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CASE NO.:

Writ Petition (civil) 354 of 2002

PETITIONER:

Syed T.A. Naqshbandi & Ors.

RESPONDENT:

State of Jammu & Kashmir & Ors.

DATE OF JUDGMENT: 09/05/2003

BENCH:

Doraiswamy Raju & D.M. Dharmadhikari.

JUDGMENT:

J U D G M E N T

D. RAJU, J.

The above Writ Petition has been filed under Article 32 of the Constitution

of India seeking for a writ in the nature of Certiorari to quash the order bearing

No.283 dated 4.7.2002 and order Nos.142-143 dated 27.4.2002 and also to

quash the grant of selection grade and super-time scale to the third respondent

herein, including the recommendations said to have been made for consideration

of the name of R-3 for further elevation. In addition thereto, relief of Certiorari

was sought even to quash the grant of selection grade to respondents 4 to 8 on

the ground that the criteria on which it was accorded to them was wholly

arbitrary, illegal and unconstitutional and violative of Article 16 of the Constitution

of India. As a consequence to the above, relief in the nature of Mandamus was

also sought to direct the second respondent to grant selection grade to the

petitioners 1 to 3 with effect from 28.6.2001and further grant to the petitioners 1

to 3 super-time scale with effect from 27.4.2002, the date on which it was said to

have been given to R-3, in addition to seeking for such relief for Mandamus to

give selection grade to petitioners 4 and 5 with effect from 27.4.2002, the date

from which it was given to respondents 4 to 8, with all consequential benefits

including the seniority and arrears of pay. Certain other reliefs, a detailed

reference to which is wholly unnecessary, have also been claimed.

The petitioners and respondents 3 and 7 were said to have been selected

as Munsiffs after passing the Kashmir Civil Services (Judicial) Examination on

28.8.1974 and respondents 4 to 6 and 8 were selected for appointment during

the period between 1978 and 1982. The first petitioner was said to have been

promoted on 30.8.1995, whereas petitioners 2 to 4 and respondent 3 promoted

as District & Sessions Judges in November 1995. Petitioners 1 to 4 and

respondent 3 were confirmed as District & Sessions Judges on 22.1.1998 with

effect from 1997 while the other private parties-respondents are said to be

continued as temporary/officiating District & Sessions Judges. In the Gradation

List published by the High Court on 1.1.2001, petitioners 1 to 4 were said to have

been shown at Serial Nos.15, 16, 17 and 19, whereas respondents 3 to 8 were

shown at Serial Nos.18, 31, 32, 36, 23 and 37 respectively. On 4.7.2001, the

third respondent was placed in the selection grade w.e.f. 28.6.2001, according to

the writ petitioners, over the head of six District Judges senior to him. The

grievance of the petitioners, among other things, is that the third respondent had

never worked as District and Sessions Judge for any period and he was not even

entitled to be considered for according such selection grade. On coming to know

of the same, the petitioners 1 and 3 sought for copies of the proceedings and as

soon as they were given in September 2001, the petitioners 1 to 3 also seem to

have made Representations/Review Petitions against the order No.283 dated

4.7.2001. The second petitioner was said to have been granted selection grade

by order No.810 dated 24.12.2001 w.e.f. 22.12.2001 without restoring his original

seniority, while at the same time bypassing the claims of petitioner No.1. On

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16.4.2002, the petitioners 1 and 2 seem to have made representations to the

President of India.

