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Judgment
V.K. Jhanji, J.—Petitioners in this writ petition are seeking a writ in the nature of Mandamus, directing the respondents to declare the
members of the Jammu and Kashmir Private Secretaries to Heads of Department (Gazetted) Service as a feeding cadre for the Jammu and
Kashmir Administrative Service' and for Working out their quota for induction into Kashmir Administrative Service (for short 'KAS'). The
Petitioners further seek a direction to the respondents to treat them as part of Jammu and Kashmir Secretariat (Gazetted) Service till the time they
are inducted into Kashmir Administrative. Service in the same manner as the Senior Scale Stenographers (Grade-I) of Jammu and Kashmir
Secretariat (Gazetted) Service and Administrative Officers were inducted into the aforesaid Service.
The petitioners and the pro-forma respondents 3, 4 and 5 were appointed as Junior Stenographers in the State Service and, subsequently, they
were promoted on different dates as Senior Scale Stenographers. On 22.5.1984, the Jammu and Kashmir General Administra- tion Department
issued a Tentative Seniority List of the Senior scale Stenographers wherein the petitioners 1 to 3 figure at S.Nos. 21, 24 and 34 respectively and
the pro-forma - respondents 3, 4 and 5 figure at S.Nos. 26, 30 and 55 respectively. The Tentative Seniority List further indicates that the
petitioners 1, 2 and 3 were promoted as Senior scale Stenographers on 22.5.1969, 19.9.1970 and 1.3.1974 respectively whereas proforma
respondents 3, 4 and 5 are shown to have been promoted to the said post on 01-12-1971, 23-12-1972 and 24-07-1982 respectively. Vide
SRO 266 dated 13th May, 1978, the Jammu and Kashmir Secretariat (Gazetted) Service Recruitment Rules, 1976 were framed by the
Government. Rule 5 of the aforesaid Rules, dealing with the Strength and composition of the Service, envisaged that the authorised permanent and
temporary strength of the cadre and the nature of the posts included therein shall be determined by the Government from time to time and, at the
initial constitution of the service under the Rules, shall be as specified in Schedule 'A' appended to the said Rules (for short 'Secretariat Gazetted
Service Rules') . Under Schedule 'A', the following posts constituted the temporary strength of the Service;
1 . Assistant Director Estates,
Under Secretary to Government,
Instructor Secretariat Training Class
Administrative Officers:
i) Director of Information,
ii) Medical College, Jammu.
iii) Divisional Recruitment Board Srinagar/Jammu.
Under Secretary to Governor, 5. Under Secretary in Personal Section of Revenue Minister/Dy. Chief Minister.
Staff Welfare Officer.
Assistant Director, Parks, Gardens & Floriculture.
Public Relation Officer, Civil Secretariat (Estates),
Assistant PRO in CM's Secretariat.
Administrative Officer (Assistant Director Education, Girls).
The method of recruitment for filling up aforesaid posts, as provided in Schedule 'B' appended to the Secretariat Gazetted Service Rules, was as
under: 1. 50% by competitive examination. 2.50% by selection amongst the:
(a) confirmed/quasi-permanent Superintendents (450-700) of the Civil Secretariat and, the offices of Heads of Department having at least five
years service as such;
(b)confirmed/quasi-permanent Senior Scale Stenographers/ P.As of the Civil Secretariat and the -offices of Heads of Department in the scale of
340-700 having at least ten years service as such.
The Rules did not prescribe any ratio between the Superintendents and the Senior Scale Stenographers for purposes filling up of these posts to
the extent of 50%. The Government, however, subsequently, in terms of its order No. 152-GD of 1978 dated 8th April, 1978, provided that the
ratio between the Superintendents and the Senior Scale Stenographers shall be 60 : 40. Vide SRO 227 dated 24th June, 1985, Schedule 'B'
appended to the Secretariat Gazetted Service Rules, 1978 was amended by the Government, By Virtue of this amendment, while, maintaining that
50% posts at the Under Secretaries level and posts equivalent thereto shall be filled up from amongst Section officers (earlier designated as
Superintendents) with five years experience and Senior Scale Stenographers /PAS with ten years experience, an explanation thereto to the
following effect was appended:
Explanation:
For the posts to be filled in by promotion, a ro-ster of 10 vacancies shall be maintained in the form given below :
1 Section officer :Civil Secretariat
2 Section officer :CiviI Secretariat
3 Section Officer: Civil Secretariat
Sr. Scale Stenographer : -do-
Sr. Scale Stenographer : -do-
Section Officer : H.O D.
