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Whether Executive Instructions can in fact Supersede or can Substitute Statutory Rules Framed [JUDGMENT]

Administrative Law - Whether the executive instructions can in fact supersede or can substitute the statutory rules framed - Discussed.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
CWP No.10362 of 2012
Date of decision: 24 th July, 2018
Hira Singh and others v. Union of India & others
For the Petitioners : Ms.Ranjana Parmar, Senior Advocate with Ms. Rashmi Parmar, Advocate.
For the Respondents: Mr. Shashi Shirshoo, Central Government Counsel.
J U D G M E N T
Tarlok Singh Chauhan, Judge.
The petitioners have filed this petition for grant of the following substantive reliefs:- 
“i) That the order dated 19th June, 2012 may kindly be quashed and set aside and the respondents may kindly be directed to revise the pay of the petitioners as directed by the Hon’ble Court and in pursuance to the letter dated 15.4.2011 with all consequential benefits.
ii) That the respondents be directed to promote the petitioners as Head Constables with effect from 2002 with all consequential benefits.” 
2. It is not in dispute that as regards A.C.P., the same already stands granted from the due date during the pendency of the writ petition and now the only question that survives for adjudication is one relating to the promotion of the petitioners. Petitioners No.1 to 3 were recruited as Constables with the respondents and joined in the year 1986. Petitioners No.1 and 3 joined on 13.10.1986, whereas, petitioner No.2 joined on 17.11.1986. As regards, petitioner No.4, he joined with the respondents on 27.08.1990. It is averred that the petitioners were entitled to be promoted to the post of Head Constable and granted A.C.P. with effect from 1999, however, the respondents informed that there was ban on promotions and, therefore, no higher rank can be given to them. While, on the contrary, the juniors to the petitioners, who were working in other Battalions were promoted to the next higher post. The right for consideration of the petitioners was, therefore, infringed when the respondents did not consider the case of the petitioners for promotion and juniors were promoted as Head Constables in other Battalions. This constrained the petitioners to file detailed representations, but to no avail. The respondentsinformed that the posts of L/NK(GD) and NK(GD) were not abolished in SSB, whereas, in other CPMFs, the posts mentioned had been abolished. That being the case, the respondents could not have adopted two parameters to the employees working in one institution as Constables working in other Battalions were given promotion to the next higher post of Head Constable, NK/L/NK, whereas, the petitioners were ignored for such promotions only on the ground that there was ban on the promotions.
3. It is in this background that the instant petition has been filed for the reliefs as already set out above.
4. The respondents opposed the petition by filing reply wherein it has been averred that before intermixing of SSB Units, the seniority of Constables (GD), LNK(GD) and NK(GD) was being maintained at Battalion level, hence, there was no relevance of promotions of junior Constables/LNK or NK(GD) of other units with the petitioners as the seniority was being maintained at the respective unit level. In addition thereto, it has been averred that even though the petitioners had completed 12 years of regular service, but did not qualify the prescribed promotional courses up till 09.10.2002 and, therefore, they were not promoted.
5. In rejoinder to the reply, in addition to reiterating the averments as contained in the writ petition, it is contended that asfar as the promotion to the post of Head Constable/Naik is concerned, no training or course is required to be undertaken by the incumbent, who is matriculate, like the petitioners.
6. This petition came up for consideration on 16.09.2016 and this Court passed the following orders:- 
“Heard for some time. Let respondents file better particulars elaborating on the averments made in para 4 of the reply, more particularly with regard to the period when the process of promotion was kept in abeyance and also explain the circumstances as to how and why the constables in the other units were promoted as per existing vacancies and seniority in their respective units. Let needful be done within six weeks. List on 26th October, 2016.” 
7. In compliance to the aforesaid directions, the respondents filed supplementary affidavit wherein it was stated that the SSB was brought under the administrative control of Ministry of Home Affairs from Cabinet Secretariat with effect from 15.01.2001. Before shifting of SSB from Cabinet Secretariat to Ministry of Home Affairs, seniority of Constables (GD) for promotion to the rank of Lance Naik, Naik and HC (GD) was maintained at Group Centre level which is now known as Battalion. Further, it was submitted that seniority of Head Constable for promotion to the rank of SI (GD) was maintained at Divisional level, now Frontier Headquarters. After shifting of SSB to Ministry of Home Affairs, inter-se seniority of alldecentralized cadres was finalized with effect from 01.04.2003 in accordance with Force Headquarters. SSB fax message number 755 dated 17.02.2003, memorandum No. 1599-1650 dated 30.05.2002 in accordance with the provisions of Rule-8 of the CRPF Rules which were applicable to the Force. It has also been clarified that initially the seniority of Constables to Head Constables was being maintained independently in all Group Centres. Personnel who had joined new Group Centres because of the fact of existing vacancies in the new Group Centres got their promotions prior to the petitioners and similarly placed other individual personnel because of the fact that vacancies were existing in the new Group Centres. Seniority of one Group Centre could not be compared with the seniority of another Group Centre as both were independent of each other and seniority upto a particular level was maintained separately as per the recruitment and promotion rules.
