ivil Appeal No 3677 of 1987
From the Judgment and Order dated 471985 of the Andhra Pradesh Administrative Tribunal Hyderabad in Representation Petition No 578 of 1978
WITH Civil Appeal Nos
15 191986 and 1241987
421 PP Rao GLSanghi RK Jain P Rama Reddy PA Choudhary B Kanta Rao Mrs SR Setia GN Rao Attar Singh KVG Rama Rao Mrs Sharda Devi K Ram Kumar CS Vaidyanathan AVV Nair and C Prabhakar for the appearing parties
The Judgment of the Court was delivered by KULDIP SINGH J
The questions arising for our consider ation in these appeals are as under 1 Can the High CourtAdministrative Tribunal direct the State Government to frame or amend the existing statutory rules to alter the conditions of service of the civil serv ants in terms of the directions 2 When there are specialised posts in a feeder cadre and also in the higher cadre can the Government restrict the promotions from feeder cadre to the higher cadre only spe ciality wise irrespective of the seniority The conditions of service of the Andhra Pradesh Animal Husbandry Department were initially governed by the Andhra Pradesh Animal Husbandry Service Rules 1961 hereinafter called 1961 Rules
Under these Rules Veterinary Assistant Surgeons were eligible for promotion to three different categories of posts called class IV posts and Rule 6 provid ed special eligibility qualifications for those posts
Only those Veterinary Assistant Surgeons were considered for promotion to class IV posts who fulfilled the qualifica tionsspecialised training prescribed under Rule 6 of the 1961 Rules
Some of the Veterinary Assistant Surgeons challenged the vires of Rule 6 of the 1961 Rules by way of Civil Writ Petition No 4532 of 1971 in the Andhra Pradesh High Court
It was alleged that at the time of recruitment all the Veterinary Assistant Surgeons possessed Bachelor Degree in Veterinary Science and the special qualifications and train ing prescribed under Rule 6 could only be acquired after joining as Veterinary Assistant Surgeon and that also at the discretion of the Government
It was open to the Government to choose any person for the specialised training and may deny such an opportunity to another person who may be equal ly or better suited for such training
Since the imparting of specialised qualificationstraining was under the control of the Government it could pick and choose persons for the purpose and in the process making favoured persons eligible for pro 422 motion to class IV posts under the 1961 Rules
Learned Single Judge by his judgment dated August 24 1973 rejected the contentions of the writ petitioners in the following words I do not find it possible to agree with the broad conten tion that Rule 6 is ultra vires and unconstitutional for the reasons stated by the petitioners
As stated earlier Rule 6 merely prescribed certain qualifications for promotion to certain posts by way of experience in a particular specia lised service of undergoing training in a particular field
It cannot be argued and in fairness to the learned counsel for the petitioners it may be stated it was not argued that is not permissible to prescribe such qualifications
The main reason for contending that Rule 6 is ultra vires was not that it prescribed certain qualifications but be cause in the absence of any guiding principles the Govern ment would be enable to pick and choose persons who would be given opportunities to obtain those qualifications which would enable them to get promotion
This circumstance cannot in my view render the rule itself ultra vires
If the Gov ernment or the Authorities concerned posted certain employ ees in the special sections or gave them opportunity to undergo a service in a special issued section for a particu lar period or denied similar opportunity to deserving candi dates with the oblique motive of preferring one set of persons to another for the purposes of promotion it was open to the aggrieve officer to challenge the act of the Government in each particular case
The postings and direc tions have been made from time to time from 1962 and none of these petitioners approached this court questioning the denial of the posting as the case may be all these years   1 therefore see no reason for declaring Rule 6 as ultra vires and unconstitutional
 While holding that Rule 6 was intra vires the learned Judge also made the following observations Though I have held that Rule 6 is not unconstitutional there cannot be any doubt that as this stand at present it is left to the discretion of the authorities concerned to post any particular Veterinary Surgeon to any Special Sec tion or 423 to give him training in any advanced course
It is not surprising that such a state of affairs should result in dis satisfaction and suspicion in the mind of the officers concerned
Development of animal husbandry is extremely important in the interests of economy and a satisfied and contented service is a pre requisite for such development
