Tsering Dorjay vs State of Jammu & Kashmir and Others

Aftab Alam, A.C.J.

Long after a person was promoted to a certain post, rules were framed fixing the eligibility criteria for that post. But the rules would naturally be

prospective and the promotion was allowed long ago. Hence, the promotee, though he did not possess the qualification laid down under the rules,

was left undisturbed. The trouble, however, arose when the occasion came for promotion to the next higher post.

The rules require the higher post to be filled up by promotion, with no additional qualifications needed, from amongst those holding the post in

question for a period of not less than five years. Now this person is told that he would not be considered for the promotion because he does not

possess the qualification for the post that he is holding. I should have said, without giving much thought that such a stand would be highly

unreasonable and unjust to the person holding the post for long and from a point of time much before the eligibility criteria came to be prescribed

under the rules. But the issue needs a careful consideration because two learned Single Judges of the Court seem to have taken opposite view in

the matter.

The material facts are very brief and without controversy. The appellant and respondent No. 1 (writ petitioner) are both members of the J&K

Engineering Subordinate Service. Respondent No. 1 was promoted as Head Assistant by order No. PW-130 of 1981 dated July 21,1981. He

had not passed the Secretariat Assistant Training Course but at that time the passing of the course was not an essential condition for promotion as

Head Assistant. Here it needs to be made clear that promotion allowed to him was perfectly in order and admittedly it did not suffer from any flaw

or lacuna. About sixteen years later, the State Government framed the J&K Engineering (Subordinate Services) Recruitment Rules under SRO

180 that was notified on May 26,1997. Rule 5 laid down the qualifications and method of recruitment and provided that no person would be

eligible for appointment or promotion to any post in any class, category or grade in the service unless he possessed the qualifications as laid down

in Schedule II-A and II-B annexed to the rules and fulfilled other requirements of recruitment as provided in the rules and orders for the time being

in force. Schedule II-B, dealing with the ministerial staff, in so far as relevant, is reproduced below:

------------------------------------------------------------------------------------------

Class Category Designation of Grade Minimum Method of

the post qualification for recruitment

direct

recruitment

------------------------------------------------------------------------------------------

I A Section Officer 1760-3200 - 100% by

promotion from

Class II

Category 'A'

having not less

than five years

experience as

such.

------------------------------------------------------------------------------------------

II A Head Assistant 1400-2600 - 100% by

promotion from

class III

category 'A&B'

from amongst

the persons

who have

passed

Secretariat

Assistant

Training and

having 4 years'

experience in

the respective

categories

------------------------------------------------------------------------------------------

The Rules make it clear that Section Officer can be appointed in promotion from Head Assistants, subject to the condition of 5 years' qualifying

service on that post. Similarly, Head Assistant can be appointed by promotion from Senior Assistants and Storekeepers (Class III categories),

subject to the conditions of having passed the Secretariat Assistant Training Course and completed qualifying service of four years on either of

those posts.

Respondent No. 1 undeniably satisfies the condition for being considered for promotion as Section Officer; he has completed the qualifying

service of five years as Head Assistant several times over since 1981. But not having done the Secretariat Assistant Training Course, he does not

fulfill the condition for appointment as Head Assistant in terms of the 1997 Rules. Here it may further be stated that when vacancy arose in the post

of Section Officer, respondent No. 1, being the senior most Head Assistant, was asked to work as Section officer but when the occasion came for

making regular promotion to the post, objections were raised that since he had not passed the Secretariat Assistant Training Course, he could not

be considered for the promotion. His rival in claiming promotion as Section officer was the appellant (respondent No. 6 before the Writ Court)

who had, admittedly, passed the Secretariat Assistant Training Course and who was promoted as Head Assistant with effect from August 3,1996

by order issued on April 27,2000. In order to resolve the dispute the departmental authorities referred the matter to the General Administration

Department and the latter decided the issue against respondent No. 1 and in favour of the appellant. The concerned authority was informed by

communication dated November 29, 2000 issued by the Under Secretary to the Government, General Administration Department that respondent

No. 1 was not eligible for promotion and the appellant was qualified and eligible for promotion to the post of Section officer.