8. Thereafter, the matter came up for hearing before this Court on various occasions, however, when the case came up for hearing on 08.03.2018, this court passed the following orders:- 
“Heard for some time. The respondents are directed to produce the records relating to service particulars of Narain Chand, Assistant Commandant, presently posted at 11BN, Didihat, Uttarakhand and further produce the records pertaining to Jagdish Ram Bhatt, Assistant Commandant, presently posted at ATC Kumarsain, Raj Kumar Thakur,Assistant Commandant, presently posted at FTR LKO and Chain Singh, Assistant Commandant, presently posted at 07 BN, on the next date of hearing.
List on 23.04.2018.
Copy ‘dasti’.” 
9. In compliance to the orders, the respondents have placed on record certain documents which clearly show that as regards Narain Chand and Jagdish Ram, both the persons were appointed much later to petitioners No.1 to 3 on 09.11.1987 and 11.11.1987. Not only this, both these persons were promoted to the post of Lance Naik (GD) and thereafter to the post of Naik (GD) and subsequently Naik (GD) to Head Constable General Duty. Lastly, it is averred that the SSB was governed by CRPF Act and Rules and has its own promotion rules as prescribed by the Cab. Sectt. as SSB was under the control of Cab. Sectt. 
I have heard the learned counsel for the parties and have gone through the records of the case.
10. It is not in dispute that petitioners No.1 to 3 are admittedly senior to Shri Narain Chand and Jagdish Ram, yet they were denied promotion only on the basis of instructions issued by the Cabinet Secretariat on 04.08.1966, the relevant portion whereof reads thus:- 
“Cabinet Secretariat 
Department of Cabinet Affairs
B.O. EA/S-Armed-9/68 New Delhi the 4th Aug 1966 
Shri M.M.L. Hooja, 
Director General Security, 
R.K. Puram, 
New Delhi 
Subject:- Raising of three battalions on modified I.T.B.P Battalions pattern for SSB work in NEFA.
…….
Sir, 
In continuation of this Secretariat letter No.EA/SArmed -9/63 dt. 31.8.1965, the President is pleased to sanction the following organizational and administrative set up for the three Armed Police Battalions sanctioned therein.
(i) The SSB Battalions will be raised under the CRP Act, 1949. The CRP Rules 1955 as amended from time to time will apply to these Battalions except to the extent special provisions are made by this Secretariat. It will be under the overall control of the Director SSB who will be its ex-officio Special Inspector General.
(ii) The administrative and operational control of the SSB Battalions will vest in the Divisional Organisers under whom they are placed. The Divisional Organisers will be ex-officio DIGs of the Battalions under their respective charge and will exercise the disciplinary and other powers equivalent to that of a DIG in the CRP Rules.
Yours faithfully, 
Sd/- 
(V.P. Singhal) 
Deputy Secretary to the Cabinet 
Copy to : Director of Accounts (Shri F. Saran, Ca. Sectt) 
Sd/- 
Deputy Secy to the Cabinet.” 
11. It is further not in dispute that the seniority of the petitioners and the aforesaid persons is required to be determined ofthe entire Battalions under Rule 8 and not unit wise as has been done by the respondents.
12. However, it is vehemently contended by Shri Shashi Shirshoo, learned Central Government Counsel, for the respondents that in terms of the instructions issued by the respondents, the appointment/promotion in GD Cadre upto the rank of Head Constable was required to be maintained at unit level as recruitment of SSB Organization was different from those of CRPF. The memorandum dated 11th June, 1984, reads thus:- 
“MEMORANDUM 
According to existing instructions appointments/promotion in G.D. cadre upto the rank of Head Constable are made at unit level and that of SI(GD) at Divisional level.
The matter has been engaging attention of this Directorate for a long time as to whether the existing practice should continue or recruitment/promotion up to the rank of Head Constable (GD) should also be centralised. It has been decided after due consideration that existing practice of appointment/promotion in GD Cadre up to the rank of Head Constable should continue at unit level as recruitment of SSB Organisation on different from those of CRPF etc.
All the units are requested to keep the above instructions in view while making recruitment/promotion in GD Cadre.
Please ack. receipt.”
13. It is further contended that the contents of the aforesaid memorandum were reconsidered and followed by another memorandum dated 27.09.2002 which reads thus:- 
“MEMORANDUM 
Subject:- Inter-se- seniority-Non gazetted personnel. 
