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PETITIONER: ASHOK KUMAR UPPAL & ORS.

       Vs.

RESPONDENT: STATE OF J & K AND ORS.

DATE OF JUDGMENT:       14/01/1998

BENCH: S.SAGHIR AHMAD, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. SAGHIR AHMAD. J.      The  appellants   as  also  respondents  2  to  7  were permanent Junior  Scale Stenographers in the Secretariat and other Government  Departments. For  promotion to the post of Senior Scale  Stenographer, they  were required to possess a speed of  80 words  per minute in shorthand and 40 words per minute in  typewriting. They could not attain that standard, but the spate of litigation filed by them against each other in quick  succession, did really match their speed, whatever it be,  in shorthand  and typewriting. Without showing sings of fatigue  and breathlessness,  they started the litigation in 1984  and now  in 1998 they seem to be, today, at the and of the litigative race. 2.   Promotion from Junior Scale Stenographers to the Senior Scale Stenographers  are made in terms of the Rules knows as "J&K Secretariat  (Subordinate) Service  Recruitment  Rules, 1972" made  by the State Government in exercise of its power under the  Provision to  Section 124  of the Constitution of Jammu &  Kashmir. Rule  5(1)(B)  thereof,  relating  to  the method of  appointment/recruitment to  the  post  of  Senior Scale Stenographers, originally provided as under :      "Senior Scale  Stenographers  (340-      700) :      (i) 75%  by selection from class II      category ‘B’ having not less than 3      years service  in that category and      on the basis of a test in shorthand      and typewriting  for which  minimum      speed should be 80 and 40 words per      minute respectively :      Provided that  in the  case of such      Junior Scale  Stenographers of  the      Civil Secretariat  as have attained      the age  of fifty  years or  above,      the  Government  may  consider,  on      individual  basis   and  with   due      regard  to   merit,  seniority  and      suitability, their  appointment  to      the   posts    of   Senior    Scale

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    Stenographers without  appearing in      the prescribed test.      (ii) 25% by direct recruitment from      the  in-service  candidates  having      not less  than 5  years service  in      the     category      of     Junior      Stenographers and on the basis of a      test in  shorthand and  typewriting      for which  the minimum speed should      be  80  and  40  words  per  minute      respectively. 3.   In 1984,  a number  of vacancies in the cadre of Senior Scale  Stenographer   were   available.   Since   the   Rule contemplated a test for the selection of suitable candidates for appointment  as Senior Scale Stenographer, a requisition was sent  by the  State Government  to the State Recruitment Board constituted under the J&K Civil Service (Decentralised Recruitment to  Non-Gazetted Cadres) Rules, 1969 to hold the test. 4.   Out of  100 candidates drawn from Secretariat and other Government department,  who were called for the test held on 4.12.1984, only  78 appeared in the test of which the result was communicated  to the  Government by the Secretary of the STATE Recruitment  Board on  2.1.1985, indicating  that only six had  qualified in  the test  as they alone were found to possess a  speed of  80 words per minute in shorthand and 40 words per  minute in  typewriting. The  names of  those  six candidates were  consequently recommended for appointment as Senior Scale  Stenographer. The  Recruitment Board, however, made a further recommendation as under:      "Since  the   number  of  available      vacancies in  the discussions  held      with the  Deputy Secretary  General      Department is  far greater than the      number  intimated  earlier  by  the      General   Department,   the   State      Recruitment  Board   would  suggest      that  26   candidates  (listed   in      annexure to  the letter in order of      merit)  who   are  nearer   to  the      prescribed  standard  may  also  be      considered   for   appointment   as      Senior  Scale   Stenographers   fin      relaxation   prescribed    standard      against the available vacancies." 5.   The Board  suggested the  names of  26 more  candidates whose performance  (Between 71  to 79  words per  minute  in shorthand)  was  found  to  be  nearest  to  the  proscribed standard for their appointment as Senior Scale Stenographers by relaxing the standard prescribed under the Rules. 6.   The  State   Government  considered  the  matter,  but, although it  appointed the  six persons who had qualified in the test  as Senior Scale Stenographers, it took no decision with regard  to those  twenty six  other candidates who then represented to  the Government  and prayed  that in terms of the recommendation  of the STATE Recruitment Board, they may be also  promoted to the post of Senior Scale Stenographers. When  their  representation  remained  undisposed  of,  they approached the High Court and files Writ Petition No. 193 of 1985 praying  for a  direction to  the State  Government  to appoint them as Senior Scale Stenographers. They also prayed for the  interim relief  that no  promotions on  the post of Senior Scale  Stenographers be  made during  the pendency of the Writ Petition which relief, incidentally, was granted by the High  Court by  order dated  23.2.1985. This  order was,

