. Our attention has been drawn to an affidavit dated 17.12.91 filed in third appeal. The affidavit has been submitted by appellant No.1. A copy of the Note of Secretary to the Government, General Department, submitted for the consideration of the Chief Minister has been annexed with that affidavit. This Noted reads as under:-
"350 - In the year 1984-85, there
were 22 vacancies of Sr. Scale
Stenographers available to be
filled up. These vacancies were
referred to the erstwhile State
Recruitment Board. The Board
conducted the test and recommended
32 candidates for their appointment
in the manner as indicated below :-
a) Number of candidates having
speed of 80 words power minute in
Shorthand and 40, words per minute
in Typing -6
b) Number of Candidates having
speed of 70 to 79 words per minute
in Shorthand and 40 words per
minute in Typing. -26
351) Appointment orders in favour
of six candidates at (a) above were
issued in accordance with their
interest merit. But the select life
of 26 candidates at (b) above was
not followed strictly in accordance
with their inters merit as
determined by the Board. The first
five candidates, who were topping
in the merit list of 25 candidates
wee left out even failed in the
test were picked up and promoted as
Sr. Scale Stenographers. This
course of action was taken by
amending retrospectively the
existing recruitment rules. The
Recruitment Rules provide for
appointment to the basis of merit
and suitability to be determined by
written test. This rule was changed
retrospectively to provide for
appointment to Senior Scale
Stenographers on the basis of
seniority alone. This course of
action was taken when the panel of
candidates approved by the Board
was available.
352) The case has been examined by
the General Department and
considering the matter in totality
of the circumstances it is felt
that retrospective amendment of the
rules has caused hardship to the
candidates, who were having higher
merit resulting in denial of
promotion to them in comparison to
those, who have lesser merit but
promoted as Senior Scale
Stenographers. These candidates
have been persistently making
representations for redress all of
their grievance and have even filed
a writ petition, which is still
pending. Five vacancies are at
present available in the
Secretariat. It would be fair, if
without distributing the order
issued in the past, the first five
candidates in merit are given
appointment i relaxation of rules
against the available vacancies.
Before issuing orders, they will be
asked to withdraw the writ.
353) Chief Minister may be pleased
to approve the appointment of the
aforementioned five candidates
against the available posts. 24. The above Note clearly spells out a case of genuine hardship inasmuch as the first five candidates, mentioned in the list of 26 candidates, were not promoted while candidates much lower in merit including even those who had filled in that test, were promoted as Senior Scale Stenographer. These promotions were made by taking advantage of the retrospective operation given to SRO 76 by SRO 177 with effect from 4.12.84 (date of test). It was also indicated in the Note that there were five vacancies available in the Secretariat and on those vacancies, first five candidates, out of the list of 26 candidates, who were most meritorious, may be appointed in relaxation of the Rules as suggested by the State Recruitment Board. It was in these circumstances that the Chief Minster agreed with the suggestion and directed that those five candidates, namely, he present appellants, may be promoted as Senior Scale Stenographers in relaxation of the Rule. 25.We are, therefore, clearly of the opinion that it was a case in which Government had that acted arbitrarily or capriciously but had proceeded to relax the Rules to obviate genuine hardship caused to a class of employees, namely, the appellants and directed their promotion in relaxation of the Rules. 26. Power to relax the Recruitment Rules or any other Rule made by the State Government, under Article 309 of the Constitution of which the corresponding provision is contained in Section 124 of the Constitution of Jammu and Kashmir, is conferred upon the Government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the Rule might have become impossible. Under service jurisprudence as also the Administrative Law, such a power has necessarily to be conceded to the employer particularly the State Government or the Central Government who have to deal with the hundreds of employees working under them in different departments including the Central or the State Secretariat. 27. In State of Maharashtra vs. Jagannath Achyut Karandikar, AIR 1989 Sc 1133 = 1989 (1) SCR 947 = (1989) Supp. 1 SCC 393. it was held as under:-
"The power to relax the conditions
of the rules to avoid undue
hardship in any case or class of
cases cannot now be gainsaid. It
would be, therefore, futile for the
respondents to make any grievance." 28. In J.C. Yadav and others vs. State of Haryana and others, (1990) SCC 189, it was held as under:-
"The relaxation of the rules may be
to the extent the State Government
may consider necessary for dealing
with a particular situation in a
just and equitable manner. The scope
of rule is wide enough to confer
power on the State Government to
relax the requirement of rules in
respect of an individual or class of
individuals to the extent it may
consider necessary for dealing with
the case in a just and equitable
manner. The power of relaxation is
generally contained in the Rules
with a view to mitigate undue
hardship or to meet a particular
situation. Many a time strict
application of service rules create
a situation where a particular
individual or a set of individuals
may suffer undue hardship and
further there may be a situation
where requisite qualified persons
may not be available for appointment
to the service. In such a situation
the government has power to relax
requirement of rules. The State
Government may in exercise of its
powers issue a general order
relaxing any particular rule with a
view to avail the services of
requisite officer. The relaxation
even if granted in a general manner
would ensure to the benefit of
individual officers." 29. This decision was followed in Sandeep Kumar Sharma vs. State of Punjab and others, (1997) 10 SCC 298. in which Hon’ble Punchhi, J. (as His Lordship then was), observed as under:-
"The power of relaxation even
if generally included in the
service rules could either be for
the purpose of mitigating hardships
or to meet special and deserving
situation. Such rule must be
construed liberally, according to
the learned Judges. Of course
arbitrary exercise of such poor
must be guarded against. But a
narrow construction is likely to
deny benefit to the really
deserving case. We too are of the
view that the rule of relaxation
must get a pragmatic construction
so as to achieve effective
implementation of a good policy of
the Government." 30. In view of the above, the Government can exercise the power to relax the Rules in all those cases in which hardship is caused in the implementation of those Rules to meet a particular situation or where invasive has been cause to either individual employee or class of employees. Of course, this] power cannot be exercised capriciously or arbitrarily to give undue advantage or favour to an individual employee. 31. Since power to relax the Rule was available to the Government and since, on a scrutiny of facts of this case, we are satisfied that the power of relax the standard prescribed for promotion to the post of Senior Scale Stenographer was properly exercised so that the appellants. who topped the list of 26 candidates, recommended by the State Recruitment Board for promotion by relaxing the Rules as they were nearest to the prescribed standard, may be promoted to the posts on which persons who were far below in merit, and even those who had failed in the test, had already been as Senior Scale Stenographers, the order dated 19.12.86 by which appellants were promoted has to be upheld as valid and properly passed by the State Government. 32. The appeal is consequently allowed and the judgments of the Single Judge as also of the Division Bench are set aside and Writ Petition NO. 101 of 1987 is dismissed with the observation that the appellant shall be treated to have been promoted to the posts of Senior Scale Stenographers on the basis of the order of the State Government dated 19.12.86. There will be no order as to costs.