Judgment :- 1. As common questions of law are involved in all these cases, these petitions are disposed of by this common order. 2. In all these petitions, the challenge is to the Constitutionality of the Rules (by way of Amendments) substituted in the Parent Rules of High Court of Karnataka (Conditions of Service and Recruitment) Rules, 1973 and the petitioners are aggrieved by the prescription of qualifications by way of degree in respect of some categories of posts and law degree in respect of other categories of posts and these changes being substituted by way of the amendments to the existing Rules of recruitment and hence the attack is directed against the proviso and the explanation to the amended Rules. 3. Writ Petition Nos.11797-11827/2010 are by the petitioners who joined the services of the Respondent High Court as Group ‘D’ Employees and were promoted to Second Division Assistants/Typists and thereafter, to the post of First Division Assistant and they are aggrieved by the proviso to the 2009 Rules, by which they have been required to possess a degree from any University established by Law for being considered for to the next higher post of Senior Assistant. 4. Writ Petition Nos.4683-4722/2010 are by the petitioners who are presently working as Second Division Assistants and their promotion to the next post of First Division Assistant (FDA) is under threat, as they are required to possess a degree from recognised University. 5. Writ Petition Nos.22155-22184/2010 are by the Stenographers, Judgment Writers and Senior Judgment Writers and their grievance is that, the Stenographers are also required to possess a degree from a recognised University to move to the post of Judgment Writer and the Judgment Writers, in turn, are to possess law degree and so also the Senior Judgment Writers to possess law degree to move on to the next post of Assistant Registrar. 6. Writ Petition Nos.37218-37249/2009 are by the Second Division Assistants/Typists inasmuch as, Petitioners 1 to 8 are Second Division Assistants and Petitioners 19 to 32 are Typists and they are also required under the proviso to the Amended Rules to possess a degree to move on to the next post in the ladder. 7. Writ Petition Nos.35966-36032/2009 are by the Group ‘D’ Employees and they are also required to possess a degree from a recongised University to move on to the post of Second Division Assistant. 8. 7. Writ Petition Nos.35966-36032/2009 are by the Group ‘D’ Employees and they are also required to possess a degree from a recongised University to move on to the post of Second Division Assistant. 8. Writ Petition Nos.36797-36806/2009 are by the Senior Assistants and they have to possess a degree from a recognised University to be eligible for the post of Section Officers. 9. In Writ Petitions 11797-11827/2010, Respondent No.15 Rajesh is reported to be deed and learned counsel Sri.S.G.Bhagawan had filed a Memo stating that the petition against him abates, and the petition thus abates against the said Respondent No.15. 10. In the batch of Writ Petition Nos.4683-4722/2010, Respondent No.13 is said to have resigned the services and Respondent No.3 has retired from the services. 11. With the aforesaid elementary facts, the contentions raised by the respective petitioners and the relief sought will have to be referred to. 12. In the first batch of Writ Petitions referred to above, the petitioners seek quashing of the proviso as substituted at SI.No.14 in Column No.4 of Notification No.HCE 221/2009 dated 29.07.2009, which is at Annexure – ‘A’ and referred to as the High Court of Karnataka (Service Conditions) 5th Amendment Rules, 2009 and also to quash Order No.HCE 307/2009 dated 18.8.2009 promoting Respondents 3 to 68 as First Division Assistants as per Annexure – ‘B’ and to direct Respondents 1 and 2 to consider the case of the petitioners also for promotion to the said post. 13. In Writ Petition Nos.22155-22184/2010, the petitioners have sought quashing of the First Amendment Rules, 2009 dated 24.2.2009 published in the Karnataka Gazette on 26.2.2009 (as per Annexure-B) and to quash the Notification HCE 307/2009 dated 12.5.2009 (Annexure-C), and also to quash the Notification HCE 221/2009 dated 28.5.2009 insofar as the prescribing additional qualification to the posts of Stenographers, Judgment Writers and Senior Judgment Writers. 14. Further relief sought is to quash the promotions given to Respondents 3 to 13 as per the Notification at Annexures – ‘G’, ‘H’, ‘J’ and ‘K’. 15. 14. Further relief sought is to quash the promotions given to Respondents 3 to 13 as per the Notification at Annexures – ‘G’, ‘H’, ‘J’ and ‘K’. 15. The further prayer sought is to declare the stipulation of competitive test to the post of Judgment Writers and Senior Judgment Writers in the Draft Rules and to declare the quota restricted to Senior Judgment Writers to the post of Assistant Registrars only to Six posts as arbitrary, disproportionate, unconstitutional and without any basis and finally, to direct the respondents to redo the selection, appointment and promotion to the posts of Judgment Writers, Senior Judgment Writers and Assistant Registrars on the basis of seniority and service records. 16. In Writ Petition Nos.46283-46322/2010, the petitioners have sought for quashing of the proviso to the 2009 Amendment Rules where the qualification of degree is provided under the proviso at SI.No.15 Column No.4 (Annexure-A) and to quash the order No.HCE 307/2005 at Annexure – ‘D’ promoting Respondents 3 to 130 as First Division Assistants and to consider the case of the petitioners for promotion to the said post. 17. In Writ Petition Nos.37218-37249/2009, the relief sought is to quash Notification No.HCE 221/2009 dated 29.7.2009 (Annexure-B) so far as it pertains to SI.No.15 i.e., promotion of Second Division Assistant and Typists to the cadre of First Division Assistant and to quash the order of promotion at Annexure-C so far as it relates to promotion of Respondents 5 to 132 and also to direct Respondents-1 and 2 to promote the petitioners by considering their cases in accordance with 1973 Rules and to give them all consequential benefits. Another relief sought is to direct Respondnets-1 and 2 to accord promotion to the petitioners to the post of First Division Assistant following their seniority list of Second Division Assistants and Typists. 18. In Writ Petition Nos.36797-36806/2009, the petitioners who are working as Senior Assistants seeks a declaration to the effect that the Amendment Rules 2009 as per Notification No.HCE 221/2009 (Annexure-A) so far as it relates to the promotion to the cadre of Section Officer as arbitrary, unconstitutional and to strike down the said amendment. 19. 18. In Writ Petition Nos.36797-36806/2009, the petitioners who are working as Senior Assistants seeks a declaration to the effect that the Amendment Rules 2009 as per Notification No.HCE 221/2009 (Annexure-A) so far as it relates to the promotion to the cadre of Section Officer as arbitrary, unconstitutional and to strike down the said amendment. 19. In Writ Petition Nos.35966-36032/2009, the petitioners, who are working as Group ‘D’ Employees, also seek quashing of Notification No.HCE 221/2009 dated 24.2.2009 (as per Annexure-A) so far as the amendment brought out at SI.No.19 in the 3rd Schedule referring to the post of Second Division Assistant as arbitrary, unconstitutional and also seek quashing of Orders No.HCE 8/2008 dated 20.7.09 and HCE 8/2009 dated 5.6.2009 so far as it relates to Respondent No.4 and to quash the orders passed by Respondent No.36 vide Annexures – ‘C’, ‘D’, ‘E’ and ‘F’ and also direct Respondents 1, 2 and 36 to redo the promotions to the cadre of Second Division Assistant by considering the cases of the petitioners in terms of 1973 Rules without reference to the Amendment Rules of 2009. 20. Objections have been filed to the Writ Petitions by Respondents 1 and 2 and other Respondents who have been served have not filed any objections in all these cases except Respondents 101, 103, 106, 112 and 113, who have filed objections in Writ Petitions 37218-37249/2009. 21. I have heard learned counsel appearing for the parties and also perused the records produced by Respondents 1 and 2, both in respect of the background, which necessitated is bringing in the Amendment of 2009 by way of prescribing qualification in the proviso and the explanation thereto and also the records pertaining to the promotions accorded to the respondents, whose promotions are called in question in these petitions. 22. Learned counsel Sri.S.G.Bhagavan for the petitioners in the Writ Petitions Nos.4683-4722/2010 and 11797-827/2010, at the outset, submitted that the requirement of possessing a degree by the petitioners, lacks necessary criterion and before the 2009 Amendments were brought in, the position earlier as per 1973 Rules was that the petitioners were not required to possess a degree qualification for being considered to the post of First Division Assistant. As the promotion of these petitioners is now affected on account of the requirement of degree qualification, the petitioners also lose in terms of the monetary benefits, which would have accrued to them, had they been promoted as per 1973 Rules. He, therefore, submitted that the right to be considered for promotion is affected and Respondents 1 and 2, having allowed the 1973 Rules to be in force all these years upto the date of brining in the changes as per 2009 Rules, it is now not open to Respondents 1 and 2 to say that the petitioners shall not be considered for promotion. Therefore, it is argued that Respondents 1 and 2 are estopped from taking a stand contrary to the position, which had prevailed during the last three decades and odd. As such, the new Rules requires to be struck down. 23. Referring to the objection statement filed by Respondents 1 and 2, it is submitted that the objection statement is silent, as to the criterion adopted in prescribing the degree qualification and the parameters that lead to the new requirement of degree being insisted upon on the petitioners and, as such, the right of the petitioners to be considered for promotion is taken away. 24. It is then argued by Sri S.G.Bhagavan, that a close reading of the explanation to the proviso would make it clear that the permission to take up the degree examination is not automatic and the petitioners are required to obtain the degree within five years and, therefore, these conditions render the fulfillment of the requirement onerous as well as otiose. Since the grant of permission is subject to the discretion of the Chief Justice, the Chief Justice may or may not grant permission. Therefore, the amended Rules are against Articles 14 and 16 of the Constitution of India. By giving the amended Rules retrospective effect, the petitioners’ right for promotion has been denied. Therefore, learned counsel Sri.S.G.Bhagavan submitted that the exercise of power by the Chief Justice has to be viewed in the light of the law laid down by the Apex Court in the cases reported in AIR 1993 SC 935 as well as AIR 1998 SC 1079 . 25. As regards the principle of estoppel is concerned, reliance is placed by the petitioners’ counsel on the decision reported in AIR 2010 SC 3125 . 25. As regards the principle of estoppel is concerned, reliance is placed by the petitioners’ counsel on the decision reported in AIR 2010 SC 3125 . It is contended that Respondents 1 and 2 cannot turn around and deny promotion to the petitioners, having given the petitioners the benefit of getting promotion to the post of First Division Assistant all these years. 26. Learned senior counsel Sri.S.P.Shankar appearing for the petitioners Writ Petitions Nos.22155-84/2010 argued that requiring the Judgment Writers to have a law degree is not based on any criterion and there is no nexus between the duties performed by the Judgment Writers and requirement of law degree by them and moreover, in view of the conditions imposed in the explanation to the proviso and also having regard to the Circular issued as per Annexure-M dated 24.8.2010, it will be impossible for the Judgment Writers to get the law degree within five years. 