It may be stated at this stage that the High Court of Jammu and Kashmir

held a Full Court Meeting on 27.4.2002 to consider the issue relating to the grant

of super-time scale/selection grade in Higher Judicial Services and the Full Court

formulated the criteria/guidelines for grant of super-time scale and selection

grade for members of the Higher Judicial Services. The said guidelines were

also impugned as being irrational and inconsistent with what is known as

recommendations of Justice K. Jagannatha Shetty Commission accepted,

subject to certain modifications, by this Court in the decision reported in All India

Judges Association Vs. Union of India [(2002) 4 SCC 247]. On the same day

by yet another proceedings on 27.4.2002 in order No. 142, the third respondent

was placed in the super-time scale applying the norms formulated by the High

Court, which are also the subject matter of challenge in these proceedings. The

third respondent was said to have been given the super-time scale superseding

eight District Judges senior to him. A grievance is also made that respondents 4

to 6 and 8 were not even confirmed District & Sessions Judges putting hardly

three years of service and as such they were not eligible for consideration for the

grant of selection grade. The said orders are also challenged as being in

violation of the Justice K. Jagannatha Shetty Commission's report. The further

grievance of the writ petitioners is that the High Court did not consider the

representations made by petitioners 1 to 3 against the grant of selection grade to

the third respondent by giving detailed reasons and instead rejected the same by

disposing it in the light of the decision taken by the Full Court to accord super-

time scale to the third respondent rendering thereby the representations made

infructuous.

Heard Shri L.Nageswara Rao, learned Senior Advocate for the petitioners,

Shri H.N. Salve, Learned Senior Advocate for the official respondents, and Shri

B. Dutta, learned Senior counsel for the non-official respondents.

The grievance on behalf of the petitioners is that the criteria fixed for

according the selection grade and super-time scale are not valid in view of the

recommendations of Justice Jagannatha Shetty Commission as modified and

accepted by this Court in the decision reported in All India Judges' Association

& Others vs. Union of India & Others (Supra). The further grievance

espoused is on the ground that the ACRs prepared or taken into consideration

are not reliable and consequently the selections made, which are under

challenge, stood vitiated. Apart from highlighting certain alleged infirmities

assumed by the petitioners to vitiate the ACRs considered, grievance is also

made against the comparative overall assessment made in the ACRs and

particularly the one accorded to R-3 alone as 'Outstanding' throughout, who,

according to the petitioners, had no experience as District Judge in the field. It is

further contended that no uniform principles or norms were adopted in adjudging

the claims of those whose ACRs were not available for one or more period. The

ACRs prepared by the Justice A.M. Mir Committee was said to have been

rejected without justification. The further grievance was about the rejection of the

representations without giving or disclosing reasons.

Per contra, the stand on behalf of the respondents, particularly the official

respondents, which has been adopted by the non-official respondents too, is that

the alleged infirmities or illegalities as to the manner and method of preparation

of ACRs, the overall assessment made by the High Court and their reliance for

according from time to time the various respondents either selection grade or

super-time scale are quite in accordance with law and the grievance espoused

on behalf of the petitioners are merely borne out of assumptions of facts which

had no basis and purely based upon surmises and incorrect assertions, having

no merit whatsoever either in law or on facts, as disclosed from the records. The

reliance sought to be placed upon the recommendations of Justice Jagannatha

Shetty Commission is said to be inappropriate and misconceived and till the

recommendations are actually implemented by appropriate amendments carried

out in the relevant Service Rules, it is only the subsisting Service Rules that

govern the matter relating to service conditions and that the existing rules cannot

be thrown to winds. Very strong exception is taken to some of the baseless,

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unwarranted, incorrect as well as insinuating and indecorous accusations, as

they are stated to be against constitutional functionaries and superiors in the

hierarchy of administration by persons holding responsible judicial offices

unmindful of official discipline and restraint obliged to be adhered to or the bad

taste inherent in such attempts and it has been specifically prayed that they

should be expunged from record. The learned senior counsel for the petitioners,

in his usual fairness and apparently on instructions too, stated at the hearing that

not only it was not intended to offend anyone but the petitioners also withdraw

them. According to the learned senior counsel for the respondents, the correct

provisions of law governing the matter relating to according of selection

grade/super-time scale have been assiduously observed, meticulously followed

and the norms fixed to regulate the exercise thereof are neither arbitrary nor

irrational and illegal or unconstitutional and no exception could be legitimately

taken to the exercise undertaken by the High Court or the final orders passed

thereon, on the indisputable facts on record, so as to warrant any interference in

these proceedings under Article 32 of the Constitution of India. Learned senior

counsel on either side invited our attentions to the relevant rules, the ACRs,

assessment records and resolutions passed in the matter in their endeavour to

justify their respective claims.

