Hon'ble Arvind Kumar Mishra-I,J.
These two writ petitions pertain to appointment on the posts of Joint Registrar in the establishment of the Allahabad High Court covered by Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules 1976 (hereinafter referred to as the Rules 1976). These petitions have been filed by the Deputy Registrars working in the establishment of the Allahabad High Court. Both the writ petitions have been clubbed and are being decided by means of this common judgment.
The first writ petition no 45941 of 2013 has been filed by the Deputy Registrars who have to their credit a degree of law from a recognized University. They pray, that appointment on the post of the Joint Registrars by way of promotion may be made only from amongst such Deputy Registrars who are possessed of a degree of law from a recognized University. All other Deputy Registrars who do not possess a degree of law be excluded from the zone of consideration. Their submission is based on reading of Rule 20 (d) of Rules 1976 as also on the plea that several Committees of Hon'ble Judges have emphasized since 1994 repeatedly that a degree of law must be the minimum educational qualification for appointment on the post of the Joint Registrar. Such essential qualifications could not be diluted/substituted by merely providing three months training at Judicial Training and Research Institute, Lucknow (hereinafter referred to as J.T.R.I.) to the Deputy Registrar who did not have degree of law.
According to them, three months training at J.T.R.I. imparted to the Deputy Registrars, who did not have a degree of law, is only an eyewash. Such training of three months cannot be equated with a degree of law. It is their case that the training has to be an effective training so that the incumbents who do not have a degree of law may be equated with the holder of a law degree so as to be brought within the zone of consideration like law degree holders for promotion as Joint Registrar.
The 2nd Writ petition no.11142 of 2014 has been filed by the Deputy Registrars who do not have a degree of law. They seek quashing of Rule 20 (d) along with its proviso. The prayer made before the Court is, that the amendments as introduced in the Rule 20 (d) of 1976 Rules in the year 1994 be declared ultra-vires the original Rules 1976 and to the Constitution of India. They pray for a writ of mandamus for the claim of all the Deputy Registrars working in the establishment of the High Court to be considered for promotion on the post of Joint Registrar in accordance with law as was existing prior to the amendment in the year 1994 i.e. when the degree of law was not an essential qualification for being considered for promotion on the post of Joint Registrar.
Before entering into niceties of the submissions made on behalf of the parties as well as the High Court in support of their respective claims, we deem it fit and proper to record the history of the amendments which have been introduced in the Rules 1976 in so far as it pertains to the mode and manner of the appointment on the post of Joint Registrars in the establishment of the High Court.
It is admitted to the parties that prior to 06.10.1994 under Rules 20 (d), appointment on the post of Joint Registrar was by way of merit only. On 06.10.1994, a report was submitted by a Committee comprising of three Hon'ble Judges to the effect that for the post of Joint Registrar, a degree of law must be the minimum educational qualification. This report was approved by Hon'ble The Chief Justice on 11.11.1994. A notification was issued making amendments in the Rule 20 (d) on 13.12.1994 to the following effect:
"In exercise of powers conferred by clause (2) of Article 229 of the Constitution of India and all other powers enabling in that behalf, Hon'ble the Chief Justice has been pleased to make the following amendments in Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976:
Amendments Substitute the following for the existing clauses (a) to (e) of Rule 20:
(d) Joint Registrar By promotion of an Officer of the U.P. Higher Judicial Service or by promotion from amongst the Deputy Registers on merit-cum-seniority.
Notwithstanding anything contained hereinbefore the incumbent to the post of Joint Registrar must be a Law graduate of a recognized University.
Provided, however, that in an appropriate case, the Chief Justice may relax qualification of a Degree in Law.
Note:
A) These amendments will come into force with effect from the date of publication in the Official Gazette.
B) The amended Clauses (a) and (c) to Rule 20 will come into operation only after requisite sanction regarding creation of the posts of Assistant Registrars is received from the Government.
By Order of Hon'ble The Chief Justice, Registrar"
The proviso to Rule 20 (d) quote above conferred a power upon Hon'ble The Chief Justice to relax the requirement of essential qualification of a degree of law. This notification was challenged by means of writ petition no.4449 of 1996, Kalyan Chandra Srivastava Vs. Hon'ble The Chief Justice and others.
The writ petition was allowed by a division Bench on 17.12.1996 on the ground that power to grant relaxation from essential qualification of law degree was not a part of the draft Rule as approved by the High Court. Therefore, notification which including the proviso was not as per the draft rules approved by the High Court. The notification was quashed and the State Government was directed to publish a fresh notification in conformity with the draft Rules as approved by the High Court.
This led to issuance of a fresh notification on 29.01.1997. Rule 20 (d) as amended thereunder reads as follows:
"In exercise of powers conferred by clause (2) of Article 229 of the Constitution of India and all other powers enabling in that behalf, Hon'ble the Chief Justice, in compliance of the order passed by the Hon'ble Court in Writ Petition No.4449 of 1996 Kalyan Chandra Srivastava Vs. Hon'ble the Chief Justice, has been pleased to make the following amendments in Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976:
Amendments Substitute the following for the existing clauses (a) to (f) of Rule 20:
(d) Joint Registrar By promotion of an Officer of the U.P. Higher Judicial Service or by promotion from amongst the Deputy Registers on merit-cum-seniority.
Notwithstanding anything contained hereinbefore the incumbent to the post of Joint Registrar must be a Law graduate of a recognized University.
Note:- These amendments will come into force with effect from the date of publication of notification in the official gazette and govern only the future appointments.