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however, vacated  on 23.4.1985 when the writ Petition itself was  dismissed   by  the   High  Court  with  the  following observations:      "Having  considered  the  arguments      advanced   in    the   facts    and      circumstances of  the present  case      we find that the authority of their      Lordships of  the Supreme  Court is      distinguishable  on  facts  in  the      present    case,    although    the      principle  cannot  be  denied  that      once the  selection is  made by the      Recruitment  Board   in  accordance      with  the   Rules  prescribed,  the      qualification and the result of the      test for  selection, Government can      reject the  recommendation for  the      reasons to be recorded otherwise if      the  appointments   are  made,  the      select list  in accordance with the      rules shall  have to be adhered to.      In the  present case  in accordance      with the letter Annexure-R-I of the      Recruitment Board, it is pertinence      to  note   that  the   list  of  26      candidates   suggested    by    the      Recruitment Board  the  respondents      shall take  into account  the list,      which has  been recommended  by the      Recruitment  Board   otherwise   in      further selection  they will adhere      to the  rules subject  to which the      selections are made.      With the  above said  observations,      we don’t  find  any  merit  in  the      present writ petition, the petition      is,   therefore,    dismissed    as      premature and  also  the  connected      CMPs. The stay order passed by this      court on  February 2,  1985 CMP NO.      365 of 1985 stands vacated." 7.   It may  be stated that the State Government, during the pendency of  the above  Writ Petition,  and,  significantly, just two  days after  the interim  order dated 23.2.1985 was passed, amended  the Rules  by SRO  76 dated  25.2.1985.  by substituting the  following in  place of  existing Rule 5(1) (B) :      "B  -  Senior  Scale  Stenographers      (825-1240):      By selection  form Class I Category      ‘B’  having  not  less  than  three      years service  in that category and      on the  basis of  a qualifying test      in shorthand  and type-writing  for      which   the minimum speed should be      80 and 40 words respectively :      Provided that in case the number of      available  vacancies   exceeds  the      number   of   qualified   officials      recommended  by  the  test  holding      agency,  the   remaining  vacancies      after accommodating  those who have      qualified in  the  test  should  be      filled up by promotion on the basis      of seniority."