We have carefully considered the submissions of the learned counsel

appearing on either side, in the light of the governing position of law and the

material facts placed on record. Much of the grievance sought to be vindicated

seem to be merely borne out of certain baseless assumptions and incorrect

understanding of events, which took place with their own personal perception of

the same, carried away also more by the grievance in not being favoured with

due recognition of their so-called entitlements. The grievance in this regard is

sought to be further justified by adopting one or the other circumstances in a

manner to suit their own stand rather than viewing the relevant facts in their

proper perspective or on an objective process of understanding. Assumed

grievances apart, it must be sufficiently substantiated to have firm or concrete

basis on properly established facts and further proved to be well justified in law,

for being countenanced by court in exercise of its powers of judicial review. As

has often been reiterated by this Court, judicial review is permissible only to the

extent of finding whether the process in reaching the decision has been observed

correctly and not the decision itself, as such. Critical or independent analysis or

appraisal of the materials by the Courts exercising powers of judicial review

unlike the case of an appellate court, would neither be permissible nor conducive

to the interests of either the officers concerned or the system and institutions of

administration of justice with which we are concerned in this case, by going into

the correctness as such of the ACRs or the assessment made by the Committee

and approval accorded by the Full Court of the High Court.

Reliance placed upon the recommendations of Justice Jagannatha

Shetty Commission or the decision reported in All India Judges' Association &

Others vs. Union of India & Others (supra) or even the resolution of the Full

Court of the High Court dated 27.4.2002 is not only inappropriate but a misplaced

one and the grievances espoused based on this assumption deserve a mere

mention only to be rejected. The conditions of service of members of any service

for that matter is governed by statutory rules and orders, lawfully made in the

absence of rules to cover the area which has not been specifically covered by

such rules, and so long they are not replaced or amended in the manner known

to law, it would be futile for anyone to claim for those existing rules/orders being

ignored yielding place to certain policy decisions taken even to alter, amend or

modify them. Alive to this indisputable position of law only, this Court observed

at Para 38, that " we are aware that it will become necessary for service and

other rules to be amended so as to implement this judgment". Consequently, the

High Court could not be found fault with for considering the matters in question in

the light of the Jammu and Kashmir Higher Judicial Service Rules, 1983 and the

Jammu and Kashmir District and Sessions Judges (Selection Grade Post) Rules,

1968 as well as the criteria formulated by the High Court. Equally, the guidelines

laid down by the High Court for the purpose of adjudging the efficiency, merit and

integrity of the respective candidates cannot be said to be either arbitrary or

irrational or illegal in any manner to warrant the interference of this Court with the

same. Even dehors any provision of law specifically enabling the High Courts

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with such powers in view of Article 235 of the Constitution of India unless the

exercise of power in this regard is shown to violate any other provision of the

Constitution of India or any of the existing statutory rules, the same cannot be

challenged by making it a justiciable issue before courts. The grievance of the

petitioners, in this regard, has no merit of acceptance.

So far as the preparation of ACRs in this case are concerned and the

assessment made by the Committee constituted as well as the approval

accorded by the Full Court therefor, we see no merit in the challenge made to the

same. The claim that only such a District and Sessions Judge who actively serve

and discharge duties holding such office in the field alone can be considered for

according selection grade or super-time scale proceed upon not only a total

misreading of the relevant rules but is also opposed to the well settled position in