Section Officer : H.O D.
Section Officer : Civil Secretariat
Sr. Scale Steno : Civil Secretariat
Sr. Scale Steno : H.OD.
The roster shall, however, be subject to such modifications as may be necessary for giving effect to the roster maintained for reservation of
vacancies of Schedule Casts. By virtue of the above amendment, thus, for filling up of every ten vacancies at the level of Under Secretary and
posts equivalent thereof, as against six Section Officers, only four Senior Scale Stenographers were entitled to be promoted and further, out of the
four Senior Scale Stenographers, only one Senior Scale Stenographer working with Heads of Department was entitled to such promotion.
According to the petitioners, aggrieved by the un-even distribution of posts at the level of Under Secretary and posts equivalent thereto for
purposes of promotion between the Section Officers and Stenographers as also the ratio of 60 : 40 between them prescribed earlier by the
Government vide its order dated 8th September, 1978, some of the Senior Scale Stenographers filed a writ petition, SWP No. 1028 of 1985,
before this Court in which they prayed for the follow- ing reliefs:
a) It be declared that 10 years experience provided for Senior Scale Stenographers/ PAS by the rules of 1976 is discriminatory and ultra vires and
liable to be declared so/quashed.
b) that Government order No. 1952-GD of 1978 dated 8.9.1978 be declared ultra vires the constitution as it prescribes different ratio for
purposes of promotion between the -Office Superintendents/Sect ion Officers of civil Secretariat and Heads of Department on the one hand and
the Senior Scale Stenographers/PAS of the Civil Secretariat and the Heads of Department on the other hand;
c) It be declared that SRO 227 dated 24th of June, 1985 is ultra vires under Article 14 and 16 of the constitution, being discriminatory and as such
liable to be quashed of fending both Articles 14 and 16 of the Constitution of India,
d) By an appropriate writ, order or direction respondent- State be directed to provide 50 : 50 ratio between the Section Officers working in the
Civil Secretariat and the 'Offices of Heads of Department and Senior Scale Stenographers/ PAS working in the Civil Secretariat and Heads of
Department.
e) The respondents be further directed to provide equal years of experience for purposes of promotion in the two sub-categories of Section
Officers and Senior Scale Stenographers.
f) Respondent state be further directed to prescribe the roster in accordance with and consequent to the reliefs prayed for here in above."";
During the pendency of the aforesaid writ petition, the Government, Vide SRO 326 dated 11.10.1988, substituted Schedules ""A' and 'B'
appended to the Secretariat Gazetted Service Rules, 1978. Under the new Schedule 'A' forty four posts of different categories viz. Under
Secretaries to Government; Under Secretary, FSC; Under Secretary, Chief Minister's Secretariat ; Assistant Director, Estates; PRO, Civil
Secretariat; Staff Welfare Officer and Instructor Secretariat Training class only were recognised for purposes of cadre strength. Besides these forty
four posts, the deputation reserve, leave reserve and, training reserve were prescribed at 10% of the posts making the total strength as 59 posts.
Schedule 'B' as substituted, provided that 50% of these posts shall be filled up by direct recruitment and 50% by selection from amongst:
a) Section Officers in the pay scales of Rs. 1550-2550 with at least 5 years as such; and
b) Sr. Scale Stenographers/PAS Scale of Rs. 1550-2250 with at least 10 years service as such.
The ratio between the Sect ion Officers and the Senior Scale Stenographers for Promotion to these posts was provided as 60: 40. The Section
Officers and Senior Scale Stenographers working in the offices of Heads of Department were thus excluded from the consideration zone for being
promoted to the posts of Under Secretaries or posts equivalent thereto under the Secretariat Gazetted Service Rules. Thus the entire set of fifty
nine posts in the Service were reserved by the Government for Section Officers and Senior Scale Stenographers/ PAS working in the Civil
Secretariat. Aggrieved of their exclusion from such eligibility, the Senior scale Stenographers/PAS and Section officers working with the Heads of
Department filed a writ petition challenging SRO No. 326 dated 11th October, 1986 and some subsequent Government Order No. 693 GAD of
1989 dated 12.5.1989. This writ petition was registered as SWP. No. 914/89.