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8.   The amended  Rule, specially its Provision, thus opened the  door   to  promotion  on  the  posts  of  Senior  Scale Stenographer merely  on the  basis of seniority irrespective of the  speed in shorthand and typewriting, but promotion in this manner  could be made only if there were more vacancies that the  names recommended  by the  State Recruitment Board with   the   result   that   additional   vacancies,   after accommodating those  who had qualified in the test, could be filled up on the basis of seniority alone. 9.   On 13.5.1985,  the State  Government issued  SRO 177 by which  the  amendments  introduced  by  SRO  76  were  given retrospective effect  by providing  that the  Rule shall  be deemed to  have been  amended with effect from 4.12.84. This date is  the date  on which  the test  was held by the State Recruitment Board.  On the  same day,  namely, on  13th May, 1985,  the   State  Government   promoted  33  Junior  Scale Stenographers to  the posts of Senior Scale Stenographers on the basis of their seniority. These 33 Stenographers did not include any of the 26 Stenographers regarding whom the STATE Recruitment Board had suggested that they may be promoted by relaxing the Rules. 10.  Five of these 26 Stenographers made a representation to the State  Government that  they, having been recommended by the State  Recruitment Board  for promotion  to the posts of Senior Scale  Stenographers, may  be promoted on those posts by accepting  the suggestion  of the Board that the Rules in their cases  may be  relaxed. The  Government accepted their representation and  promoted them  to the  posts  of  Senior Scale Stenographers,  may be  promoted  on  those  posts  by accepting the  suggestion of  the Board  that the  Rules  in their cases  may be  relax. The  Government  accepted  their representation and  promoted them  to the  posts  of  Senior Scale Stenographers  by order  dated 19th  December, 1986 by relaxing the requirement of possessing the speed of 80 words per  minute   in  shorthand  and  40  words  per  minute  in typewriting. This  order was  challenged by  G.R. Sharma and others in W.P. No. 101 of 1987 on the ground that they being the next  into he  seniority list, should have been promoted as  Senior   Scale  Stenographers  on  the  basis  of  their seniority, in  place of those 5 persons who were promoted by relaxing  the Rules. 11.  SRO 177 of 1985, which gave retrospective effect to SRO 76, was  challenged in Writ Petition No. 1341 of 1986 on the ground  that  the  Government  was  not  competent  to  give retrospective operation to SRO 76 of 1985. 12.  Both the Writ Petitions, namely, Writ Petition NO, 1341 of 1986 and 101 of 1987, were heard by a Single Judge (Chief Justice, S.S. Kang) and by judgment dated December 21, 1990, Writ Petition  No, 1341  of  1986  was  dismissed  with  the finding that  the Government could give retrospective effect to the  Service Rules  made by  it in  exercise of the power conferred upon  it by  the Proviso  to Section  124  of  the Constitution of  Jammu and Kashmir. Writ Petition No. 101 of 1987 was,  however, allowed and the appointment of 5 persons on the  basis of the recommendation of the State Recruitment Board that  they may  be promoted by relaxing the Rules, was set aside  with the finding that such a recommendation could not have  been legally  made by  the State Recruitment Board nor could  those persons  be treated as persons selected for appointment. It  was also  held that  the Government  had no power to  relax the  prescribed standard  particularly as no Rule,  empowering   the  State   Government  to   relax  the prescribed standard, was brought to the notice of the court. 13.  The Letters  Patent Appeal,  filed  against  the  above judgment, was  dismissed in limine by the Division. Bench on

