Mansoor Ahmad Mir, J. - The grievances projected by the petitioners in these petitions spring from order No. 579 dated 24.10.2008 and the orders of promotion made in implementation of the said order. The petitioners have challenged the vires of the aforesaid order dated 24.10.2008 and the consequent promotion orders based thereon.

2. The pleadings of the lead case, SWP No. 2681/2011, titled Abdul Rashid Masoodi and ors. v. State of J&K and ors.., are exceedingly exhaustive, containing facts and averments supported by relevant documents, ranging from historical background of the service up to the present day scenario vis-a-vis the service. I think it would be burdensome to give a narrative of the facts pleaded in the petition; therefore, I deem it appropriate to concisely give a summary of the facts and delineate the issues which have been raised in the petition. Before doing so, it needs a mention here that the responses of the official and the private respondents in the petition are short, sketchy, bald and bereft of any rebuttals to the averments so made in the petition, especially, those having vital bearing on the outcome of these petitions. Normally, when the averments are left without rebuttal, the same have to be taken to be admitted. On that count a petition can be allowed, if the case is otherwise made out. However, in the instant case, the reliefs prayed for by the petitioners being hinged on multitude of averments and legal grounds, I feel it imperative and just to deal with each issue one by one on the touchstone of the settled law in context of whatever sketchy response thereto has been from the respondents. Summary of the facts is noted hereunder:

3. Appointments to the posts borne on the cadre of the Jammu & Kashmir High Court Staff, historically, were made on the pattern governing the appointments made against identical posts elsewhere under the State Government. The basic minimum educational requirement was Matriculation. Once appointed to the lowest ministerial post of Junior Assistant, an appointee would go up the promotional ladder in normal course.

4. On 25.04.1987, it appears, the High Court issued an advertisement notice inviting applications for filling up the posts of Junior Assistant. The minimum qualification in the said advertisement notice was prescribed as Graduation. However, as is manifest from a plain reading of Note (2) appended to High Court order dated 24.10.2008, persons possessing qualifications less than Graduation entered the service on the said date, meaning thereby, in consequence of selections made pursuant to the aforesaid advertisement notice.

5. It may be observed here that the services of the members of High Court Staff are governed by the Jammu and Kashmir High Court Staff (Conditions of Service) Rules, 1968 (for short High Court Staff Rules) framed by the High Court pursuant to the powers conferred by Section 108(2) of the State Constitution. Rule 6 of these Rules empowers the Chief Justice to lay down qualifications for a post and determine the mode of recruitment. Pursuant to the aforesaid provision of the Rules, it appears, it was for the first time in 2001 that the Chief Justice laid down qualifications and mode of recruitment to various posts borne on the cadre of the service. However, the High Court, while issuing order dated 24.10.2008 referred to in the first paragraph of this judgment and impugned herein, does not seem to have given any credence to the said order of 2001, inasmuch as no reliance has been placed thereon by the High Court in the order dated 24.10.2008. Nonetheless, after the aforesaid order was made by the Chief Justice in 2001, promotions in the cadre of the service, from time to time, continued to be made in relaxation of educational qualifications mentioned therein.

6. It is important to note here that, of late, there have been two recognised sources of recruitment to the posts of Junior Assistant in the High Court, as elsewhere under the State. 75 % posts are filled in by direct recruitment from amongst candidates possessing the minimum qualification of graduation and 25% posts are filled in by selection from amongst the Class IV employees of the High Court possessing Matriculation as the minimum qualification. Once the candidates - direct recruit Graduates and selectee Matriculate Class IV employees - would be appointed as Junior Assistant, they would form and constitute one homogeneous group, without any differentiation, for purposes of promotions to next higher posts. However, after 2001, the employees possessing qualifications less than Graduation were granted relaxation without any discrimination. Numerous orders have been placed on record of the writ petition to substantiate this fact.

7. The first two petitioners in the lead case were initially appointed as Orderlies on 16.06.1989, the third petitioner on 13.12.1991 and the fourth and fifth on 11.12.1991. Later, they were promoted as Junior Assistants on 07.07.1997. They were also promoted to the next higher posts of Senior Assistants on 07.08.1998, 28.11.1998, 11.02.1999 and 26.05.1999, respectively, of course, in relaxation of the qualification of Graduation. Private respondents herein were appointed as direct recruit Junior Assistants against 75% of the posts vide Order No. 56 dated 11.05.1998. Thereafter, private respondents 3 to 6 were promoted as Senior Assistants on 28.04.2001; 14 to 18 on 23.02.2005; 22 and 24 on 24.08.2006; 23, 28, 29, 30 on 31.03.2007. The petitioner in SWP No. 2344/2011 was appointed as Orderly in 1991. He was promoted / appointed as Junior Assistant in 1996 and Senior Assistant in 1998. He was also promoted as Head Assistant on ad hoc basis vide order dated 24.11.2008. Similarly, the petitioners in SWP No. 489/2010 were initially appointed as Orderlies after 1987, promoted/appointed as Junior Assistants thereafter. They rose to the rank of Senior Assistant and were also promoted as Head Assistants in their own pay and grade. Petitioner in SWP No. 501/2012 was initially appointed as Orderly on 24.9.1988. He was promoted as Junior Assistant on 27.9.1993, Senior Assistant on 17.07.1997 and Head Assistant on 05.12.2005 on regular basis in relaxation of qualifications. He claims he was due for promotion to the post of Section Officer, but in consequence of order dated 24.10.2008 he has been denied promotion, though his juniors have so been promoted.

