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2002 DIGILAW 12 (JK)

High Court Of J&K v. Yash Pal Sharma

2002-02-14

S.K.GUPTA, V.K.JHANJI

body2002
1. We have heard the learned counsel for the patties on the question which were formulated on 19.12.2001. 2. The judgment impugned in this appeal, in our opinion does not afford a right of appeal to the appellant in as much as in the judgment impugned respondents have been directed to take notice of Govt. order No. 106 - C of 1943 dated 01.02.1943, whereby the qualification for the post of Readers in the High Court have been prescribed as Degree in Law and also the resolution passed by the full court in its meeting held on 21.06.1951, whereby question of waiving the said qualification was considered and it was opined that condition imposed in the government order (supra) is not to be waived. 3. Since no adverse order to the interest of the High Court has been passed, appeal by the High Court, in our view is neither competent nor affordable. 4. Coming to the second question, on perusal of the record, we find that sanction was accorded to the creation of the posts of readers in the High Court as well as in the Subordinate Courts vide Govt. Order No. 106-C of 1943 dated 01.02.1943. In regard to the Readers in the High Court, a note was appended to the Government Order that qualification for Readers in the High Court must be Degree in law. 5. Subsequent thereto, the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 came to be issued in exercise of the powers Vested in Section 108 of the Constitution of Jammu and Kashmir, for regulating the conditions of service of the persons serving in the High Court, including their salaries, allowances, leave and pension. Rule 6 of the aforesaid 1968 Rules provided: "Chief Justice may from time to time lay down the qualifications for a member of service and determine the mode of recriotment. 6. Record does not show that the minimum qualification for Readers in the High Court, which is laid down vide Govt. Order No. 106-C of 1943 dated 01.02.1943 was ever altered by the Chief Justice. As a matter of fact, the Full Court in its meeting held on 21.06.1951 considered the question of waiving of the minimum qualification of having Degree in law with regard to the Readers of the High Court. Order No. 106-C of 1943 dated 01.02.1943 was ever altered by the Chief Justice. As a matter of fact, the Full Court in its meeting held on 21.06.1951 considered the question of waiving of the minimum qualification of having Degree in law with regard to the Readers of the High Court. The Full Court had resolved that the condition imposed in the Government order is wholesome one and not to be waived in any case. 7. Government Order No. 2192-LD of 1998 dated 21.12.1998 whereby sanction was accorded to the substitution of the Schedule appended to the High Court Staff (Condition of Service) Rules, 1968, only deals with the pay structures of various posts on the strength of the High Court staff. It did not alter the minimum qualification for the post of Readers in the High Court, which was laid down by the Government order No. 106-C of 1943 dated 01.02.1943. 8. This being the case, it is not necessary for us to answer the second part of the second question that whether the amendment to schedule constitute any change in the requirement of qualification for eligibility of appointment as Readers. 9. In view of the above, it is-not necessary to give answer to question No. 3, except that reference to Section 108 of the constitution of Jammu and Kashmir, instead of Section 124 of the Constitution of Jammu and Kashmir, which has been indicated in question No. 3. 10. After the conclusion of this case and dictating of the order, Office Note dated 22.10.1996 of the then Registrar, was brought to our notice. On the note there is an order dated 23.10.1996 of the Lord Chief Justice. Note of the Registrar and the order passed by the then Lord Chief Justice reads as under: "Experience shows that the existing rule with respect of recruitment of Reader(s) directly is not practicable. It is found that filling up the vacant post of Reader(s) the process of recruitment takes unduly long time. Thereby, hampering the working of the Courts. It is desirable that the post of Reader(s) is filled up from out of the excising staff of the High Court by selection namely, seniority corn-merit. It is found that filling up the vacant post of Reader(s) the process of recruitment takes unduly long time. Thereby, hampering the working of the Courts. It is desirable that the post of Reader(s) is filled up from out of the excising staff of the High Court by selection namely, seniority corn-merit. Since, it would not only give a chance of promotion to the categories to be considered for this post, avoid the stagnation and requirement of posting Reader(s) in the Court filled up immediately avoiding inconvenience to the Honble Judge and the litigant public. The existing qualification of being a Law Graduate may not be necessary since the work of Reader(s) is more of experience. This qualification is not even fixed for Private Secretaries the High Court, who also deal with files like the Reader(s). In some other High Courts, this law qualification is not prescribed. It requires to be changed and replaced with minimum qualification of Graduation or above. The Post of Reader(s) should be filled up by selection out of Section Officers and Senior Sale Stenographers, having the same pay scales in the High Court. In absence of availability of suitable candidate, it may be filled up directly. The Honble Chief Justice may make the appointment himself or through a committee nominated by his Lordship. The post(s) of Private Secretary(s) may be filled up from in-service Senior Scale Stenographers of the High Court by Selection, namely, merit-cum-seniority and the post of Senior Scale Stenographer from in-service Jr. Scale Stenographers, similarly. The Honble Chief Justice may make the appointment himself of through a committee nominated by his Lordship. Submitted for orders. Sd/-22.10.1996. (Syed Bashir-ud-din) Registrar. Approved. Hence for the existing vacancies be filled up according above criteria. Sd/-23.10.1996 Honble Chief Justice. 11. The above quoted note of the Registrar is with regard to two matters - (i). that the posts of Reader(s) and Private Secretaries may be filled up from the in-service Section Officer and Senior Scale Stenographers by Selection, namely, merit-cum-seniority and the post of Senior Scale Stenographers from Junior Scale Stenographers and appointment to these posts may be made by the Honble Chief justice or through a committee nominated by the Chief Justice; (ii). The minimum qualification of the Reader(s) i.e. Degree in Law required to be changed the replaced with minimum qualification of graduation and above. The minimum qualification of the Reader(s) i.e. Degree in Law required to be changed the replaced with minimum qualification of graduation and above. Order dated 23.10.1996 of then Lord Chief Justice does not indicate that the minimum qualification of Degree in Law was changed or replaced with minimum qualification of graduation or above. In the note of the registrar, there is no reference to the Government order No. 106-C of 1943 dated 01.02.1994 prescribing the qualification as Degree in Law for Readers in the High Court. It also does not refer to the Full Court resolution passed in its meeting held on 21.06.1951, whereby the question of minimum qualification was considered and it was resolved that the condition imposed in the Government order is not to be waived of in any case It does not say that the conditions which were prescribed under Government order No. 106-C of 1943 dated 01.02.1943 is changed or replaced with minimum qualification of graduation or above. It also does not say that the decision taken by the Full Court in the meeting held on 21.06.1951 is reviewed. The order further does not show that the qualification was being laid down by the then Lord Chief Justice in exercise of powers conferred under Rule 6 of the Jammu and Kashmir High Court Staff (Conditions of Service) Rules 1968. The order in this regard is completely silent. The only interpretation which can be given to the order dated 23.10.1996, in our view would be that the approval of the Lord Chief Justice was limited only for filling of the existing vacancies of the readers from the in-service candidates. In this view of the matter, we are of the view that the minimum qualification of Readers in the High Court, which was laid down by Govt. Order No. 106-C of 1943 dated 01.02.1943 stands and is not liable to be waived in view of the Resolution passed by the Full Court in its meeting held on 21.06.1951. 12. For the reasons recorded above, this appeal is dismissed.