Appeal No 1518 of 1980
From the Judgment and Order dated 2181979 of the Allahabad High Court in Civil Misc
Writ No 9724 of 1978
JD Jain A Subba Rao CVS Rao and Ms A Subha shini for the Appellants
SS Khanduja VJ Francis and NM Popli for the Respondents
The Judgment of the Court was delivered by YOGESHWAR DAYAL J
This appeal by special leave is directed against the judgment of the Division Bench of the High Court of Allahabad dated 21st August 1979 whereby the High Court allowed the writ petition filed by the four petitioners therein and issued a writ of mandamus directing respondents 1 2 and 3 Comptroller  Auditor General of India New Delhi The Accountant General I UP Allahabad and the Union of Ina not to enforce the circular dated 25th January 1973 as a rule regarding reservation of Sched uled Caste and Scheduled Tribes in relation to filling up of posts by promotion on the basis of seniority subject to fitness
The aforesaid respondents were further restrained from promoting respondents 4 5 and 6 in the writ petition to the post of Accounts Officers on the basis of the im pugned circular dated 25th January 1973
We would continue to refer to the parties as per the cause title of the writ petition in the High Court
The writ petition came to be filed by the petitioners ML Mehrotra and three others
The petitioners said to be working as Section Officers in the office of the Accountant General I II and III Allahabad and they prayed for re straining respondents 1 2 and 3 from promoting Yamuna Prasad Kureel respondent No 4 Ram Raj Ram respondent No 5 and Ram Dihal respondent No 6 in the writ petition who were working as 485 Section Officers and belonged to the Scheduled Caste to the post of Accounts Officer
The case of the writ petitioners was that they were senior to respondents 4 5 and 6 and they cannot be promoted to the post of Accounts Officers through seniority quota before the writ petitioners
Their case was that the promo tion to the post of Accounts Officers is regulated by the rules made by the President in exercise of the powers con ferred by proviso to Article 309 and clause 5 of Article 148 of the Constitution after consultations with the Comp troller and Auditor General of India
These rules are known as Indian Audit  Accounts Department Administrative Officers Assistant Accounts Officers and Assistant Audit Officers Recruitment Rules 1963 hereinafter referred to as the Rules
In the counter affidavit filed it was pleaded that the Assistant Accounts Officers and Assistant Audit Officers are now called Accounts Officers and Audit Offi cers
The aforesaid rules lay down the method of recruitment to the post of Administrative Officers Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department
The method of recruitment laid down in these rules in respect of these posts is by promotion
They do not contain any specific provisions for reservation for Scheduled Caste and Scheduled Tribes
The appellants herein relied upon the administrative instructions contained in the circular letter dated 25th January 1973 issued by the Comptroller and Auditor General of India for the purpose of reservation for Scheduled Castes and Scheduled Tribes for these promotion posts
The writ petitioners challenged the validity of these administrative instructions contained in the circular dated 25th January 1973
It was further pleaded that the lowest post in the Office of the Accountant General UP 1 I1 and II1 is of group D  employees who are selected directly on the basis of merit
There is a quota fixed for Scheduled Castes and Scheduled Tribes
Then there are posts of clerks a fixed quota percentage of which is filled in directly through examination and quota is fixed for Scheduled Castes and Scheduled Tribes
The remaining posts of clerks are filled in by selection from class D  employees by promotion on the basis of seniority
The next higher posts are the post of Auditors
A fixed percentage whereof is filled in directly through examination and a quota is fixed for Scheduled Castes and Scheduled Tribes
The remaining posts of Auditors are filled in by promotion from clerks on the basis of seniority
The next higher post is of Section Officers in which the writ petitioners and respondents to the writ petition were working
These posts are filled in from the cadre of Auditors and clerks
The Auditors as well as 486 clerks have to pass examination known as Subordinate Ac counts Service
Normally more candidates pass this examina tion then the number of posts available for the Section Officers
Here also there is a quota fixed for Scheduled Castes and Scheduled Tribes candidates
The post of Accounts Officers ie the posts in question are filled in by promotion from Section Officers
50 per cent of the vacancies are filled on the basis of merit called the merit quota and the remaining 50 per cent are required to be filled in on the basis of seniority called seniority quota