8. On 24.10.2008, the High Court issued the impugned order No. 579 purported to be in exercise of Rule 6 of the High Court Staff Rules, laying down Graduation as the minimum qualification for promotion to various posts in the cadre of service above the post of Junior Assistant. In respect of the post of Junior Assistant, it prescribed 75% posts to be filled in by direct recruitment with Graduation as the qualification and 25% posts by promotion from amongst Class IV employees of the establishment on the basis of seniority-cum-merit with minimum qualification of Matriculation. While so doing, a note was appended to the said order which is the bone of contention and the source of grievance of the petitioner herein. It is reproduced hereunder:

"2) Since the requirement of graduation for entry into the High Court service was prescribed vide Notification dated 25.4.1987, at that time officials having qualification less than graduation entered the service. Such officials having during this period gained sufficient experience in the working of the administration, the Chief Justice may on his own or on the recommendations of committee, if so constituted, relax the qualification in cases of officers/officials, who have made their entry into the service on or before the 25th of April, 1987. Further the minimum period of experience can also be relaxed in exceptional and appropriate cases. The officials can get only one relaxation at the time.

9. Immediately after issuance of the aforesaid order dated 24.10.2008, respondent No. 2 issued order No. 580 dated 26.10.2008 according promotion to numerous employees of the High Court to their respective next higher posts. By the said order, private respondents 3 to 13 herein, who were junior to the petitioners, were promoted as Head Assistants, superseding the petitioners. Further, vide the said order, those of the Matriculates, who had entered the service on or before 25th April, 1987 as well as those Matriculate Orderlies who had been appointed as Junior Assistants after 1987 were also promoted to their respective next higher posts. Two such Matriculate employees, appointed as Junior Assistants after 1987, were Shri Muhammad Akbar and Shri Altaf Ahmad who had been appointed from amongst Orderlies as Junior Assistants on 07.04.1995, were promoted as Head Assistants.

10. The petitioners, who, at the relevant time, i.e., 26.10.2008, were holding the ranks of Senior Assistants, were not accorded such promotions. They represented against their supersession. Thereafter, on 24.11.2008, respondent No. 2 issued order No. 667 whereby again numerous employees were promoted to next higher grades. By the said order, the petitioners herein were promoted as Head Assistants in their own pay and grade; whereas another of their junior, namely, respondent No.14 herein, too, was promoted as Head Assistant, but on regular basis.

11. The aforesaid promotion of the petitioners as Head Assistants in their own pay and grade came to be challenged in SWP No. 1751/2008 by some of the private respondents herein on the ground that same had been made dehors the qualifications prescribed in order dated 24.10.2008 and Note (2) appended thereto. It may be reiterated here that these respondents figured junior to the petitioners both in the category of Junior Assistants as well as the category of Senior Assistants.

12. The aforesaid writ petition was allowed by the learned Writ Court vide judgment dated 22.04.2010 and the ad hoc promotion of the present petitioners was quashed. The matter came up before the Division Bench (of which incidentally, I was a member) in two Letters Patent Appeals, one filed by the ad hoc promotees and the other by the High Court, being LPA(SW) Nos. 45/2010 and 84/2010, respectively. The Division Bench dismissed both these LPAs vide judgment dated 30.08.2011. However, the Division Bench recorded an important finding in the judgment, which has a bearing on the present petition, to the following effect:

"Before parting with the judgment we find it necessary to point out that as per the available record the Chief Justice for the first time vide order dated 04.07.2001, in exercise of powers conferred under Rule 6 J&K High Court Staff (Condition of Service) Rules, 1968, while prescribing the qualification and mode of recruitment for the appointments and promotion of various posts in the High Court of Jammu and Kashmir laid down graduation as qualification at the entry level. The advertisement notice dated April 25, 1987 was merely a notice inviting applications from candidates eligible as per the criteria laid down therein for the post of Junior Assistant and not an order made by the Chief Justice in exercise of powers under rule 6 of Jammu and Kashmir High Court Staff (condition of service) Rules 1968. It is required to be seen whether 25th April, 1987 or 4th July, 2001, in the said background is to be treated as dividing line as regards relaxation in qualification for various posts enumerated in High Court order No.579 dated 24.10.2008.

Needless to mention that 25th April, 1987 is taken as dividing line in the aforementioned High Court order on the premise that recruitment rule, on said date, witnessed change in qualification at the entry level, prescribed in exercise of powers under Rule 6 of Jammu and Kashmir High Court Staff (condition of service) Rules 1968. However, as long as 25th April, 1987 is the prescribed cut off date in terms of High Court order No.579 dated 24.10.2008, it is to be adhered to while exercising power of relaxation in qualification. The Chief Justice may, however, in light of observation made above, examine the matter and redefine the power to order relaxation in question. It needs not emphasis that the Chief Justice having been vested with the power in terms of Rule 6 to prescribe qualification "from time to time may any time revoke, alter, modify and amend the High Court order No.579 dated 24.10.2008 to prescribe the limits of the power to make relaxation in qualification or/and prescribed experience.

13. On the same day, i.e., the day aforesaid two Letters Patent Appeals were dismissed by the Division Bench, respondent No. 2 issued order No. 476 dated 30.08.2011, promoting private respondents 17 to 32 herein as Head Assistants.