It is not advisable to it that a particular authority howev er high placed he may be to choose persons at his sweet will and pleasure to undergo training in a particular field or have service in a particular sections especially when such training and service would effect the chances of promotion to higher posts
In this connected it may be noted that in regard to the Andhra Pradesh Agricultural Service it was realised that condition of separate section within the same service results in great injustice as several senior offi cers would be deprived of their promotion while the junior who happened to work in a specialised section get early promotion
By GO dated 2761972 all these sections were merged into one unit and all the posts were brought under a common set of rules
It would be advisable to frame a simi lar rule for the Animal Husbandry Department also and see that as far as possible the area of discretion on the part of the authorities concerned is reduced if not eliminated altogether
 The State Government amended Rule 6 of the 1961 Rules on May 10 1976 by which the categories of Class IV posts were increased to thirteen
The 1961 Rules were superseded by the Andhra Pradesh Animal Husbandary Service Special Rules 1977 hereinafter called the Special Rules which came into force on September 24 1977
Rule 1 of the Special Rules provides for the constitution of the service
Class IV posts which were re designated as Assistant Directors were divided into eight categories
Similarly
Veterinary Assistant Surgeons come under the heading class V and are divided into seven categories
Rule 2 of the Special Rules provides method of promotion from class V to Class IV
The relevant provisions of these Rules are reproduced as under 1
CONSTITUTION Class IV
Category 1 Assistant Directors of Animal Husbandry formerly 424 District Veterinary Officers  Livestock Officers Incharge Key Villages and Regional Cattle Development Units includ ing Superintendents Veterinary Hospitals  Poly Clinics Assistant Directors of Animal Husbandry Liverfluke Control Scheme Anti Liverfluke Control Scheme Dairy Extension Rinderpest Animal By Products Plant Zoo Park Asst
Direc tor of Animal Husbandry Technical in Directorate and Gazet ted Instructors in Animal Husbandry Village Development Officers Training Centre
Category 2 Assistant Directors of Animal Husbandry Government Livestock Farms including Assistant Directors of Animal Husbandry Progeny Testing Unit Feed Mixing Plant Livestock Assistants Training Centre Goshalas and Asst
Director of Animal Husbandry Farms in Directorate
Category 3 Lecturers Institute of Animal Reproduction including Asst
Director of Animal Husbandry Cattle Devel opment and Centralised Semen Collection Centre
Category 4 Assistant Directors of Animal Husbandry Sheep Farms including Assistant Directors of Animal Husbandry Sheep Development and Officers of similar rank in Sheep Section
Category 5 Assistant Directors of Animal Husbandry Pig Breeding Station Piggery Development Officer and Officers of similar rank in piggery section
Category 6 Asst
Directors of Animal Husbandry Regional Poultry Demonstration and Research Farm and Asst
Directors of Animal Husbandry poultry Marketing Centres
Category 7 Asst
Directors of Animal Husbandry Formerly Disease Investigation Officers and Research Officers an Officers of similar rank in Vety
Biological Institute Hyderabad Asst
Directors of Animal Husbandry Animal Health Centres and Officers of similar rank in Municipal Corporation of Hyderabad such as Public Health Veterinarian
425 Category 8 Asst
Director of Animal Husbandry Statis tics Class V Category 1 Veterinary Officers
Category 2 Veterinary Officers Cattle Farms Category 3 Asst
Lecturers Institute of Animal Reproduc tion and Veterinary Officers Centralised Semen Collection Centres
Category 4 Veterinary Officers Sheep Farms Category 5 Veterinary Officers Pig Breeding Stations
Category 6 Veterinary Officers Poultry Farms
Category 7 Veterinary Officers in Veterinary Biological and Research Institute Animal Health Centres Clinical Laboratories and Municipal Corporation of Hydera bad 2 APPOINTMENT Class IV Category 1 Asst
Directors of  i  ii by promotion from among the Veteri nary included in category I of class V of the said service
iii  
Category 2 Asst
Directors of  i  ii by promotion from among the Vety
Officers inclu ded in Cat2 of Class V of the said Service iii 426 Category 3 Lecturers i by promotion from among the Vety
Officers included in Cat
3 of Class V of the said service iii 
Category 4 Asst
Directors of  i  ii by promotion from among the Vety
Officers inclu ded in Cat3 of Class V of the said service iii 
Category 5 Asst
Directors of  i  ii by promotion from among the Vety
Officers inclu ded in Cat
5 of class V of the said service iii 
Category 6 Asst
Directors of  i  ii by promotion from among the Vety
Officers included in Cat
6 of class V of the said ser vice Category 7 Asst
Directors of  i  ii by promotion from among the Vety
Officers included in Cat 7 of class V of the said service Category 8 Asst
Directors of  i  ii by promotion Vety
Officers in Class V of Andhra 427 Pradesh Animal Husban dry Service iii 