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1st March,  1991. It  is in  these  circumstances  that  the matter is now before us. 14.  We are  informed by  Mr. D.D.  Thakur, that  during the pendency of  this appeal,  Gobind Ram  Sharma, who had filed Writ Petition  No. 101  of 1987, had already been promoted a Senior Scale  Stenographer. We  are also  informed that  the Rule  of  promotion  was  again  amended  in  1995  and  the requirement of  a qualifying test, prescribed under the Rule for  making   promotion  to   the  post   of  Senior   Scale Stenographer, has  been completely dispensed with ant it has been provided that promotion shall be made only on the basis of seniority.  Thereafter, all  the appellants were promoted as Senior Scale Stenographers and are working as such. 15.  Normally, since  all the  appellants have  already been promoter  as  Senior  Scale  Stenographers,  we  would  have dismissed the  appeal as  infectors  but  Mr.  D.D.  Thakur, Senior Counsel  appearing on  behalf of  the appellants, has contended that  it is  not a matter of mere promotion to the posts of  Senior Scale Stenographers but it  is the question of  seniority   of  the   appellants,  a   matter  of  prime importance, which is involved as an important factor in this appeal. It is contended by him that if it is held ultimately by  this  Court  that  their  appointment  as  Senior  Scale Stenographers by  the State  Government on   19th  December, 1986 by  relaxing the prescribed standard, as recommended by the State  Recruitment Board was properly mad, they shall be treated to  have been promoted as Senior Scale Stenographers with effect  from that  date and  will, in  that even,  rank senior  to  all  those  who  were  promoted  to  that  cadre subsequent to  their promotion.  This is a question which is not directly  in issue in this petition as the only question with which  we are  concerned in  this appeal is whether the Government could,  in the  particular circumstances  of this case, specially  when there  was already a suggestion of the State Recruitment  Board, relax  the prescribed standard and promote  the   appellants  to  the  posts  of  Senior  Scale Stenographers. If  that promotion  is upheld,  what would be its effect  on the question of seniority and further whether any person,  senior to  the  appellants,  who  was  promoted subsequent to  the promotion of the appellants, would region his original  seniority, a questions which cannot be decided by us  in this  appeal. However,  as contended  by Mr.  D.D. Thakur, we  would definitely  examine the  validity  of  the order of  promotion, concerning  the appellants, made by the State Government  on 19th  December, 1986  by  relaxing  the prescribed standard. 16.  As pointed out above, the service conditions of all the Stenographers,  Senior  Scale  as  also  Junior  Scale,  are regulated J&K  Secretariat (Subordinate) Service Recruitment Rules, 1972. Rule 12 of these Rules provides as under:-      "12. Residuary  matters.- In regard      to matters not specifically covered      by these  rules  or  by  a  special      order, the  members of  the service      shall be  governed  by  the  rules,      regulations and order applicable to      the   STATE    Civil   Service   in      general." 17.  Power to  relax the Rules or any requirement thereof is not contained  in these  Rules and,  therefore, it  become a "Residuary matter"  within the  meaning  of  Rule  12  above compelling us to look to other Rules applicable to the State Civil Services in general. 18.  Our attention  has been  drawn to the J&K Civil Service (Decentralization of and Recruitment to Non-Gazetted Cadres)

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Rules, 1969,  Specially Rule  1 (2) thereof, which is quoted below:-      "1.(1).............................      ............      (2) Unless otherwise expressly      provided in these rules shall apply      to all non-gazetted posts under the      Government except such posts in the      Police Department." 19.  These Rules are thus applicable to all the Non-Gazetted posts which will obviously include the posts of Senior Scale Stenographers as  the applicability  of these  Rules has not been expressly excluded by the J&K Secretariat (Subordinate) Service Recruitment Rules, 1972. 20.  Rule 14 of the 1969 Rules provides as under :      "14. Power  to issue instructions.-      The Government  may  from  time  to      time,  issue   such  directives  or      instructions, as  may be necessary,      for the purpose of carrying out the      provisions of these rules.      The Government  may,  where  it  is      satisfied that the operation of any      provision  of  these  rules  causes      undue hardship  in  any  particular      case or  class of  cases, by order,      dispense   with    or   relax   the      requirements of that rule as it may      consider necessary." 21.  This Rule  gives specific  power to  the Government  to relax the  Rules in  case of  undue hardship,  either  in  a particular case or class of cases. 22.  The next  question is  whether the  power to  relax the Rules  was  exercised  by  the  Government  for  justifiable reasons  or  was  it  exercised  arbitrarily  only  to  give appointment on higher posts to the appellants. 23.  Our attention  has been  drawn to  an  affidavit  dated 17.12.91 filed  in third  appeal.  The  affidavit  has  been submitted by appellant No.1. A copy of the Note of Secretary to the  Government, General  Department, submitted  for  the consideration of  the Chief  Minister has  been annexed with that affidavit. This Noted reads as under:-      "350 -  In the  year 1984-85, there      were  22  vacancies  of  Sr.  Scale      Stenographers   available   to   be      filled  up.  These  vacancies  were      referred  to  the  erstwhile  State      Recruitment   Board.    The   Board      conducted the  test and recommended      32 candidates for their appointment      in the manner as indicated below :-      a)   Number  of  candidates  having      speed of  80 words  power minute in      Shorthand and  40, words per minute      in Typing   -6      b)   Number  of  Candidates  having      speed of  70 to 79 words per minute      in  Shorthand   and  40  words  per      minute in Typing.  -26      351) Appointment  orders  in favour      of six candidates at (a) above were      issued  in  accordance  with  their      interest merit. But the select life      of 26  candidates at  (b) above was      not followed strictly in accordance