27. Apart from the above, it is contended that many of the Stenographers are over the age of 40 years and it is too late in the day for them to obtain a law degree and, as such, there will be no nexus between the qualification prescribed and the object to be achieved, and the proviso to the amended Rules, therefore, is violative of Articles 14 and 16 of the Constitution of India. 28. It is further submitted by the learned senior counsel that due procedure of law has not been followed inasmuch as the Draft Rules, which were sent to the Governor for approval, were returned by the Governor without approving the same and thereafter, the amendments were resorted to and this shows that what was not achieved directly is sought to be achieved indirectly by taking recourse to amending the 1973 Rules. 29. The further submission made by learned senior counsel Sri.S.P.Shankar is that, the Draft Rules were published in the Gazette and the preamble to the Draft Rules so published, reveal that the approval of the Governor was obtained. But, in the objections filed by Respondents 1 and 2, it has clearly been admitted that the Draft Rules were not approved by the Governor and they remained only as Draft Rules. 30. Under these circumstances, learned senior counsel Sri.S.P.Shankar argued that, if the Draft Rules Published in the Gazette are taken as having come into force, then, 1973 Rules stand repealed. 30. Under these circumstances, learned senior counsel Sri.S.P.Shankar argued that, if the Draft Rules Published in the Gazette are taken as having come into force, then, 1973 Rules stand repealed. Under these circumstances, the entire procedure followed in bringing about the amendments to the 1973 Rules cannot be upheld in law. 31. It is also argued by the learned senior counsel Shri S.P.Shankar that the service conditions cannot be altered in mid-course. Moreover, not all the judgment writers are graduates and, therefore, it will be impossible for them to get the law degree without having a basis degree, as non-graduates cannot obtain a law degree, and the new Rules, brought about by way of amendments, therefore, are not in conformity with Articles 14, 16 and 21 of the Constitution. 32. It is also submitted by the learned senior counsel that, there is no direct recruitment to the posts of Assistant Court Officer, Court Officer and Section Officer and no law degree is insisted upon for the said feeder posts and hence, requiring the judgment writers to obtain the law degree is, therefore, unreasonable and discriminatory. 33. The next argument put-forth is that, Respondents 3 to 24 have been promoted to the vacancies, which arose prior to coming into effect of the new Rules and, therefore, having regard to the settled position in law, in respect of the vacancies that arose prior to the coming into force of the new Rules, it is the old Rules of 1973 that are applicable and not the new Rules. Under these circumstances, the proviso and explanation substituted into the 1973 Rules are arbitrary, unreasonable, whimsical and capricious. As such, they are liable to be struck down and the promotion given to the respondents are liable to be quashed. 34. Reliance was placed in support of the above submissions on the decisions reported in (2007) 11 SCC 605 , (1997) 10 SCC 419 , AIR 1991 SC 295 , (1983)3 SCC 284 , (2008) 2 SCC 161 and AIR 1990 SC 405 . 35. Learned Senior Counsel Sri Jayakumar.S.Patil appearing for the petitioners in W.P.Nos.37218-249/2009, while adopting the submissions made by learned counsel Sri S.G.Bhagavan and learned senior counsel Sri S.P.Shankar, supplemented their arguments by contending as follows. 36. 35. Learned Senior Counsel Sri Jayakumar.S.Patil appearing for the petitioners in W.P.Nos.37218-249/2009, while adopting the submissions made by learned counsel Sri S.G.Bhagavan and learned senior counsel Sri S.P.Shankar, supplemented their arguments by contending as follows. 36. Referring to Articles 229 sub-clause (2), the submission made is that, as the proviso to the said Articles requires the approval of the Governor of the State in respect of the Rules touching upon the salaries, allowances or leave or pension, the conditions of services, namely, ‘promotion’ has got much more significance than ‘leave’ and the words used in the said proviso are not exhaustive but are only indicative in nature and as promotion given to the employees also will have a bearing on salary allowances, etc. as such, prescribing qualification for promotion under the amended Rules would require the approval of the Governor and, as no such approval has been obtained from the Governor, the Rules framed, therefore, cannot stand the test of law. 37. Apart from the above, it is argued by the learned senior counsel who is also the Chairman of the Karnataka Bar Council, that, it is difficult to obtain a law degree by the petitioners since there is a ban on obtaining law degree by correspondence course and the eligibility criterion, viz; that of a law degree in the case of the petitioners, can never be met as it will be well-nigh impossible for the petitioners to have a law degree and, as such, for this reason also, the prescription of a law degree to be possessed by the judgment writers is unreasonable and, as such, the said proviso cannot be up-held as being in accordance with the provisions of the Constitution. 38. Learned Senior Counsel Sri Nanjunda Reddy in respect of the petitioners in Writ Petitions Nos.35966-36032/2009 submitted that, as far as Group ‘D’ employees are concerned, as per the 1973 Rules, 50% of the posts of SDA was to be filled up by direct recruitment and 25% was ear-marked for Group ‘D’ employees, who had passed S.S.L.C. examination. But, now, under the amended Rules, while maintaining 50% by Direct Recruitment, in respect of remaining 50% possession of a degree by Group ‘D’ employees is insisted. 39. But, now, under the amended Rules, while maintaining 50% by Direct Recruitment, in respect of remaining 50% possession of a degree by Group ‘D’ employees is insisted. 39. It is therefore argued that since the minimum qualification for the post of Group ‘D’ employee is 7th Standard, the petitioners, most of whom are 7th Standard pass candidates, cannot get a degree within the period of 5 years and, as such, the amended Rules are manifestly erroneous, unreasonable, irrational and being a sub-ordinate legislation, the Rules will have to pass through the test of Constitutional provisions and by depriving the petitioners to be considered for promotion to the post of Second Division Assistant permanently, the petitioners have been made to stagnate in the very same post as Group ‘D’ employees for ever and this is counter productive in respect of the efficiency of service. It is also argued by learned senior counsel Sri Nanjunda Reddy that the prescription of a degree qualification is violative of Article 14 and hence the same is liable to be struck down. 40. The learned senior counsel also submitted in respect of the petitioners who are Senior Assistants and who are to be promoted to the post of Section Officers that, the requirement of degree being possessed by the Senior Assistants is also arbitrary as, in respect of none of the feeder post, degree qualification is prescribed. Therefore, the object sought to be achieved has no nexus and what weighed with the respondents is also not forthcoming in the objections. The aforesaid submissions are also sought to be supported by placing reliance on the decisions reported in (2006)4 SCC 517 and (1994) 6 SCC 282 . 41. Yet another submission put forward by learned senior counsel Sri Nanjunda Reddy is that, Respondents 3 to 9 do not have necessary qualification. Yet they are promoted and even as per the amended Rules of 2009, their promotion cannot be sustained and if, 1973 Rules are considered, the said respondents are juniors to some of the petitioners. Thus, either way, the promotions to Respondents 3 to 9 cannot be said, to be in accordance with law. 42. Yet they are promoted and even as per the amended Rules of 2009, their promotion cannot be sustained and if, 1973 Rules are considered, the said respondents are juniors to some of the petitioners. Thus, either way, the promotions to Respondents 3 to 9 cannot be said, to be in accordance with law. 42. Learned senior counsel Sri Basavaprabhu Patil for Respondents 1 and 2, at the outset, referred to the power of the Chief Justice to frame necessary rules in respect of the recruitment as well as conditions of service of the staff of the High Court and contended that Article 229(2) of the Constitution would make it clear that the Chief Justice has all the power to frame the rules in respect of the promotion. It is only where the conditions of service, which are sought to be amended by way of rules, which have got financial implications, that the necessity of seeking approval of the Governor arises, but not otherwise. Therefore, it is argued that all the five amendments brought to 1973 Rules are within the powers of the Chief Justice and the Chief Justice has got power to amend the method of recruitment and to prescribe qualifications. In this contest, the relevant rules referred to are Rules 7, 8 and 11. 43. The next submission put forward is that, though the High Court wanted to repeal the 1973 Rules and Draft Rules were sent to the Governor, the Draft Rules were returned by the sent to the Governor, the Draft Rules were returned by the Governor and, as such, the said Rules have not seen the light of the day and as such, 1973 Rules holds the field even today. As the Chief Justice has power to make change in the 1973 Rules, the Rules that are now impugned as well as the proviso cannot be assailed as violative of the Constitution. 44. As regards the requirement of approval being sought from the Governor in respect of promotions is concerned, the submission made by learned senior counsel Sri Basavaprabhu Patil is that, no such approval is needed in respect of change of service conditions pertaining to promotions. 44. As regards the requirement of approval being sought from the Governor in respect of promotions is concerned, the submission made by learned senior counsel Sri Basavaprabhu Patil is that, no such approval is needed in respect of change of service conditions pertaining to promotions. The further submission made by the learned senior counsel for Respondents 1 and 2 is that, prescription of higher educational qualification is permissible in order to ensure efficiency of service, and the High Court being the Court of Record, it is all the more necessary to ensure that efficiency is maintained at all levels and it is with this objective that the requirement of degree in respect of some of the categories of the employees and law degree in respect of Senior Judgment Writers are prescribed. 45. Referring to the objectionsfiled, the learned senior counsel argued that, in view of the reasons stated in the objections, there is nexus between the goal to be achieved and the prescription of higher qualifications under the proviso. 46. Sri S.V.Narasimhan, learned counsel for R-16 in W.P.No.22155-22184/10, on his part, argued relying on the decision reported in (2003)2 SCC 632 and 2008 AIR SCW 6564 that the prescription of criterion for promotion, appointment etc., fall exclusively in the domain of the employer and power of the judicial review can be exercised only if it is shown that the rules framed are contrary to the constitutional provisions. 47. In the light of the aforesaid contentions put forward and the decisions referred to by the learned senior counsel and the learned counsel appearing for the parties, the following points arise for consideration: 1. Whether the power given to the Chief Justice to make Rules under Article 229(2) of the Constitution in respect of the conditions of service of the High Court staff, can be used to validate unconstitutional discrimination in promotional chances of persons belonging to the same category? 2. Is there a rational nexus between prescribing Degree/Law Degree qualifications and the object of higher efficiency to be achieved? 3. Whether the criterion fixed by the proviso to the amended Rules of 2009 is manifestly erroneous, arbitrary, unreasonable, irrational and discriminatory and thus violative of Articles 14 and 16 of the Constitution, when the right to considered for promotion is held to be a fundamental right? 