Aggrieved by the stand taken by the respondent authorities, respondent No. 1 came to this Court in writ petition, SWP No. 1617/2006. A

learned single Judge of the court allowed the writ petition by judgment and order dated May 18,2007 and directed the respondent authorities to

consider the case of respondent No. 1 for promotion as Section Officer, independent of the requirement of the Secretariat Assistant Training

course'.

In allowing the claim of respondent No. 1, the learned Single judge followed one of his earlier decisions dated February 8, 2005 in SWP No.

540/2005 (Mushtaq Ahmad Hamdani v. State of J&K). In Hamdani, the same question arose on almost identical facts in another service of the

State Government, governed by the rules under SRO 164 dated September 1, 1993. In Hamdani's case, the learned Judge noted the basic facts

and the statutory position and answered the issue as follows:

...As per Schedule 2 attached to the rules read with Class II thereof, the post of Section Officer is required to be filled up by promotion from the

cadre of Head Assistant with not less than 5 years service in that category. The said Schedule does not mention anything to suggest that Secretariat

Training Course is a part of eligibility criterion for promotion to the post of Section Officer from the cadre of Head Assistant, while as the same is a

requirement for promotion from the cadre of Senior Assistant to that of Head Assistant along with five years stay in that cadre. In nutshell,

therefore, while the Secretariat Training Course is a part of eligibility criterion for promotion from the cadre of Senior Assistant to that of Head

Assistant, it is not required for promotion from the cadre of Head Assistant to that of Section Officer who would naturally have had the said

training course to his credit, at the time of his promotion to the cadre of Head Assistant. Thus a question would arise as to whether the petitioner

who like respondent No. 5 is already functioning as Head Assistant has had the requisite secretariat training course to his credit at the time of his

promotion from the cadre of Senior Assistant to that of Head Assistant. Admittedly it is not so, but then the petitioner appears to have been

promoted to the cadre of Head Assistant after clarification by the State Level DPC way back in 1983 under order No. DHD/58 of 1983 dated

29.07.1983 while as the rules aforementioned which prescribe the requirement of secretarial training for promotion from the cadre of Senior

Assistant to that of Head Assistant have come into force in 1993. So, at the time petitioner was promoted to the post of Head Assistant the

requirement of secretariat training was not there at all and having served as such for a decade, he could not be left out of consideration for

promotion to the next higher cadre only because he did not have the qualification, which was not required in his case at the relevant time. That is

particularly so because SRO 164 aforementioned does not contain anything to suggest that any person who has been promoted to the cadre of

Head Assistant prior to promulgation of the said SRO would suffer for want of requisite secretariat training course for his consideration for

promotion to the post of Section Officer. Plainly, therefore, the requirement does not appear to apply to the petitioner who had already put in 10

years as Head Assistant in 1997 when the SRO was promulgated and thereby around 22 years by now....

This appeal is preferred against the judgment and order dated May 18, 2006 by which the writ petition of respondent No. 1 was allowed

following the earlier decision in Hamdani.

Mr. Attar, counsel appearing for the appellant, submitted that in an earlier decision in Mehar-ul-Nisa Parveen v. State of J&K 1980 SLJ 393

J&K , another learned Single Judge had taken a directly opposite view on the issue. He submitted that the decision in Mehar-ul-Nisa correctly laid

down the law and the view taken in Hamdani was untenable; at any rate, the order coming under appeal was bad for not following the earlier

reported decision in Mehar-ul-Nisa Paveen.

Mr. Attar presented before us the J&K Engineering Subordinate Service Recruitment Rules, 1997 (SRO 180 dated May 6,1997). Learned

Counsel submitted that in view of the proviso to rule 2, respondent No. 1 was not even entitled to hold the post of Head Assistant after coming

into force of the rules. I find no substance in the submission as it overlooks the saving clause in rule 14(2) that expressly saves any earlier

appointments or actions taken as deemed to have been made or taken under the corresponding provisions of the present rules.