By Order of Hon'ble The Chief Justice Registrar"
It will be seen that the earlier proviso to 20 (d) of Rules 1976 stood deleted under this notification.
From the aforesaid two notifications, it is apparently clear that non obstante clause to Rule 20 (d) contained the word "hereinbefore".
The issue with regards to the requirement of a degree of law for promotion on the post of Joint Registrar was again examined by a Committee of Hon'ble Judges afresh. The Committee comprising of three Hon'ble Judges submitted its report on 03.03.1998. In the report, it was recorded that the Committee agrees with requirement of a degree of law as the essential qualification for the post of Joint Registrar in the establishment of the High Court. Thereafter it was recommended that the Rule 20 (d) be amended as noticed in the report.
This report of three Hon'ble Judges was again accepted by Hon'ble The Chief Justice under the order dated 22.09.1998 resulting in publication of a notification dated 26.09.1998. The relevant portion thereof reads as follows:
"In exercise of powers conferred by clause (2) of Article 229 of the Constitution of India and all other powers enabling in that behalf, Hon'ble the Chief Justice has been pleased to make the following amendments in Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976:
Amendments Substitute the following for the existing clauses (a) to (f) of Rule 20:
Rule 20 (d) Joint Registrar By deputation of an officer of U.P. Higher Judicial Service or by promotion from amongst the Deputy Registrars on merit cum seniority basis.
Notwithstanding anything contained hereinafter the incumbent to the post of Joint Registrar must be a law Graduate of a recognized University.
Note:- These amendments shall come into force with effect from the date of their publication in the official gazette and shall govern only future appointments.
By Order of Hon'ble the Chief Justice Registrar."
Under the notification dated 26.09.1998 the word 'hereinbefore' stood substituted by the word 'hereinafter'. This change is the bone of contention between the parties.
We may record that subsequent to the notification dated 26.09.1998, further amendments were made in the Rule 20 (d) vide notifications dated 03.08.2005 which are not of much relevance for the dispute in hand.
So far as non-obstante clause to Rule 20 (d) of Rules 1976 is concerned, it continues to use the words '(notwithstanding anything contained hereinafter)' and in none of the subsequent amendments so effected, any change in the language was neither proposed nor was carried out.
The issue with regard to degree of law being the essential qualification for the post of Joint Registrar, was again examined by a Committee comprising of three Hon'ble Judges as per its report dated 09.12.2010. For the first time a proposal was made that training be imparted to the Deputy Registrars who did not have a degree of law at the Judicial Training and Research Institute, Lucknow to improve their knowledge of law and thereafter they may also be considered for promotion on the post of Joint Registrar. Hon'ble The Chief Justice was requested to decide the nature and duration of such training. This report was placed before Hon'ble The Chief Justice who vide order dated 28.07.2011 deferred the matter because of litigation which was pending on the judicial side before the Lucknow Bench of the Allahabad High Court.
After the matter was decided by the Lucknow Bench, Hon'ble The Chief Justice passed an administrative order on 07.02.2013 on the report of the Committee comprising of three Hon'ble Judges dated 16.01.2013, to the effect that three months training be imparted to the Deputy Registrars who are not possessed of a degree of law at J.T.R.I. and necessary amendments be carried out in 1976 Rules.
This led to the addition of proviso after non obstante clause in the Rule 20 (d). This amendment was notified on 23.02.2013 and it reads as follows:
"In exercise of the powers conferred by clause (2) of Article 229 of the Constitution of India, Hon'ble the Chief Justice has been pleased to make the following amendments in the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976:-
THE ALLHABAD HIGH COURT OFFICERS AND STAFF (CONDITIONS OF SERVICE AND CONDUCT (AMENDMENT) RULES, 2013.
1. Shot title and commencement: (i) These rules may be called as the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) (Amendment) Rules, 2013.
(ii) It shall come in force w.e.f. 21.02.2013.
2. The amendments which are to be made in Rule 20 (d) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, shall be read as under:-
By deputation of an officer of U.P. Higher Judicial Service or by Promotion from amongst the Deputy Registrars on Seniority, subject to Suitability.
Notwithstanding anything contained hereinafter the incumbent to the post of Joint Registrar must be a Law graduate of a recognized University.
Rule 20 (d) Joint Registrar By deputation of an Officer of the U.P. Higher Judicial Service or by Promotion from amongst the Deputy Registrars on Seniority, subject to Suitability.
Notwithstanding anything contained hereinafter the incumbent to the post of Joint Registrar must be a Law graduate of a recognized University.
"Provided, however, that where there are Deputy Registrars available and who are not Law graduates from a recognized University their candidature be also considered for promotion to the post of Joint Registrar provided such Deputy Registrar has undergone training conducted by J.T.R.I., Lucknow to improve their knowledge of law, required for effective functioning of Joint Registrar and after successful training from J.T.R.I., Lucknow for the period to be prescribed by the Chief Justice (03 months) be also treated as eligible for being considered for promotion."
By order of Hon'ble the Chief Justice REGISTRAR GENERAL, dt. 22.2.13"
Deputy Registrars who were not law graduates underwent training at J.T.R.I. of three months.
The claims of all such Deputy Registrars who are law graduates as well as those who had undergone training at J.T.I.R. for promotion was considered by the Committee of three Hon'ble Judges of the High Court on 17.12.2013.
The Committee in its report specifically recorded that none of the candidates had any knowledge of law whatsoever and, therefore, deferred their case for promotion with the observation that they may prepare themselves in the meantime and their case would be considered again.
It is at this stage that the first writ petition was filed before the High Court.