4. 3. Whether the criterion fixed by the proviso to the amended Rules of 2009 is manifestly erroneous, arbitrary, unreasonable, irrational and discriminatory and thus violative of Articles 14 and 16 of the Constitution, when the right to considered for promotion is held to be a fundamental right? 4. Whether the requirements mentioned in the explanation to the proviso are arbitrary, unreasonable, impracticable and lacks rational nexus and hence violative of Article 14 & 16 of the Constitution? 5. In respect of the vacancies in the promotional posts which arose prior to the amendment in 2009, which Rule is applicable – old Rules of 1973 or amended Rules of 2009? 6. Whether the amended Rules which have retrospective operation has the effect of taking away the existing right under 1973 Rules and thus the amended Rules are arbitrary, discriminatory and violative of the right guaranteed under Articles 14 and 16 of the Constitution and hence unconstitutional? 7. Whether the promotions given pursuant to the amended Rules are in consonance with the well established principles of service jurisprudence? 8. Is the procedure followed in bringing about the amended Rules of 2009 is in accordance with the well established principles and procedures applicable in respect of bringing amendments to the principal rules? Point No.1: 48. As the Rules which are under challenge were framed by the Chief Justice by virtue of the power conferred under Article 229(2) of the Constitution, it is necessary to examine the said Article and the law laid down by the Apex Court in that regard. Article 229 of the Constitution of India reads as under: “229. Officers and servants and the expenses of High Courts: (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the court shall be appointed to any office connected with the court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High court shall be such as may be prescribed by rules made by the Chief Justice of the court or by some other Judge or officer of the court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.” 49. Sub-clause (2) of Article 229 makes it clear that the Chief Justice is empowered to prescribe by Rules the conditions of service of officers and servants of the High Court subject to the provisions of any law made by the Legislature of the State. Dealing with the aforesaid Article and comparing the same with Article 309 and Article 146, learned author Justice M.Rama Jois (as he then was), in his book ‘Services under the State’ – 1987 Edition, at page-334, has observed thus: “On a comparison of Article 309 with Articles 146 and 229, we find that the two matters viz., (i) recruitment and (ii) conditions of service which are dealt with jointly in Article 309 are separately dealt with under clauses (1) and (2) respectively of Articles 146 and 229. The power of Parliament and State legislature is confined to regulating conditions of service and on matters relating to recruitment power is exclusively conferred on the Chief Justice.” 50. Therefore, the power of the State to make legislation in regard to conditions of service in respect of High Court staff has been conferred on the Chief Justice and thus the rules made under Article 229(2) are to be held as subordinate legislation. 51. As far as the proviso requiring the approval of the Governor is concerned, I am unable to agree with the submission made by learned senior counsel Shri Jayakumar S.Patil that even in respect of promotions, the approval of the Governor is necessary. On the other hand, learned senior counsel Shri Basava Prabhu Patil is right in submitting that the approval of the Governor is required only in respect of those matters which are specifically mentioned in the proviso to Article 229(2) and even the Apex Court, in the case of M.Gurumoorthy Vs. On the other hand, learned senior counsel Shri Basava Prabhu Patil is right in submitting that the approval of the Governor is required only in respect of those matters which are specifically mentioned in the proviso to Article 229(2) and even the Apex Court, in the case of M.Gurumoorthy Vs. The Accountant General, Assam & Nagaland, reported in AIR 1971 SC 1850 , has held that Clause (1) read with Clause (2) of Article 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1). The approval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. Therefore, seeking the approval of the Governor in respect of promotions, therefore, is not envisaged by the proviso to Article 229 nor does the observations of the Apex Court can be construed as requiring the permission of the Governor even in respect of matters relation to promotion. 52. Whether the said power can be exercised by the Chief Justice disregarding the constitutional provisions came up for consideration before the Apex Court in the case of H.C.Puttaswamy & others Vs. Hon’ble Chief Justice of Karnataka (AIR 1991 S.C.295) and the Apex Court has observed thus at paragraph-11: “The Judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the Courts must also take account of the totality of the Judges behavior and their administrative roles. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the Courts must also take account of the totality of the Judges behavior and their administrative roles. They may appear to be only minor aspects of the administration of justice, but collectively they are not trivial. They constitute, in our opinion, a substantial part of the mosaic which represents the ordinary man’s perception of what the Courts are and how the judges go about their work. The Chief Justice is the prime force in the High Court. Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the Court as may be directed by the Chief Justice. The object of this article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. There can be no disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law, not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethoes and traditions of his calling. We need hardly say that those who are expected to oversee the conduct of others must necessarily maintain a higher standard of ethical and intellectual rectitude. The public expectations do not seem to be less exacting.” 53. A Division Bench of this court, in the case of Channegowda Vs. We need hardly say that those who are expected to oversee the conduct of others must necessarily maintain a higher standard of ethical and intellectual rectitude. The public expectations do not seem to be less exacting.” 53. A Division Bench of this court, in the case of Channegowda Vs. High Court of Karnataka (ILR 2004 Kar 4633), relying on the decision in Puttaswamy’s case, has held that, when a challenge has been made with regard to the process of promotion as being not in accordance with the prescribed Rules, the records should reflect that the cases of the petitioners have been considered as required under the Rules. 54. In the case of Mahesh Chandra Vs Regional Manager, U.P. Financial Corporation ( AIR 1993 S.C. 935 ), the Apex Court has held that, every wide power, the exercise of which has far-reaching repercussion, has inherent limitation on it. It should be exercised to effectuate the purpose of the Act. In legislation enacted for general benefit and common good, the responsibility is far graver. It demands purposeful approach. The exercise of discretion should be objective. Test of reasonableness is more strict. The public functionaries should be duty conscious rather than power charged. Its actions and decisions, which touch the common man, have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bonafide and in good faith merely because no personal gain or benefit to the exercising discretion should be established. 55. In the case of High Court of Judicature for Rajasthan Vs. Ramesh Chand Paliwal and another ( AIR 1998 S.C. 1079 ), the Apex Court while dealing with Article 229 of the Constitution, has observed that the Judges have to live and behave like “hermits” and their mission is to supply light and not heat and the relevant paragraph is paragraph-40, which is as under: “As pointed out above, under the constitutional scheme, Chief Justice is the supreme authority and the other Judges, so far as officers and servants of the High Court are concerned, have no role to play on the administrative side. Some judges, undoubtedly, will become Chief Justice in their own turn one day, but it is imperative under constitutional discipline that they work in tranquility. Judges have been described as “hermits”. Some judges, undoubtedly, will become Chief Justice in their own turn one day, but it is imperative under constitutional discipline that they work in tranquility. Judges have been described as “hermits”. They have to live and behave like “hermits” who have no desire or aspiration, having shed it through penance. Their mission is to supply light and not heat. This is necessary so that their latent desire to run the High Court administration may not sprout before time, atleast, in some cases.” 56. It is thus clear from the aforesaid position in law that while the Chief Justice is the supreme authority to frame the Rules in respect of recruitment as well as conditions of service, the power of the Chief Justice is, however, subject to the limitation as contained in Article 229(2) itself and the power will have to be exercised keeping in view the aforesaid limitations as expressed by the Apex Court in the aforementioned cases as well as by the Division Bench of this court in Channegowda’s case. In other words, the said power cannot be used to validate unconstitutional discrimination in promotion chances of persons belonging to the same category. Point No.2: 57. The next point to be considered is with regard to the rational nexus between prescribing Degree qualification/Law Degree, as the case may be, in respect of SDAs, FDAs, Stenographers, Judgment Writers, Senior Judgment Writers and the objects to be achieved. Before I proceed to answer the said point, it is necessary at this juncture to refer to the position as stood in the High Court 1973 Rules and the requirement to be met by the persons in various posts consequent to the proviso being included in the amended Rules of 2009. The existing method of recruitment and amendments to be substituted in place of the earlier method of recruitment, in respect of the petitioners herein, with reference to Notification No. HCE 221/2009 dated 29.7.2009 published in the Gazette, are as under: THE HIGH COURT OF KARNATAKA SERVICE (CONDITIONS OF SERVICE AND RECRUITMENT) (V AMENDMENT) RULES, 2009. Method of Recruitment to the posts of First Division Assistants from Second Division Assistants and Typists: SI.No. Cadre Name Existing method of Recruitment Amendment to be substituted in the place of existing method of recruitment 1. Method of Recruitment to the posts of First Division Assistants from Second Division Assistants and Typists: SI.No. Cadre Name Existing method of Recruitment Amendment to be substituted in the place of existing method of recruitment 1. To the Cadre of First Division Assistants By promotion from the cadre of SDAs and Typists in the ratio of 6:4 (6 SDAs and 4 Typists) as far as possible; Provided that, an official of one the above two cadres shall not be given promotion to the cadre of First Division Assistants/Audit Clerks, earlier to the promotion of the officials of the other cadre who had become members of that cadre prior to the date on which the former official became a member of his/her cadre. By promotion from the cadres of SDAs and Typists in the ratio of 6:4 (6 SDAs and 4 Typists) as far as possible; Provided that, an official of one the above two cadres shall not be given promotion to the cadre of First Division Assistants/Audit Clerks, earlier to the promotion of the officials of the other cadre who had become members of that cadre prior to the date on which the former official became a member of his/her cadre. Provided they shall possess a Degree from any University established by Law in India and Certificate Course in Computer Application. Explanation: 1. The present members who are working as First Division Assistants and who do not possess the required qualification, shall qualify themselves without affecting the regular work, with prior permission of Hon’ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. Note: For the posts of Audit Clerks preference will be given to the officials who possess Bachelors’ Degree in Commerce. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. Note: For the posts of Audit Clerks preference will be given to the officials who possess Bachelors’ Degree in Commerce. Method of Recruitment to the posts of Senior Assistants from First Division Assistants: SI.No. Cadre Existing method of Recruitment Amendment to be substituted in the place of existing method of recruitment 1. To the cadre of Senior Assistants By promotion on the basis of seniority-cum-efficiency from the cadre of First Division Assistants, Accountants, Audit Clerks, Assistant Librarians and Junior Statistical Assistant working in the High Court. By promotion on the basis of seniority-cum-efficiency from the cadre of First Division Assistants, Accountants, Audit Clerks, Assistant Librarians working in the High Court. Provided they shall possess a Degree from any university established by Law in India or equivalent. Explanation: 1. The present members who are working as Senior Assistants and who do not possess the required qualification, shall qualify themselves without affecting the regular work, with prior permission of Hon’ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. Method of Recruitment to the posts of Stenographers from Typists, Judgment Writers from Stenographers and Senior Judgment Writers from Judgment Writers: SI.No. Cadre Existing method of Recruitment Amendment to be substituted in the place of existing method of recruitment 1. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. Method of Recruitment to the posts of Stenographers from Typists, Judgment Writers from Stenographers and Senior Judgment Writers from Judgment Writers: SI.No. Cadre Existing method of Recruitment Amendment to be substituted in the place of existing method of recruitment 1. To the cadre of Stenographers (a) By promotion by selection from amongst Typists who have passed Senior Grade in both Typewriting and Shorthand conducted by the Department of Public Instruction of the Karnataka Secondary Education Board or equivalent examination working on the establishment of the High Court or from amongst the Stenographers working in the Subordinate Courts, or by both, on the basis of a Test conducted for the purpose, due weight being given to seniority and service records, as prescribed; or (b) By direct recruitment by selection (after calling for applications and holding a competitive test and interview). Minimum Qualifications: (for direct recruitment) 1. Must have passed the SSLC examination conducted by the Karnataka Secondary Education Board of equivalent Examination Note: Preference will be given to those who are graduates. Must have passed: 2. 1. The senior grade examination in English Shorthand in first class; or The proficiency Grade Examination in English Shorthand; and 2. Senior Grade Examination in Typewriting in English conducted by the Department of Public Instruction of the Karnataka Secondary Education Board or equivalent qualification. By promotion by selection from amongst Typists who have passed Senior Grade examination in both Typewriting and Shorthand conducted by the Department of Public Instruction of the Karnataka Secondary Education Board or equivalent examination working on the establishment of the High Court or from amongst the Stenographers working in the Subordinate Courts, or by both, on the basis of a Test conducted for the purpose, due weight being given to seniority and service records, as prescribed; provided that they shall possess degree from a recognised university or equivalent examination. Explanation: 1. The present members who are working as Stenographers and who do not possess the required qualification, shall qualify themselves without affecting the regular work, with prior permission of Hon’ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. 3) If no eligible candidate is available for promotion, such vacant post may be filled up by direct recruitment. 4. The candidate shall possess a Certificate in Word Processing or equivalent. or 2. By direct recruitment by selection (after calling for applications and holding a competitive test and interview). Minimum Qualifications: (for direct recruitment) 1. Must possess a degree from a recognized university or equivalent examination. 2. The Senior Grade Examination in English Shorthand with 60% of aggregate marks; or The Proficiency Grade Examination in English Shorthand; and 3. Senior Grade Examination in Typewriting in English conducted, by the Department of Public Instruction of the Karnataka Secondary Education Board or equivalent qualification. 4. Certificate in Computer Word Processing or equivalent. Note: 1) Preference will be given to those candidates who possess the qualification of Senior Grade examination in Typewriting and Shorthand in Kannada language. 2) The procedure for conducting test which was followed previously for the promotion to the cadre of Stenographers shall also be followed for the Direct Recruitment to the said posts. 2. To the cadre of Judgment Writers By promotion by selection from among; (a) Stenographers working in the High Court Establishment who have put in not less than one year of service as such; or (b) Judgment Writers or Selection Grade Stenographers working in Sub-ordinate Courts on the basis of a test conducted for the purpose, giving due weight for inter-seniority and service records as prescribed. 1) 60% of the total strength shall be recruited by promotion by selection from among; (a) Stenographers working in the High Court Establishment who have put in not less than one year of service as such; or (b) Judgment Writers or Selection Grade Stenographers working in Sub-ordinate Courts on the basis of a test conducted for the purpose, giving due weight for inter-seniority and service records as prescribed. Provided that they shall possess Degree from a recognised university or equivalent examination. Note: Preference will be given for Law Graduates. Explanation: 1. The present members who are working as Judgment Writers and who do not possess the required qualification, shall qualify themselves without affecting the regular work, with prior permission of Hon’ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. 3) If no eligible candidate is available for promotion, such vacant post may be filled up by direct recruitment. 4) The candidate shall possess a Certificate Course in Word Processing or equivalent. 2. Remaining 40% of posts shall be recruited by Direct Recruitment by Selection (after calling for application and holding a competitive test and interview). Minimum Qualifications (for Direct Recruitment) 1) Must possess a Degree from a recognised University or equivalent examination. Note: Preference will be given to the Law Graduates. 2) i) Senior Grade examination in English Shorthand in First Class; or the Proficiency Grade Examination in English Shorthand; and ii) Senior Grade examination in Typewriting in English conducted by the Department of Public Instruction of Karnataka Secondary Education Board or equivalent examination. 3) Certificate in Computer Word Processing or equivalent. Note: 1) Preference will be given to these candidates who possess the qualification of Senior Grade examination in Typewriting and Shorthand in Kannada language. 3) Certificate in Computer Word Processing or equivalent. Note: 1) Preference will be given to these candidates who possess the qualification of Senior Grade examination in Typewriting and Shorthand in Kannada language. 2) The procedure for conducting test which was followed previously for the promotion to the cadres of Judgment Writers shall also be followed for the Direct Recruitment to the said posts. 3) For Direct Recruitment inservice candidates may also compete. 3. To the cadre of Senior Judgment Writer By promotion by selection from the cadre of Judgment Writers working in the High Court office on the basis of a test conducted for the purpose, giving the weight for seniority and service records as prescribed. 1) 60% of the total strength of Senior Judgment Writers shall be recruited by promotion by selection from the cadre of Judgment Writers working in the High Court office on the basis of a test conducted for the purpose, giving the weightage for seniority and service records as prescribed; provided that they shall satisfy the following conditions hereunder: a) They shall possess Law Degree from the recognized University or equivalent examination. Explanation: 1. The present members who are working as Senior judgment Writers and who do not possess the required qualification, shall qualify themselves without affecting the regular work, with prior permission of Hon’ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. 3) If no eligible candidate is available for promotion, such vacant post may be filled up by direct recruitment. 4) The candidate shall possess a Certificate Course in Word Processing or equivalent. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. 3) If no eligible candidate is available for promotion, such vacant post may be filled up by direct recruitment. 4) The candidate shall possess a Certificate Course in Word Processing or equivalent. 2) Remaining 40% of posts shall be recruited by Direct Recruitment by Selection (after calling for application and holding a competitive test and interview) and the Judgment Writers as well as Stenographers working in the establishment of the High Court of Karnataka/Sub-ordinate Courts are also eligible for the Direct Recruitment, provided they shall obtain necessary permission from the Competent Authority. Minimum Qualifications (for Direct Recruitment) 1. Must possess a Degree in Law from the recognised University or equivalent examination and, 2) i) Senior Grade examination in English Shorthand in First Class; or the Proficiency Grade Examination in English Shorthand; and ii) Senior Grade examination in Typewriting in English conducted by the Department of Public Instruction of Karnataka Secondary Education Board or equivalent examination. 3. Certificate in Computer Word Processing or equivalent Note: 1) Preference will be given to those candidates who possess the qualification of Senior Grade examination in Typewriting and Shorthand in Kannada language also. 2) The procedure for conducting test which was followed previously for the promotion to the cadres of Senior Judgment Writers shall also be followed for the Direct Recruitment to the said posts. Method of recruitment to the posts of Second Division Assistants from Group ‘D’ officials. SI.No. Cadre Existing method of Recruitment Amendment to be substituted in the place of existing method of recruitment 1. To the cadre of Second Division Assistants (a) 50% by direct recruitment by selection after calling for application and interviewing the applicants. The minimum qualification for direct recruitment shall be a degree of a recognised University with minimum of 55% marks in the aggregate for candidate belonging to General Category and minimum of 45% marks in the aggregate to Schedule Caste and Schedule Tribes. (b) 25% promotion on the basis of seniority-cum-merit from the cadre of Group D officials working in the High Court Establishment and who have passed degree examination of recognized University and who have put in not less than one year of service. (b) 25% promotion on the basis of seniority-cum-merit from the cadre of Group D officials working in the High Court Establishment and who have passed degree examination of recognized University and who have put in not less than one year of service. (c) 25% by promotion on the basis of seniority-cum-merit from the cadre of Group D officials working in the High Court Establishment and who have passed the SSLC or equivalent examination and who have put in not less than 3 years of service. (d) If any vacancy cannot be filled up by promotion for want of suitable candidate from the cadre of Group D officials possessing degree qualification, the same shall be filled up by promoting suitable candidate from the cadre of Group D officials possessing SSLC or equivalent qualification. (e) If any vacancy meant for Group D officials cannot be filled up by promotion for want of suitable candidate the same shall be filed by direct recruitment. (a) 50% by direct recruitment by selection after calling for application and interviewing the applicants. The minimum qualification for direct recruitment shall be a degree in Science/Arts/Commerce/Business Management of a recognised University with minimum of 55% marks in the aggregate for candidate belonging to General category and a minimum of 45% marks in the aggregate to Schedule Caste and Schedule Tribes. (b) 50% promotion on the basis of seniority-cum-merit from the cadre of Group D officials working in the High Court Establishment and who have passed degree examination of recognised University and who have put in not less than two years of service. Explanation: 1. The present members who are working as Second Division Assistants and who do not possess the required qualification, shall qualify themselves without affecting the regular work, with prior permission of Hon’ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. 