Tanveer Mustafa v. Union Territory of JK & Ors

O R D E R 01.08.2022

1. The petitioner is a Class IV employee working in the J&K Judicial Academy (for short the Academy hereinafter) of the High Court. He has preferred this writ petition aggrieved by the order dated 1st July 2021 passed by the Director of the Academy rejecting his representation whereby petitioner has sought promotion on the post of Junior Assistant.

2. It is important to note that under the directions of the Supreme Court contained in the All India Judges Association vs. Union of India & Ors. AIR 1992 SC 164, every State was directed to have a State Level Institute for imparting training to the judicial officers. Accordingly, the High Court of J&K established the above Academy.

3. The then Government of J&K on the recommendation of the High Court accorded sanction to a set of rules governing the functioning of the Academy and the matters relating to qualification and service condition of its employees. The said rules upon being sanctioned by the State Government came to be known as J&K Judicial Academy Rules 2007. WP (C) No.1635/2022 Page 1 of 4

4. The Full Court of the High Court vide resolution dated 31st December 2020 in order to strengthen the functioning of the Academy and in its overall interest resolved to merge the staff of the Academy with the establishment of the High Court and to recognize their services to be part of the High Court. Accordingly, J&K Judicial Academy Rules 2007 came to be amended vide Government Order No. 4018-JK(LD) of 2021 dated 23.07.2021 providing that the appointment of officers and employees to any post sanctioned on the establishment of the J&K Academy shall be made in accordance with the Jammu and Kashmir High Court Staff (Conditions of Service) Rules 1968 as amended from time to time.

5. Mr. Salih Pirzada, learned counsel submits that the High Court had earlier framed draft rules under Section 30 of the Civil Courts Act 1920 and that if the said draft rules are taken into consideration on the five vacant posts of Junior Assistant in the Academy, the petitioner is eligible for promotion, but the Director by the impugned order dated 1st July 2021 has refused promotion to the petitioner stating that he can only be considered later on after the merger is completed on the approval by the Government of Union Territory of J&K.

6. Mr. Salih Pirzada, learned counsel has placed reliance upon Section 30 of the Civil Courts Act and the three decisions of the Supreme Court Abraham Jacob & Ors. vs. Union of India (1998) 4 SCC 65, Vimal Kumari vs. State of Haryana & Ors. (1998) 4 SCC 114 and Union of India & Anr. vs. V. Ramakrishnan & Ors. (2005) 8 SCC

7. It may be pertinent to mention here that the representation of the petitioner for grant of promotion to the post of Junior Assistant has not been turned down, but in effect the request has been deferred by stating that it cannot be considered at this stage because of the merger of the staff of the Academy with the establishment of the High Court, as a result whereof the promotions would then be made in accordance with the Jammu and Kashmir High Court Staff (Conditions of Services) Rules 1968. WP (C) No.1635/2022 Page 2 of 4

8. In short, the petitioner is claiming benefit on the basis of the draft rules.

9. The draft rules were framed by the Hon’ble Judge In-charge of the Academy in the year 2019. The Chief Justice directed to place the said rules for consideration of the Full Court. The said draft rules have not been accepted and approved either by the Chief Justice or by the Full Court and, as such, have not seen the light of the day. The said draft rules cannot be implemented especially in view of the existing J&K Judicial Academy Rules 2007 as amended by the Rules of 2021.

10. A reading of Section 30 of the Civil Courts Act would reveal that it provides for the appointment of the ministerial staff of the District Court and has nothing to do with the staff of the Academy or the establishment of the High Court. Therefore, in exercise of powers under Section 30 of the Civil Courts Act, no rules can be framed for the purposes of the employees and staff of the Academy or for the establishment of the High Court.

11. One of the decisions cited by the counsel for the petitioner, Union of India & Anr. vs. V. Ramakrishnan & Ors. supra categorically lays down that the draft rules framed during the validity of the existing rules cannot be enforced and made operative. The draft rules herein cannot be enforced and implemented during the operation of the validly framed rules i.e., J&K Academy Rules 2007 which have a statutory flavour inasmuch as they have been framed in the light of the decision of the Supreme Court in the All India Judges case supra.

12. The aforesaid decision also in unequivocal terms states that the principle in Abraham Jacob & Ors, Vimal Kumari & Gujarat Kishan Mazdoor Panchayat that draft rules can be enforced is applicable only when there are no rules governing the matter and the recruitment is governed by the departmental instructions. This is not the position in the case at hand. The academy has its own J&K Judicial Academy Rules 2007 in place and the recruitment thereto is not being governed by any executive instructions. Therefore, the draft rules which in effect have not been accepted by the Chief Justice and approved by the Full Court has no application whatsoever and that the services of WP (C) No.1635/2022 Page 3 of 4 the staff employees of Academy shall continue to be governed by the specific rules in vogue and as amended from time to time.

13. This apart, even the decision of Vimal Kumari’s case provides that the draft rules cannot be followed if there is no intention to notify them as they do not have the statutory character. The draft rules framed as aforesaid have not yet been approved by the Full Court and, as such, there can be no proposal or intention to notify the same as on date.

14. In view of the aforesaid facts and circumstances, the writ petition is devoid of merit and is dismissed with no order as to costs. (WASIM SADIQ NARGAL) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE SRINAGAR 01.08.2022 Altaf Whether the order is reportable? Yes WP (C) No.1635/2022 Page 4 of 4