While the aforesaid writ petition was pending before this Court, the Government vide its order No. 597- GAD of 1991 dated 21st June, 1991
accorded sanction to the creation of posts of Senior Stenographers (Grade-1) (Gazetted) in the grade of Rs. 1900- 3200 in the Civil Secretariat.
These posts were created by corresponding reduction of equal number of posts of Stenographers. It was provided in the aforesaid Government
order that 25% thereof shall be in the selection grade and persons with at least five years service in the grade of Senior Stenographers (Grade-1)
(Gazetted) shall be eligible for appointment to that grade. According to the petitioners, consequent upon the issue of aforesaid Government order
dated 21st June 1991, thirty, seven Senior Stenographers in the Civil Secretariat were promoted to the post of Senior Stenographers (Grade-I)
(Gazetted) in the pay scale of Rs. 1910-3200 in terms of Goverment order No. 601 -GAD of 1991 dated 21st June, 1991. Subsequent thereto,
the Government vide order No. 606-GAD of 1993 dated 16th July, 1993 accorded sanction to the creation of the cadre of Senior Stenographers
(Grade-1) (Gazetted) for the Senior Scale Stenographers working with the Heads of Department with corresponding reduction of the posts of
Senior scale Stenographers with the following compositions
a) Duty posts : 16
b) Leave/Deputation Reserve (10%) : 4
The provision regarding 25% of these posts being placed in the selection grade was also made in the aforesaid Govt. order dated 16th July,
1993. According to the petitioners, in terms of the aforesaid Government order dated 16th July, 1993, all the posts of Senior Scale Stenographers
of Heads of Department were redesignated as Senior Stenographers (Grade-1) (Gazetted) and they were made entitled to such
upgradation/promotion on the basis of seniority maintained by the General Administration Department with due regard to merit and suitability. The
Government order further provided that the cadre of these Senior Stenographers (Grade-I) gazetted) shall be administered by the General
Administration Department and the posting of these Stenographers shall be decided by the General Administration Department from time to time,
having due regard to the status and pay scale of the officer with whom these Gazetted Stenographers could be attached as Private Secretaries. In
other words, the Senior Stenographers working with the Heads of Department, according to the petitioners, were thus brought at par with the
Senior Stenographers working in the Civil Secretariat.
The Government vide SRO 569 dated 10th October, 1979 framed the Jammu and Kashmir Administrative Rules, 1979. In terms of those
rules, appointment to the Service could be, inter alia, made from amongst, the persons holding the rank of Under Secretaries to Government and
posts equivalent thereto in the Civil Secretariate Gazetted Service. According to the petitioners, since in terms of SRO 266 dated 13th May, 1978
(Secretariat Gazetted Service Rules, 1978) they constituted one of the feeding categories for the Secretariate Gazetted Service, therefore, they
were also eligible for induction into Kashmir Administrative Service. But, as the method of recruitment for filling up the various posts in the
Secretariat Gazetted Service was altogether changed in terms of SRO 326 dated 11th October, 1988, the petitioners' right to induction into the
Kashmir Administrative Service got adversely affected. And, according to the petitioners, it was in that context that some of them had filed
SWP.No. 914/89 before this Court. After the creation of the cadre of Senior Stenographers (Grade-1) (Gazetted) for the Heads of Department,
according to the petitioners, the Kashmir Administrative Service Rules, 1979 were also amended vide SRO No. 177 of 1993 dated 24th
September, 1993 by virtue of which some more Services were made as the feeding Services for induction into Kashmir Administrative Service.