14. The petitioners herein, in light of the finding and observation recorded by the Division Bench in its aforesaid judgment dated 30.08.2011, made a joint representation on 06.09.2011, praying therein that their cases be considered in light of the judgment passed by the Division Bench. Since this representation was not considered, the petitioners filed the present writ petition in December, 2011, praying therein as under:

"In the premises, it is, therefore, prayed that this Honble Court may be pleased to issue an appropriate writ, direction or order, including a writ in the nature of -

(i) Certiorari, quashing the High Court order no. 579 dated 24.10.2008 together with Note (2) appended thereto, to the extent it prescribes the requirement of graduation as the minimum qualification as eligibility criterion for promotion to posts of Head Assistants and above even in respect of those of the Senior Assistants also, as the petitioners, who were initially appointed as Junior Assistants against 25% posts earmarked for Matriculate Orderlies, and fixes a cut off date to entitle a High Court staff member to the grant of relaxation in the above prescribed qualification and experience prescribed therein;

(ii) Certiorari, quashing High Court order no.580 dated 26.10.2008; no.667 dated 24.11.2008 and no.476 dated 30.8.2011, in so far as vide the said orders respondents 3 to 33 herein, who figured junior to the petitioners in the cadre of Senior Assistants, have been promoted as Head Assistants over and above the petitioners;

(iii) Mandamus, declaring and holding that the impugned order no. 579 dated 24.10.2008 is not the final determination of the exercise of power under Rule 6 of the High Court Staff Rules and, even if so, the same is non-est in the eyes of law having been issued and acted upon in violation of Court order dated 8.4.2002 passed in SWP no.2887/2001;

(iv) Mandamus, declaring and holding that the petitioners are entitled to promotional avenues in the same manner as have been made available to persons possessing identical qualifications as of the petitioners; and/or that, having been initially appointed as Junior Assistants against 25% posts earmarked for Matriculate Orderlies, they are entitled to promotional avenues in all cadres, at least, to the extent of their ratio of appointment as Junior Assistants, i.e., 25% of posts in each cadre;

(v) Mandamus, directing the Registrar General of the Honble Court to place the whole matter, relating to prescription of qualifications and determination of the mode of recruitment, before Honble the Chief Justice for his Lordships decision in light of the observations made in the penultimate paragraph of judgment dated 8.4.2002 passed by a learned Single Judge in SWP no.2887/2001 as also the order dated 9.11.2011 passed by another learned Single Judge of this Honble Court in CMP no. 3891/2011 accompanying SWP no.2344/2011;

(vi) Mandamus, commanding the respondents to consider the petitioners and promote them as Head Assistants on the basis of their seniority in the cadre of Senior Assistants as it existed prior to the issuance of the impugned orders, retrospectively from the date of issue of order dated 26.10.2008 with all consequential service benefits, including seniority etc.

This Honble Court may be pleased to issue such other writ, direction or order in favour of petitioner and against the respondents as this Honble Court may deem fit and proper in the facts and circumstances of the case to secure the ends of justice.

15. The main points raised by the petitioners, which also delineate their case in the writ petitions, are noted hereunder:

(i) that the classification sought to be introduced by order No. 579 dated 24.10.2008 generally, and particularly, between graduates and undergraduates as also between undergraduates and undergraduates is unreasonable, hit by the mandates of Articles 14 and 16 of the Constitution;

(ii) that there is no differentia, muchless intelligible differentia, flowing from the impugned order which could justify the classification between similarly placed employees of the High Court;

(iii) that the impugned order has no rationale nexus with the object sought to be achieved;

(iv) that it has the practical fall out and effect of chocking the promotional avenues of the petitioners and, therefore, unconstitutional;

(v) that the impugned order dated 24.10.2008 is illegal and void ab initio in so far as it seeks to place an embargo on the power conferred on the Chief Justice by statutory rules to grant relaxations;

(vi) that the impugned order is non-est in the eyes of law, as the same has been issued in violation of the judgment dated 08.04.2002 passed by the learned Writ Court in SWP No. 2887/2001 titled Sudershan Singh Jamwal v. State of J&K ors..;

(vii) that the impugned order suffers from non-application of mind, in so far as it has not, at least, earmarked 25% of the posts in all classes/categories of the service for those of the employees who are appointed against 25% of the posts of Junior Assistants;

(viii) that since the impugned promotions of private respondents herein have been actuated and made in implementation of order No. 579 dated 24.10.2008, the same are liable to be quashed on the same grounds;

(ix) that the impugned order is arbitrary, unreasonable and negation of history of the service because it seeks to formulate an order with reference to a situation that obtained 21 years ago, ignoring the march of events and the constitutional rights accrued in the course of time.

16. It may be observed here that Respondent No. 2 is the principal party and authority to defend the aforesaid order dated 24.10.2008 and the subsequent promotion orders. It is reiterated that specific averments and facts stated in the petition have gone unrebutted. In his reply affidavit, it is stated by respondent No. 2 that the High Court Rules do not contemplate relaxation of the rules as such; that the petitioners plead to remove their stagnation; that High Court order dated 24.10.2008 has been passed on the basis of report of a Committee of Honble Judges; that qualification for a particular post cannot be compromised only for providing promotion chances for the petitioners; that Honble the Chief Justice has given approval to the rules for promotion / appointment and order dated 24.10.2008 has been issued; that Honble the Chief Justice has been pleased to defer consideration of all the representations arising pursuant to the judgment in the LPA, awaiting the outcome of the Honble Committees recommendation; that the power to relax the prescribed qualification under order No. 579 dated 24.10.2008 was in case of those officers/officials who had made their entry into the High Court service on or before April 25, 1987 and this cut off date has been upheld by the Writ Court in SWP No. 1751/2008 and by Honble Division Bench in LPA No. 45/20120 and LPA No. 84/2010; that it is correct that private respondents were junior to the petitioners in the cadre of Senior Assistants, but the petitioners could not be promoted for want of requisite qualification; that as per the rules framed by Honble the Chief Justice for filing up of the posts of Junior Assistants, 75% of the vacancies are to be filed up by direct recruitment; whereas remaining 25% are to be filled up from class IV in-service candidates by promotion; that Note to the said order provides relaxation in qualification, which, however, is available in case of officers/officials who have made their entry on or before 25th April, 1987; that petitioners having been appointed after the said date are not eligible for relaxation, too; that there is thus no scope of making any exception as regards minimum qualification in case of petitioners as long as order dated 24.10.2008 is in operation.