3) If no eligible candidate is available for promotion, such vacant post may be filled up by direct recruitment. Method of Recruitment to the posts of Section Officers from Senior Assistants: SI.No. Cadre Existing method of Recruitment Amendment to be substituted in the place of existing method of recruitment 1. To the cadre of Section Officers (a) By promotion on the basis of seniority-cum-efficiency from the cadre of Senior Assistants, Senior Statistical Assistant, and Audit Superintendents borne on the establishment of the High Court on the basis of length of service in that particular cadre. Provided that the post of Section Officers of Judicial Wing Typing Pool, Paper Book Section and Copying Branches I and II may be filed up by posting senior most of the Senior Judgment Writers. (method of recruitment for Section Officers except (I) Section Officer, Judicial Wing Typing Pool (ii) Section Officer, Paper Book Section (iii) Section Officer, Copying Branch-I, (iv) Section Officer, Copying Branch-II) (b) By transfer of a Senior Judgment Writer working in the High Court, (method of recruitment of Section Officers of Judicial Wing Typing Pool, Paper Book Section, Copying Branch I and Copying Branch-II). (c) Initially the posts of Senior Protocol Officers which are upgraded as Section Officers (Protocol) shall be filed up by shifting the lien of Shriyuths D.R.Balakrishna and K.S.Raghavendra Rao, Section Officers to these upgraded posts of Section Officers (Protocol). Note:- (a ) The posts of Section Officers (Protocol) shall be upgraded to that of an Assistant Registrar when an Officer in the Cadre of Section Officer of all Sections who has put in equal or lesser number of years of service in that cadre than the Section Officers (Protocol) gets promotion as Assistant Registrar, the incumbents shall continue in the upgraded posts of Section Officers (Protocol) as long as they hold the said posts of Section Officers (Protocol) shall stand downgraded to the original cadre. (b) Initially the upgradation shall be for a period of 2 years and the approval shall be obtained for further continuance of the upgraded posts of Section Officers (Protocol), if the incumbents continue in the upgraded posts for more than 2 years. By transfer of Section Officers of all sections having aptitude in protocol work. (method of recruitment to the post of Section officer (Protocol). By promotion on the basis of seniority-cum-efficiency from the cadre of Senior Assistants borne on the establishment of the High Court on the basis of length of service in that particular cadre. Provided that they shall possess a Degree from any university established by Law in India or equivalent. Explanation: 1. The present members who are working as Section Officers and who do not possess the required qualification, shall qualify themselves without affecting the regular work, with prior permission of Hon’ble the Chief Justice, within a period of five years, failing which they shall not be entitled for further promotion. The permission is not automatic, but subject to the interest of the Institution. Such permission shall not take away the rights of the senior employees and does not confer the undue privileges on the junior employees. The qualification obtained without following the above norms would not be taken into consideration, till they come within the zone of consideration. Note: 1) For securing minimum qualification prescribed for this cadre within stipulated time, the permission may be liberally granted. 2) The period of time prescribed for securing minimum qualification (i.e. five years) starts from the date of permission. 58. In the objection statement filed on behalf of the Respondents 1 and 2, it is contended that the prescription of Degree/Law Degree qualifications is with a view to improve the efficiency of the staff of the High Court and more so, being in High Court, it is all the more necessary to have higher qualifications. 59. 58. In the objection statement filed on behalf of the Respondents 1 and 2, it is contended that the prescription of Degree/Law Degree qualifications is with a view to improve the efficiency of the staff of the High Court and more so, being in High Court, it is all the more necessary to have higher qualifications. 59. From the submissions made by the learned counsel/senior counsel for the petitioners as well as learned senior counsel for Respondents 1 and 2 and after going through the records that are produced for my perusal by the learned senior counsel for the Respondents 1 and 2, there appears to be no specific reasons being given as to why Degree is insisted in respect of persons, who are in Group-D, SDA, FDA, Stenographers and Judgment Writers, for them to move to the higher post and likewise, no specific reasons are forthcoming as to why the Law Degree is insisted upon the Senior Judgment Writers. 60. The nature of job or the duties assigned to various categories of employees, which are brought to my notice by the learned senior counsel for Respondents 1 and 2, by placing relevant documents reveal that the duties of the Group-D employees include that of keeping the office neat and tidy and deliver tappals to other sections and SDAs are required to maintain the diary, organize the movements of receipt of files and distribution of files and, in respect of Senior Assistants and FDAs, the duties require them to attend to the job of the case worker as per the duties cast upon them. 61. So far the Stenographers, Judgment Writers and Senior Judgment Writers are concerned, they are entrusted with the work stenography which work is entrusted to them by the Hon’ble Judges, apart from receiving the tappals and files. The duties of the Court Officers and Assistant Court Officers are that of arranging the case files according to the cause list, to note the stage of the case according to the court proceedings and keep all the law books that are received for the conduct of proceedings. The Section Officers are required to scrutinize the files submitted by the case worker as per the procedure prescribed. The Section Officers are required to scrutinize the files submitted by the case worker as per the procedure prescribed. The Assistant Registrars are required to be the Branch Officers in charge of one or more section and after the scrutiny of the files submitted by the Section Officers, swearing to the letters on behalf of the High Court. 62. From the job description of the aforesaid categories of employees what strikes at the first glance, is that, the nature of work done by the aforementioned officials is purely clerical and not managerial. 63. In the course of the arguments, it was also submitted that, some times the SDAs will do the work of FDAs, FDAs do the work of Senior Assistants and Senior Assistants, in turn, will also do the work of Section Officers. Likewise, the Stenographers work in place of Judgment Writers and Judgment Writers do the work of Senior Judgment Writers. Some Senior Judgment Writers are also assigned to look after the work of Assistant Registrars. 64. Thus, what is clear from the nature of work assigned to the various categories of staff is that, often the work of one category of officials is also being done by the other category of employees. It thus appears that even without possessing the required qualification as is now prescribed under the new Rules, work of the High Court has gone on smoothly right from the time of coming into force, the 1973 Rules. The present Rules are of the year 2009 and for over three and half decades the respective categories of staff have gone on discharging their duties with the qualifications possessed by them and prescribed under 1973 Rules and even promotions have been given to Group-D category right up to the Assistant Registrar category in course of time. 65. With the above state of affairs, can it be said that there is a nexus between the objective sought to be achieved and prescription of higher qualifications i.e., Degree or Law Degree, as the case may be, as has now been done by the amendment Rules of 2009. In this connection, it is relevant to refer to the Apex Court’s decision in the case of Food Corporation of India Vs. Om Prakash Sharma and others (AIR 1998 S.C.2682). 66. In this connection, it is relevant to refer to the Apex Court’s decision in the case of Food Corporation of India Vs. Om Prakash Sharma and others (AIR 1998 S.C.2682). 66. The Apex Court in the aforementioned case, after going through the job description of various categories of employees, found that the duties performed by the persons holding AG III could be assigned with the same work as required to be performed by AG I and AG II and the Typists and Telephone Operators were also expected to perform duties listed in AG III and thus the duties performed by the Typists and Telephone Operators as well as AG III were found to be similar. Taking note of the fact that non Graduates were also performing same duties of Graduates, the Apex Court, therefore, held that the amendment incorporating five years of service as eligibility criteria for non Graduates, as the classification made by the Amendment, is violative of equality clause. The Apex Court also referred to various decisions in this connection and ruled that the amendments to the Regulations making a differentiation between Graduates and non-Graduates in the matter of promotions of the posts of AG-I and AG-II offend the equality clause and are, therefore, unconstitutional. 67. It is to be mentioned that the petitioners, though are not graduates/law graduates, are still discharging work of the posts held by them and nature of work, to which already reference is made earlier, also does not given any indication that to do the clerical work, or stenography work, graduation or law degree is necessary. It is very often found that experience itself fills the requirement of the qualification. In this regard, the decision of the Apex Court in the case of B.N.Saxena Vs. New Delhi Municipal Committee, reported in AIR 1990 S.C.2021, can be looked into. The Apex Court held on the facts of the case before it, that the persons having no Diploma qualification but having experience of service for six years as Senior and Junior Draftsman, are entitled to be considered for promotion to the post of Head Draftsman. In the course of the said decision it was held that it would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed and therefore it was not consistent and coherent with the revised rule and its object. 68. In the course of the said decision it was held that it would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed and therefore it was not consistent and coherent with the revised rule and its object. 