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2016 DIGILAW 501 (JK)

Latief Hussain Khan & four v. State of J&K

2016-10-04

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : Magrey, J. The grievance of the petitioners in this petition is projected against the respondents in as much as they sought to implement the provisions of SRO 202 dated 30.06.2016 vis-a-vis the petitioners - the employees of the High Court appointed recently. Obviously, there seems to be some serious lack of understanding on the part of officers of Accounts Section of Registry of the High Court and their obliviousness of the relevant constitutional provision viz. Section 108 of the Constitution of Jammu and Kashmir and the Rules framed by the High Court thereunder governing the recruitment to, and conditions of, service of the servants of the High Court. The petitioners in consequence have, and we must, at the very outset, say, unnecessarily challenged the said SRO 202 dated 30.06.2016. 2. Pursuant to advertisement no.417 dated 13.10.2015 issued by respondents 2 and 3, notifying certain vacancies of different nomenclature available in the High Court, the petitioners were selected and appointed as Restorers in terms of High Court order no.483 dated 04.07.2016. While fixing their pay, the Registrar General and/or the concerned Officers of the Registry of the High Court appear to have imported and applied the provisions of SRO 202 dated 30.06.2015 which would have the effect of treating them in temporary service on probation for five years, entitle them to the minimum of scale of pay along with the grade pay for five years, to be declared as permanent only subject to, inter alia, completion of such period of probation etc. As mentioned above, the petitioners have challenged the provisions of the SRO in this writ petition. The petitioners have made an alternative prayer for mandamus to declare that the said SRO is not applicable to them and that they be directed to be paid their salaries in regular scales of pay. 3. This Court, apart from issuing notice to the respondents, in view of the language employed in the various provisions of SRO 202 dated 30.06.2015, orally asked the learned Advocate General to disclose before the Court the stand of the Government as to the application of the provisions of the said SRO to the servants of the High Court, in particular, and the employees of the Judicial Department, in general. Simultaneously, by order dated 06.09.2016, the Registrar General of the Court was directed to engage a counsel and file his response within three weeks. 4. Simultaneously, by order dated 06.09.2016, the Registrar General of the Court was directed to engage a counsel and file his response within three weeks. 4. In response, instead of filing counter affidavit/reply to the writ petition, on behalf of respondent no.1, i.e., the Commissioner-Secretary to Government, General Administration Department, a communication in original, bearing no. GAD(Legal)F-473/2015/864 dated 29.09.2016, addressed by Public Law Officer, General Administration Department to the Private Secretary to the learned Advocate General, was brought on record, which contains the stance of the Government in this regard. The contents of the communication, as would be quoted latter in this judgment, should be sufficient to clear any doubt that had been entertained, though without any reason, by the Officers of the Registry of the Court, and should clinch the grievance raised by the petitioners in the petition. As mentioned above, though the Registrar General of the Court was required to engage a counsel and file his response, but given the above development, we thought it unnecessary to prolong the matter and somehow insist upon the Registrar General to file his response, for, the mistake on the part of the concerned Registry officers in importing and applying the provisions of the SRO to the petitioners -employees of the High Court -is writ large on the very face of the matter. 5. We heard Mr. M. A. Baigh, learned AAG, representing the State-respondent and considered the matter. 6. SRO 202 dated 30.06.2015 has been issued by the Governor of the State in exercise of powers conferred by the proviso to Section 124 of the Constitution of Jammu and Kashmir, promulgating the Jammu and Kashmir Special Recruitment Rules, 2015. The appointment of officers and servants of the High Court are made by the Chief Justice and their conditions of service have to be such as are prescribed by the rules made by the High Court. This is the mandate of Section 108 of the Constitution of Jammu and Kashmir. The appointment of officers and servants of the High Court are made by the Chief Justice and their conditions of service have to be such as are prescribed by the rules made by the High Court. This is the mandate of Section 108 of the Constitution of Jammu and Kashmir. Any Rules framed by the Governor in exercise of the power under proviso to Section 124 of the Constitution of Jammu and Kashmir would become applicable to the officers and servants of the High Court only by dint, to the extent and in the manner as is provided by such conditions of service/Rules framed by the High Court, namely, the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 (for short High Court Staff Rules). There is nothing contained in the High Court Staff Rules as could be said to give rise to any doubt or confusion in the mind of any officer of the Registry of the High Court to draw an inference, even for a second, that Jammu and Kashmir Special Recruitment Rules, 2015 would, by any standards, be applicable to any staff member or servant of the High Court. Their application to the petitioners has been the outcome of a total non-application of mind on the part of the concerned officers of the Registry. 