17. It is curious to note that that in the reply affidavit, in response to paragraphs 7 to 12, respondent No. 2 has stated that the contents of these paragraphs are misconceived. These paragraphs mostly relate to the filing of SWP No. 2887/2001 by one of the Readers before the learned Writ Court, the stand taken therein by the Registrar General, issuance of order of 2001, the final judgment passed by the learned Writ Court, the operative portion thereof, the fact that the judgment has assumed finality and the allied submissions supported by documents.

18. The private respondents in their reply affidavit have stated that the petition suffers from laches; that the impugned order dated 24.10.2008 was thoroughly dealt with by the Honble Court in writ petition and also in LPA; that the petitioners cannot throw challenge to orders of promotion; that in the impugned order the dividing line for exercising the power of relaxation of qualification by Honble the Chief Justice was drawn vis-a-vis those who made entry before 25.4.1987; that since the petitioners have made their entry into the High Court services after 25.4.1987, the writ petition is misconceived; that the writ petitioners cannot be promoted as Head Assistants because they do not possess qualification of Graduation; that since the High Court Staff Rules have been issued under Section 30 of the Civil Courts Act, and the order dated 24.10.2008 having been issued under Rule 6 thereof, the same cannot be faulted on any ground whatsoever; that Note (2) appended to the order intends to provide avenues of promotion to such ministerial employees who did not possess Graduation before 25.4.1987, but who on the basis of sufficient experience could be considered for promotion; that it was open for the authority empowered to make appointments to lay down conditions of qualification so long as the same was not contrary to any rule governing the field; that the Division Bench (while dealing with LPA 45/2010 and 84/2010) has not mentioned any rule in the last part of the judgment which prescribed qualification other than graduation for the post of Junior Assistant; that the Honble Single Bench has already held that Lord Chief Justice in terms of order dated 24.10.2008 has power of relaxation exercisable only in case of those officers/officials who had entered the service before 25.4.1987.

19. These petitions were listed for hearing a number of times and the learned counsels argued the matter by piecemeal. During the course of such hearings, Mr. Jahangir Iqbal, learned counsel appearing for respondent No. 2, gave statements that, in light of the observations of the Division Bench in LPA Nos. 45/2010 and 84/2010, the matter had been referred to a Committee of Honble Judges for appropriate recommendations. He ultimately produced a communication No. 29 dated 17.04.2013 from respondent No. 2, reference to which shall be made at the end of this judgment. The matter was finally heard on 07.05.2013 with liberty to the learned counsels to submit written arguments. Pursuant thereto, Mr. Z. A. Shah, learned Senior Advocate, has submitted the written arguments which are taken on record. Similarly, Mr. Moomin Khan, learned counsel for the petitioners in the lead case, has submitted photocopies of judgments relied upon by him. I have perused the records and considered the matter.

20. Coming to the issues involved in the case, there is no denial to the fact that those of the employees of the High Court, possessing Matriculation as educational qualification, who are appointed against 25% of the posts, have been performing and discharging identical administrative works and responsibilities in the three Registries of the High Court as the Graduate employees. This situation has not changed even after issuance of order No. 579 dated 24.10.2008. Petitioners have made specific averments in this regard in paragraph 35 of the petition. Respondent No. 2 in response thereto, in his reply affidavit, has stated that "the contents of para Nos. 25 to 36 of the petition are misconceived as the petitioners plead to remove their stagnation and say that there should be no qualification bar . It, therefore, follows that the employees of the High Court, in context of the similarity and identical nature of business/work assigned to, and performed by, them, constitute one homogeneous group.

21. Admittedly, order dated 24.10.2008 has sought to introduce classification amongst the employees and divided them in three groups on the basis of a cut off date, namely: (i) Graduates and Matriculates; (ii) those Matriculates who were appointed as Junior Assistants prior to 25.04.1987 and those who were so appointed after the said date; and (iii) those Matriculates who had been appointed as Orderlies prior to 25.04.1987 but were appointed/ promoted as Junior Assistants after the said date and those of the Matriculate employees, like the petitioners, who were appointed first as Orderlies and then appointed/ promoted as Junior Assistants after 25.04.1987. There can be no dispute about the fact that classification is constitutionally permissible. The question is whether the aforesaid classifications introduced in the High Court staff, on a cut off date, are based on any intelligible differentia and, if so, whether such differentia has any nexus with the object sought to be achieved

22. I have already recorded above that the employees of the High Court, irrespective of their educational qualifications; have been performing identical administrative tasks and responsibilities. Their assignments are interchangeable and they are transferred from one table to another, one section to another and from one Registry to another without any discrimination. They carry equal pay scales. These facts are not contested or controverted either by the official or by the private respondents. It is also not denied that the petitioners in the first three petitions are presently holding the posts of Senior Assistants and were, in fact, also promoted on ad hoc basis as Head Assistants vide order No. 667 dated 24.11.2008. In fact, the equivalence of the petitioners in suitability and being at par with other employees of the High Court, be those Graduates or pre-1987 appointees, is admitted by respondent No. 2 in note (1) appended to the said order wherein it was stated that adjustments of officers/officials on higher posts in their own pay and grade has been made for smooth functioning of the Registry. When their such ad hoc promotions were challenged in SWP No. 1751/2008, respondent No. 2 in his reply affidavit, filed in response thereto, again pleaded that the promotions of the petitioners were made for smooth functioning of the Registry which otherwise would have been in shambles. The matter did not stop there; when the writ petition was allowed and the ad hoc promotion of the petitioners was quashed, respondent No. 2 filed Letters Patent Appeal No. 84/2010 and challenged the judgment and order of the learned Writ Court dated 22.04.2010 passed in that writ petition. All these facts and factors only show that, in fact and in law, the employees of the High Court on all fours and in all facets are not only alike in so far as their functioning is concerned, but have been so treated by respondent No. 2. That being so, actually and factually there exists no differentia amongst them and, consequently, the petitioners could not be given any differential treatment on the basis of an imaginary differentia.