68. The aforementioned decisions are applicable to the case on hand inasmuch as, for over 30 years, the persons holding the posts of Group ‘D’, SDA, FDA and Senior Assistants were found eligible for next higher cadre of posts and want of degree qualification has not in any way affected the promotion to the higher post, nor the efficiency of the High Court work. 69. As far as Stenographers, Judgment Writers and Senior Judgment Writers are concerned, their basic duty is that of taking dictation given by the Judge, transcribing and placing the draft or fair copy for the signature of the Judge. In other words, Stenographers and Judgment Writers and Senior Judgment Writers, even without Degree/Law Degree qualification are discharging their duties all these years and possession of said degrees would make no difference, so far as the core work to be discharged by the Stenographers and Judgment Writers and Senior Judgment Writers is concerned. It may be proper for a Research Assistant to have a Law Degree because the nature of work of the said Research Assistant requires him to take note of the arguments addressed by the learned counsel in the court and look to the decisions and place reported decisions in the light of the arguments noted by him or her, to enable the Judge concerned to render judgments at the earliest. The Stenographers, Judgment Writers and Senior Judgment Writers are not doing the functions of a Research Assistant and, therefore, asking them to have a Law Degree has no nexus between the object sought to be achieved and possession of Law Degree. In this connection, it may not be out of place to refer to the nature of work of Stenographers, Judgment Writers and Senior Judgment Writers which have been referred at paragraph 1.4 in W.P.Nos.22155-185/2010 and it is rightly stated in the said paragraph that stenography is a skill or talent acquired, improvised and perfected by a layman, aided and assisted by basic knowledge of grammar and control over vocabulary, ability to construct sentences i.e, syntax, command over language, unrelated to the educational qualifications. The art, skill and talent possessed by the Stenographers has no other parallel in any service jurisprudence and, as such, these qualities will make a person a good Stenographer or Judgment Writer or Senior Judgment Writer, rather than the educational qualification. 70. It may also have to be mentioned that it has been the experience of many Judges, including the anther of this judgment, that there are Stenographers, Judgment Writers and Senior Judgment Writers possessing only SSLC qualification, but they are turning out outstanding work of taking dictation flawlessly and transcribing the material into draft or fair copy, to perfection. As such, the averments made in paragraph 1.4 of the aforementioned Writ Petitions carry substance and moreover they have not been controverted by Respondents 1 and 2 in their objections. Therefore, requirement of Degree qualification being obtained by Group ‘D’, SDA, FDA, Senior Assistant, Stenographers and Judgment Writers and Degree of Law being insisted on the Senior Judgment Writers has no bearing whatsoever in respects of the work to be turned out by the respective categories of employees. 71. The Apex Court, in the case of T.R.Kothandaraman Vs. Tamil Nadu Water Supply & Drianage BD, reported in (1994)6 SCC 282 , has held that while classification based on higher educational qualification is permissible but total restriction cannot be imposed so as to block the chances of promotion. The Court also held that while determining validity of the classification, historical background, efficiency in service, need for higher education and social justice, have to be kept in mind and approach should be in consonance with Articles 14, 16 and 21 of the Constitution of India. The Apex Court at paragraph-16 of the aforesaid decision laid down the following legal propositions with regard to the educational qualification being a basis of classification relating to promotion in pubic service: “(1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case; (2) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion; (3) Restriction placed cannot however go to the extent of seriously jeopardizing the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later.” 72. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later.” 72. Apart from this even in the records placed for my perusal, no specific reasons are assigned as to why the Degree is insisted upon Group ‘D’, SDA, FDA, Stenographers and Judgment Writers and LL.B. Degree is insisted upon Senior Judgment Writers. Accordingly, the point for consideration is answered holding that prescription of higher qualifications under the amended rules and explanation has no nexus with the object sought to be achieved. Point No.3: 73. The next point to be answered is whether the criterion fixed by the proviso to the amended Rules of 2009 is manifestly erroneous, arbitrary, unreasonable, discriminatory and thus violative of Articles 14 and 16? 74. It is the contention of the learned senior counsel appearing for the petitioners Shri S.P.Shankar as well as learned counsel Sri S.G.Bhagavan, that the right to be considered for promotion is being affected by the amendments brought in 2009. Therefore, the question that arises in this context will be as to whether the right to be considered for promotion is fundamental right and whether the said right is affected. 75. It is not in dispute that in case of all the Group ‘D’ employees, SDAs, FDAs, Senior Assistants, Stenographers, Judgment Writers and Senior Judgment Writers, no higher or additional qualification is insisted under 1973 Rules for promotion to the next higher post. Now, by virtue of the provision and the explanation substituted to 1973 Rules by way of amendments in 2009. The petitioners (as the case may be) should possess degree/Law degree qualification and those who do not possess same, cannot be considered for promotion. The very fact that the petitioners have also challenged the orders of promotion in respect of respondents is indicative of they being not considered for promotion. 76. Learned senior counsel Sri Basava Prabhu Patil argued forcefully that there is no vested right of promotion and mere chance of promotion cannot be termed as right vested to claim promotion. The very fact that the petitioners have also challenged the orders of promotion in respect of respondents is indicative of they being not considered for promotion. 76. Learned senior counsel Sri Basava Prabhu Patil argued forcefully that there is no vested right of promotion and mere chance of promotion cannot be termed as right vested to claim promotion. It is argued by the learned senior counsel for R-1 and R-2 that mere chances of promotion does not give a vested right and, therefore, when the amended Rules provide for degree qualification and law degree in respect of Judgment Writers and Senior Judgment Writers, the petitioners cannot complain that, by virtue of the changes now brought about, the chances of the petitioners’ promotion are rendered impossible. 77. The learned senior counsel for R-1 and R-2 further argued that, as there can be no vested right in respect of the promotion, mere chance to get promoted, therefore, cannot be magnified so as to convert it into a right. Under the said circumstances, the amended Rules cannot be held to be violative of either Article 14 or Article 16 of the Constitution. When the classification is made on the basis of education qualification, it has to be held to be valid and, as such, the arguments of the petitioners’ counsel to the contrary cannot be accepted as having any force in it. 78. To draw sustenance for the aforesaid submissions, Shri Basava Prabhu Patil placed reliance on the decisions reported in AIR 1971 SC 1850 , AIR 1997 SC 983 , AIR 1999 SC 2012 , AIR 1974 SC 1 , AIR 1995 SC 44 , AIR 2009 SC 2497 , (2001)4 SCC 433 and AIR 1999 SC 2012 . Hence, it is argued by the learned senior counsel Shri Basava Prabhu Patil that the question of holding the proviso and explanation to the amended Rules 2009 as unconstitutional or violative of Articles 14 and 16 of the Constitution does not arise. 79. As regards the grievance of the petitioners in respect of whom the learned senior counsel Shri Nanjunda Reddy made submission that R-3 to R-9 are promoted after the amendment is concerned, the submission made is that the said contention has been met in the objections filed by R-1 and R-2 in the corresponding batch of writ petitions. 79. As regards the grievance of the petitioners in respect of whom the learned senior counsel Shri Nanjunda Reddy made submission that R-3 to R-9 are promoted after the amendment is concerned, the submission made is that the said contention has been met in the objections filed by R-1 and R-2 in the corresponding batch of writ petitions. Apart from the rulings referred to above, the learned senior counsel drew the attention of this court to the decisions, which are reported in AIR 2007 SC 1948 , (1993)2 SCC 340 , (1997)3 SCC 103 , (1994)6 SCC 282 , AIR 1990 SC 857 , AIR 1964 SC 1823 , AIR 1980 SC 1255 and AIR 2006 SC 3106 . In the light of the said contentions put forward, the law bearing on the point, therefore, will have to be looked into. 80. A Constitution Bench of the Supreme Court in the case of Mohammad Shujat Ali Vs. Union of India, reported in AIR 1974 SC 1 631, has held thus: “Article 16 is only an instance of incident of the guarantee of equality enshrined in Article 14: it gives effect to the doctrine of equality in the sphere of public employment. The concept of equal opportunity to be found in article 16 permeates the whole spectrum of an individual’s employment from appointment through promotion and termination to the payment of gratuity and pension and gives expression to the ideal of equality of opportunity which is one of the great socio-economic objectives set out in the Preamble of the Constitution.” Apart from this, the Constitution Bench also held thus: “To permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post, is to stifle the social thrust of the equality clause.” 81. The Apex Court, thereafter, on the facts of the case went on to hold that the rule of promotion which, while conceding that non-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate Supervisors, would clearly be calculated to destroy the guarantee of equal opportunity. 82. In the case of The Manager, Govt Branch Press Vs. 82. In the case of The Manager, Govt Branch Press Vs. D.B.Belliappa, reported in AIR 1979 SC 429 , dealing with Article 16(1), the Apex Court held thus: “18……..The protection of Articles 14 and 16(1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstanced. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter’s employment without notice. But, such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Arts.14 and 16 (1). Article 16(1) guarantees “equality of opportunity for all citizens in matters relating to employment or appointment, to any office under the State”. Moreover, according to the principle underlying S.16 of the General Clauses Act, the expression, ‘appointment’ used in Art.16(1) will include termination of or removal from service, also. 19. It is now well settled that the expression “matters relating to employment” used in Art.16(1) is not confined to initial matters prior to the act of employment, but comprehends all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment, such as, provisions as to salary, increments, leave, gratuity, pension, age of superannuation, promotion and even termination of employment. It is further well established that Arts.14, 15(1) and 16(1) form part of the same constitutional code of guarantees and supplement each other. If any authority is needed for the above enunciation, reference may be made to the observation made by Gajendragadkar J., as he then was, in General Manager, Southern Railway Vs. Rangachari (AIR 1962 SC 36) (supra)” 83. It is further well established that Arts.14, 15(1) and 16(1) form part of the same constitutional code of guarantees and supplement each other. If any authority is needed for the above enunciation, reference may be made to the observation made by Gajendragadkar J., as he then was, in General Manager, Southern Railway Vs. Rangachari (AIR 1962 SC 36) (supra)” 83. In the case of Ajit Singh vs. State of Punjab, reported in (1999)7 SCC 209 , the Constitution Bench of the Apex Court, dealing with Article 16(1), has held thus: “The word “employment” being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right.” 