One of the Division has asked to clarify whether seniority of Constables, Lance Naiks and Naiks will be maintained at unit level or not and whether approved list A, B & C will be drawn or not.
2. The point raised has been examined at this Directorate and it is clarified that the seniority list of Constables, Lance Naiks and Naiks will continue to be maintained at the unit level. The approved list A, B & C will also continue to be drawn and maintained at unit level and will be submitted to SSB Directorate for approval. However, promotions will be made as per centralised seniority list at SSB Directorate on seniority basis from amongst the eligible qualified personnel figuring in the approved lists.
3. All Divisional Organisers/IGs Organiser Hq. are requested to please bring the above instructions to the notice of all units under them for compliance.” 
14. In this background, the moot question is whether the executive instructions can in fact supersede or can substitute the statutory rules framed.
15. In State of Haryana vs. Shamsher Jang Shukla AIR 1972 SC 1546, the Hon’ble Supreme Court observed that where the administrative instructions issued by the Government add to the qualification already prescribed by rules relating to the promotion framed under Article 309, then the same would undoubtedly affect the promotion of the concerned officers and they would thus relate to and impinge upon the conditions of service and in such situation, the respondents-State was not competent to alter by means of administrative instructions the conditions of service prescribed by the Rules. It was held: 
“7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under, Art. 309. The High Court and the courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and anr. (1) that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill. up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as they relate to (1) [1968] S.C.R. 111 the clerks in the Secretariat amend or alter the conditions of service prescribed by the rules framed under Art. 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and therefore they relate to their conditions of service. The Government is not competent to alter the rules framed under Art. 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules.
8. There is a further difficulty in the way of the Government. The additional qualification prescribed under the administrative instructions referred to earlier undoubtedly relates to the conditions of service of the Government servants. As laid down by this Court in Mohammad Bhakar and ors. v. Y. Krishna Reddy and Ors. (1), any rule which affects the promotion of a person relates to his conditions of service and therefore unless the same is approved by the Central Government in terms of proviso, to sub-s. (7) of s. 115 of the States Reorganization Act, 1956, it is invalid as it violates sub-s. (7) of s. 115 of the States Re- organization Act. Admittedly the approval of the Central Government had not been obtained for issuing those instructions. But reliance was sought to be placed on the letter of the Central Government dated March 27, 1957 wherein the Central Government accorded advance approval to the State Governments regarding the change in the conditions of service obtaining immediately before November 1, 1956 in the matter of traveling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The scope of that letter has been considered by this Court in Mohammad Bhakar's case (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants.
16. In Dr. Rajinder Singh vs. State of Punjab and others AIR 2001 SC 1769, the Hon’ble Supreme Court observed that no government order, notification or circular can substitute the statutory rules framed with the authority of law. It was held: 
“5. It has not been disputed before us that at the relevant date when the respondent No.3 was recommended for promotion, he had not completed 10 years of service within the meaning of Rule 9A read with Rule 2(2) of the PCMS Class 1 Rules. As the respondent No.3 was not possessing the requisite qualifications on the relevant date, he could not be considered for promotion to the post of Deputy Director, Health Services.
6. We do not agree with the High Court that even without amending the rules, the respondent-State could have declared the PCMS Class II as PCMS Class I. The notification dated 9th April, 1989 reads as: 
"In pursuance of the recommendations of the Committee for the removal of anomalies in the Revised Scales of pay of Punjab Civil Medical Services, the President of India is pleased to declare the PCMS (Class II) as PCMS (Class I). There will be only one service with the nomenclature of PCMS (Class I) with effect from 1.1.1986.
The necessary amendments in the service rules of PCMS (Class II) and PCMS (Class I) will be made separately.
This issue with the concurrence of the Finance Department conveyed vide their I.D. No.l0/27/89-FPI, dated 20.3.89." 
(Emphasis Supplied) 
A perusal of the notification clearly indicates that the Government itself was aware that the two classes of service cannot be equated or treated alike without amending the rules. There is no dispute that the rules have not been amended so far. The Departmental Promotion Committee, therefore, erred in recommending the promotion of respondent No.3, ignoring the rules and only relying upon a notification.
7. The settled position of law is that no Government Order, Notification or Circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the rules, the Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a Government Order and ignoring the mandate of Article 309 of the Constitution.
8. As respondent No.3 was not eligible for consideration to the post of Deputy Director, Health Services, the Departmental Promotion Committee committed a mistake in recommending him. Consequent promotion of respondent No.3 on the basis of recommendation of the Departmental Promotion Committee being contrary to law is liable to be set aside” 
17. In Union of India and others vs. Sh. Somasundaram Viswanath and others AIR 1988 SC 2255, the Hon’ble Supreme Court observed that as per the settled law the norms regarding recruitment and promotion of an employee can be laid down either by a law made by the appropriate Legislature or by rules made under the proviso to Article 309 or by means of executive instructions issued under Article 73 in the case of Civil Services under the Union of India and under Article 162 in the case of Civil Services under the State Government. If there is a conflict between the executive instructions and the rules made under proviso to Article 309, then the rules made under proviso to Article 309 would prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails.