After noticing the recommendation of successive Committees of Hon'ble Judges, this Court was of a prima facie of the opinion that grant of relaxation in the minimum requirement of a degree of law for appointment on the post of Joint Registrar is not in the best interest of the institution and further it had to be examined as to whether by merely attending three months training at J.T.R.I., can a person be said to have acquired knowledge of law so as to effectively discharge the functions of the office of Joint Registrar in the establishment of the High Court or not. The Court directed that the matter be placed before Hon'ble The Chief Justice on the administrative side for such decision in the matter as may be warranted.
Hon'ble The Chief Justice passed an order on 11.02.2014 on the administrative side which reads as follows:
"Order In pursuance of the order dated 5 February 2014 of a Division Bench consisting of Hon'ble Mr. Justice Arun Tandon and Hon'ble Mrs. Justice Arvind Mishra-I in Lalji Singh and Ors. Vs. High Court of Judicature at Allahabad & Ors. (Writ-A No.45941 of 2013), the file has been placed before me for consideration.
Rule 20 (d) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct (Amendment) Rules, 2014 inserts the following provisions for promotion to the post of Joint Registrar:
"By deputation of an officer of the U.P. Higher Judicial Service or by Promotion from amongst the Deputy Registrars, having a minimum of two years of experience, on seniority, subject to Suitability.
Notwithstanding anything contained hereinafter the incumbent to the post of Joint Registrar must be a Law graduate of a recognized University.
"Provided, however, that where there are Deputy Registers available and who are not Law graduates from a recognized University, their candidature be also considered for promotion to the post of Joint Registrar provided such Deputy Registrar has undergone training conducted by JTRI, Lucknow to improve their knowledge of law, required for effective functioning of Joint Registrar and after successful training from JTRI, Lucknow for the period to be prescribed by the Chief Justice (03 months) be also treated as eligible for being considered for promotion.
Note: To assess the minimum merit, marks obtained in ACR & interview shall be considered. Minimum merit required for promotion from the post of Deputy Registrar to that of Joint Registrar shall be securing 65% marks in ACR and 45% marks in interview"
The non obstante provision specifies that notwithstanding anything contained "hereinafter" the incumbent to the post of Joint Registrar must be a Law graduate of a recognized University. The proviso which follows thereafter stipulates the circumstance in which persons, who are not Law graduates, can be considered as eligible for promotion after they have undergone training at JTRI. As the Rule now reads, the non obstante provision, if literally read, would override the proviso as well. This was not the intent for the insertion of the proviso. The proviso was introduced in order to ensure that those Deputy Registrars who did not hold a degree in Law from a recognized University may be considered for promotion if they have undergone training at JTRI where there are Deputy Registrars available and who are not Law graduates. The Rule, as it has been drafted, suffers from an internal inconsistency because a plain and literal meaning of the Rule would lead to an inference that the non obstante provision which requires every incumbent to the post of Joint Registrar to be a Law graduate of a recognized University would override everything thereafter including the proviso. In other words, the proviso will not achieve the object to carving out an exception to the requirement of holding a Law degree.
The second aspect which requires consideration has been emphasized in the order of the Division Bench dated 5 February 2014 and which also merits fresh consideration by the Rules Revision Committee. The Division Bench has drawn reference to the fact that three Committees, respectively, in 1994, 2004 and 2009 had opined that legal knowledge is necessary for a Joint Registrar. Subsequently, another Committee, in its report dated 9 December 2010, opined that qua those incumbents during whose continuance in service, amendments were made to introduce a Law degree as an essential qualification for promotion to the post of Joint Registrar, an exception may be carved out particularly because avenues for pursuing the LL.B. Course on a part-time basis in the morning and evening were not available. On 28 July 2011, Hon'ble the Chief Justice in his noting was of the view that existing Rule 20 (d) will have to be re-considered and that steps be deferred. Subsequently on 16 January 2013, the Committee recommended that an exercise for promotion be undertaken if a decision was taken by the Chief Justice for amendment of the Rules as proposed by the Redressal Committee. The Hon'ble Chief Justice approved the proposal for amendment of Rule 20 (d) in terms of the report dated 28 July 2011. The Rule was consequently amended.
The Division Bench has prima facie opined that mere attendance at JTRI would not serve the object of acquiring legal knowledge. The object of requiring training at JTRI is to improve the knowledge of law of the incumbent. Hence, the Rule Revision Committee may consider whether the expression 'after successful training from JTIR' needs some clarification in regard to the nature of the training and to provide for the evaluation of the judicial officers upon conclusion of the training. The principal requirement is for an incumbent to the post of Joint Registrar to be a Law graduate of a recognized University. A relaxation has been introduced for Deputy Registrars who have gone through training at JTRI to improve their knowledge of law though they are not Law graduates. The Committee may consider whether the relaxation should be made applicable in those cases where the number of candidates possessing a law degree is less than the total number of the vacancies.
In my view, it would be appropriate if Rule 20 (d) in its entirety is placed before the Rules Revision Committee for fresh consideration.
The selection process for promotion to the post of Joint Registrars has already commenced. The Deputy Registrars who are not Law graduate have already undergone training at JTRI. I have been informed by the Registrar General that the course for training was approved by the High Court and the Deputy Registrars have been graded after conclusion of the training for the purpose of evaluation. The Committee of Judges is to interview candidates on 15 February 2014. The issue as regards revision of Rule 20 (d) for the future may be considered by the Rules Revision Committee. However, at present, since the selection process has been initiated on the basis of Rules as they stand, it may be appropriate if the interviews which are to be held on 15.2.2014 are conducted by the Committee with a view to ascertaining the suitability of candidates for promotion. Whether a particular candidate has sufficient knowledge of law so as to enable him or her to discharge the duties of the post of Joint Registrar satisfactorily will be determined by the Committee during the course of interview. Since the selection process has been initiated on the basis of the existing Rules, it may be taken to its logical end on this occasion. A modification of the Rules, on the recommendation of the Rules Revision Committee may apply prospectively, thereby obviating any cause of unfairness to Deputy Registrars who have already applied in the process which is now in progress.
