P.V.S Janardhan Rao And Others (Petitioners) v. Union Of India And Others (S).

Alladi Kuppuswami, C.J:— The petitioners are Section Officers in the Offices of the Accountants-General, Andhra Pradesh I and II, Hyderabad. In this writ petition, they pray for the issue of a with of mandamus directing respondents 1 to 3, viz., the Union of India, the Comptroller and Auditor General of India and the Accountant General, Andhra Pradesh to forbear from enforcing the administrative instructors in the circular letter dated 25-1-1973 issued by the second respondent, the Comptroller and Auditor-General of India, in the matter of promotion to the cadre of Accounts Officer/Audit Officer by, declaring the same as illegal, arbitrary and unconstitutional and to hold that the promotions of respondents 4 to 12 as Accounts Officers on the basis of the said circular letter as illegal without jurisdiction and void and for consequential relief's.

2. The conditions of service of the petitioners and the respondents-are governed by the Indian Audit and Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 1964 dated 22-9-1964. These Rules were made in exercise, of the powers conferred by the proviso to Articles 309 and 148(5) of the Constitution of India by the President after consultation with the Comptroller and Auditor General of India. They, apply to the posts of Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department. They are classified as Central Services Class-II Gazetted (non-Ministerial) Posts. It is provided by the Rules that the method of recruitment is by promotion from the Subordinate Accounts Service/Subordinate Railway Audit Service cadre. It is further provided that 50% of the posts are selection posts and remaining 50% are non-selection posts. The case of the petitioners is that they are seniors to respondents 4 to 12 in the category of Section Officers. According to the Rules referred to above, 50% of the posts are to be filled-up as non-selection posts, i.e on the basis of seniority-cum-fitness. On that basis, the respondents 4 to 12 who were juniors to the petitioners, would not be entitled to be promoted earlier to the petitioners. They could be promoted only after considering the cases of the petitioners, (if) it is decided that the petitioners are unfit to discharge the duties of the posts. Without considering the seniority of the petitioners and their fitness for promotion, respondents 4 to 12 were promoted on the basis to the administrative instructions contained in the letter dated 25-01-73 issued by the Comptroller and Auditor General of India. In paragraph (2) of the said letter, it is stated that the policy in regard to reservations for Scheduled caste and Scheduled Tribe Officers in posts filled by promotion on the basis of seniority subject to fitness has been reviewed by the Government of India in consultation with the Comptroller and Auditor General of India and it has been decided that there will be reservation at 15% for Scheduled castes and 7½% for Scheduled Tribes in promotions made on the basis of seniority subject to fitness in appointments to all Class-I, Class-II, Class-III and Class IV posts in grades of services in which the element of direct recruitment, if and does not exceed 50%. It is also stated that the existing procedure of promotions to A. Os grade will not undergo any change as far as the posts filled by selection is concerned. Reservation to the extent of 15% for Scheduled castes and 7½% for Scheduled Tribes will, however, have to be made with reference to the number of posts of Accounts Officer filled in a year on the basis of seniority subject to fitness and for this purposes, a roster should be maintained in respect of such promotions. It is also provided that the above instruction would take effect from 27-11-1972 except where a select list, if any for promotion by seniority subject to fitness has already been prepared by a Departmental Promotion Committee and approved by the appropriate authority before issue of these orders (i.e 27-11-1972).