In support of the submission that respondent No. 1 was not eligible for promotion as Section Officer, because he had not done the Secretariat

Assistant Training Course, Mr. Attar also relied upon a Supreme Court decision in State of Madhya Pradesh and Another Vs. Dharam Bir, . The

decision in Dharam Bir (supra) was in totally different set of facts and it does not seem to have any application to the case in hand.

This brings me to consider the submission of Mr. Attar based on the decision in Mehar-ul-Nisa Parveen. It is, indeed, true that in that decision

another learned Judge took a directly opposite view of the matter and, therefore, it becomes necessary to closely examine the consideration on

which the decision in Mehar-ul-Nisa was based.

In Mehar-ul-Nisa, the Court considered the claim of a non- Matriculate Lady Social Worker (in the grade of Rs. 220-430) for promotion as

Superintendent Social Worker. In terms of the rules framed under SRO 338 dated June 16, 1978 the posts of Superintendent, Social Worker (in

the scale of Rs. 280-520), to the extent of 50%, were required to be filled up by promotion, with no additional qualification needed, from Lady

Social Worker with a minimum of four years' service on that post. But for appointment as Lady Social Worker it was essential to have passed

Matriculation with a certificate from an Industrial Training Institute (ITI) or an institution recognised by the Government. Before the SRO was

issued on June 16, 1978, a Lady Social Worker was not required to be Matriculate and it was at that time that Mehar-ul-Nisa, a non-Matriculate,

was appointed /promoted as Lady Social Worker. She came to the Court making the grievance that in disregard to her seniority some one else

was promoted from the rank of Lady Social Worker to the post of Superintendent Social Worker, A learned Single Judge of the Court rejected

her claim and dismissed the writ petition.

Before proceeding to examine the reasons assigned by the Court for rejection, the claim of Mehar-ul-Nisa, it would be appropriate to indicate

the slight difference between the two cases. In the case in hand and in Hamdani (supra), the required qualification introduced by the rules is the

passing of Secretarial Assistant Training; whereas in Mehar-ul-Nisa the required qualification was Matriculation and a certificate from ITI or an

equivalent institution. Passing of Secretariat Assistant Training is in the nature of in-service training but Matriculation and the certificate from ITI are

in the line of general education. An in-service training is undeniably very important, but it is different and not comparable to stages of education in

the general line. Matriculation is a definite level of education and it consequently is a measure of certain mental level. A certificate from ITI is also in

the general line of education. The basic requirement under SRO 338 dated June 16, 1978 (in Mehar-ul-Nisa) on the one hand and SRO 180

dated May 26,1997 (in the case in hand) and SRO 164 dated September 1, 1993 (in Hamdani's case) on the other hand are basically different

and that might have weighed with the learned Single Judge in taking the view as in Mehar-ul-Nisa.

Coming now to the reasons assigned for rejecting the claim of Mehar-ul-Nisa, I may reproduce here the relevant extract from the judgment:

Mr. Tassaduq's contention is that lady worker to be appointed to the higher class carrying the grade of 280-520 through promotion from class III

category (A), according 'o this SRO, need not be a matriculate, because column No. 6 pertaining to class II 'A' does not specifically say so, as

such, the petitioner who admittedly had 4 years service as lady social worker in class III category 'A' which was the only condition for her

promotion to the higher grade in class II category (A), could not have been excluded from consideration, adding that the respondent's refusal to

consider her for promotion in these circumstances, is clearly violative of her fundamental rights of equal opportunity for appointment, enshrined in

Article 16 of the Constitution of India. This argument, even though attractive, is yet not tenable. A lady social worker, after SRO 338 was

enforced, who was not matriculate, was beyond the contemplation of the SRO, in so far as her promotion to class II category A was concerned.