18. In Paluru Ramkrishnaiah and others vs. Union of India and another, AIR 1990 SC 166, three Judges of Hon’ble Supreme Court held that an executive instruction could make a provision only with regard to a matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule framed under Article 309.
19. In Union of India and another vs. Central Electrical and Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD and others AIR 2008 SC 3, the Hon’ble Supreme Court held that executive instructions can only fill in gaps not covered by Rules, but the same cannot be in derogation of statutory rules.
20. In Sant Ram Sharma vs. State of Rajasthan and others AIR 1967 SC 1910, the Constitution Bench of Hon’ble Supreme Court held that even in absence of statutory rules governing promotions framed by the Government it can always issue administrative instructions regarding the principles to be followed.
21. In Sitaram Jivyabhai Gavali vs. Ramjibhai Potiyabhai Mahala and others (1987) 2 SCC 262, it was held by the Hon’ble Supreme Court that new conditions of service can always be introduced by executive order which remain operative till its express or implied repeal by a subsequent order or regulation or statute.
22. In State of Sikkim vs. Dorjee Tshering Bhutia and others (1991) 4 SCC 243, the Hon’ble Supreme Court observed that where the statutory provision of the rule is unworkable and inoperative for the time being due to any reasons, in that event, power under Article 162 can always be invoked and exercised by the State Government.
23. In Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh vs. Usha Kheterpal Waie and others (2011) 9 SCC 645, the Hon’ble Supreme Court observed that even in absence of valid rules, executive instructions can always be issued by the Government.
CONCLUSION: 
24. From the conspectus of the case law indicated above, the following broad principles are clearly discernable: 
(i) The executive instructions cannot override the statutory provisions.
(ii) If there is a statutory Rule or an Act on the matter, the executive must abide by the Act or Rule and it cannot in exercise of its executive powers ignore or act contrary to the Rule or Act.
(iii) The State cannot amend or supersede the statutory Rules or add something therein by administrative instruction, but if the Rules are silent on any particular point, the State can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed.
(iv) The State cannot issue orders/office memorandum/ executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions.
(v) The executive instructions are binding, provided the same are issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.
(vi) The administrative instructions are not statutory rules nor do have any force of law, whereas the statutory rules have the force of law.
(vii) Statutory rules create an enforceable right, which cannot be taken away by executive instructions.
(viii) A law having occupied the field, it is not open for the State in exercise of its executive power to prescribe the same field by an executive order.
(ix) Executive power of the State cannot be repugnant to the enactment of the legislature or the statutory rules.
(x) Subordinate legislation cannot override the statutory rules nor it can curtail the content and scope of the substantive provision for and under which it has been made.
25. Thus, the action of the respondents in counting the seniority of the petitioners in a manner different from those Narain Chand and Jagdish Ram merely on the basis of the instructions as relied upon by the respondents which otherwise are contrary to the statutory rules is illegal and cannot withstand judicial scrutiny.
26. However, at this stage, Shri Shashi Shirshoo, learned Central Government Counsel, for the respondents would argue that it was only on account of transfer of whole Company for raising new units in Rajasthan and Gujarat that the aforesaid two persons came to be promoted earlier to the petitioners and there was no pick and choose policy adopted to avoid legal complications at the later stage. Moreover, being posted at the local areas, no person was ready to move or transfer out of earmarked area/native place and, therefore, the promotions of the aforesaid two persons earlier to the petitioners are justified. However, I find no merit in this contention for the simple reason that no such option for being transferred on the raising of new units in Rajasthan and Gujarat was offered to the petitioners and it is only when if they had rejected such offer, the stand of the respondents could have been held to be justified. In absence of any material on record to show even remotely that the petitioners had been granted any such option, the action of the respondents in ignoring the petitioners for promotion on the basis of Battalions wise seniority is not justified.
27. On the basis of the aforesaid conclusion, this Court has no difficulty in concluding that since the seniority of the petitioners was fixed on unit basis in view of executive instructions rather than being on Battalions wise as was envisaged under the Rules and thereafter the action of the respondents in not promoting them at par with their juniors like Narain Chand and Jagdish Ram is illegal.
28. Consequently, the order dated 19.06.2012 is quashed and set aside and the respondents are directed to promote the petitioners as Head Constables with effect from 2002 with all consequential benefits.
29. The petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
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