law in this regard, besides, if accepted, rendering it completely unworkable,

impracticable and opposed to realities. Appointment to the selection grade posts

in the service envisaged from amongst the members of the service 'holding the

post of District and Sessions Judge' should, in the context, mean only of any

person borne on the cadre of District and Sessions Judge and who is a member

of the Jammu and Kashmir Higher Judicial Service and it is not necessary that to

be one such, he should be only functioning and discharging duties in the districts

in the regular Courts doing conventional court work. Such of those District and

Sessions Judges who are on deputation to other departments and that too to the

High Court in this case to serve as Registrar, etc. cannot by such deputation be

considered to suffer any disability or viewed to have lost their right and

entitlement in their usual turn to be considered along with others for being

granted selection grade or super-time scale according to the relevant guidelines

therefor. That apart, much of the grievance in this regard also seem to proceed

upon a misconception of the real purport of selection grade/super-time scale and

the scheme underlying the grant thereof. As rightly contended for the

respondents not only the Jammu and Kashmir Higher Judicial Service consist of

posts of District and Sessions Judges and Additional District and Sessions

Judges but they consist of a 'Single Cadre' only. There are no specially

earmarked or classified posts to be manned only by such District and Sessions

Judges, who were accorded with selection grade or super-time scale. Though

loosely called selection grade posts, unless any post itself is separately and

distinctly created for that purpose and specifically identified to be filled up with

such persons only, usually it involves only grant of higher scales of pay in the

same category of posts. The same is the position in regard to super-time scale

also. It is also not the case of the petitioners that out of the total strength

constituting the J & K Higher Judicial Service, anyone or the other of such posts

are identified to be exclusively earmarked for one holding a selection

grade/super-time scale. Having regard to the rules in force the staff pattern in

vogue and the guidelines further formulated by the High Court, it is futile for the

petitioners to contend that it should be accorded on the basis of seniority only. In

any event, even in this regard the difference in seniority could not be said to be

so substantial or vast as to lend room for any legitimate plea that it is so arbitrary

or unreasonable as to call for interference. Viewed in the context of the basis or

criteria for according selection grade, as envisaged in the Statutory Rules, it

involves process of selection and seniority, if at all will be to reckon the zone of

consideration or when the merit ranking is equal and not for the grant itself.

Therefore, there is no merit in the plea on behalf of the petitioners that the third

respondent could not have been even considered for the grant of selection

grade/super-time scale, at the relevant and respective points of time.

So far as the actual consideration, the preparation of ACRs, the method

and manner adopted therefor and the actual assessment ultimately made by the

Committee and the High Court in this case is concerned, much is sought to be

made out for the petitioners more on the treatment meted out to the third

respondent, than on the merits of their own claims or realities of the situation

based on facts. If on an assessment of the materials on record, some one has

been adjudged to be more meritorious and preferred to others it could not even

be said to be supersession of senior by the junior, unlike in cases relating to

promotion to a higher post with higher scales of pay by virtue of seniority. As

for the grievance made on the supersession of report said to have been

submitted by the Committee headed by Justice A.M. Mir, least said is better. It is

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seen that after the constitution of the said Committee, the Committee in its

meeting on 1.4.2000 resolved to call for judgments of judicial officers, whose

ACRs have not been so far written for such periods and such officers, including

petitioners, were said to have been even asked to send copies of judgments. In

the meeting on 23.6.2000, the Committee again seems to have resolved to have

the judgments received circulated for assessment in different lots and the

Committee resolved to meet after four weeks. It seems that even before the

judgments could be so circulated, the Private Secretary to Justice A.M. Mir

forwarded ACRs of the officers with a cryptic one word assessment without filling

up the prescribed format by making any proper assessment as envisaged with a

covering letter and, therefore, it is not only necessary but inevitable for the Chief