3. The case of the petitioners is that the promotion to the posts of Accounts Officers, etc, are governed by the Rules made under Article 309 and Article 148 of the Constitution and any administrative instructions inconsistent with the said Rules are illegal and void and can have no effect. The reservations for Scheduled Castes and Scheduled Tribes made under the said instructions are contrary to the Rules which provide that 50% of the posts should be made only on the basis of seniority-cum-merit and hence, the promotions of respondents 4 to 12, which were made only because they belonged to Scheduled Castes and Scheduled Tribes and reservations are made for persons belonging to these classes, have to be set aside. On behalf of the respondents, it is contended firstly that the reservations for Scheduled Castes and Scheduled Tribes are made in exercise of the powers conferred under Article 15(4) of the Constitution and any reservations made in exercise of that power, though by way of Administrative instructions, are traceable to the power conferred by Article 15(4) of the Constitution and hence the administrative instructions would prevail, even over the rules made under Articles 148(5) and 309 of the Constitution. It is also submitted that there is; no inconsistency between the administrative instructions and the Rules. The rules are silent with regard to reservation in favour of the Scheduled Castes and Scheduled Tribes and all that has been done by the administrative instructions is to fill up the gaps by providing for reservation for these classes of persons. The principle of promotion on the basis of seniority-cum-merit has not been, given a go-bye. The administrative instructions and the Rules can Stand together, Lastly, it is contended that, in any event, this court not to exercise its extraordinary jurisdiction under Article 226 of he Constitution as there has been considerable laches and delay on the part of the petitioners. In the appendix to the counter-affidavit, it is stated that promotions of respondents 4 to 12 were made several years ago starting from 19-9-1973 In fee ease of 7th respondent the last of the promotion being of 12th respondent on 27-10-1978. All the promotees who had been promoted in pursuance of the administrative instructions have all along been under the impression that their promotions were properly made and their promotions should not be disturbed after such a long lapse of time. It is also brought to our notice that even in 1973, Writ Petition No. 3337 of 1973 was filed by a number of persons challenging the very same instructions dated 23-1-1973 and promotions made in pursuance of such instructions on the basis of reservation for Scheduled Castes and Scheduled Tribes. That writ petition was dismissed subject only to the observation that the promotion would take effect only that the issue of the administrative instructions. In view of this judgment, several promotions made in pursuance of these instructions, have been allowed to stand and there is no reasons why at this distant; of time, the promotions of respondents 4 to 12 should be set aside at the instance of the petitioners.

4. From the facts stated earlier, it is clear that promotions to the posts of Administrative Officers, and Assistant Accounts Officers etc. are governed by the Rules dated 22-9-1964 made under Articles 309 and 148(5) of the Constitution of India. As pointed out by the Supreme Court in Accountant General v. S. Doraiswamy ((1981) 4 SCC 93 : A.I.R 1981 SC 783), however, the regulation of recruitment and conditions of service of persons serving in the Indian Audit and Accounts Department cannot be regarded as a matter falling within the domain of the President within the terms of the proviso to Article 309. A special provision was necessary to entrust the President with that power and that provision is clause (5) of Article 148. Reference to the proviso under Article 309 in the notification has, therefore, to be ignored and the rules must be treated as rules made under Article 148(5) of the Constitution.

5. These Rules having the force of a statute, having been made under the powers conferred by the Constitution any administrative instructions inconsistent with the said Rules cannot be given effect to.

6. In Mohan Lal v. Comptroller & Auditor General, (1980) 1 Serv LR 46: a Division Bench of the Allahabad High Court had to deal with the validity of the same administrative instructions which are impugned in this writ petition. It was held that the statutory rules had provided for the subject of promotion to the post of Assistant Accounts Officer and therefore it was not open to the Government to give administrative instructions contrary to the said rules. Reference was made to a decision of the Madras High Court and another decision of the Orissa High Court to the same effect. In the latter case it was held, following an earlier Bench decision of that Court, that the alterations in the existing rules introduced by the administrative instructions were not valid and the existing rules could be modified only by the rules made by the President after consultation with the Comptroller and Auditor General of India as provided for under Article 148(5) of the Constitution.