This indeed was, and could be the only Legislative intent of the SRO. The interpretation sought to be placed by Mr. Tassaduq on the SRO is

bound to lead manifest absurdity. Can we attribute an intention to the rule making authority that whereas it did not want a class IV employee- to be

promoted to class III category A unless he or she was a matriculate, it would have no objection in case a non-matriculate was promoted to a still

higher class, namely, class II? It is an accepted rule of interpretation of statutes that a statute should not be so construed as to impute absurdity to

the Legislature. If a statute leads to absurdity, a construction may be put upon it which modied the meaning of the words used in it. Courts have

gone to the extent of saving that even though free from ambiguity where the ordinary meaning of the words ambiguity where the ordinary meaning

of the words employed in a statute, gives rise to absurdity, an attempt has to be made to remove the same by adding, if possible, some words to it

in order to ascertain the true Legislative intent. (See State of Madhya Pradesh Vs. Azad Bharat Finance Co. and Another, , Promode Ranjan

Sarkar Vs. R.N. Mullick, and Rameshwar Dass Radhey Lal Vs. The State, . The SRO has, therefore, to be read so as to mean that only that lady

social worker shall be promoted to class II category(A) who has not only 4 years service in class III category(A) but is also a matriculate.

It is thus to be seen that the learned Judge has assigned two reasons for holding that Matriculation must be taken as an essential qualification

also for the post of Superintendent Social Worker. First, that could be the only legislative intent of the SRO and the second that omission to add

the qualification of matriculation for the higher post of Superintendent Social Worker would lead to manifest absurdity.

In regard to the second reason, it is observed that after the SRO, a non-Matriculate could not be appointed as Lady Social Worker and

hence, it would be an absurdity allow a non-Matriculate to be appointed as Superintendent Social Worker and, therefore, even though the rules

did not expressly provide, the SKO has to be read so as to mean that only such Lady Social Worker can be promoted to Class II category A

post who had not only four years' service in Class III category A, but was also a Matriculate. I have some difficulty in following the reasoning. By

that reasoning after the SRO came into force, a non-Matriculate holding the post of Lady Social Worker would equally he an absurdity. But a non-

Matriculate appointed as Lady Social Worker before the rules came into force cannot be removed from that position for other legal

considerations; a non-Matriculate appointed as Lady Social Worker before the SRO came into force would have a vested right to hold the post

and, therefore, she cannot be removed on the issuance of the SRO that is apparently prospective in operation. Now a non-Matriculate who was

appointed as Lady Social Worker before the SRO came into force not only had the vested right to hold the post but also had the ancillary right to

be considered for the next promotion, in accordance with the rules. The coming into force of the SRO would not divest the non-Matriculate Lady

Social Worker of her ancillary right apart from the right to hold the post.

I have even stronger reservations with regard to the first reason assigned in Mehur-ul-Nisa about the legislative intent. The rule maker was

perfectly aware that non-Matriculates were holding the post of Lady Social Worker from before the Rules were framed. If the intent was to make

it obligatory for a Lady Social Worker to pass Matriculation for being considered for promotion to the next higher post, it could be easily

stipulated that non-Matriculate Lady Social Workers should pass Matriculation within a specified time for being considered for promotion as

Superintended Social Worker. Even if this was not provided in the Rules, it could easily be done by issuing suitable executive instructions. I am,

therefore, unable to subscribe to any of the two reasonings assigned by the learned judge in deciding Mehar-ul-Nisa and, with respect, I am of the

view that the decision in Mehar-ul-Nisa was not based on a proper interpretation of the Rules.

I may also state here that it was strongly argued on behalf of the respondent writ petitioner) that passing the Secretariat Assistant Training was

not in the hands of the individual employee and one could undergo the course only on being deputed by the departmental authorities. Counsel for

the respondent submitted that though his client worked as Head Assistant for more than 16 years, he was never deputed by the departmental

authorities for the training course in question. On a direct query made in this regard, the State counsel could not say that as the respondent had

already become Head Assistant, no need was felt to send him for the training as the training was the required qualification for the post of Head

Assistant and not for the higher post of Section Officer.

That being the position, on facts also the respondent cannot be denied the promotion on the plea that he had not passed the Secretariat

Assistant Training.

Thus looking at the matter from any point of view, the claim of the respondent appears to me to be unassailable. I am, therefore, of the view

that the Writ Court took the correct view of the matter. The decision of the Writ Court does not warrant any interference in appeal.

The appeal is dismissed but with no order as to costs.