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2022 DIGILAW 651 (SC)

Anil Razdan v. Nisha Saraf Etc

2022-04-21

A.M.KHANWILKAR, ABHAY S.OKA, C.T.RAVIKUMAR

body2022
ORDER 1. The application for impleadment (I.A. No. 125982 of 2021) is allowed. 2. We have heard learned counsel for the parties. 3. The short issue is whether the appointments (temporary promotions/temporary adjustments) made in terms of order dated 24.11.2008 can be said to be in conformity with the qualification prescribed under Rule 6 of the Jammu and Kashmir High Court Staff (Condition of Service Rules), 1968 dated 24.10.2008. 4. In the present appeals, we are concerned with the post of Section Officer (Computer). As per the Rules framed on 24.10.2008, following qualifications came to be prescribed: Name of the Post Mode of appointment Minimum qualification required Minimum experience, if any, required Existing pay scale Section Officer (Computer) By promotion from amongst Selection Grade Data Entry Operators on the basis of merit-cumseniority Graduation from any recognized University with Diploma in Computer Application or BCA recognized by the State Govt. Two years 6500-10500 5. Prior to coming into force of the order dated 24.10.2008, the Rule providing qualification in respect of order dated 04.07.2001 provided as follows as noted in the impugned judgment:- "As per notice of advertisement issued in 1994 initially and as per the order dated 04.07.2001 vis-a-vis Data Entry Operators, Qualification prescribed is as under:- (Graduation or equivalent. Type with minimum speed of 40 wpm knowledge/experience of Computer Data Entry/Feeding (desirable)" 6. In other words, the order dated 24.10.2008 introduced a change in the qualifications for the post of Section Officer (Computer) whereunder the incumbent was expected to have secured graduation from any recognized University with diploma in Computer Application or Bachelor of Computer Application (BCA) recognized by the State Government. There was no scope left to take into account the previous experience of the candidate(s) not having such qualifications, as it would have been possible under the previous dispensation. 7. There was no scope left to take into account the previous experience of the candidate(s) not having such qualifications, as it would have been possible under the previous dispensation. 7. The Division Bench of the High Court, however, re- wrote the rule dated 24.10.2008 in the following words: "(A) All the Data Entry Operators who have been appointed prior to the year 2008 or after the year 2008 constitute one class and for their promotion to the next posts i.e. placement in Selection Grade Data Entry Operators, Section Officer (Computer), Assistant Registrar(Computer) and Deputy Registrar (Computer) qualification be construed as under:- Graduation or equivalent with diploma in computer application or a certificate in computer application from any relevant institute irrespective of whether recognized or not, depicting knowledge/experience of computer data entry/feeding (desirable) in conformity with earlier prescribed qualification). or BCA recognized by the State Government" 8. We have no manner of doubt that by such interpretative process, a new qualification could not have been prescribed by the High Court in exercise of judicial review. Framing of rules must be left to the appropriate authority. The proposal regarding appointment/promotion ought to adhere to the Rules as framed and are in force at the relevant time. 9. If the rule making authority wanted to reckon even the past experience of the persons working with the High Court for sufficiently long time, it could have so provided in the Rules dated 24.10.2008. Such an arrangement has been adverted to in Note 2 of the order, but in respect of appointment(s) made prior to 25.04.1987. 10. Suffice it to observe that the approach of the Division Bench of the High Court is fallacious and cannot be countenanced. 11. Notably, the appointment/promotion of the contesting parties as made in terms of order dated 24.11.2008 was purely temporary promotion or temporary adjustment. Once again, such temporary arrangements ought to be eschewed for better administration of the High Court. 12. In any case, the temporary arrangement so made, cannot be continued for a long time as if it is a regular arrangement. 13. It is a different matter that because of the pendency of proceedings, such arrangement has been continued. 14. The fact remains that the exercise for making permanent appointment(s)/promotion(s) cannot brook delay. It must be commenced forthwith, which ought to be strictly compliant with the rules in force. 13. It is a different matter that because of the pendency of proceedings, such arrangement has been continued. 14. The fact remains that the exercise for making permanent appointment(s)/promotion(s) cannot brook delay. It must be commenced forthwith, which ought to be strictly compliant with the rules in force. Indeed, that needs to be done by the High Court on the administrative side expeditiously. 15. Our attention has also been invited to a recent decision of this Court in C.A. Nos. 5189-5192 of 2017 and connected cases dated 18.01.2021 which has had the occasion to deal with Office Order dated 24.10.2008, referred to in the present proceedings as well. 16. The High Court while proceeding with the matter in terms of this Order must keep in mind the underlying principle, as expounded in the stated decision. 17. Needless to observe that it will be open to the High Court to frame a new rule or amend the existing rule before proceeding with the process; and consider all eligible candidates for permanent appointment/promotion, as the case may be, strictly in accord with the Rules, as may be applicable at the time when the consideration process begins. 18. In other words, if the High Court intends to modify the existing rule, it must do so before commencing such process, so that all claims can be considered by the High Court on its own merits and in accordance with the applicable rules at the relevant time. 19. Accordingly, even if the impugned order dated 24.11.2008 is set aside with direction to the High Court to commence the entire process as per the applicable rules, no recovery be effected from the persons who have been given financial benefit on the basis of order dated 24.11.2008. 20. Any other consequential benefits (including further promotion) given to the concerned candidates owing to stated order, will have to be ignored and regarded as non-est with the reversal of temporary promotion/appointment on the basis of order dated 24.11.2008. 21. However, the persons who are presently working against the posts referred to in order dated 24.11.2008 shall be continued in the same position until the new eligible appointees are appointed on regular (permanent) basis against the concerned posts. 22. The entire process be completed by the High Court at the earliest and not later than four months from today. 23. However, the persons who are presently working against the posts referred to in order dated 24.11.2008 shall be continued in the same position until the new eligible appointees are appointed on regular (permanent) basis against the concerned posts. 22. The entire process be completed by the High Court at the earliest and not later than four months from today. 23. It is also clarified that even though the impugned judgment of the Division Bench of the High Court is set aside in terms of this order, the enquiry initiated against Respondent No.1 (Nisha Saraf), in terms of direction given by the High Court need not to be taken forward as the entire appointment process is ordered to be undertaken afresh. 24. Accordingly, these appeals succeed, the impugned judgment and order is set aside and the judgment of the learned Single Judge stands modified to the extent, as indicated above. 25. The appeals are disposed of in the above terms. 26. Pending applications, if any, stand disposed of.