7. It was, however, contended on behalf of the respondents that the provision contained in the administrative instructions regarding reservation of certain percentage of posts to the members of Scheduled Castes and Scheduled Tribes is not inconsistent with the Rules. It was argued that the Rules were silent in regard to any reservations. All that was provided under the Rules was that the post's should Be filled up by promotion, 50 per cent of the posts being treated, as non-selection posts. In other words, as regards non-selection posts the Rules provided, that promotion should be made according to seniority subject to the condition that the promotes were found fit for the higher post. As the Rules were silent with reference to reservation, it is open to the Government to fill up the gaps in the Rules by administrative instructions. It was argued that the power to make reservation in favour of Scheduled Castes and Scheduled Tribes was exercised pursuant to Article 15(4) of the Constitution, and it is not necessary that that power should be exercised only through the statutory rules and the same could be exercised through administrative instructions or orders. In support of this contention, reference is made to Balaji's case (AIR 1963 SC 649) wherein it was held that special provision under Article 15(4) of the Constitution may be made by executive instructions and not necessarily by law. It is true that the power to make reservation in favour of Scheduled Castes and Scheduled Tribes can be exercised also through administrative instructions. But, such a power cannot, in our view, be exercised if it inconsistent with any statutory rule. Otherwise, the consequence would be that a statutory rule will be amended by administrative instructions. It is well settled that an amendment or a modification to a statutory rule can be made only by similar statutory rule or law. No doubt, if the rule is silent, it will be open to fill up gaps by means of administrative instructions. But, in our view, it cannot be said that making reservation in favour of Scheduled Castes and Scheduled Tribes would amount merely to filling up gaps in the Rules. When the Rules definitely provided that 50 per cent of the posts must be treated as non-select posts, it means that a person is entitled to be promoted on the basis of seniority provided he is fit for the post. No other consideration should weigh with the authorities in giving effect to his promotion. By reason of the introduction of the rule of reservation, the right to promotion of the basis of seniority is affected. A person, though senior in rank, will have to yield place to a junior if the latter comes within the reservation quota. In effect, therefore, the administrative instructions have substantially amended the Rules. We are, therefore, inclined to agree with the view taken by the Allahabad High Court following the decisions of the Madras and Orissa High Courts and we accordingly hold that the impugned administrative instructions can have no effect as they are inconsistent with the Rules.

8. Reliance was, however, placed on the decision of our learned brother Madhava Reddy, J., in Writ Petn. No. 3337 of 1973 dated 21-12-1973 (Andh Pra) in which he held that the same administrative instructions, which are before us, are valid. Apart from the fact that the petitioners there not parties to the said writ petition, it is seen, from a perusal of he judgment, that the whole case proceeded on the footing that the promotions were governed by certain standing orders. Unfortunately it was not brought to the notice of the learned Judge that promotions are governed by the Rules of 1964 made under Article 148(5) of the Constitution. It is true that Madhava Reddy, J., took the view that the standing orders did not make any provision for reservation in favour of Scheduled Castes and Scheduled Tribes and therefore did not expressly prohibit such a reservation. Reference was made to Rules 184 and 187 in the Code and it was pointed out that Rule 187 provides for reservation of vacancies in favour of Scheduled Castes and Scheduled Tribes. In those circumstances, he held that though the rules were made under Article 148(5) of the Constitution, the powtr of the executive to make any reservation in favour of Scheduled Castes and Scheduled Tribes is not taken away. If, by this decision, it was meant to lay down that executive instructions made in exercise of the power conferred under Article 15(4) of the Constitution will prevail even though they are inconsistent with the rules made under Article 148(5), we respectfully express our dissent. We are of the view that in this particular case the impugned administrative instructions in so far as they provide for reservation in favour of Scheduled Castes and Scheduled Tribes are inconsistent with the Rules which provide for promotion being made to 50 per cent of the posts on the basis of seniority-cum-fitness and are therefore invalid and inoperative.

9. In Guman Singh v. State of Rajasthan, (1973) 1 SCJ 207): the Supreme Court observed that the Government cannot amend or supersede Statutory Rules by administrative instructions, but 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. The Supreme Court had to consider a circular containing administrative instructions for the guidance of all selection/promotion committees and appointing authorities mentioned in the statutory Rules. The effect of the circular was that only such persons who have secured a minimum of 62½ marks out of a total of 75 marks would be considered for promotion on the basis of seniority-cum-merit formula. It was held that no doubt a properly evaluated marking system may be helpful for assessing the merit of persons, but the instructions given in the circular were so rigid that they were opposed to the selection to be made strictly on merit It was held that that was not a case of Government filling up gaps by giving executive instructions on matters not provided by or not inconsistent with the Rules; they were inconsistent with the Rules and were, therefore, illegal and inoperative.