84. A Division Bench of this court, in the case of Channe Gowda Vs. High Court of Karnataka, reported in ILR 2004 Karnataka 4633, has also held that in Service Law Jurisprudence, whether in public or private, right to be considered for promotion is a fundamental right under Articles 14 and 16 of the Constitution of India. 85. In the light of the aforesaid law laid down by the Constitution Bench of the Apex Court and a Division Bench of this court, the petitioners’ right to be considered for promotion is, therefore, a fundamental right and it is not a mere chance for promotion. The petitioners who have been working between 10 to 30 years, as could be seen in the writ petition averments, and persons who are similarly placed like the petitioners, have not been promoted only because they have no a Degree qualification or Law Degree, and thus the right of the petitioners for being considered for promotion to the next higher post, has been severely affected. The petitioners cannot be deprived of their fundamental right to be considered for promotion by way of proviso and explanation substituted by way of 2009 amendment Rules to 1973 Rules. Points No.4 & 6: 86. The petitioners cannot be deprived of their fundamental right to be considered for promotion by way of proviso and explanation substituted by way of 2009 amendment Rules to 1973 Rules. Points No.4 & 6: 86. The next point to be considered is whether the criterion fixed by the proviso is manifestly erroneous, unreasonable, discriminatory, irrational and is violative of Articles 14 and 16 of the Constitution. 87. The explanation to the proviso in respect of the method of recruitment for the aforementioned category of employees, on plain reading, makes it clear that even to pursue higher studies, i.e., to obtain degree or a law degree, permission has to be granted and it is not automatic and the period prescribed to obtain qualification is 5 years and thus it is clear that grant of permission is not automatic and it is also subject to the discretion of the Chief Justice and, as such, there is no guarantee of every person seeking permission, being given permission automatically because, the very explanation says the permission is not automatic. 88. The second aspect is, the Circular at Annexure ‘M’ dated 24.8.2010, produced by the petitioners in W.P.Nos.22155-84/2010, provides the following guidelines formulated with regard to grant of permission to pursue further studies by the officers/officials of the High Court: “1. The officers/officials of this Hon’ble Court who are of desirous of pursuing Degree/LL.B/LL.M/Master’s Degree/MBA by attending colleges with a view to acquiring knowledge and higher education should obtain prior permission of Hon’ble the Chief Justice, subject to the following conditions: i) that their study will not adversely effect their work and in particular the hours of study will permit them to adhere to the normal official hours: ii) that they have passed the departmental examinations prescribed for the post held by them. 2. At one point of time not more than 10% of the officers/officials working in a particular cadre shall be permitted to pursue Degree’s/LL.B/LL.M/Master’s Degree/MBA as stated at SI.No.1. 3. Permission shall be granted on the basis of seniority of the officers/officials of their respective cadres and the senior shall be entitled to preference.” 89. What is clear from the aforesaid conditions prescribed in the circular is that, at one point of time, not more than 10% of the officials working in a particular cadre shall be permitted to pursue Degree/LL.B/LL.M/Master’s Degree/MBA and permission also shall be on the basis of seniority. What is clear from the aforesaid conditions prescribed in the circular is that, at one point of time, not more than 10% of the officials working in a particular cadre shall be permitted to pursue Degree/LL.B/LL.M/Master’s Degree/MBA and permission also shall be on the basis of seniority. If this condition is read in conjunction with the explanation to the proviso which puts a maximum of 5 years period to obtain degree, as rightly submitted by the learned senior counsel Shri.S.P.Shankar, many of the employees will not be able to obtain degree qualification at all, as 10% of the employees per cadre would require more than 5 years to obtain degree or law degree, as the case may be. 90. As far as the staff who are in group ‘D’ category or even SDAs and FDAs are concerned, as already mentioned, many of the employees had moved on to the next post by way of promotion in the past. The minimum qualification required for a Group ‘D’ at the time of initial appointment is 7th Standard and not even SSLC. Therefore, if an employee in Group ‘D’ having passed 7th standard wants to pursue a degree course, he would require three years for SSLC, two years for PUC and another three years for degree and thus more than 8 years will be required to achieve the goal in obtaining the degree qualification. But, the explanation to the rule as mentioned earlier gives only 5 years and that too in the order of seniority and subject to 10% from each cadre. In other words, the prescription of 5 years period within which qualification should be acquired is irrational, arbitrary, unreasonable and impracticable and lacks rational nexus. 91. That apart, the period of 5 years starts from the day when permission is granted. That means, a person who obtains permission should join the college on the very next day and complete the course in five years. Joining the college on the very next day of obtaining permission is impossible because, admissions are made from the dates notified and within stipulated period. Some may take more attempts to complete the course. For these reasons also, the prescription of 5 years to obtain the required degrees is arbitrary, irrational and without application of mind and, as such, the proviso of the explanation under challenge are ultra vires the constitution. 92. Some may take more attempts to complete the course. For these reasons also, the prescription of 5 years to obtain the required degrees is arbitrary, irrational and without application of mind and, as such, the proviso of the explanation under challenge are ultra vires the constitution. 92. The Apex Court, in the case of State of T.N. Vs. P.Krishna Murthy, reported in (2006)4 SCC 517 , has laid down the propositions to be taken note of while considering the challenge to the validity of subordinate legislation. The relevant observations are noted at paragraphs-15, 16, 17, 18 and 19 and they are as under: “Whether the rule is valid in its entirety? 15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds: (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. (f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules). 16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity. 17. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India this Court referred to several grounds on which a subordinate legislation can be challenged as follows: (SCC p.689, para 75) “75. 17. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India this Court referred to several grounds on which a subordinate legislation can be challenged as follows: (SCC p.689, para 75) “75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.” (emphasis supplied) 18. In Supreme Court Employee’ Welfare Assn.v.Union of India this Court held that the validity of a subordinate legislation is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or is so arbitrary or unreasonable that no fairminded authority could ever have made it. It was further held that the Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to be unauthorised and/or violative of the general principles of law of the land or so vague that it cannot be predicted with certainty as to what it prohibited or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. 19. In Shri Sitaram Sugar Co.Ltd v.Union of India a Constitution Bench of this Court reiterated: SCC pp.251-52, para 47) “47. Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterized as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be ‘reasonably related to the purposes of the enabling legislation’. See Leila Mourning v. Family Publications Service. All his decisions, whether characterized as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be ‘reasonably related to the purposes of the enabling legislation’. See Leila Mourning v. Family Publications Service. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, court might well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’: per Lord Russel of Killowen, C.J in Kruse v.Johnson”. 93. It is therefore clear from grounds mentioned at (a) to (f) above that, in the instant case, the grounds at (b), (c) and (f) are squarely attracted for the reasons above mentioned. 94. The Apex Court, in the case of N.Abdul Basheer Vs. K.K.Karunakaran, reported in 1989 Supp. (2) SCC 344, has held that where no consistent policy was followed in treating the graduates and non-graduates as two separate classes, in the absence of any distinction in respect of conditions and incidents of service between graduates and non-graduates, the rule fixing graduate and non-graduate ratio in filing up promotional posts is violative of Articles 14 and 16 of the Constitution of India. 95. In the cases on hand, there are both non-graduates as well as graduates working in various categories of posts and no distinction was made in the past when they were promoted to the higher cadre. That apart, no degree qualification and law degree is prescribed in respect of feeder posts and only Group ‘D’ employees, SDAs, FDAs, Senior Assistants, Stenographers, Judgment Writers and Senior Judgment Writers are now required to possess Degree/Law Degree qualifications and, in this regard, reference can be made to the Apex court decision in the case of State of Mysore Vs. Krishna Murthy, reported in AIR 1973 SC 1146 . 96. The Apex Court, in the aforesaid case has held that division into two classes of members of same service belonging to same cadre for purpose of creating difference in promotional opportunity violates Articles 14 and 16 of the Constitution of India. The Court further held that power to make rules under Art.309 can not be used to validate unconstitutional discrimination in promotional chances of Government servants who belong to same category. 97. The Court further held that power to make rules under Art.309 can not be used to validate unconstitutional discrimination in promotional chances of Government servants who belong to same category. 97. In the case on hand also, as the respective persons in the categories mentioned above were appointed under the same recruitment Rules, 1973 and belong to the same category and they cannot be discriminated by insisting upon possession of Degree/Law Degree qualifications, which is impossible to be achieved by them within the period prescribed in the explanation to proviso and in the light of restriction imposed by the circular at Annexure ‘M’. Therefore, notwithstanding the submission made by learned senior counsel Shri Basava Prabhu Patil that, some of the employees are pursuing degree/law degree courses, that itself will not give room to take the view that the proviso and explanation to the amended Rules are free from the vices of they being arbitrary, unreasonable, discriminatory, irrational and thus unconstitutional. 98. Further, it has to be mentioned that, without having a basic degree, one cannot obtain law degree which will have the stamp of approval in law. The Apex Court, in the case of Guru Nanak Dev University Vs. Sanjay Kumar Katwal, reported in (2009)1 SCC 610, has held that Master’s degree through distance education under open university system of Annamalai University is not recognised as equivalent to Master’s degree under regular course. The same is the observation of the Apex Court in Annamalai University repd. by Registrar vs. Secretary to Govt. Information and Tourism Department & Others, reported in (2009)4 SCC 590 . 