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    with   their    inters   merit   as      determined by  the Board. The first      five candidates,  who were  topping      in the  merit list of 25 candidates      wee left  out even  failed  in  the      test were picked up and promoted as      Sr.  Scale     Stenographers.  This      course  of   action  was  taken  by      amending    retrospectively     the      existing  recruitment   rules.  The      Recruitment   Rules   provide   for      appointment to  the basis  of merit      and suitability to be determined by      written test. This rule was changed      retrospectively  to   provide   for      appointment   to    Senior    Scale      Stenographers  on   the  basis   of      seniority  alone.  This  course  of      action was  taken when the panel of      candidates approved  by  the  Board      was available.      352) The  case has been examined by      the    General    Department    and      considering the  matter in totality      of the  circumstances  it  is  felt      that retrospective amendment of the      rules has  caused hardship  to  the      candidates, who  were having higher      merit  resulting   in   denial   of      promotion to  them in comparison to      those, who  have lesser  merit  but      promoted    as     Senior     Scale      Stenographers.   These   candidates      have   been   persistently   making      representations for  redress all of      their grievance and have even filed      a writ  petition,  which  is  still      pending.  Five   vacancies  are  at      present    available     in     the      Secretariat. It  would be  fair, if      without  distributing   the   order      issued in  the past, the first five      candidates  in   merit  are   given      appointment i  relaxation of  rules      against  the  available  vacancies.      Before issuing orders, they will be      asked to withdraw the writ.      353) Chief  Minister may be pleased      to approve  the appointment  of the      aforementioned   five    candidates      against the available posts. 24.  The above  Note clearly  spells out  a case  of genuine hardship inasmuch as the first five candidates, mentioned in the  list   of  26   candidates,  were  not  promoted  while candidates much  lower in merit including even those who had filled  in   that  test,   were  promoted  as  Senior  Scale Stenographer. These promotions were made by taking advantage of the  retrospective operation  given to SRO  76 by SRO 177 with effect  from  4.12.84  (date  of  test).  It  was  also indicated  in  the  Note  that  there  were  five  vacancies available in  the Secretariat  and on those vacancies, first five candidates,  out of the list of 26 candidates, who were most meritorious,  may be  appointed in  relaxation  of  the Rules as suggested by the State Recruitment Board. It was in these circumstances  that the  Chief Minster agreed with the