23. During the course of arguments, it was repeatedly, rather, strenuously submitted by Mr. Shah, learned Senior Counsel, that classification on the basis of higher educational qualification is permissible in order to achieve efficiency in the service. Learned counsel for the petitioners on the other hand submitted that there is nothing on record to show that the promotional posts required any higher efficiency which could be expected only of graduates and that, in any case, the impugned order dated 24.10.2008 does not disclose that as a reason. On the contrary, it has, admittedly, equated experience with higher qualification of Graduation. Learned counsel further submitted that experience could not be construed to have been the attribute of only a group of employees on the basis of a cut off date, but it is a general phenomenon relatable to years of service rendered, and that such experience has been gained by petitioners as well. Reliance in this regard is placed on a judgment of the Supreme Court in Food Corporation of India v. Om Prakash Sharma, AIR 1998 SC 2682 .

24. In the aforesaid case, a circular was issued by the Corporation that it had been decided to make a differentiation at the time of first promotion from the recruiting grades between graduates and matriculates. According to the circular, the former would become eligible for promotion after three years of service while the later would become eligible after five years of service. (In the instant case, the promotional avenues have totally been chocked). Subsequently, amendments were made in the Staff Regulations on the aforesaid pattern. The validity of the amendments was challenged by four matriculates. The matter ultimately came up before the Supreme Court. It was submitted by the Corporation that it was felt that the differential criteria should be provided for the purpose of promotion for the category of Assistant Grade-III, Typists, Telephone Operator since Assistant Grade-III were graduates and the Telephone Operators, Typists were matriculates. The Supreme Court, finding that the matriculate Assistant Grade III (Gen) (Depot) were/are performing the duties of AG III on par with Assistant Grade III who possessed qualification of Graduation and that the duties and responsibilities of all the AG III were one and the same and the salary paid is also the same, held as under:

"The very fact that the work of AG. III (G) (Depot) are being carried out smoothly irrespective of officials possessing qualification of matriculation or graduation until this day clearly demonstrates that the qualification of matriculation is adequate to carry out the nature of work prescribed for Assistant Grade III (Gen) and Assistant Grade III (Depot). The nature of work prescribed in the job description vouches for this argument.

In the aforesaid case, the Supreme Court considered the law laid down in S.L. Sachdev v. Union of India, (1980) 4 SCC 562 ; Kumari Shrilekha Vidyarthi v. State of UP., (1991 1 SCC 212 ; State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19 : 2010 (6) JKJ SC 531; Mohammad Shujat Ali v. Union of India, (1975) 3 SCC 76 ; Punjab State Electricity Board, Patiala v. Ravinder Kumar Sharma, (1986) 4 SCC 617 ; Roop Chand Adlakha v. Delhi Development Authority, 1989 Supp (1) SCC 116; N. Abdul Basheer v. K.K. Karunakaran, 1989 Supp (2) SCC 344; P. Murugesan v. State of Tamil Nadu, (1993) 2 SCC 340 ; T.R. Kothandaraman v. Tamil Nadu Water Supply and Drainage Board, (1994) 6 SCC 282 ; and Rajasthan State Electricity Board Accountants Association, Jaipur v. Rajasthan State Electricity Board, (1997) 3 SCC 103. After analysing the law laid down in the aforesaid judgments, the Apex Court held as under:

"An analysis of the aforesaid rulings shows that the validity of the classification has to be judged on the facts and circumstances of each case. We have already pointed out that in the facts of the present case no material has been placed before us by the Corporation to justify the amendments introducing a classification between graduates and non- graduates.

The Supreme Court concluded as under:

"In such circumstances we hold that the amendments to the Regulations making a differentiation between graduates and non-graduates in the matter of promotion of the posts of AG-I and AG-II offend the equality clause and are therefore unconstitutional . In paragraphs 31, 32 and 33 of the judgment, further analysing the law laid down in T.R. Kapur v. State of Haryana, 1986 (Supp) SCC 584 ; P.D. Aggarwal v. State of U.P., (1987) 3 SCC 622 ; K. Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44; Union of India v. Tushar Ranjan Mohanty, (1994) 5 SCC 450 ; and Chairman, Railway Board v. C.R. Rangadhamaiah, (1997) 6 SCC 623 , the Apex Court observed and held as under:

"32. The last of the above cases has been decided by the Constitution Bench in which one of us (Justice Aggarwal) was a member and he spoke for the Bench. It will be advantageous to quote the following passage in that judgment (1997 AIR SCW 3747, Para 24):

In many of these decisions, the expressions vested rights or accrued rights have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

33. If the principle laid down in the above judgment is applied here, there is no doubt that the impugned amendments in the present case cannot operate retrospectively.

25. It would also be advantageous to reproduce hereunder the extracts of some of the judgments (supra) as quoted by the Supreme Court in Food Corporation of India v. Om Prakash Sharma (supra):

26. In N. Abdul Basheer v. K.K. Karunanakaran (supra), the Apex Court held as under:

"Ordinarily, it is for the Government to decide upon the considerations which, in its judgment, should underlie a policy to be formulated by it. But if the considerations are such as prove to be of no relevant to the object of the measure framed by the Government, it is always open to the court to strike down the differentiation as being violative of Articles 14 and 16 of the Constitution. In the present case, we have already commented on the circumstance that the conditions of employment and the incidents of service recognise no distinction between graduate and non-graduate officers and that for all material purposes they are effectively treated as equivalent. Accordingly, this contention must also be rejected.