Sd/ Chief Justice 11.02.2014"
This Court on receipt of the order of Hon'ble The Chief Justice thought it proper to examine the amount of knowledge of law, which Deputy Registrars, who had undergone training at J.T.R.I., had obtained, by putting some questions to them in open Court.
Questions put and answers given by Deputy Registrars, have been specifically noticed in our orders dated 26.02.2014 and 27.02.2014.
We may not record any definite conclusion with regard to extent of the knowledge of law acquired by such Deputy Registrars who appeared before us but we will definitely record that at least one of them fairly admitted before us that whatever has been taught at J.T.R.I. has been lost in a month thereafter. The statement of concerned Deputy Registrar in that regard is specifically recorded in our order dated 27.02.2014.
We have gone through the syllabus which was prepared for the purpose of three months training at J.T.R.I. It comprises of following subjects:
"Duration: Three Months A General 1 Indian Legal History 2 Historical Background of Allahabad High Court, its Organization, Establishment, Different Department.
Judicial System in India.
Role and Profile of Registrar, Jt. Registrars, Dy. Registrar & Asstt. Registrar.
Basic features of Constitution of India.
Basic Laws of Evidence Act.
Salient features of Civil Procedure Code.
Salient features of Criminal Procedure Code.
Constitutional Remedies and Powers of High Court 10 Right to information Act with special reference to Allahabad High Court (Right to Information) Rules, 2006.
Allahabad High Court Rules.
i. Powers and Duties of Registrar.
ii. Executive and Administrative Business of the Court.
iii. Affidavits and Oath Commissioners & Law Relating to Oath and Affidavit.
iv. Jurisdiction of Judges sitting alone or in Division Court.
v. Hearing and Adjournment of Cases.
vi. Judgment and Degree vii. Miscellaneous Provisions.
A. Seal of the Court.
B. Judges Sitting Along & in Division Court.
C. Civil Jurisdiction of the Court.
D. Criminal Jurisdiction of the Court.
E. Service of notices.
F. Form of Oath.
G. Records of Evidence.
H. Issue of Commission.
I. Furnishing of Security.
J. Summary Determination of Appeal.
K. Civil Revision and Appeals from Appellate Orders.
L. Connecting Cases.
M. Paper Book.
N. Information of Application.
O. Approved Law Journals.
P. Miscellaneous.
i. Civil Jurisdiction.
A. Appeals and Applications.
B. Appeal and Application by or Against Legal Representative Assignee, etc. C. Presentation of Appeals and Application.
D. Service of Notices and Summoning of Records.
E. Paper Book in Cases other than First Appeals.
F. Special Provisions Relating to Proceedings in Appeals from Orders of Election Tribunals.
G. Original and Extra Ordinary Original Civil Jurisdiction.
H. Special Provision Relating to the Trial of Election Petitions.
ii. Criminal Jurisdiction A. Proceeding other than Original Trials.
B. Examination of Judgment of Sessions Judge.
C. Enforcement of Fundamental Rights.
D. Writ in the nature of Hebeas Corpus under Article 226 of the Constitution.
E. Directions, Order or Writ under Article, 226 of the Constitution other than a Writ in the nature of Habeas Corpus.
iii. Appeal to the Supreme Court of India.
A. Cases other than Criminal Cases.
B. Criminal Cases.
C. Supreme Court Degrees.
iv. Allahabad High Court Advocates, Clerks (Registration and Conducts) Rules, 1997.
v. Processes and Process-Fees.
vi. Registrars.
vii. Inspection of Records.
viii. Copies.
ix. Arrangement, Presentation and Destruction of Records.
x. Matrimonial and Testamentary Cases.
xi. Criminal Cases and Contempt of Court Cases.
xii. General 7 Important C.L., G.L. Of Allahabad High Court B.
Financial Rules:
Leave Rules 13 T.A., D.A., LTC, HTC Rules.
Fixation of Pay, ACP, Selection grade, Non Functional Pay Scale, Next Promotional Pay Scale.
Audi, a. Internal Audit.
b. Audit by A.G., U.P.
General Provident Fund Rules 17 Group Insurance Scheme 18 Pension, Family Pension & New Pension Scheme.
Loan and Advance, Calculation of Interest.
Contingencies Advances.
Store Purchase Rules 22 Auction & Tenders 23 Duties & Responsibilities of DDOs.
Delegation of Powers:
a. Administrative.
b. Financial.
Bills and Control Registers.
Cash handling Rules & Procedure.
Court Deposits, Fines, Grants and Cash Deposits.
C Service Law and Departmental Enquiry 1 Important Features of Service Rules of:
a. Allahabad High Court Officers and Staffs (Conditions of Service and Conduct) Rules, 1976. b. Allahabad High Court Private Secretaries (Conditions of Service) Rules, 2001.
c. Allahabad High Court Bench Secretaries (Conditions of Service) Rules, 2005.
d. Allahabad High Court Computer Cadre Service Rules 2010.
e. Allahabad High Court Staffs Car Drivers (Conditions of Service and Conduct) Rules, 2000. 2
Conduct & Misconduct.