7. We may go a step further to say that, in fact, the Jammu and Kashmir Special Recruitment Rules, 2015 would not be applicable to any employee of the Judicial Department as a whole, not to speak of the High Court. This is so because after promulgation of these Rules, the Government in the General Administration Department, by Circular no.09-GAD of 2016 dated 29.01.2016, has issued certain clarifications as to their applicability and it is based on such clarifications, that the General Administration Department has written communication no. GAD (Legal) F-473/2015/864 dated 29.09.2016, referred to hereinabove, and produced in original in answer to the query raised by the Court. The said Communication is reproduced in extension hereunder: “Government of Jammu and Kashmir, General Administration Department (Legal Section) Civil Secretariat Srinagar/Jammu. Private Secretary, Ld. Advocate General, J&K Srinagar. No: GAD (Legal) F-473/2015/864 Dated 29.09.2016 Subject: SWP No.1463/2016 -Latief Hussain Khan and ors vs. State and ors. The said Communication is reproduced in extension hereunder: “Government of Jammu and Kashmir, General Administration Department (Legal Section) Civil Secretariat Srinagar/Jammu. Private Secretary, Ld. Advocate General, J&K Srinagar. No: GAD (Legal) F-473/2015/864 Dated 29.09.2016 Subject: SWP No.1463/2016 -Latief Hussain Khan and ors vs. State and ors. Madam, I am directed to invite your attention towards your communication No.AG/PSS/2016/718 dated 28.09.2016, regarding the aforetitled subject matter and to inform that the provisions of SRO 202 of 2015 dated 30.06.2015 are applicable to all non-gazetted posts borne on the establishment of any department or service of the Government for which the selection committee consists, among others Chairman or a member of Services Selection Board to be nominated by the Chairman. The SRO 202 of 2015 dated 30.06.2015 is also applicable to such gazetted posts, as may be notified by the Government from time to time for which appointments shall be made by the Committee consisting of a member of the Public Service Commission to be nominated by the Chairman of the Commission. SRO 202 of 2015 dated 30.06.2015 as such is not applicable to the appointments made by the Hon’ble High Court. A copy of Circular No.09-GAD of 2016 dated 29.01.2016, issued subsequent to SRO 202 is also enclosed for information. Yours faithfully, Sd-- (Suhail Muzaffar) Public Law Officer General Administration Department.” (Underlining is ours) 8. As is seen from above quoted communication issued by none other than the General Administration Department of the State, the provisions of SRO 202 of 2015 dated 30.06.2015 are applicable to all non-gazetted posts borne on the establishment of any department or service of the Government for which the selection committee consists, among others of the Chairman or a member of Services Selection Board to be nominated by the Chairman. The members of the Jammu and Kashmir ministerial staff of the Subordinate Courts are governed by the Jammu and Kashmir Ministerial Staff of the Subordinate Courts (Recruitment and Conditions of Service) Rules, 2016 framed by the High Court in exercise of the powers conferred by Section 30 of the Jammu and Kashmir State Civil Courts Act, Svt. 1977. Rule 12 of the said Rules provides the procedure for appointment. 1977. Rule 12 of the said Rules provides the procedure for appointment. It states that appointments of ministerial staff of the Divisional Cadre and the District Cadre shall be made by the Chief Justice and the District Judge of the District concerned respectively, as the case may be, in accordance with the procedure prescribed therefor under the Regulations framed by the Chief Justice. Axiomatically, the selection committee for selection and appointment of the staff members of the Subordinate Courts does not comprise of the Chairman and/or any member of the J&K Services Selection Board and, in fact, the J&K Services Selection Board has no role in the process of such selections. As a necessary corollary, going by the contents of the above communication of the General Administration Department, the provisions of SRO 202 of 2015 dated 30.06.2015 would not be applicable even to the non-gazetted posts borne on the establishment of the Subordinate Courts. 9. Though the issue has been clarified by the General Administration Department in terms of the above communication dated 29.09.2016, we are of the view that such a situation would not have arisen had the officers of the Registry of this Court bothered to take note of the relevant provisions of the Constitution and the Rules framed by the High Court. This matter, therefore, calls for issuance of a caution to the officers of the Registry of the High Court to ensure that in future they understand and go by the letter of the law and do not do such things as are antithesis to the Constitutional scheme of things. It is the duty of the Registrar General to see that such of the officers of the Registry who are on deputation in the High Court are properly guided in administrative matters and made aware of the scheme and nuances of the law on the subject, lest such illegalities should recur in future. 10. This petition is partly allowed to the extent indicated above. It is held that there was no need for the petitioners to challenge SRO 202 of 2015 dated 30.06.2015; the prayer for declaring its non-application to the petitioners would suffice. 10. This petition is partly allowed to the extent indicated above. It is held that there was no need for the petitioners to challenge SRO 202 of 2015 dated 30.06.2015; the prayer for declaring its non-application to the petitioners would suffice. Therefore, declining the said prayer, it is held that SRO 202 of 2015 dated 30.06.2015, promulgating the Jammu and Kashmir Special Recruitment Rules, 2015, is not applicable to the officers and servants of the High Court and, in fact, to the members of the staff borne on the Jammu and Kashmir Ministerial Staff of the Subordinate Courts or to any other Service administered, directly, indirectly or otherwise by the High Court or the Chief Justice of the High Court. Resultantly, the petitioners and the staff borne on the Jammu and Kashmir High Court Staff Rules, staff borne on the Jammu and Kashmir Ministerial Staff of the Subordinate Courts, staff borne on the establishment of Jammu and Kashmir State Judicial Academy or to any other Service administered, directly, indirectly by the High Court or the Chief Justice of the High Court, are entitled to fixation of their pay and other service benefits in normal course. Registrar General to take necessary steps to implement this order. 11. No order as to costs.