27. In Mohammad Shujat Ali v. Union of India (supra), Constitution Bench of the Apex Court stated the law as under:

"But from these decisions it cannot be laid down as an invariable rule that whenever any classification is made on the basis of variant educational qualification, such classification must be held to be valid, irrespective of the nature and purposes of the classification or the quality and extent of the differences in the educational qualifications. It must be remembered that life has relations not capable always of division into inflexible compartments. The moulds expand and shrink. The test of reasonable classification has to be applied in such case on its peculiar facts and circumstances.

28. In Roop Chand Adlakha v. Delhi Development Authority, 1989 Supp (1) SCC 116, the Apex Court considered all the earlier cases on the subject and held that prescription of a longer period of experience for the diploma holder to be eligible for promotion to a cadre to be made from graduates and diploma holders was not violative of equality class. The Apex Court took note of the fact that there may be cases where the differences in the educational qualification may not be sufficient to give any preferential treatment to one class of candidate as against another. The Apex Court held that whether the classification is reasonable or not must necessarily depend upon facts of each case and the circumstances obtaining at the relevant time.

29. Again in T.R. Kothandaraman v. Tamil Nadu Water Supply and Drainage Board, (1994) 6 SCC 282 , it was reiterated that higher educational qualification is a permissible basis of classification, but the acceptability thereof will depend on the facts and circumstances of each case.

30. Applying the law laid down by the Supreme Court, the history of the service and all other relevant factors, as stated here in above, establish that Matriculate Orderlies appointed as Junior Assistants against 25% posts earmarked for them and the direct recruit Graduates have been and are not only similarly placed but have been treated alike. There exists no differentia, muchless an intelligible differentia, amongst them and, therefore, there was no reason to make classification either between graduates and Matriculates and Matriculates and Matriculates on the basis of a cut of date. The learned counsel for the petitioners is right in saying that experience cannot be the attribute of any particular class of employees only; it is a continuing process, gained by each passing hour. The cut off date fixed in the impugned order dated 25.04.1987 is, therefore, rendered inconsequential and arbitrary.

31. It is also not the case of the respondents that for the discharge of functions on higher posts, higher qualification is necessarily required and, of course, it cannot lie in their mouth, for, the highest post in the Administrative set up of the ministerial cadre is presently held by a Matriculate. Similarly, most of the higher posts are occupied by Matriculates. This has, in fact, given rise to an anomalous situation, as would be referred to hereafter.

32. In paragraph 33 of the writ petition, the petitioners have given the particulars of some of the officers / officials who on the date of filing of the writ petition were holding higher posts. It would be profitable to reproduce these details hereunder:

(i) Shri K.K. Wattal, who is only a Matriculate, holding the post of Joint Registrar in the Administrative Wing of the High Court;

(ii) Shri G.M. Parray, a Matriculate, holding the post of Deputy Registrar. He was initially appointed as an orderly;

(iii) Shri Ram Singh, a Matriculate, holding the post of Deputy Registrar;

(iv) Shri Bua Datta, a Matriculate, holding the post of Deputy Registrar, Administration, Main Wing of the High Court;

(v) Shri K.K. Sharma, Matriculate, holding the post of Assistant Registrar, Civil Section, Jammu Wing. He was initially appointed as Orderly;

(vi) Shri Shanker Dass, Matriculate, holding the post of Assistant Registrar. He, too, was initially appointed as an Orderly;

(vii) Shri Kuldeep Raj, a Matriculate, holding the post of Section Officer;

(viii) Shri Parveen Singh, Matriculate, holding the post of Section Officer;

(ix) Shri Mian Rafiq, a Matriculate, Section Officer;

(x) Shri Mohammad Akbar, a Matriculate, holding the post of Section Officer. He was initially appointed as Orderly and later as Junior Assistant on 7.4.1995, i.e., after the cut off date;

(xi) Shri Altaf Ahmad, Matriculate, holding the post of Section Officer. He too was initially appointed as Orderly and later as Junior Assistant on 7.4.1995, i.e., after the cut off date.

As already noted here in above, respondent No. 2 has, in his reply affidavit, dubbed these facts and figures as misconceived. These facts and figures are based on the orders issued by respondent No. 2, from time to time, copies whereof have been appended with the petition. This only demonstrates the casual manner in which the whole matter has been dealt with by respondent No. 2. Be that as it may, the anomaly that has resulted from operation of the impugned order dated 24.10.2008 and the prejudice caused to the rights and interests of the petitioners is writ large. Petitioners have been meted out invidious discrimination, without any reasonable cause or justification.

33. It is, accordingly, established and, therefore, held that the classification introduced by order No. 579 dated 24.10.2008 between Graduates and Matriculates as also between Matriculates and Matriculates is unreasonable, hit by the mandates of Articles 14 and 16 of the Constitution as there is no differentia, muchless intelligible differentia, flowing from the impugned order which could justify the classification between similarly placed employees of the High Court, constituting one homogeneous group. It is also established and held that the impugned order has no rationale nexus with the object sought to be achieved.

34. Now, I come to the next aspect of the matter: It is settled law that anything done in violation of a Court judgment is non-est in the eyes of law. While deciding SWP No. 2887/2001, filed by one of the Readers, the learned Writ Court, vide judgment dated 08.04.2002, had ordered as under:

"In my considered view, the grievance of the petitioner and also the other staff members of the High Court can be redressed by directing respondent No.3 (Registrar General) to place the matter before Honble the Chief Justice for appointment of a Committee of two judges at the earliest so that recommendations made be made by the said committee for consideration of the Full Court within the time frame. The decision at the earliest would take care of the grievance of all the feeding categories working on the establishment of the High Court, who may have legitimate expectation as per their eligibility.