It is obvious from the provisions of the Special Rules reproduced above that the Veterinary Assistant Surgeons who are class V are only eligible for promotion to class IV in their respective categories
Category 1 class V is only eligible for promotion to category 1 class IV and similarly category 2 of class V is eligible for category 2 of class IV and so on
Although there is one common seniority of class V officers but the promotion being category wise the seniority becomes irrelevant as a senior man in category 1 class V cannot be promoted to any other category in class IV except category 1 and 8
M Srinivasan and 44 other class V officers filed Repre sentation Petition No 578 of 1978 before the Andhra Pradesh Administrative Tribunal seeking a direction that the Special Rules be amended or modified in terms of the observations made by the Andhra Pradesh High Court in Civil Writ Petition No 4532 of 1971
In other words it was prayed that the State Government be directed to merge all the respective categories in class IV and class V of the Special Rules and promotions from class V to class IV be made on the basis of seniority alone
The Administrative Tribunal by its judgment dated July 4 1985 allowed the Petition and issued the directions asked for by the petitioners
The Tribunal in its judgment posed the question to be decided in the following manner The question to be decided is whether the Depart ment of Animal Husbandry is justified in not following the directions of the AP High Court referred to above The Tribunal then answered the question as under It must be observed that not to speak of direc tion even an observation from the High Court of the land is binding on the State Government when the State Government has not chosen to set aside the said observation in the Supreme Court
The petitioners are therefore entitled to the relief asked for and I find no good reasons not to grant the same
The RP is accordingly allowed and once again direc tions are issued to the respondents to evolve proper and rational 428 method of determination of seniority among the Veterinary Assistant Surgeons in the matter of promotions to the next higher rank of Assistant Director of Veterinary Surgeons in the light of the one framed under GOMs
No 1 supra   It may be mentioned that GO Ms No 1 dated 1176 which was directed to be adopted and followed in the Animal Husbandry Department related to the Agriculture Department
It was argued before the Tribunal that because of functional differences between the two departments it would not be possible to adopt the conditions of service prevalent in the Agriculture Department
The Tribunal however issued the above quoted directions primarily on the ground that the State Government was bound to follow the observations of the High Court made in Civil Writ Petition No 4532 of 1971
The State of Andhra Pradesh has challenged the judgment of the Tribunal in Civil Appeal No 1519 of 1986 Civil Appeal No 1241987 and Civil Appeal No 3677 of 1987 have been filed by the officers who have been affected by the judgment of the Tribunal but were not parties before the Tribunal
The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature
The High Court was aware of its limitations under Article 226 of the Constitution of India and as such the learned Judge deliberately used the word advisable while making the observations
It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the constitution
Imagine the execu tive advising the judiciary in respect of its power of judicial review under the constitution
We are bound to react scowlingly to any such advice
This Court relying on Narender Chand Hem Raj  Ors
vs Lt Governor Union Territory Himachal Pradesh  Ors  and State of Himachal Pradesh vs A parent of a student of medical college Simla and Ors 1985 3 SCC 169 held in Asif Hameed  Ors
vs State of Jammu  Kashmir  Ors
 1989 Supp 2 SCC 364 as under When a State action is challenged the function of the court is to examine the action in accordance with law 429 and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not the court must strike down the action
While doing so the court must remain within its self imposed limits
The court sits in judgment on the action of a coordinate branch of the Government
While exercising power of judicial review of administrative ac tion the court is not an appellate authority
The constitu tion does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive
 The Special Rules have been framed under Article 309 of the Constitution of India
The power under Article 309 of the Constitution of India to frame rules is the legislative power
This power under the constitution has to be exercised by the President or the Governor of a State as the case may be
The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India
The Courts cannot usurp the functions assigned to the executive under the constitution and cannot even indirectly require the execu tive to exercise its rule making power in any manner
The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India