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suggestion and  directed that those five candidates, namely, he present  appellants, may  be  promoted  as  Senior  Scale Stenographers in relaxation of the Rule. 25.We are,  therefore, clearly  of the opinion that it was a case in  which Government  had  that  acted  arbitrarily  or capriciously but had proceeded to relax the Rules to obviate genuine hardship caused to a class of employees, namely, the appellants and directed their promotion in relaxation of the Rules. 26.  Power to  relax the Recruitment Rules or any other Rule made by  the State  Government, under  Article  309  of  the Constitution  of   which  the   corresponding  provision  is contained in  Section 124  of the  Constitution of Jammu and Kashmir, is  conferred  upon  the  Government  to  meet  any emergent situation where injustice might have been caused or is likely  to be  caused to any individual employee or class of employees  or where  the working  of the  Rule might have become impossible.  Under service  jurisprudence as also the Administrative Law,  such a  power  has  necessarily  to  be conceded to  the employer  particularly the State Government or the Central Government who have to deal with the hundreds of employees  working under  them in  different  departments including the Central or the State Secretariat. 27.  In  State   of   Maharashtra   vs.   Jagannath   Achyut Karandikar, AIR  1989 Sc  1133 =  1989 (1)  SCR 947 = (1989) Supp. 1 SCC 393. it was held as under:-      "The power  to relax the conditions      of  the   rules  to   avoid   undue      hardship in  any case  or class  of      cases cannot  now be  gainsaid.  It      would be, therefore, futile for the      respondents to make any grievance." 28.  In J.C.  Yadav and  others vs.  State  of  Haryana  and others, (1990) SCC 189, it was held as under:-      "The relaxation  of the rules may be      to the  extent the  State Government      may consider  necessary for  dealing      with a  particular  situation  in  a      just and equitable manner. The scope      of rule  is wide  enough  to  confer      power on  the  State  Government  to      relax the  requirement of  rules  in      respect of an individual or class of      individuals to  the  extent  it  may      consider necessary  for dealing with      the case  in a  just  and  equitable      manner. The  power of  relaxation is      generally  contained  in  the  Rules      with  a   view  to   mitigate  undue      hardship or  to  meet  a  particular      situation.  Many   a   time   strict      application of  service rules create      a  situation   where  a   particular      individual or  a set  of individuals      may  suffer   undue   hardship   and      further there  may  be  a  situation      where  requisite  qualified  persons      may not be available for appointment      to the  service. In such a situation      the government  has power  to  relax      requirement  of   rules.  The  State      Government may  in exercise  of  its      powers   issue   a   general   order      relaxing any  particular rule with a      view  to   avail  the   services  of

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    requisite  officer.  The  relaxation      even if  granted in a general manner      would  ensure   to  the  benefit  of      individual officers." 29.  This decision  was followed in Sandeep Kumar Sharma vs. State of  Punjab and  others, (1997)  10 SCC  298. in  which Hon’ble Punchhi,  J. (as His Lordship then was), observed as under:-           "The power  of relaxation even      if  generally   included   in   the      service rules  could either  be for      the purpose of mitigating hardships      or to  meet special  and  deserving      situation.  Such   rule   must   be      construed liberally,  according  to      the  learned   Judges.  Of   course      arbitrary  exercise  of  such  poor      must  be  guarded  against.  But  a      narrow construction  is  likely  to      deny   benefit    to   the   really      deserving case.  We too  are of the      view that  the rule  of  relaxation      must get  a pragmatic  construction      so   as    to   achieve   effective      implementation of  a good policy of      the Government." 30.  In view  of the  above, the Government can exercise the power to  relax the  Rules  in  all  those  cases  in  which hardship is  caused in  the implementation of those Rules to meet a particular situation or where invasive has been cause to either  individual employee  or class  of  employees.  Of course, this]  power cannot  be  exercised  capriciously  or arbitrarily  to   give  undue  advantage  or  favour  to  an individual employee. 31.  Since power  to relax  the Rule  was available  to  the Government and  since, on  a scrutiny of facts of this case, we are  satisfied that  the  power  of  relax  the  standard prescribed  for  promotion  to  the  post  of  Senior  Scale Stenographer was  properly exercised so that the appellants. who topped  the list  of 26  candidates, recommended  by the State Recruitment  Board for promotion by relaxing the Rules as they  were nearest  to the  prescribed standard,  may  be promoted to the posts on which persons who were far below in merit, and  even those  who had  failed  in  the  test,  had already been  as Senior Scale Stenographers, the order dated 19.12.86 by  which appellants were promoted has to be upheld as valid and properly passed by the State Government. 32.  The appeal is consequently allowed and the judgments of the Single Judge as also of the Division Bench are set aside and Writ  Petition NO.  101 of  1987 is  dismissed with  the observation that the appellant shall be treated to have been promoted to  the posts  of Senior Scale Stenographers on the basis of  the order  of the State Government dated 19.12.86. There will be no order as to costs.