Justice to ignore such unilateral and perfunctory remark which by no means

could be called even a report and which cannot, in our view, also be given any

credence whatsoever. Therefore, the subsequent steps taken in this regard by

the Chief Justice with the newly constituted Committee are well justified and in

accordance with law and they do not suffer from any infirmity. The fact that

subsequently it was got meticulously prepared by the Committee and the

assessment came thereafter to be duly made and further was got unanimously

approved by the Full Court will belie the bald and self-serving claims of the

petitioners, to the contrary. Neither the High Court nor this Court, in exercise of

its powers of judicial review, could or would at any rate substitute themselves in

the place of the Committee/Full Court of the High Court concerned, to make an

independent reassessment of the same, as if sitting on an appeal. On a careful

consideration of the entire materials brought to our notice by learned counsel on

either side, we are satisfied that the evaluation made by the Committee/Full

Court forming their unanimous opinions is neither so arbitrary or capricious nor

can be said to be so irrational as to shock the conscience of the Court to warrant

or justify any interference. In cases of such assessment, evaluation and

formulation of opinions a vast range of multiple factors play a vital and important

role and no one factor should be allowed to be overblown out of proportion either

to decry or deify an issue to be resolved or claims sought to be considered or

asserted. In the very nature of things it would be difficult, nearing almost an

impossibility to subject such exercise undertaken by the Full Court, to judicial

review except in an extraordinary case when the Court is convinced that some

monstrous thing which ought not to have taken place has really happened and

not merely because there could be another possible view or someone has some

grievance about the exercise undertaken by the Committee/Full Court. Viewed

thus, and considered in the background of the factual details and materials on

record, there is absolutely no need or justification for this Court to interfere in the

matter, with the impugned proceedings.

It is not anybody's case that the delay, if any, in preparing ACRs of some

or the other of the officers for all previous years or during any particular period

was deliberate and with any ulterior motive. On the other hand, dehors the plea

based upon disturbances in the area it is also highlighted for the respondent that

for want of self-assessment also the same could not be prepared and kept ready

then and there which necessitated the calling for copies of judgments rendered

by such persons for the relevant period. The grievance about alleged lack of

uniform principles or criteria in the matter of preparing ACRs for the missing

period attempted to be made by citing two instances has been properly explained

by the respondents in the Counter as well as at the time of hearing and we could

not find any infirmity in the same. That apart merely from the fact that uniformly

the third respondent has been assessed with `outstanding' gradation unlike

others, which, according to the petitioners, themselves amount to fluctuating

fortunes, it cannot be readily assumed that their claims suffered any vice of

arbitrariness or lack of rationality or uniformity. The job requirements of a

Registrar or Registrar General of the High Court, the studiousness expected of

him and the legal acumen necessary therefor cannot be so said to be of any less

importance than that required for a District & Sessions Judge trying regular cases

in the conventional courts at Districts. The plea that a new incumbent in the

office of Chief Justice or Judge of the High Court, could not be that efficacious for

assessing the merit, with reference to their past period under review, of the

candidates constituting the members of judicial service proceed upon a wrong

perception altogether and do not merit acceptance. The grievance against

alleged non-consideration of the claims of the first petitioner merely because it

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was passed over on earlier occasions, also does not merit our acceptance with

reference to the challenge now made in respect of the latest consideration. The

further grievance that the impugned proceedings according selection

grade/super-time scale do not give specific reasons or the details of what are all

the records, which have been perused, is devoid of merit. The expression

'service record' is so comprehensive and has a well-accepted meaning in service

law parlance, to leave anything for being guessed or to admit of any doubts

about the records that would have been actually considered. The grievance

made about the provisions in the guidelines for taking into account even records

for some years spread over to the service as Subordinate Judge in a given case

pales into insignificance when it is considered in the light of the object of such

consideration. The consideration in question was not for purpose of determining

the inter se seniority among the members of service in the cadre of District &

Sessions Judges, but, on the other hand, for the purpose of adjudging the

efficiency, aptitude, capability and general reputation and integrity for according

selection grade. This Court, adverting to the relevant provisions contained in the

Constitution of India in the decision reported in Shri Kumar Padma Prasad Vs.