The petitioners further submit that after amending the Jammu and Kashmir Administrative Service Rules, 1979, the Government issued one
more notification No. 42 dated 17th February, 1994 by virtue of which the Jammu and -Kashmir Secretariat (Gazetted) Service Recruitment
Rules, 1978 were amended and the Senior Stenographers (Grade-I) (Gazetted), now redesignated as Private Secretaries, were deemed to be the
members of the Secretariat (Gazetted) Service and thus they became eligible for induction into Kashmir Administrative Service However, no such
provision was made with respect the Senior Stenographers (Grade-I) (Gazatted) working with the Heads of Department though their cadre is
administered by the General Administration Department in the Civil Secretariat.
Further, according to the petitioners, the Government in, terms of SRO 272 dated 16th August, 1996 enacted J&K Administrative Officers
(Gazetted) Service Recruitment Rules, 1996. Subsequently, the Government vide SRO 343 dated 7th October, 1996 amended the Jammu and
Kashmir Administrative Service Rules, 1979 whereby the Jammu and Kashmir Administrative Officers (Gazetted) Service was included in the list
of feeding Services for induction into Kashmir Administrative Service and it was provided that this Ser- vice, i.e., the J&K Administrative officers
(Gazetted) Service shall be deemed to be a part of the Jammu and Kashmir Secretariat (Gazetted) Service for working out quota of vacancies in
KAS.
Consequent upon the amendment made to the Secretariat (Gazetted) Service Recruitment Rules on 17th February, 1994, the Government
vide its order No. 1995 - GAD of 1997 dated 23rd December, 1997 ordered the induction into Kashmir Administrative Service of fourteen
Senior Stenographers (Grade-1) (Gazetted) designated as Private Secretaries, working in the civil secretariat. The case of the petitioners is that
though they are similarly placed with the Private Secretaries working in the Civil Secretariat, but such benefit has not been extended to them.
The petitioners further submit that the anomaly in the service of the Private Secretaries working with Heads of Department was realised by the
Government. Consequently, the Government issued SRO No. 305 dated 6th September, 2000 whereby the Jammu and Kashmir private
Secretaries to Heads of Department (Gazetted) Service Recruitment Rules, 2000 were promulgated. But despite this, their Service has not been
included in the list of Services eligible for induction into KAS. The issue, on their representation, is stated to have been discussed by the
Establishment Committee held in the Office Chamber of Chief Secretary on 19th September, 2000 wherein it was opined that the Service of the
petitioners could not be made a feeding Service for induction into Kashmir Administrative Service. However, according to the petitioners, it was
further opined that it was a case of sanctioning higher selection grade to a suitable number of members of this cadre and owe selection grade was,
granted to them, some of the Private Secretaries will have a chance for induction into KAS through the technical quota. Petitioners state that some
of the Private Secretaries,. namely, K. L. Mahaldar, A. R. Sofi, A. M. Zargar and Jai Prakash Sharma, who belonged to the same service as, the
petitioners, were given temporary charge of Administrative Officers. Their cases were also considered by the Committee in its meeting held on
29th September, 2000 and it was recommended that they be de-cadered from the Jammu and Kashmir Private Secretaries Service and be
regularised against the posts of Administrative Officers. According to the petitioners, these four Private Secretaries, now being regularised as
Administrative Officers, are Junior to them and once they are di-cadered, they will definitely get an opportunity to be inducted in KAS and would
thus steal a march over the petitioners.
The case of the petitioners is that despite numerous representations, their grievance is not being redressed and they are not being declared as a
feeding Service for induction into KAS. Hence this writ petition.
Upon notice, the respondents have filed their reply wherein it is averred that the State is within its powers to decide as to which of its Gazetted
Services should be a feeding Service for the Jammu and Kashmir Administrative Service, it being a policy matter. According to the respondent
since the Stenogra-phers/PAS or Private Secretaries to Heads of Department did not remain a feeding category for the post of Under Secretaries
under the Jammu and Kashmir Secretariat (Gazetted) Service Recruitment Rules, they cannot claim the relief more particularly because they did
not challenge SRO 326 of 11th October, 1988 by virtue of which they were excluded from consideration zone for appointment to the post of
Under Secretaries in the civil Secretariat. It is stated that the Jammu and Kashmir Administrative Service Rules have been framed by the State in
exercise of (delegated) legislative functions. Such power has not been challenged in the writ petition and that the direction sought by the petitioners
would amount to compelling the State to amend the above referred Rules by exercising (Delegated) Legislative functions. According to the
respondents, the writ jurisdiction of the Court under Article 226 of the Constitution of India read with Section 103 of Jammu and Kashmir
Constitution cannot be invoked to compel the State to exercise the Legislative functions and that too when the same will have the effect of
amending the valid Rules having the force of law which is not under challenge in the writ petition. The respondents have further stated that no
vested right of the petitioners was ever taken away either by amending the rules or by framing the various set of rules. However, the
representations submitted by them were considered by the Government and it was felt that there is no justification in the demand of Private
Secretaries working with the Heads Of Department to be made eligible for induction into including them as one of the feeding Services to KAS.