Disciplinary Proceedings.
Principles of Natural Justice.
Suspension & Subsistence Allowance.
Punishment & Appeal Rules 7 Protection to Government Servants under Constitution of India D Powers and Duties of the Registrars 1 Duties and Responsibilities of Joint Registrar (Listing) and working of Listing Section.
Duties and Responsibilities of Joint Registrar (Protocol) and working of Protocol Selection.
Duties and Responsibilities of Joint Registrar (Administration) and working of Administration Section.
Duties and Responsibilities of Joint Registrar (Selection and Appointment) and working of Selection & Appointment Section.
Duties and Responsibilities of Joint Registrar (Services) and working of Service Section.
Duties and Responsibilities of Joint Registrar (Administration) and working of Establishment Section.
Duties and Responsibilities of Joint Registrar (Inspection) and working of Inspection Section.
Duties and Responsibilities of Joint Registrar (Computers) and working of Computers Section.
Duties and Responsibilities of Joint Registrar (Listing & Classification) and working of Listing & Classification Section.
Duties and Responsibilities of Joint Registrar (Confidential) and working of Confidential Section.
Duties and Responsibilities of Joint Registrar (Bhasha & Establishment) and working of Bhasha and Establishment Section.
Duties and Responsibilities of Joint Registrar (Budget & Civil Court) and working of Budget and Civil Court Section.
Duties and Responsibilities of Joint Registrar (Accounts) and working of Account Section.
Duties and Responsibilities of Joint Registrar (Miscellaneous) and working of Miscellaneous Section.
Duties and Responsibilities of Joint Registrar (Copying) and working of Copying Section.
Duties and Responsibilities of Joint Registrar (Nazarat) and working of Nazarat Section.
Duties and Responsibilities of Joint Registrar (Litigation & Administration) and working of Litigation & Administration Section.
E Judicial Provisions, Practice & Procedure:
Law relating to service of notices, Process Warrants.
Format of Memorandum of Appeal or Objection, Petition or Applications, Formal defects and their removal.
Substitution (Or XXII C.P.C.) 4 Appointment of Next Friend, Guardian and Litigants.
Law and procedure of Appeal/Special Appeal/SLP etc. and Role of Registrar.
Limitation Act.
Stamps Act.
Furnishing of security bond under the provision of Rule 10 of order XLI of C.P.C.
Compliance of Court orders, in the exercise of its original, ordinary or extra ordinary jurisdiction.
Practical Training/Field Training Two days training in every Section/Department of High Court to observe the functioning and maintenance of records of the Sections/Departments"
From the records which have been submitted before us, we also find that legal training was imparted to the Deputy Registrars between 26.08.2013 to 25.09.2013 i.e. for a period of 21 teaching days. Similarly we find that field training was undertaken by the same Deputy Registrars between the period 26.09.2013 to 25.10.2013 i.e. in the second month in various Sections of the High Court, total working was for 20 only and lastly legal training was again provided between 30.10.2013 to 25.11.2013 i.e. for 17 working days only.
Having regard to the curriculum of the judicial training as approved by the High Court noted hereinabove and the time duration of the training noticed above it cannot be said with certainty that Deputy Registrars some of whom are only Class XII pass, could be taught such a curriculum within a period of 38 days if both legal training periods are clubbed together.
We may record that what was proposed by the Hon'ble Committee while suggesting the training to Deputy Registrars who were not law graduates at J.T.R.I. was an effective training so that Deputy Registrars without degree of law may obtain knowledge of law. In our opinion, the time duration for training vis-a-vis the curriculum fixed is too short for any reasonable man to come to a conclusion that Deputy Registrars can improve their knowledge of law in respect of such vast curriculum in 38 days of teaching but we leave the issue to be examined by Hon'ble The Chief Justice inasmuch as training should not be a farce. There should not be a mock training of the Deputy Registrars without degree of law so that they may somehow or other set up a claim for being treated at par with the Deputy Registrars who possess the degree of law.
We also recommend to Hon'ble The Chief Justice that he may also satisfy himself as to whether test conducted at J.T.R.I. after training period was only a pretence of an examination or real examination and what role has been played by J.T.R.I. in that regard.
We request the Hon'ble The Chief Justice to revisit the curriculum fixed for training of Deputy Registrars at J.T.R.I. not only in respect of its course contents but also in respect of the training period of three months. There has to be actual teaching of law on the assigned subjects and a fair evaluation after the training is over.
From the records submitted by J.T.R.I., we find that each of Deputy Registrars had submitted a project report running into 450 pages in English and they had also prepared note sheets in respect of their practical training in various Sections of the High Court in English.
We request Hon'ble The Chief Justice to get the project reports and notes prepared by Deputy Registrars in respect of their field training examined and to satisfy himself as to whether the project reports and field training notes have been prepared by the officer concerned or have been got prepared through out sourcing. This we are recording only to ensure that what is contemplated by judicial training should not be rendered a formality of mere physical presence at the J.T.R.I. What knowledge has been gathered is the real test of training being successful or not.
Sri Shailendra, Advocate contends before us that Deputy Registrars with the a degree of law also failed in the same manner before the Selection Committee for they also could not answer any of the questions put to them by the Selection Committee comprising of three Hon'ble Judges. He, therefore, submits that knowledge of law possessed by holders of degree of law and the Deputy Registrar who had undergone the training at J.T.R.I. is practically the same. Both have little or no knowledge of law. Therefore, this Court may not question the training at J.T.R.I.
