2013 PLP (C (PLC(CS))

The appellant was appointed as a Junior Clerk in 1981. He was promoted as Senior Clerk and thereafter as Assistant in 1995. He was allowed Selection Grade (BS-15) in 2000. Vide Notification No.13609/Gaz.1 dated 08-10-2009 ("Impugned Notification"), six Assistants were promoted as Assistant Registrars (BS-18) under orders of the then Hon'ble, Chief Justice of this Court in exercise of powers under Rule 8 of the High Court Establishment (Appointment and Conditions of Service) Rules. They were junior to the appellant. The appellant is aggrieved of the said notification.

2. The learned counsel for the appellant submits that the appellant had a right to be promoted in view of the fact that he fulfilled the criteria, which would have entitled him to be promoted under Rule 8 of the High Court Establishment (Appointment Conditions of Service) Rules ("the Rules"). Further, no reasons were recorded by the Competent Authority for denying promotion to the appellant. As such, he has been denied a right which was available to him under Articles 4 and 25 of the Constitution, the law and the principles of natural justice.

3. The learned counsel for the respondent has defended the impugned notification. He has referred to an order dated 7-10-2009 passed by the then honourable Chief Justice. In the said order, it was noted that taking into considerations the educational qualification and perusing the service records of the officers/officials, the impugned promotions have been made. It is argued that all other officials promoted had better qualifications as compared to the appellant. All the said persons who were promoted were either graduates or had Masters Degrees while the appellant was only a matriculate.

4. We have heard the arguments of the learned counsel for the parties and examined the record with their assistance. The question requiring determination by us is whether educational qualification is a criterion for entitlement to promotion in terms of Rule 8 of the Rules. For ease of reference, Rule 8 is reproduced below:

"Subject to the right of the Chief Justice to make direct appointment, vacancies in the posts of Superintendents shall be filled by promotion (on the basis of Seniority-cum-fitness) from amongst Assistants as forming one group and Judgment Writers and Readers as forming the second group in the proportion of 3:2 as shown below:

First Vacancy Assistant Second Vacancy Judgment Writer Third Vacancy Assistant Fourth Vacancy Reader Fifth Vacancy Assistant Sixth Vacancy Discretion of Chief Justice"

5. A plain reading of Rule-8 ibid indicates that the criteria for promotion is seniority-cum-fitness. The impugned notification dated 8-10-2009 only refers to Rule 8 and has no mention of educational qualification. It is, therefore, apparent that educational qualification was not one of the factors considered or required to be considered for entitlement to promotion. Even otherwise, educational qualifications fall within the definition of "eligibility" and not within the parameters of fitness. It is not the case of the respondent that the appellant was not eligible. It has also not been argued that he did not have the requisite seniority or was, for any reason, found unfit for promotion. The order dated 7-10-2009 referred to by the learned counsel for the respondent has no reference to seniority or fitness. It, therefore, appears (as admitted during the course of arguments) that the petitioner was denied promotion on the basis of having lesser educational qualification compared to those who were promoted. However, as noted above, educational qualification is not one of the criteria to be considered in terms of Rule 8 ibid. We, therefore, hold that the appellant was denied promotion because of having lesser educational qualification, a reason not visualized in Rule

8. In the absence of any disqualification relating to seniority or fitness, the appellant was entitled to be promoted.

6. We have inquired from the Assistant Registrar present in the Court if any posts are available against which the appellant may be accommodated. This is in view of the fact that in case of acceptance of this appeal, other Assistants, who have already been promoted pursuant to notification dated 8-10-2009 and have served on the said post for more than three years, would be dislodged/demoted. However, if a post is available that effect can be avoided. The appellant has voluntarily submitted that in case he is promoted against an available post at this stage, he would not claim back benefits and shall waive the same. We have been informed that vacant posts of Assistant Registrars are available against which the appellant can be accommodated.

7. In view of the foregoing, this appeal is allowed. It is directed that the appellant shall stand promoted to the post of Assistant Registrar w.e.f. 22-11-2012. He shall, however not be entitled to back-benefits which have voluntarily been waived by him. Before parting with this judgment, we may, however, observe that in case, the Competent Authority considers it necessary to include educational qualifications as one of the criteria for promotion, Rule-8 may appropriately be amended and such amendment if and when made, may be circulated for information of all concerned. MWA/T-5/L Appeal allowed.