However, at the same time it was decided that a higher selection grade to a suitable number of members of this cadre will be sanctioned so that
members of the cadre will have a chance for induction into KAS under Technical quota in terms of Rule 5(1)(c) of the J&K Administrative Service
Rules, 1979. Respondents, have denied that promotion under Rule 5(1)(c) is meant only for tech- nocrats.
Petitioners in their rejoinder affidavit have, inter alia, stated that the Service of the Private Secretaries of Civil Secretariat and Private
Secretaries of the Heads of Department is inter-transferable and both the cadres of service have the same scale of pay and work and
responsibility. It is further stated that the question of giving higher selection grade to a suitable number of members of the service of the petitioners ,
which was approved by the Establishment Committee in Sep-tember,-2000, was turned down by the Finance Department as not justified on the
saying that it would open flood gate for other other services.
I have heard learned counsel appearing on behalf of the parties at length and have gone through the record.
On going through the record, I find that in terms of the Jammu and Kashmir Secretariat (Gazetted) Service Recruitment Rules/ 1976,
promulgated vide SRO 266 dated 13th May, 1978, the Senior Scale Stenographers work ing with the Heads of Department were entitled to be
promoted as Under Secretaries and posts equivalent thereto in the Civil Secretariat. I am not presently concerned with the ratio in which they
could'be promoted to the said post. Subse- quently, vide SRO 326 of 11th October, 1988, the Senior Scale Stenographers working with the
Head of Department were excluded from such eligibility and entitlement for promotion to the posts of Under Secretaries and posts equivalent there
to in the Civil Secretariat. This SRO was challenged by some of the Senior Scale Stenographers and Section, Officers working with the Heads of
Department in SWP No. 914/89 in this Court. It is not only, the cadre, of Senior Scale Stenographers working with Heads of Department that
was excluded from such consideration zone, even the Senior Scale Stenographers working in the Civil Secretariat, on the creation of the posts of
Senior Scale Stenographers (Grade-1) (Gazetted), were excluded from consideration zone for promotion to the posts of Under Secretaries. In this
regard, it would be pertinent to quote here para 2 of Government Order No. 597-Gk.D of 1991 dated 21st June, 1991, whereby the posts of
Senior Stenographers (Grade-I) (Gazetted) in the Civil Secretariat (Gazetted) Service were created;
Redesignation of the posts of Senior Scale Stenographers of the Civil Secretarial as Senior stenographers (Grade-II) - The revised sanctioned
strength of the Senior Stenographers (Grade-II) shall be 54 and the of the Junior Stenographers 75. The Senior Stenographers (Grade-II) will now
be entitled to promotion as Senior Stenographers (Grade -I) and not as under Secretaries. The 50% promotion posts of the under Secretaries in
the J&K Secretariate (Gazetted) Service will hence forth be filled entirely from among Section officers of the civil Secretariat.