99. If the aforesaid position in law is applied to the case on hand, Senior Judgment Writers cannot obtain Law Degree attending regular course and they will have to fall back only on open universities or correspondence course and the degree of Law obtained by them will not meet the requirement of prescription laid down in the amended Rules in view of the Apex Court’s authoritative pronouncement in Guru Nanak University’s case. For the aforesaid reasons the answer to points 4 & 6 are in the affirmative. Point No. 5: 100. For the aforesaid reasons the answer to points 4 & 6 are in the affirmative. Point No. 5: 100. Coming to the question of the effect of the amended rules, it is the submission of learned senior counsel Shri Basava Prabhu Patil that the amended rules will come into effect from the date they have been brought into force by substituting them in the parent rules of 1973. On the contrary, the contention of the petitioners’ counsel is that the amended rules cannot take away the existing benefit that has accrued to the petitioners. The position in law reveals the following. 101. The Apex Court, in the case of Y.V.Rangaiah Vs. J.Sreenivasa Rao, reported in (1983)3 SCC 284 , has held that, where the amendment dispenses with the original provision for considering L.D.Cs, along with U.D.Cs, for promotion and consequently, the promotional chances of the eligible L.D.Cs, are adversely affected and they were superceded by their juniors in respect of the vacancies in the promotional posts occurring prior to the amendment, such vacancies will have to be filled up in accordance with the unamended rules. 102. In the case of Arjun Singh Rathore Vs. B.N.Chaturvedi, reported in (2007)11 SCC 605 , the Apex Court has held that the vacancies occurring prior to the promulgation of the new Rules of 1998 will have to be filled up according to the old Rules of 1988. 103. In yet another case in the case of State of Rajasthan Vs. R.Dayal, reported in (1997)10 SCC 419 , it has been held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. 104. In the cases on hand, it is not in controversy between the parties that most of the promotions effected were in respect of the vacancies that arose prior to the amendment. Even a perusal of the records produced by the learned senior counsel for R-1 and R-2 reveals that most of the vacancies arose prior to the amended Rules of 2009 being brought into force. 105. Even a perusal of the records produced by the learned senior counsel for R-1 and R-2 reveals that most of the vacancies arose prior to the amended Rules of 2009 being brought into force. 105. In view of the aforesaid law laid down by the Apex Court, the petitioners cannot be deprived of being considered for promotion by virtue of the proviso now substituted to the parent Rules of 1973 but, on the contrary, the posts, which the petitioners would have occupied by way of promotions under the original Rules, have now been given to the persons who are promoted pursuant to the new amended Rules of 2009. In other words, retrospective effect has been given to the amended Rules and that too in respect of the vacancies which arose prior to the coming into force of the amended Rules of 2009. 106. At this juncture it may also be useful to refer to the commentary of the learned author N.S.Bindra on the Interpretation of Statutes (8th Edition) and, at page 776, the learned author has observed that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new disability must be presumed to be intended not to have retrospective effect. Such rights cannot be taken away by implication. It is also observed by the learned author at page777 that a law which affects substantive right is presumed to be prospective unless made retrospective either expressly or by necessary intendment. 107. Thus, the amended Rules have taken away not only the rights of the petitioners under the existing Rules of 1973, but also deprive them of the benefits of stepping up, time bound increments and senior scale of pay, as all of them would have been eligible for promotion butt for the amendment and the amendment by way of proviso and explanation is, therefore, arbitrary, discriminatory, irrational and violative of the rights guaranteed under Articles 14 and 16 of the Constitution and hence unconstitutional. Point No.7: 108. Point No.7: 108. Coming to the justification of the promotion orders, even on facts, it is seen that some of the persons belonging to Group ‘D’ category, though did not possess the degree qualification, have been promoted and some of the persons, who are juniors to the petitioners are also promoted to the next cadre by virtue the qualification prescribed. A perusal of the records also reveals that, in respect of one official, the requirement of degree qualification was relaxed as one time measure. If such relaxation could be given to one employee as a one-time measure, I fail to understand as to why such a relaxation was not extended to the petitioners, who, for various reasons – economical or otherwise, could not be fortunate enough to have either degree or law degree when they entered service several decades ago. 109. Apart from that, as most of the promotions are given against the vacancies which arose to the coming into force of the amended Rules, the petitioners, who are entitled otherwise to the said posts, could not have been deprived of their right to be considered for promotions. For all these reasons, the promotions given to the persons, whose orders of promotion are called in question, are contrary to the well established principles of service jurisprudence and cannot be upheld in law as the said promotions are in violation of the fundamental rights of the petitioners for being considered for promotions and also on account of the proviso and the explanation to the amendment Rules of 2009 being held to be arbitrary, discriminatory, unreasonable, irrational and violative of the constitutional guarantee conferred on every citizen by Articles 14 and 16 of the Constitution. Point No.8: 110. In the light of the arguments advanced by the learned senior counsel Shri S.P.Shankar, it becomes necessary and inevitable to examine the procedure followed in bringing out the amended Rules of 2009 into force. Point No.8: 110. In the light of the arguments advanced by the learned senior counsel Shri S.P.Shankar, it becomes necessary and inevitable to examine the procedure followed in bringing out the amended Rules of 2009 into force. The draft Rules at Annexure-C, which have been published in the gazette dated 12.5.2009 mentions at the very first paragraph thus: “In exercise of the powers conferred by the Article 229(1) and (2) of the Constitution, and all other powers hereunto enabling and in supersession of all the existing rules on the subject, the Chief Justice with the approval of the Governor of Karnataka so far as the rules relate to salaries, allowances, leave and pension, hereby makes the following rules to regulate the method of recruitment, the conditions of service, the salaries and allowances, leave and pensions of the High Court of Karnataka Service hereafter referred to as ‘the service”.” 111. It, therefore, appears from the aforesaid preamble made in the gazette notification that the approval of the Governor of Karnataka has been obtained. But, the learned senior counsel for R-1 and R-2 did concede very fairly that, in the objections filed by R-1 and R-2, it has been stated that the draft rules did not see the light of the day as they were not approved by the Governor of Karnataka. At the same time, the gazette notification mentions that the approval of the Governor of Karnataka has been obtained. 112. If the draft rules, on being published in the gazette, are to be taken as the rules having come into force in view of the provisions of General Clauses Act, the effect as per Rule 26 would be repeal of 1973 Rules. If this is the position, then the question of bringing amendments to 1973 Rules will not arise. Therefore, learned senior counsel Shri S.P.Shankar is fully justified in submitting that the procedure followed both in respect of Draft Rules as well as the amended Rules of 2009 is not in consonance with the well established canons of law and the precepts and practice that are to followed in respect of amending an Act. 113. Therefore, learned senior counsel Shri S.P.Shankar is fully justified in submitting that the procedure followed both in respect of Draft Rules as well as the amended Rules of 2009 is not in consonance with the well established canons of law and the precepts and practice that are to followed in respect of amending an Act. 113. In the light of the aforesaid discussion and answers to the points raised for consideration, all the writ petitions are allowed on the following terms: i) The proviso as well as explanation to the amended Rules of 2009 requiring higher qualifications are quashed as being violative of Articles 14 and 16 of the Constitution and hence unconstitutional. ii) The orders of promotions as per Annexure-B in W.P.Nos.4683-4722/2010, Annexure-B in W.P.Nos.11797-11827/2010, Annexure-G, H, J & K in W.P.Nos.22155-22184/2010, Annexures-C, D, E & F in W.P.Nos.35966-36032/2009 and Annexure-C in W.P.Nos.37218-37249/2009 given to the respective respondents, whose promotions are assailed in the respective writ petitions stand quashed. iii) Consequent to the quashing of the orders of promotion, it is also necessary in the interest of the work of the High Court that no hardship is caused from the point of view of ensuring the smooth administration of the work of the High Court and hence, the persons, whose promotions are now quashed shall, however, be permitted to continue in their respective posts as an incharge arrangement, till the promotions are made in accordance with the 1973 Rules, after considering the cases of the petitioners also for promotion. iv) As regards the relief sought by the petitioners in W.P.Nos.22155-22184/2010 with regard to quota restriction for Senior Judgment Writers to the post of Assistant Registrar is concerned, in view of the writ petitions filed by the Section Officers in W.P.Nos.35072-111/2009 being pending involving the same question, the said relief sought is not considered for the time being and it is left open. v) The second respondent is directed to redo the entire process of promotions to all the posts in accordance with old Rules of 1973, and necessary steps in this regard shall be taken within eight weeks from the date of receipt of a copy of this order. ORDER ON BEING SPOKEN TO VJJ: 13.1.2011 Heard learned counsel Shri S.P.Shankar for the petitioners in W.P.Nos.22155-22184/2010 in respect of the memo filed for being spoken to and also heard learned senior counsel Shri Basavaprabhu S.Patil for R-1 and R-2. ORDER ON BEING SPOKEN TO VJJ: 13.1.2011 Heard learned counsel Shri S.P.Shankar for the petitioners in W.P.Nos.22155-22184/2010 in respect of the memo filed for being spoken to and also heard learned senior counsel Shri Basavaprabhu S.Patil for R-1 and R-2. 2. Clarifications are sought in the memo in respect of the following aspects: i) Restriction imposed to Senior Judgment Writers to hold only 6 posts of Assistant Registrars d’ hors the ratio 2:1:1. ii) 40% ratio provided to direct recruitment. iii) Conducting competitive test at all stages of promotions only to stenographic cadre instead of giving promotions on seniority and service records. 3. During the course of the submissions made, learned senior counsel Shri S.P.Shankar submitted that in respect of promotion to the post of Assistant Registrars, the ratio of 2:1:1, which was prevailing in 1973 Rules has to be maintained and even in the amended Rules, same ratio is maintained. Therefore, I see no need for any clarification in regard to ratio is concerned. 4. As regards conduct of competitive tests at all stages of promotion in respect of stenographers cadre is concerned, I see no deviation from 1973 Rules in the present 2009 Amendments. As such, no clarification is required even in this regard. 5. As far as 40% ratio provided for direct recruitment for the posts of judgment writers and senior judgment writers in the amended Rules of 2009 is concerned, since all the direct recruits are not made parties and further, as this court has directed the second respondent to redo the entire process of promotions to all the posts in accordance with old Rules of 1973, in my view, no further clarification is necessary in respect of the same. 6. In view of the aforesaid observations, the view taken earlier, therefore, does not require any modification.