In our opinion, the contention, has only been raised to be rejected. Suitability for a post and eligibility for the post are two distinct concepts in service jurisprudence. The Deputy Registrars who do not have a degree of law were not eligible to be considered for promotion on the post of Joint Registrar prior to the notification dated 21.02.2013. This eligibility is sought to be infused into them by providing that they may undergo three months training at J.T.R.I. This training will bring them within the zone of consideration along with other Deputy Registrars who are law graduates.
The issue of suitability comes later. The suitability is to be adjudged between all eligibles candidates in the matter of promotion. If the Selection Committee has not found Deputy Registrars without a degree of law as suitable for promotion, it cannot be said that they are to be treated at par with ineligibles.
We may now turn to the basic issue which has been canvassed before us i.e. as to what, is the meaning of the non obstante Clause to Rule 20 (d) as it stands on record today.
It is not in doubt that the words as contained in the non obstante clause to Rule 20 (d) as it stand today are "(notwithstanding anything contained hereinafter)", a candidate must be possessed of a degree of law for being considered for appointment on the post of Joint Registrar, by way of promotion. The words "(notwithstanding anything contained hereinafter)" would not only include the proviso which has been added subsequent to the non obstante clause but also the Rules subsequent to Rule 20 (d) including Rules 41 and 45 of Rules 1976.
A simple reading of the said proviso to Section 20 (d) which is in the nature of a non obstante clause would mean that irrespective of whatever is provided after the said clause in the Rules of 1976, a candidate to be promoted on the post of Joint Registrar must be possessed of degree of law as the minimum essential qualification. It shall override every other rule, sub-rule thereafter, including the proviso added under Notification dated 21.02.2013.
We record that whatever may be the purpose of introduction of the proviso after non obstante clause in Rule 20 (d), the language of non obstante clause does not permit this Court to take any other different view even if there is an error of drafting, the same needs to be corrected by suitable notification/amendment.
This Court in view of the precise and unambiguous words of the non obstante clause has to expound these words in their natural and ordinary sense. So long as the language of the non obstante clause stands, no person other than Deputy Registrar with a degree of law can be considered for promotion on the post of Joint Registrar. The counsel for the Deputy Registrars without a degree of law submits that the Court may resort to interpretation of the provision which may support the purpose for which the proviso has been introduced rather than defeating the object for which such proviso was added. For the purpose, reference has been made to the judgment reported AIR 1964 SC page 179 T. Devadasan Vs. Union of India and another, AIR 1980 SC page 892 Vishesh Kumar Vs. Shanti Prasad.
There can be no dispute with regard to Rule of interpretation as laid down under the aforesaid judgments. But the question of interpretation would arise only if meaning of the words is not simple or its simple meaning cannot be ascertained. The fundamental principle of interpretation is that if words are simple and carry only one meaning then no more can be necessary than to expound those words in their natural sense. The words themselves do alone in such cases best declare the intent of the law giver. Ref: Sussex Peerage Case 1844 11 Cl. and F 85 page 143 which has been followed by the Apex Court repeatedly.
The Apex Court has held that: 'when a language is plain and unambiguous and advent of only one meaning no question of construction of a statute arises, for the Act speaks for itself. The results of the construction are then not a matter for the Court even though they may be strange, surprisingly unreasonable or unjust or oppressive. Ref: State of U.P. and others Vs. Dr. Vijay Anand Maharaj (AIR 1963 SC 946 page 946. 950), Commissioner of Agricultural, Income Tax West Bengal Vs. Keshab Chandra Mandal (AIR 1950 SC 265), Nasiruddin and others Vs. Sita Ram Agarwal 2003 (2) SCC 577 page 588. It is appropriate to reproduce the law as stated in the words of Gajendragadker (J) in the case of Kanai Lal Sur Vs. Paramnidhi Sadhukhan AIR 1957 SC 907 page 910: If the words used are capable of one construction only then it would not be open to the Court to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.
In the facts and circumstances of the case, we are of the considered opinion that non obstante clause to Rule 20 (d) does not advent of any relaxation in the matter of Deputy Registrar to be considered for promotion except when he is possessed of a degree of law from recognized University notwithstanding anything provided thereafter which will include the proviso added to Rule 20 (d) under notification dated 21.02.2013.
Sri Shailendra, Advocate for Deputy Registrars who do not possess a degree of law, contends that prayer no.1 as made in writ petition no.45941 of 2013 cannot be granted inasmuch as the petitioners have prayed for quashing of Rule 20 (d) specifically proviso added after non-obstante, clause when proper relief should have been a writ of mandamus, as has been laid down by the Apex Court in the case of Probodh Verma and others Vs. State of U.P. and others 1984 UPLBEC page 771.
We may record that there can not be any dispute with regard to legal proposition of law which has been laid down by the Apex Court in the case of Prabodh Verma (supra) but at the same time technicalities need not be permitted to defeat substantial justice. The Apex Court has repeatedly held that where substantial justice and technicalities are pitted against each other, the interest of substantial justice must prevail. All Courts and Tribunals have been constituted for furtherance of interest of substantial justice and not to defeat the same on technicalities. Reference- Jai Jai Ram Manohar Lal vs. National Building Material Supply; AIR 1969 SC 1267 and Ghanshyam Dass & Ors. Vs. Dominion of India & Ors; (1984) 3 SCC 46.
Even otherwise we recorded that the last prayer made in the writ petition, is, that this Court may pass such orders or grant such relief as it may deem fit and proper. When Rule 20 (d) proviso added under notification dated 21.02.2013 is under question in the present writ petition and even if there is a mistake in the proper relief of mandamus, in place of certiorari, this Court can always grant the correct relief in the nature of mandamus instead of a writ of certiorari.