It is true that the senior Stenographers (Grade-I) (Gazetted) working in the Civil Secretariat, subsequently re-designated as Private
Secretaries, same grade as that of the Under were given the s, Secretaries and posts equivalent hereto, but the fact remains that these posts, i.e.,
senior Stenographers (Grade-1) (Gazetted/Private Secretaries, were not borne on the strength of the Secretariat (Gazetted) Service in terms of the
Schedules 'A' and 'B' appended to the Jammu and Kashmir Secretariat (Gazetted) Service Recruitment Rules, 1976. In other words, till 11th
October, 1988, the Senior Scale Stenographers working either in the Civil Secretariat or with the Heads of Department were similarly placed in so
far as both were entitled to be promoted as Under Secretaries or posts equivalent thereto in the Civil Secretariat. After 11th (October, 1988, with
the issue of SRO 326, these Senior scale Stenographers working with Heads of Department, as indicated above, were excluded from the category
of posts eligible for recruitment to the posts under Secretaries in Civil Secretariat. Subsequently, in terms of Government order dated 21.6.1991
the Senior Scale Stenographers working in the Civil Secretariat were also excluded from such consideration zone. In terms of Government order
dated 16th July, 1993, the Senior Scale stenographers working with the Heads of Department were brought at par with their counterparts in the
civil Secretariat, in as much as they were also upgraded as Senior Stenographers (Grade-I) (Gazetted) and subsequently re-designated as Private
Secretaries. That means at this stage both sets of Senior stenographers (Grade-I) (Gazetted)/ private Secretaries, either working in the civil
secretariat or with the Heads of Department were again placed alike in as much as neither of them were deemed as members of the secretariat
(Gazetted) service or entitled to induction into KAS. In that view of the manner, the stand of the Respondents, exclusion from consideration zone
for being appointed to posts borne on Secretariat Gazetted Services in 1988 pales into insignificance. This similarity between the two sets of
private Secretaries continued till 16th February, 1994.
It was only on 17th February, 1994 that the Senior Stenographers (Grade-I) (Gazetted) working in the civil Secretariat were included in class
II of Schedule 'A' of the Secretariat (Gazetted) Service Recruitment rules and deemed to be the member of the Service from the date of promotion
to such posts. The relevant portion of Notification, SRO 42 dated 17th February, 1994 is reproduced herein below for facility of reference:
II After rules 4 of the said rules, the following shall be added as Rule 4-A, namely:
'4-A Additional Members of Services:
The persons promoted to the posts of Senior Stenographer Grade-I (now designated as Private Secretaries) Created vide Government order No.
597- GAD of 1991 dated 21.6.1991 and included in Class -II of Schedule 'A' to these Rules, shall be deemed to be the members of the services
from the date of such promotion.
It is reiterated that the Jammu and Kashmir Secretariat (Gazetted) Service is one of the Services entitled to induction into Kashmir
Administrative Services. It is here that the petitioner claim discrimination meted out by the Government vis-a-vis there cadre.
Not only that, four of the Senior Stenographers (Grade-I) (Gazetted), namely. K.L Ahaldar, A.R Sofi, A.M. Zargar and Jai Prakash Sharma,
according to the petitioners, also belonged to the category to which the petitioners belong. They are also stated to be juniors to the petitioners.
They were put Incharge Administrative Officers and in terms of SRO 272 dated 16th August 1996, the Government has promulgated the Jammu
and Kashmir Administrative Officers (Gazetted) services and made it a feeding Services for induction into Kashmir Administrative Services,
treating them as part of the Jammu and Kashmir Secretariat (Gazetted) Services. Thereby, four of the colleagues of the petitioners have been
included as members of the Jammu and Kashmir Secretariat (Gazetted) services indirectly, entitled to induction into Kashmir Administrative
Services. On 6th September, in terms of SRO 305 the Government in exercise of its power conferred by the proviso to Section 124 of the
constitution of Jammu and Kashmir promulgated the Jammu and Kashmir Private Secretaries to Heads of Department (Gazetted) Services
Recruitment Rules, 2000. But the members of this services have not been made entitled to induction into Kashmir Administrative Services despite
their representation made in this behalf.
It is the admitted case that the claim of the petitioners was considered by the Establishment Committee. The respondents stand is that, while
considering the issue, it was felt that there is no justification in the demand of Private Secretaries working with the Heads of Department to be
made eligible for promotion to the KAS by including the service as one of the feeding services to Kashmir Administrative Service. The respondents
have further stated that, at the same time it has been decided that a higher selection grade to a suitable number of members of this cadre will be
sanctioned so that they have a chance for induction into KAS under Technical quota in terms of Rule 5 (1) (C) of the J&K Administrative Service
Rules, 1979.
From the above stand of the respondents, it is unambiguously clear that the claim of the petitioners has not been wholly rejected, therefore, it
cannot be said that there is no justification in their demand. In accordance with the decision of the Establishment Committee, the matter regarding
giving of higher selection grade to the petitioners' category was taken up by the Government with the Finance Department in September, 2000.