Normally the number of candidates avail able in the merit quota are less than 50 per cent of the posts available hence the number of posts available in seniority quota is usually more than 50 per cent
It was pleaded in the counter affidavit that the promotion will continue to be made in accordance the existing rules and orders on the subject namely those referred to above includ ing the circular dated 25th January 1973 validity of which had been challenged
The High Court took the view 1 that there is no reser vation for Scheduled Castes and Scheduled Tribes made under the rules 2 that the administrative instructions con tained in the circular No172 NGE ll56 72 1 dated 25th January 1973 issued from the office of Comptroller and Auditor General of India New Delhi inter alia to all the Accountants General and the offices subordinate to them on its own did not make a provision for the proposed reserva tion in pursuance to the policy decision
3 It also took the view that the statutory rules were not silent on the subject of promotion to the post of Assistant Accounts Officer now called Accounts Officers
This being so it was not open to the Government to supplement the statutory rules to fill up the gaps
This could be done by only amend ing the statutory rules in compliance with the provisions of Article 1485 of the Constitution
The High Court drew support from a Division Bench of the Madras High Court in Accountant General Tamil Nadu  Others vs Doraswami  Oth ers 1974 Labour Industrial Cases 384 and the decision of the Orissa High Court in the Original Jurisdiction cases No 357 and 359 of 1977 P Parbhakar Rao vs Union of India decided on 31st of July 1978
The High Court took the view that the administrative Instructions contained in the circu lar letter dated 25th January 1973 cannot help respondents and no reservations for Scheduled Castes and not Scheduled Tribes can be made on that basis
The High Court accordingly allowed the writ petition as stated earlier
Before the High Court the counsel for the writ petition ers also submitted that the administrative instructions contained in the circular dated 487 25th January 1973 could not be said to be the rules made by the President after consultations with the Comptroller and Auditor General of India as contemplated by Article 1485 of the Constitution and referred to the language of the circular letter dated 25th January 1973
A supplementary counter affidavit of Shri PP Dhir Accountant General l had also been filed where it was stated that the language used in the circular in substance are the orders of the President
The High Court took the view that no other mate rial has been referred to in the counter affidavit filed which will show that the instructions contained in the circular dated 25th January 1973 were based on the decision of the President of India
However the High Court held that they considered it unnecessary to go into this question any further since they had already held that the administrative instructions contained in the circular were of no avail to the respondents in the writ petition as they could not alter the statutory rules in force
It appears the Department of Personnel issued a memoran dum No 27271Estt SCT dated 27th November 1972 to all Ministries
The subject of this memorandum was reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness
This memorandum noted in paragraph 2 thereof that the policy in regard to reservation for Scheduled Castes and ScheduLed Tribes officers in posts to be filled by promotion on the basis of seniority subject to fitness now has been reviewed and it has been decided in supersession of the orders contained in the aforesaid para 2 C of the OM dated 11th July 1968 that there will be reservation at 15 percent for Scheduled Castes and 7 12 per cent for Scheduled Tribes in promotions made on the basis of seniority subject to fit ness in grades or services in which the element of direct recruitment if any does not exceed 50 per cent and gave detailed procedure how promotions have to be made on the basis of seniority subject to fitness in the light of the aforesaid reservations
It was stated in the memorandum that the Ministry of Finance etc
arc requested kindly to bring the above decisions to the notice of all attached and subor dinate offices under them and semi Government and autonomous bodies
This memorandum also stated in paragraph 6 thereof as under In so far as officers serving under Indian Audit  Accounts Department are concerned separate orders will issue in due course
 Thereafter Shri section Krishnan Deputy Secretary De partment of Personnel Cabinet Secretariat New Delhi wrote a DC No 27271 Estt 488 SCT dated 1st January 1973 to Shri R Hariharan Assist ant Comptroller  Auditor General N Office of the Comp troller and Auditor General of India New Delhi