Union of India & Ors. [(1992) 3 SCC 428), even observed that "judicial office"

would take within its fold even members of the Judiciary other than those

belonging to higher Judiciary in the State service and that though normally the

High Court Judges are appointed from members of the Bar and from among the

persons, who have held judicial posts, there is no impediment in construing the

expression "judicial service" as inclusive of wide variety of offices connected with

the administration of Justice in one way or the other. Therefore, while looking

into the performance of a District & Sessions Judge considering to some extent,

when necessitated, even performance in the post of Subordinate Judge cannot

be said to be altogether an irrelevant or impermissible consideration or exercise

and the guidelines cannot be said to be vitiated on that account alone. The

challenge to the grant of super-time scale to the third respondent on the ground

that he had put in only about nine months service as selection grade District &

Sessions Judge has no merit inasmuch as there is no minimum stipulated period

of service required, to accord such super-time scale in the rules in force and as a

matter of fact, the conspicuous omission to stipulate any such requirement would

go to show that no such criteria is a must and all or any of the selection grade

District and Sessions Judges available could become eligible for consideration.

The recommendations of Justice K. Jaganatha Shetty Commission having not

been duly implemented by any amendment of rules so far, the same cannot be

insisted upon as a binding criteria. That apart, in a given situation, there may be

no one satisfying such required service and that insisting upon any such

minimum service as selection grade District & Sessions Judge may have counter

productive result in that it may even lead to a situation where no one could be

given the super-time scale at all dehors their intrinsic merit. The absence of

reasons in the order rejecting the representations or the original resolution

granting selection grade/super-time scale, in the nature of proceedings

themselves cannot be said to be an infirmity. The noting in the files dealing with

those aspects would be sufficient record and the proceedings in the form of

resolutions cannot be expected to be in the format of a judicial order dealing with

each and every claim. As noticed supra, on going through the materials on

record and on a careful consideration of the procedure and the mechanism

followed by the Committee constituted as well as the Full Court of the High Court,

we are unable to persuade ourselves to agree to or sustain the stand of

petitioners in respect of their challenge to the impugned proceedings. We

specifically desist from making any further observations on the assertions made

relating to their entitlement based on the credentials claimed for the petitioners,

lest it may affect their future prospects of consideration in one way or the other,

when such an exercise is taken up subsequently, also. Suffice it to place on

record that the proceedings relating to the grant of selection grade/super-time

scale, which are assailed in these proceedings, are not shown to be vitiated in

such a manner as to warrant or justify the interference of this Court in these

proceedings. The challenge projected on behalf of the petitioners, therefore, fails

and shall stand rejected.

As for the grievance made by the learned senior counsel for the official-

respondents on some of the unwarranted, unjustified as well as unpleasant

remarks, allegations which tend to cast certain aspersions upon some of the

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constitutional functionaries bordering on insinuations, we are of the view that they

could have been well avoided, without even sacrificing in any manner their right

to challenge the impugned proceedings. The language used as well as the

purport of such allegations seem to be of not good taste, befitting the status of

judicial officers even when they are litigants before the Court and may consider

to have any real or genuine grievance about anything done or not done by the

authorities. Without elaborating on this aspect further, we expunge such

unwarranted remarks and observations made in Para 8 and further order deletion

of Paras 10, 15 and portions in Para (XII) of the grounds commencing from

"Naturally, therefore, respondent No.3.till the end of the said Para", in

entirety, from the record. That apart, we find that the petitioners could have

equally avoided making allegations of the nature made, in this case, to justify

their action to directly approach this Court under Article 32 of the Constitution of

India. We make it clear that we intend no damage or injury to the petitioners on

the above account, at the same time we feel constrained to and it has been

rendered necessary to say that much at least, to avoid repetition of such things in

future either by the petitioners or any such persons holding responsible positions

in the system of administration of justice, even for vindicating any of their

legitimate rights.

For all the reasons stated above, the Writ Petition fails as of no merits and

shall stand dismissed without any costs.