The Finance Department has turned down the proposal in the following words "" The proposal of the Depart- ment to allow a super- selection scale
of Rs. 10,000 - 15,200 to the Private Secretaries to the Heads of Department to enable their induction to KAS out of Technical Quota does not
seem justified. It would open flood gate for other services.
The Finance Department seems to have declared the claim of the petitioners as. unjustified on a different ground.
Coming to the point Whether or not the claim of the petitioners is justified, this Court may not be able to sit in appeal over the decision of the
Government declaring, the claim of the Petitioners as unjustified, es pecially so because that decision of the Government is not in challenge in this
petition. But certain important facts having relevant bearing on the decision of the Government seem not to have been considered.
Prior to 1988, to be precise, upto 11th October, 1988, Section officers working in the Secretariat, Section Officers working with the Heads of
Department, Senior Scale Stenographers working in the Civil Secretariat and with the Heads of Department, all were eligible and entitled to be
promoted to the posts of Under Secretaries and posts equivalent thereto in the Civil Secretariat. Like the Senior scale Ste- nographers, working
with the Heads of Department, the Section Officers of the offices of Heads of Department too were excluded from such consideration zone.
However, with the promulgation of the Jammu and Kashmir Administrative officers (Gazetted) Service Recruitment Rules, 1996, the posts borne
on the strength of this Service have been made promotional posts exclusively for the Section Officers of the Heads of Department. And the Jammu
and Kashmir Administrative Officers (Gazetted) Service has subsequently been included in the list of Services eligible and entitled for induction into
KAS. In other words a Section Officer working with the Head of Department has been made entitled for induction into KAS, but the Private
Secretaries, though placed similarly with them earlier and at a much higher pedestal now, have been excluded from grant of such benefit. What
justification is lacking in their grievance and demand is not understandable. They have been discriminated vis-a-vis their counter-parts in the Civil
Secretariat as also the Section officers, working in a lower grade, with them as also their junior colleagues named above. There is also no
substantial difference between the two services, namely, the Jammu and Kashmir Administrative Officers (Gazetted) Service constituted vide SRO
272 of 16th August, 1996 and the Jammu and Kashmir Private Secretaries to Heads of Department (Gazetted) Service constituted vide SRO 305
of 6th September, 2000, in as much as both have to be administered by the General Administration Department - Not only that, the service of the
petitioners is inter-transferable with their counter-parts Working in the Secretariat, a fact which has not been denied by the respondents.
In view of all what has been discussed above I have no doubt that the petitioners have been discriminated against by the respondent in an
arbitrary manner. The classification of the petitioners category as a separate and distinct group does not seem to be based on any intelligible criteria
or rationale.
Refusal on the part of the respondents to grant such benefit to the petitioners is hit by the mandate of Article 14 and 16 of the constitution of India.
Learned counsel for the petitioners has cited AIR 1988 1033 (SC) wherein their lordships have said that reasonable promotional opportunities
should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving
excellence in ser vice. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly.
In the present case there is not only absence of promotional prospect, but the same has been snatched from the petitioners by the respondents. In
council of Scientific and Industrial Research v. K.G.S Bhatt AIR 1972 SC their lordships of the Supreme Court observed that, ""it is often said and
indeed adroitly, an organisation public or private does not hire a hand engages or employs a whole man. The person is recruited by an organisation
not just for a job, but for a whole career. One must therefore, be given an opportunity to advance. This is the oldest and most important feature of
the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel
development as well.
In view of the above, the petitioner category is, therefore, entitled to be treated on the same footing as their counter- parts working in the Civil
Secretariat as also those working with Heads of Department.
This petition is, accordingly, allowed. The respondents are directed to accord and extend to the petitioners the same benefit as has been been
granted to the Private Secre tariat working in the Civil Secre tariat and the Administrative offic ers by fixing a quota for petitioners induction into
KAS either treating them as part of the Secretariat (Gazetted) Service or otherwise. The needful shall be done within three months from the date a
certi fied copy of this order is served on the respondents.
No order as to costs.