We are therefore of the view that the High Court in Civil Writ Petition No 453271 and the Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned directions
We set aside the judgment of the Tribunal and dismiss the Representation Petition No 57878 filed by M Srinivasan and 44 others to the extent indicated above
Mr CS Vaidyanathan learned counsel appearing for the respondents however contends that the Special Rules are arbitrary and are violative of Articles 14 and 16 of the Constitution of India
He contends that at the time of initial recruitment to Class V the Government at its discre tion picks up persons for appointment to any of the catego ries
According to him neither there are any statutory rules or executive instructions providing options to class V officers to join category of their choice nor in fact any such options were given at the relevant time
He has further argued that the posts in seven categories of class V are inter transferable
He invited our attention to the docu 430 ments on record showing transfers from one category to another
Mr Madhava Reddy learned counsel appearing for the State of Andhra Pradesh on the other hand has controverted the above arguments
According to him options were not only given at the time of initial recruitment into class V serv ice but also subsequently as and when the rules were amend ed
He categorically denied that the posts in various cate gories are interchangeable
The learned counsel on both sides wanted us to go into the various documents in support of their respective contentions
We do not have before us the factual matrix to appreciate the argument of Mr Vaidya nathan that the special Rules are arbitrary
We however find from the judgment under appeal that all these points were raised before the Tribunal in one form or the other but the Tribunal based its judgment on the observations of the High Court in Civil Writ Petition No 453271 and did not go into any other point
While setting aside the judgment under appeal we remit the case to the Andhra Pradesh Administrative Tribunal for decision on other points as indicated by us or as may be raised by the parties
The Tribunal shall give further opportunity to the parties to file additional affidavitsdocuments
We request the Tribunal to decide the matter expeditiously and if possible within three months
The appeals are disposed of in the above terms with no order as to costs
Y Lal Appeals allowed


Summary:
The normal age of retirement of an employee of an aided school prescribed under section 208 of the Delhi Education Code 1965 was 60 years
The proviso to section 81 of the Delhi Education Act 1973 prohibited the administrator from varying the conditions of service of an employee of an existing school at the commencement of that Act to his disadvantage While fixing the retirement age of employees of recognised private schools at 58 years sub rule 1 of rule 110 of the Delhi Education Rules 1973 protected the entitlement of existing employees to higher age of retire ment
The petitioner teacher who had joined service before the coming into force of the Act assailed her retirement on attaining the age of 58 years on the ground that under section 8 of the Act read with rule 110 of the Rules she had a statu tory right to continue upto the age of 60 years in terms of section 208 of the Code and that the management had acted arbi trarily and discriminately in depriving her of two years of service and consequential benefits
For the respondents it was contended that the management of the school was neither a State nor an authority under Article 12 of the Constitu tion and as such no writ petition against the respondent management was maintainable and that the Education Code had no force of law and as such the petitioner had no enforce able right much less under Article 32 of the Constitution
Allowing the writ petition the Court HELD 1
The petitioner s claim is just
She was enti tled to be retired at the age of 60 years
417A E 413 2
Prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers
The age of superannuation provided in Rule 110 of the Rules is 58 years except in the case of existing employees who were in service on April 1 1973 the date of coming into force of the Act and in their case the higher age of retirement to which they were entitled has been protected
The petitioner was an existing employee of the respondent management
417E 415D 3
The respondent management was under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school
When an authority is required to act in a particular manner under a statute it has no option but to follow the statute
The authority cannot defy the statute on the pretext that it is neither a State nor an authority under Article 12 of the Constitution of India
416G H 4
The petitioner having already attained the age of 60 years the respondents are directed to pay her salary and allowances for the period of two years
The post retirement benefits to which she is entitled be redetermined assuming her to have retired at the age of 60 years
The arrears of salary and allowances be paid to her within three months
417F G