The other ground on which the aforesaid contention is liable to be rejected by this court is that even if the prayer for proviso to Rule 20 (d) being quashed is not granted, other relief prayed for by the petitioner, based on simple reading of non-obstante clause as noticed above qua non-law graduate Deputy Registrars being not eligible to be considered in the matter of promotion on the post of Joint Registrars has to be granted by this Court as the words of the non abstante clause advent of no other meaning.
It has also been contended on behalf of the respondents that once the petitioners have taken their chance before the Selection Board they cannot be now permitted to question the process of selection. The contention raised in that regard is wholly misconceived. The petitioners are not challenging the process of the selection, which has been initiated. They are aggrieved by consideration of the candidates who are not ineligible in terms of Rule 20 (d) for the post of Joint Registrar. The objection is that ineligible candidates cannot be equated with eligible candidates in the process of selection. The Deputy Registrars without degree of law do not come within the zone of consideration and, therefore, they are not with the feeding cadre for the purpose of promotion on the post of Joint Registrar.
We are, therefore, of the opinion that the petitioners of writ petition no.45941 of 2013 are entitled to a writ of mandamus to the effect that only those Deputy Registrars who possess a degree of law alone are entitled to be considered for appointment on the post of Joint Registrar on simple reading of Rule 20 (d) along with non obstante clause.
We may now turn to writ petition no.11142 of 2014, which has been filed by Deputy Registrars who do not have a degree of law. Relief prayed in the writ petition is to declare first proviso as introduced to Rule 20 (d) in the year 1994 to Rules 1976 as ultra vires and further to issue a writ of mandamus commanding the High Court to consider the claim of the petitioners for promotion on the basis of the Rules as existing prior to introduction of proviso vide notification dated 13.12.1994.
It is the case of the petitioners that as per Rules introduced in 1976, there was no restriction with regard to consideration of the claim of Deputy Registrars for the promotion on the post of Joint Registrars. Rules 1976 up to the year 1994 did not require the incumbent working on the post of Deputy Registrar to possess a degree of law so as to come within the zone of consideration for promotion on the post of Joint Registrar.
The petitioners of 2nd writ petition who had entered into service in the establishment of the High Court prior to the year 1994 had legitimate expectation that they would in due course of time become eligible to be considered for promotion on the post of Joint Registrar even without a degree of law. Any condition introduced by amending Rule 1994 would be arbitrary and violative of original Rules of 1976 as well as the principle of legitimate expectation.
Sri Shailendra also contended that it was not a conscious decision of the rule making authority to substitute the words "notwithstanding anything contained hereinbefore" by the word "notwithstanding anything contained hereinafter" in Rule 20 (d). Such change in language has only crept in because of wrongful reproduction of existing Rule by O.S.D. in his report leading to the amendment in Rule 20 (d) in the year 1998. He, therefore, submits that such change in the phraseology of non-obstante clause vide notification of the year 1998 was not made because of any conscious decision of Hon'ble The Chief Justice. It is apparently an error in the text sent for publishing. In view of the judgment of the High Court in the case of Kalyan Chand Srivastava Vs. Hon'ble Chief Justice, High Court, Allahabad and others (1996 ( 4 UPLBEV 2670, this error is liable to be corrected.
An impleadment application has been filed on behalf of Lal Ji Singh and others in writ petition no.45941 of 2013 and stand which has been taken in their writ petition has been reiterated before us and further in reply to the submissions made by Sri Shailendra it is submitted on their behalf that petitioners are not eligible to be considered for promotion as per existing Rule 20 (d). They have neither a degree of law in their favour nor they have undergone the training at J.T.R.I. Therefore, as per the Rules 1976, they have no right to be considered for promotion on the post of Joint Registrar.
We may first deal with the issue as to whether there has been conscious decision by the High Court in substituting the words "hereinbefore" as contained in non-obstante clause to Rule 20 (d) by the words "hereinafter" as per notification dated 26.09.1998 or not.
From the records, we find that a Committee comprising of three Hon'ble Judges was constituted by Hon'ble The Chief Justice vide note dated 24.02.1997 in the matter of promotion of employees of the High Court to the next higher grade/post. This Committee in its report dated 03.03.1998 recorded the following vis-a-vis the post of Joint Registrars:
"The committee also agrees that the Joint Registrar should be appointed in the manner as suggested by the O.S.D. (E). Since the committee of Hon'ble Mr. Justice U.P. Singh recommended that the Joint Registrar must be a law graduate hence that must also form part of the relevant rule.
The note of the O.S.D. (E) also mentions that due to inadvertent mistake on the part of the then O.S.D. (E) the notification was not correctly issued with the result that this Court, on the judicial side, had also declared illegal the provisions relating to the appointment on the post of Additional Registrar. The committee has examined this aspect of the matter and agrees with the office report that the amendments which were published in the official gazette should again be inserted in the rules and the rules be accordingly amended.
Thus, the following amendments should be made in the Allahabad High Court Officers & Staff (Conditions of Service and Conduct) Rules, 1976:-
Rule 20 (d) Joint Registrar By deputation of an officer of U.P. Higher Judicial Service or by promotion from amongst the Deputy Registrars on merit cum seniority basis.
Notwithstanding anything contained hereinafter the incumbent to the post of Joint Registrar must be a Law Graduate of a recognized University.