In this letter the Deputy Secretary of the Department of Personnel wrote as under Dear Shri Hariharan Please refer to your DO letter No2859NGEII56 72 dated the 24th November 1972 regarding reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness
A copy of the orders issued in this Department s OM No27271 EstSCT dated 27111972 has already been endorsed to the C  AG A copy of the said OM is enclosed for ready reference
We shall be grateful to know whether separate instructions which are pro posed to be issued by C  AG in this regard in respect of persons serving under the Indian Audit  Accounts Department have since been finalised
The draft of the instructions may please be shown to us if since finalised
I need hardly emphasise that it is desirable to expedite issue of such orders
Yours sincerely sd section Krishnan Thereafter the Assistant Comptroller  Auditor General P also met the said Deputy Secretary of the Department of Personnel and also sent a draft of instructions proposed to be issued to the offices under the Comptroller and Auditor General of India to Deputy Secretary Department of Person nel vide a DOletter No20 NGE II56 72 I dated 5th Janu ary 1973 by Shri R Hariharan Assistant Comptroller and Auditor General Office of Comptroller and Auditor General of India New Delhi
Alongwith this letter a draft of in structions proposed to be issued to the offices under the Comptroller and Auditor General was forwarded
The Deputy Secretary Department of Personnel Shri section Krishnan vide their communication dated 22nd January 1973 informed Shri R Hariharan aforesaid that the draft of instructions proposed to be issued were in order and it was requested that a copy of the instructions when issued may be 489 sent to their department
It was in pursuance of these consultations that the impugned circular dated 25th January 1973 was issued from the office of the Comptroller and Auditor General of India New Delhi
For facility of under standing the relevant part of the circular dated 25th Janu ary 1973 issued from the office of the Comptroller and Auditor General of India New Delhi is reproduced hereunder No172 NGE II56 72 I OFFICE OF THE COMPTROLLER  AUDITOR GENERAL OF INDIA NEW DELHI 1
Dated the 25 1 1973
To All Accountants General and Offices subordi nate to them
All Chief Auditors of Rlys
and offices subor dinate to them
All Regional Directors of Commercial Audit Chief Auditors of Commercial Accounts and offices subordinate to them
The Directors IA  AS Staff College Simla
The Director of Audit Defence Services and offices subordinate to him
The Assistant Comptroller and Auditor General P
For GEI GEII OE  ASections Subject Reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion promotions on the basis of sen iority subject to fitness
Sir I am to invite a reference to para 3c of this office circular letter No 1989 NGEII89 68 dated 3101968 according to which there is no reservation for Scheduled Castes  490 Scheduled Tribes in appointments made by promotion on the basis of seniority subject to fitness although cases involving supersession of Scheduled Castes and Scheduled Tribe Officers in Class II appointments are required to be submitted for prior approval of the Comptroller and Auditor General of India and the cases involving supersession of Scheduled Caste and Scheduled Tribe officers in Class III  Class IV appointments have to be report ed within a month to the Comptroller and Auditor General of India for information
The policy in regard to reserva tions of Scheduled Caste and Scheduled Tribe officers in posts filled by promotion on the basis of seniority subject to fitness has now been reviewed by the Government of India in consultation with the Comptroller and Auditor General of India and it has been decided in supersession of the orders contained in the aforesaid para 3c of our circular letter dated 3101968 that there will be reservation at 15 for Scheduled Caste and 71 for Sched uled 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 any does not exceed 50
The above orders will necessitate reservation for Scheduled Castes and Scheduled Tribes in promotions made on the basis of seniority subject to fitness to the following grades in the IA  AD Promotions from Class III to Class II The existing procedure of promotions to AOs
grade will not undergo any change as far as the posts filled by selection is con cerned
Reservation to the extent of 15 for Scheduled Castes and 7 14 for Scheduled Tribes will however have to be made with reference to the number of posts of Accounts Officers filled in a year on the basis of seniority subject to fitness and for this purpose a roster maintained in respect of such promotions
491 4
The following procedure may be followed to give effect to the decision men tioned in paragraph 2 above