The writ petition, as per the documents placed on record of this petition, was contested by respondent No. 2. The aforesaid judgment and order has assumed finality, inasmuch, it was not appealed against by the High Court. The Committee of two Honble Judges comprising Honble Mr. Justice Y. P. Nargotra and Honble Mr. Justice H. I. Hussain seems to have been constituted, presumably in compliance of the aforesaid judgment and order, before issuance of the impugned order dated 24.10.2008. But, it is contended that the matter was never placed before the Full Court; instead the impugned order was issued on the recommendations of the Committee. Averments in this regard are made in paragraphs 9 and 10 of the petition, quoting the operative portion of the aforesaid judgment. Respondent No. 2, again, in his reply affidavit, has termed the contents of these paragraphs as misconceived. The aforesaid Writ Court judgment dated 08.04.2002 could not have been brushed aside. Since it has remained to be complied with, rather has been dishonoured, inasmuch as the report made by the Committee was not put up for consideration of the Full Court, the impugned order has to be held to have been rendered non-est on that count.

35. Coming to another crucial issue involved in the case, it is contended on behalf of the petitioners that Note (2) appended to the impugned order dated 24.10.2008 is void also on the ground that it has sought to place an embargo on the power to relax conferred on Honble the Chief Justice under a Statute. Reference in this connection is made to Rule 5 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal Rules), 1956. Respondent No. 2 in his reply affidavit has stated that High Court Rules do not contemplate relaxation of the rules as such. Similar contention has been raised by Mr. Shah in his written arguments.

36. The fact that Note (2) appended to the Rules speaks of relaxation coupled with the fact such relaxations have till now continuously been accorded by Honble the Chief Justice, the dispute sought to be raised in relation to the power of Honble the Chief Justice by the respondents is noted only to be rejected, as being naive and novice. This Court in Abdul Hamid Khan v. Union of India & ors., 2012 (4) JKJ HC-144 SWP No. 1485/2011, decided on 30.11.2012, cited by learned counsel for the petitioners, while interpreting Rule 13 of the High Court Staff Rules, in paragraph 16 of the judgment, has held as under:

"A plain reading of the aforesaid provision of the High Court Staff Rules makes it unambiguously clear that subject to any special provisions contained in the said Rules, the rules and orders for the time being in force and applicable to Government servants shall also regulate the conditions of service of persons serving on the staff attached to the High Court and that the powers exercisable under the said rules and orders by the Governor or the Government of the State or any authority subordinate to the Governor or the Government shall be exercisable by the Chief Justice.

In light of the above, no dispute can be entertained about the power of the Lord Chief Justice in that behalf. It may be observed here that there is no provision in the High Court Staff Rules, placing a bar on appointment of any ineligible candidate to any of the posts borne on the High Court Staff. It is Rule 17 of the Classification, Control and Appeal Rules which prescribes such a bar. It is also nobodys case that these Rules are not applicable to the High Court Staff. In fact, reference has been made to annexure P11 at page 78 of the writ petition, which is an affidavit filed by the Registrar General before the learned Writ Court in SWP No. 2887/2001. In Para 8 thereof, the Registrar General has stated that inter se seniority amongst Readers is determined as per established norms and rules under Classification, Control and Appeal Rules. Reference is also made to the High Court order No. 205 dated 07.07.1997, placed at page 54 of the writ petition, which is an order according promotion to most of the petitioners herein as Junior Assistants. In the last paragraph of this order, the Registrar General has stated that "their appointments by promotion shall be on probation for one year in terms of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 read with High Court Staff Condition of Service Rules, 1968.These facts are noted only to show that the High Court itself has been admitting application of these Rules to the High Court Staff and, rightly so. Rule 5 of the said Rules deals with Relaxation of rules: It reads thus

"Any of these rules or Rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases, if Government is satisfied that a strict application of the rule would cause hardship to the individual concerned or confer undue benefit on him.

This power, as already mentioned, is statutory in nature exercisable by Honble the Chief Justice vis-a-vis the members of the High Court staff. The question is whether by an executive order, this power could be curtailed. The answer cannot, but be in negative. The practical implication of Note (2) of the order dated 24.10.2008 tantamount to curtailing the aforesaid statutory power conferred on Honble the Chief Justice. It also amounts to amending the Statute. Manifestly, therefore, the order dated 24.10.2008 is void ab initio.

37. Let me now examine the practical fall out and effect of the impugned order dated 24.10.2008. It has chocked the promotional avenues of the petitioners, making it effective from a retrospective date. In B.S. Yadev v. State of Haryana, AIR 1981 SC 561 , the Supreme Court has held that it should be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is thereby unsettled, giving rise to long drawn- out litigation between the promotees and direct appointees. That breeds indiscipline and draws the High Court into the arena which is to be deprecated. Again, in State of Gujarat v. Raman Lal Keshev Lal, AIR 1984 SC 161 , the Apex Court has held as under:

"The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with todays rights and not yesterdays. A Legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history.

The law laid down by the Apex Court, as quoted above, is wholly applicable in the instant case. The impugned order has not only unsettled their seniority, but has resulted in their demotion and then supersession by promotion of most of the private respondents herein.

38. It is the admitted case of the parties that petitioners have been recruited against 25% of the posts of Junior Assistants earmarked for them. It would have been just and appropriate if 25% of the promotional posts in every class and category of posts had been earmarked for them. But that, too, has not been done. The practical implication of the impugned order would be that the petitioners would have to see all Graduates, who may be appointed even any time hereafter, pass by them, rise on the promotional ladder and march over the petitioners and similarly placed employees of the High Court and, that too, all throughout their service carrier. This would be humiliating for them and it is bound to be counterproductive, inasmuch as it would induce disparity and degeneration of the service. In this connection, reference may be made to Raghunath Pd. Singh v. Secy. Home (Police) Dept. Govt. of Bihar, AIR 1988 SC 1033 , wherein the Apex Court has held as under:

"Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly.