This report of the Committee comprising of three Hon'ble Judges was approved by Hon'ble The Chief Justice under order dated 22.09.1998. It is only thereafter notification dated 26.09.1998 wherein the words "notwithstanding anything contained hereinafter" finds mention was published.
We may record that Rule 41 of Rules 1976 conferred as it then stood residuary power upon Hon'ble The Chief Justice to make such orders, from time to time, as he may deem fit in regard to all matters, incidental or ancillary to these rules, not specifically provided for herein or in regard to the matters as have not been sufficiently provided for. Similarly Rule 45 of Rules 1976 confers a power upon Hon'ble The Chief Justice to make such orders as he may consider fit, in respect of recruitment, promotion, confirmation or any other matter.
We may record that Rules 41 and 45 of Rules 1976 have been interpreted by five Hon'ble Judges Bench of this Court in Public Interest Litigation No.54860 of 2004, In Re: Regularization of Class IV Employees of The High Court of Judicature at Allahabad, decided on 18.09.2013.
It has been held that it conferred powers upon Hon'ble The Chief Justice to make orders notwithstanding anything contained in Rules of 1976 in the matter of recruitment, confirmation etc. It is also reflected from the said Full Bench judgment that Hon'ble The Chief Justices have been making orders for appointment in exercise of powers under Rules 45 without the procedure prescribed in Rules 1976 being adopted.
We may need not repeat the facts which have been noticed in regard by the Constitution Bench judgment.
It is for the purpose of ensuring that even The Hon'ble The Chief Justice may not issue an order under Rule 41 or Rule 45 for promotion of Deputy Joint Registrar who does not possess a degree of law by way of promotion as Joint Registrar such non obstante clause had been introduced in Rule 20 (d). The word used in the non-obstante clause "notwithstanding anything contained hereinafter" is a conscious decision of the Committee as approved by Hon'ble The Chief Justice, only to safeguard and even the Hon'ble The Chief Justice may not issue orders for appointment of the person as Joint Registrar who is not a law graduate. Rule making power vests in Hon'ble The Chief Justice under Article 229 of the Constitution of India. If Hon'ble The Chief Justice decided to regulate the procedure in the matter of appointment of employees in a particular manner and to ensure that only law graduates are promoted on the post of Joint Registrar, and even he may not breach the said statutory requirement, it cannot be said that any mistake has been committed or that the power of rule making authority, has been whittled down.
We are of the considered opinion that the High Court after due application of mind had substituted the word "hereinbefore" in the non obstante clause of Rule 20 (d) by the word "hereinafter" so as to cover the orders which may be made by Hon'ble The Chief Justice under Rules 41 and 45 of Rules 1976.
There is another reason to reject the contention which has been raised on behalf of the petitioners i.e. there was no other academic qualification prescribed in the matter of promotion from the post of Deputy Registrar to that of Joint Registrar in any rule above 20 (d) of 1976 Rules. Therefore, in fact there was no requirement of non obstante clause with word "hereinbefore" being introduced as no provision above Rule 20 (a) of Rule 1976 provides for any qualification in the matter of promotion as Joint Registrar at the relevant time.
The plea that Rule 20 (d) as amended in 1994 is ultra vires, the original rules as incorporated in 1976 also has no legs to stand. The rule making authority namely the Hon'ble The Chief Justice has the power under Article 229 of the Constitution of India to decide for himself as to what academic qualification would be required for a particular post. If in his wisdom after obtaining opinion from the Committee comprising of three Hon'ble Judges, he has decided that a person to be appointed on the post of Joint Registrar must have a law degree, the petitioners cannot contend that any error has been committed. The power of Hon'ble The Chief Justice to frame the rules includes the power to amend the Rules and to add qualifications which were not so provided at the time when the original rules under Article 229 were framed in 1976.
The principle of legitimate expectation is also not attracted in the facts and circumstances of the case.
The petitioners have deliberately not disclosed as to on what post they were actually working in the year 1994 when a degree of law was made an essential qualification for promotion as Joint Registrar, whether they were in the feeding cadre of Deputy Registrars or not. Unless the petitioners were in the feeding cadre of Deputy Registrars in the year 1994 when the said educational qualification was introduced in Rule 20 (d), the question of legitimate expectation as convassed before us would be too farfetched to be accepted by this Court.
Even otherwise the petitioners have no vested right to be promoted as Joint Registrar they have at best a right to be considered for promotion on the post of Joint Registrar, on a date when their term for such promotion comes as per their seniority provided they satisfy essential qualification prescribed under the Rules applicable on that date.
We may record that vires of a Rule can be challenged, (a) if the rules violate the provision of the Parent Act under which rule making power has been conferred; (b) it violates any of the fundamental right guaranteed by the Constitution of India; (c) the authority framing the rule had no authority to do so. It is not case of the petitioners that Hon'ble The Chief Justice did not have the power to frame the Rules, no violation of any constitutional provision could be shown except for the plea of legitimate expectation.
No other point was pressed before us. Writ petition no. 11142 of 2014 has no merit.
We hereby allow writ petition no.45941 of 2013 and hold that only such Deputy Registrars would be eligible for consideration for promotion on the post of Joint Registrar who have a degree of law from a recognized University. Writ petition no.11142 of 2014 is dismissed.
Registrar General is directed to place this order before Hon'ble The Chief Justice for consideration of the matters as per the observation made by us i.e. in the matter of training of Deputy Registrars to be imparted at J.T.R.I. and the manner in which training has been so imparted.
The original records of J.T.R.I. produced before this Court be returned to the counsel for the High Court.
Order Date :- 6.3.2014 rkg