The above instructions take effect from 27111972 except where a Select List if any for promotion by seniority subject to fitness has  already been prepared by a De partmental Promotion Committee and approved by the appropriate authority before issue of these orders ie 27111972
The receipt of this circular letter may kindly be acknowledged
Yours faithfully Sd R Hariharan Asstt
Comptr
GenlN The High Court is not right in stating that there cannot be an administrative order directing reservation for Sched uled Castes and Scheduled Tribes as it would alter the statutory rules in force
The rules do not provide for any reservation
In fact it is silent on the subject of reser vation
The Government could direct the reservation by executive orders
The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules
See the observa tions in Santram Sharma vs State of Rajasthan and Anr  In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non selection categories of posts
They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh Railways vs Union of India  ors
 The High Court has also touched upon the validity of the impugned circular and stated that they were not issued by the President after consultation with the Comptroller  Auditor General
In the present case the President has not issued the circular but Comptroller and Auditor General has issued it
There was however proper consultation between the Government and the Comptroller  Auditor General for issuing the circular
The infirmity pointed out that it was not issued in the name of the 492 President therefore relates only about the form and not with regard to the substance
The circular of course ought to have been issued in the name of the President as required under Article 1485 of the Constitution as it affects the service conditions of persons in the Audit and Accounts Department
But since the Government has approved the circu lar and the circular was in accordance with the declared policy of reservation we do not want to restrain the Comp troller  Auditor General from enforcing it
We are thus of the view that the impugned circular is valid and binding
The circular by its own provides for reservation
The authorities concerned must take that into account while affecting promotions under the rules
The result is that the impugned judgment of the High Court is set aside and the appeal is allowed
In the circumstances of the case however we make no order as to costs
NPV Appeal allowed


Summary:
The appellant landlady filed a suit under s21 of the UP Urban Building Regulation of letting rent and evic tion Act 1972 for eviction of the tenant on the ground of bona fide requirement The prescribed authority and the Appellate Tribunal found as a fact that the appellant s requirement was bona fide and decreed the suit
But the High Court set aside the order on the sole ground that the married daughters of the original tenant who were the necessary parties were not impleaded and therefore the non joinder of the necessary parties disentitled the appel lant landlady to have the ejectment of the tenants namely the sons and the widow of the deceased tenant
Allowing the appeal of the landlady this Court HELD 11 Section 3a2 of the UP Urban Building Regulation of letting rent and eviction Act 1972 postulates that tenant in relation to a building means a person by whom rent is payable and on the tenant s death in the case of a non residential building his heirs
There fore as defined under s3a2 all heirs of the tenants are the tenants who succeeded intestate as per the Hindu Succes sion Act 1956
Consequently the married daughters are tenants within the meaning of section 3a2 and entitled to succeed to the tenant s lease hold rights under the Act including not merely to the liabilities to pay rent but also to continue the business until duly ejected as per the provisions of the Act
537 B C 12 However in the instant case the original tenant died in 1965
536 Thereafter the proceedings were initiated in 1974
Till then one of the sons of the deceased tenant
namely the first respondent was in occupation of the premises and did carry on business
The married daughters never participated nor claimed interest in the business conducted by the first respondent and even before the death of the father they were married and they were living with their husbands else where
The Rent Appellate Tribunal has found that by neces sary implication the married daughters surrendered their tenancy rights inherited under the Act since after the demise of the original tenant the daughters evinced no interest to assert their rights
In view of this their non impleadment as respondents does not vitiate the action for non joinder of them as necessary parties nor maintain ability of the proceedings for ejectment itself
S36 H 537 AB D E