STATE OF HARYANA ETC. ETC. versus SHAMSHER JANG BAHADUR ETC. ETC.

Hedge, J.-These appeals by certificate raise two common questions of law for decision viz. whether the Government can by administrative instructions add to the conditions of service relating to the promotion of a Government servant, prescribed under Art. 309 of the Constitution and· further whether such ari addition requires the approval of the Central Government under s. 115 of the States' Re-organization Act, 1956.

pp. 250–251, margin H

For deciding the two questions of law formulated earlier, it would be sufficient if we refer to the facts of any one of the aforementioned cases. Hence we shall refer to the facts in Civil Appeal No. 1639 of 1968.

p. 251, margin A

Shamsher Jang Bahadur, the respondent in that appeal joined Government service as a clerk in the erstwhile Pepsu Secretariat on January 3, 1955, Pepsu State became a part of the State of Punjab on November 1, 1956 under the provisions of the States' Re-organization Act, 1956. Shamsher Jang Bahadur was provisionally promoted as an Assistant on December 9, 1959 in the Punjab Civil Secretariat at Chandigarh. He was reverted as a clerk on February 3, 1960 on the ground that he failed to qualify the test prescribed under certain administrative instructions issued on June 21, 1958. He filed a civil suit challenging his reversion. The suit was decreed by the trial court. That decree was affirmed by the appellate court. The High Court of Punjab and Haryana dismissed the Second Appeal filed by the State. Some-what similar are the facts in the other appeals.

p. 251, margin B

It was conceded before us that the appellants at the relevant time were governed by the Punjab Civil Secretariat (State Service Class III) Rules, 1952 (to be hereinafter referred to as the 'Rules), in view of certain instructi0ns issued by the Central Government under the provisions of the States' Re-organization Act, 1956. Hence it is not necessary to refer to the Pepsu Secretariat Service, Recruitment, Promotion, Punishment and Seniority Rules, 1952.

p. 251, margin D

Rule 6 of the 'Rules' regulates the appointment of Assistants by promotion. Thei relevant portion of that rule reads :

p. 251, margin F

"6 ( 1) Posts in the Service shall be filled : (a) (b) (c) (d) (e) (f) in the case of Assistants (i) • : (ii) By promotion of Senior Clerks; or

p. 251, margin F

(ill) 13y selection from among officials e~p!o>.:ed .in departments of Government other than the Civil Secretariat. · 6(2)

p. 252

6(3) Appointment to any post by the promotion of officials already in Uie service or by transfer of officials employed in Goverrunent departrnenJs other than the Civit Secretariat shall be made strictly by selection, and no official shall have any claim to such appointment as of right." . · ·

p. 252

On June 21, 1958, the Government fosued instructions to the effect that 25 per cent of the vacancies in the cadre of Assistants in the Punjab Civil Secretariat will be tilled qy appointment of suitable personnel from serving officials in the offices of the Heads of Departments in the Sta~e while tile remaining 7 5 per cent will be filled by J?iomotion from amongst the clerics in the Punjab Civil Secretanat. Chi use ( b) of that Order provicjes :

p. 252

"For the purpose of appointment of officials from the offices of Heads of DepartmeI)ts as Assistant in the Punjab Civil Secretariat as also fot promotion of Clerks of the Secretariat· to the posts of Assistants in tbe cadre, a test-separately prescribtid will be held by the Punjab Public Service Commission. For officials qel9µging to the offices of the Heads of Departments, tltis test will be a competitive one and for t!Je Secretariat Clerks it will be a qualifying test. . As at present this test will Qt: con' ducted simultaneously in accounts as .also in Noti11g and Prafting. T1te ques .. tion as to wqat standard of accounts test it would be fair to expect of tile examinees is being considerea separ.ately."

p. 252, margin D

It may be noted that herein we are dealing on)y with those who were promoted from the cadre of clerks in the Secretariat. the first question arising for decision is whether the Government :was com~tent to add by means of administrative instructipns 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. TI:us Court has ruled in Sant Rarn Sharma v. State of Rajasthan and anr. ( that while the Government cannot amend, or supersede the statutory rules by administrative instructions, if tile rules are silent on any particular point, the Government can fill up tile gaps and supplement the rules and issue instrµctions not inconsistent with the rules alread:y framed. Hence, we have to see whC?:lfier the instructions with which we are concerned, so far· as they relate to (I) [1968) I 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 conditicns of service. The instructions issued by the Government undoubtedly affect the promotion of concerned. officials and therefore they relate to their conditions of seriice. 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 i;nerely filled up a gap in the rules. The ruleuan be implemented without any difficulty. We see no gap in the rules.

pp. 252–253, margin F

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.( 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 tenns of proviso to sub-s. ( 7) of s. 115 of the States Re-organization 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 \\las sought to he 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 travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The scope of that Jetter has been considered by this Court in M ohammad Bhakar's case (supra). Therein this Court held that the Jetter in question cannot be considered as pennitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants.

p. 253, margin C

For the rea~ons mentioned above these appeals fail and they are dismissed with costs. S.N Appeals dismissed. ~~~~~~~~~- (!) s,rvico

p. 253, margin E