In the aforesaid case, the Supreme Court directed the State of Bihar to provide at least two promotional opportunities to the officers of the State Police in wireless organization.

39. In Syed Mohammad Ashraf v. State of J&K & ors., 2005 (2) JKJ [HC] 504, a learned Single Judge of this Court observing that "Optimal level of efficiency in public service cannot be achieved if there is dissatisfaction and service frustration in the Government employees holding the public posts , has held as under:

"Merely because the service rules do not provide for promotional avenues to the petitioner, the petitioner cannot be denied of his right to be considered for promotion. Rules can be amended, but the right of the petitioner to be considered for promotion by providing promotional avenues cannot be defeated.

40. In the instant case, contrary to what has been laid down in the aforesaid judgments, the accrued rights of the petitioners have been taken away, so much so they were reverted back. The action of respondent No. 2 in reversing the accrued rights of the petitioners and chocking their promotional avenues is totally arbitrary and, therefore, violative of the Constitutional rights of the petitioners.

41. It has been the persistent contention of both the official as well as private respondents, that this petition is not maintainable as the order dated 24.10.2008 had been dealt with in detail by the learned Writ Court in an earlier writ petition, SWP No. 1751/2008. This submission is grossly misconceived. The vires of the order were not in challenge; instead the petitioners therein had challenged the ad hoc promotions of the present petitioners as Head Assistants, on the ground that the same were dehors what was provided in the order in question. In other words, the petitioners therein had sought implementation of the order in its letter and spirit. The order dated 24.10.2008 was not, in any manner of thought, under challenge therein. Therefore, the contention must fail as being fallacious. In this connection, it would be appropriate to quote hereunder the questions those fell for determination before the learned Writ Court, as framed in the judgment in question: These questions were:

"(i) Whether adjustment of respondent nos. 3 to 13 against the post of Head Assistant affects any enforceable right of the petitioners entitling them to seek judicial review thereof

(ii) In case question no.1 was answered in the affirmative, whether the High Court order no.667 dated 24.11.2008, in so far as it pertains to the adjustment of respondent nos. 3 to 13, was justified and sustainable

(iii) Whether Lord Acting Chief Justice, possessed the power to relax the Rules and, if so, whether the impugned order had been issued in relaxation of the Rules

It may be observed here that contrary to what the respondents are seeking to urge, the Division Bench, hearing the appeals arising out of the judgment in the aforesaid writ petition, on perusal of the original records produced before it by respondent No. 2, found and pointed out that the Chief Justice, in exercise of powers conferred under Rule 6 of the Rules, vide order dated 04.07.2001, had for the first time laid down graduation as qualification at the entry level. The Division Bench further noted that the advertisement notice dated April 25, 1987 was merely a notice inviting applications from candidates and not an order made by the Chief Justice in exercise of powers under Rule 6 of the Rules. The Division Bench, consequently, observed that it is required to be seen whether 25th April, 1987 or 4th July, 2001, in the said background, is to be treated as dividing line as regards relaxation in qualification. This finding of the Division Bench has not at all been considered up til this time.

42. As mentioned elsewhere here in above in this judgment, at the hearings of these petitions, it was repeatedly stated by Mr. Jahangir Iqbal, learned counsel for respondent No. 2, that a Committee had been constituted to examine the matter in light of the aforesaid observations of the Division Bench. Ultimately, he came up with an order, bearing No. 29 dated 17.04.2013 from respondent No. 2. The order so produced, reads as under:

"Pursuant to the recommendation of the Honble Committee, regarding reconsideration as regards cut off date for relaxation in qualification for promotion in the High Court Staff, it is hereby ordered:

Note-2 of Order No.579 dated 24.10.2008 does not require any change or modification.

This order shall be a part of High Court Order No.579 dated 24.10.2008.

Since the order has been made part of the impugned order dated 24.10.2008, it will abide the decision thereon.

43. For all what has been discussed and held here in above, these writ petitions are allowed. Order No. 579 dated 24.10.2008 is quashed. Consequently, the orders bearing No. 580 dated 26.10.2008; No. 667 dated 24.11.2008 and No. 476 dated 30.8.2011 passed in implementation of order dated 24.10.2008 are also quashed to the extent and in so far as private respondents in these writ petitions, who figured junior to the petitioners in the cadre of Senior Assistants/Head Assistants, have been promoted as Head Assistants / Section Officers over and above the petitioners in these writ petitions.

44. It is provided and directed that respondent No.2 shall process the papers for a de novo exercise in the matter. While doing so, the direction contained in the judgment and order dated 08.04.2002, passed in SWP No. 2887/2001, as quoted here in above in this judgment, shall also be complied with.

45. However, it is made clear that in the event a decision is arrived at to earmark at least 25%, of posts in all categories/classes of the service/cadre, retrospectively from the date the private respondents herein were promoted, for the employees who were/are appointed against 25% of the posts of Junior Assistants from Class IV Matriculate employees, it shall be open for respondent No. 2 not to effectuate any break in the promotion of the private respondents falling within the remaining 75% of posts. Rest of the private respondents to the extent of 25% shall stand reverted and consequently, the petitioners herein shall be considered for promotion against the said 25% posts of Head Assistants/Section Officer as would thus become available. However, they shall be entitled to restoration of their seniority notionally vis-a-vis the private respondents as it existed prior to the issuance of order dated 24.10.2008.

46. The connected CMPs shall abide the above. There shall be no order, however, as to costs.