10. In Dist. Registrar v. M.B Koyakutty, (1979) 1 Serv LR 628: it was observed by the Supreme Court that while there can be no quarre with the proposition that if the statutory rules framed by the Government or any enacted by the State Legislature under Article 309 are silent on any particular point, the Government can fill up that gap and supplement the rule by issuing administrative instructions not inconsistent with the statutory provisions. The executive instructions in order to be valid must be subservient to the statutory provisions. In that case certain minimum general educational qualifications were prescribed for promotion as Uppe Division Clerk. It was held that the administrative instructions we inconsistent with the rules which provide that promotion shall be mad in accordance with seniority subject to the person being fit to appointment.

11. Applying the principles laid down in the above decision, and taking the same view as the High Courts of Allahabad, Madras and Orissa in regard to the very same administrative instructions that are challenged before us, we hold that they cannot be given effort to and the reservation in favour of Scheduled Castes and Scheduled Tribes can be made only by amending the Rules of 1964 suitably.

12. We are, however, inclined to agree with the contention of the respondents that the petitioners are not entitled to the relief prayed for in this case on account of their laches and delay in approaching this Court under Article 226 of the Constitution. The counter-affidavit shows that many of the promotions of respondents 4 to 12 were made as early as 1973. Even then, several persons who were aggrieved filed writ petition No. 3337 of 1973 in this court and that petition was dismissed by Madhava Reddy, J. as stated earlier. Hence, promotions were being given effect to according to the administrative instructions all these years. The promotees all along have been under the impression that the promotions were rightly made and their promotions will not be disturbed. In Gian Singh v. Punjab & Haryana High Court ((1980) 4 SCC 266 : AIR 1980 SC 1894) where a writ petition was filed in 1978, about eleven years after the promotions were made the Supreme Court observed that the fact that the petitioner was making successive representations during the period could hardly justify their overlooking the inordinate delay and refused to give relief to the petitioner on that ground. Reliance was, however, placed on the decision in R.S Deedhar v. State of Maharashtra ((1974) 1 SCC 317 : AIR 1974 SC 259) wherein it was observed by the Supreme Court that delay is of no consequence where a fundamental right is infringed. In that case, however, the promotions made were provisional and the petitioners had been informed that rules of recruitment had not yet been unified and the petitioners were, therefore, justified in proceeding on the assumption that there were no unified rules of recruitment and that the promotions being made by the State Government were only provisional to be regularized when unified rules of recruitment were made. After the unified rules were made the petitioners did not lose any time in filing the writ petition. The case before the Supreme Court is, therefore, distinguishable.

13. In the circumstances, though we are of the view that the administrative instructions dated 25-1-1973 challenged before us are invalid and inoperative, we are disinclined to give any relief to the petitioners. The prayer of the petitioner for a declaration that the administrative instructions are illegal is granted. The further prayer that respondents 1 to 3 should be directed to consider the case of the petitioners for promotion is also granted to this extent, namely, that the case of the petitioners will be considered in accordance with the Rules, without reference to the administrative instructions, without affecting the promotions already made prior to the filing of this writ petition. The writ petition is allowed to the extent indicated above. No costs. Advocate's fee Rs. 100. An oral application for leave to appeal to the Supreme Court of India, is made on behalf of the Central Government. We consider, that a substantial question of law viz., “whether the Administrative Instructions issued in the Circular dated 25-1-1973 by the Comptroller and Auditor General of India (2nd respondent) are contrary to the Indian Audit and Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 1964 dated 22-9-1964, is involved, for consideration of the Supreme Court. As we are granting leave to the Central Government, we also grant leave to the petitioners.

14. Petition partly allowed.