No 3 of 1990
IN Civil Appeal No 4131 of 1989
478 From the Judgment and Order dated 491989 of the Cal cutta High Court in Original Order No 241 of 1989
Ashok Desai Solicitor General Amal Datta DK Sinha and JR Das for the Petitioners
AK Sen Ms Mridula Ray TU Mehta NP and DP Mukherjee for the Respondents
The following Order of the Court was delivered by section RATNAVEL PANDIAN J
This application is filed by the State of West Bengal for clarification of the two orders of this Court dated 7th September and 27th September of 1989 in SLP Civil No 1067089 in the context of the order dated 4th September and order report dated 15th September of 1989 passed by a Division Bench of High Court of Calcutta in Writ Appeal Nos 240 and 24 1 of 1989 in the Matter No 1436 of 1988
This case has got a chequered history the facts of which are set out in clear terms in the judgment dated 1071989 of the High Court of Calcutta vide Annexure 1 to this application
Therefore it is not necessary to reiter ate the entire facts but suffice to refer a few relevant facts for the disposal of this application
A batch of employees of the State of West Bengal belong ing to the West Bengal Civil Service Executive filed Writ Petition being Matter No 1436 of 1988 under Article 226 of the Constitution of India
Subsequently some more members of the said cadre were added as respondents on their applica tion and they also supported the Writ Petition
The original respondents to the Writ Petition who are also in the same cadre as well the State Government which is made a party opposed the Writ Petition
The main pleading in the Writ Petition is that there was no rule relating to determination of seniority as between promotees and direct recruits of the West Bengal Civil Service and the prayer on the above pleading is for issuance of a Writ of Mandamus directing the State Government to frame appropriate seniority rules in that behalf
On 541988 a learned single Judge of the High Court Ajit Kumar Sengupta J passed an interim order directing the State Government 479 to frame seniority rules and determine inter se seniority on the basis of the seniority rules within one month from the date of the communication of the order
On 2941988 on an application moved by the writ petitioners the same learned Judge passed an interim order to the effect that if any seniority rules have been framed pursuant to his order dated 541988 the same would not be given effect to without the leave of the Court and without giving any notice to the writ petitioners
On 1061988 the writ petitioners moved another interim application in the Writ Petition before the same learned single Judge for setting aside the draft seniority rules
On the same day the learned Judge passed the interim order restraining the State Government from taking any further action on the basic of the draft rules of seniority which were in the meantime prepared in compliance with the earlier order dated 541988
On 2331989 Ajit Kumar Sengupta J pronounced his judgment the operating portion of which reads thus The application is allowed
The draft rules are ultra vires as I have already held in my judgment
Following the direc tions given in my judgment the inter se seniority will be done
There will be a stay of the operation of the judgment and order for four weeks but the interim order granted by this Court will continue also for four weeks
 The State Government preferred an appeal against the judg ment and order dated 2331989 before a Division Bench of the High Court in Appeal No 24089
The original respond ents to the Writ Petition also preferred another Appeal against that judgment in Appeal No 24189
Both the appeals are with reference to Matter No 143688
In both the ap peals stay applications were filed before the Division Bench comprised of Justice Roy and Justice Sudhangshu Sekhar Ganguly
The said DiviSion Bench delivered its Judgment on 1071989 disposing the interim applications the relevant portion of which is as follows On a consideration of all the submissions made before us we are inclined to hold therefore that the appellant peti tioners have made out a prima facie case for staying the operation of the judgment and order passed by the learned Judge
Since the respondents have not been able to establish that the prima facie case is in theft favour it cannot be held that the balance of convenience and inconvenience title in their favour
The learned Judge has restrained 480 the appellant State from filling up a number of important posts till the making of the Seniority Rules and determina tion of seniority of the respondents
Such a stay order has been there since the filing of the original writ petition
It is obvious that the Government has been suffering because of this embargo and it is also obvious to these officers who would have otherwise been appointed to these posts been suffering financially
The operation of this order of in junction shall also therefore have to be stayed along with the operation of the judgment and decree passed by the learned Judge
In the circumstances stated it is hereby ordered that the operation of the judgment and order dated 23rd March 1989 passed by the Honable Mr Justice Ajit Kumar Sengupta in the Matter No 143688 together with all interim orders passed by His Lordships in the said matter are hereby stayed
Pending the disposal of this appeal the Government will be at liberty to proceed with the finalisation of the Seniority Rules governing the members of the unified WBCS
The Government will be also at liberty to fill up all the vacan cies and award all service benefits including appointments to higher posts or higher scale which will be subject to the results of these appeals
Since many such posts are lying vacant at present the Court desires the Government to consider if it will take in its consideration the cases of the writ petitioners and the respondents Nos 9 to 15 while filling up these posts
 In the same order the Division Bench after disposing this application has made the following order The operation of this judgment together with the order shall remain stayed for eight weeks
 The stay of the operation of the judgment evidently has been made on the request of the aggrieved party namely the respondents to the appeal to enable them to approach this Court
Aggrieved by this order the writ petitioners who are respondents in the Appeals filed SLP No 992089 challenging the judgment and order of the Division Bench dated 107
1989 along with a petition for stay in IA No 189 pray ing to stay the operation of the 481 impugned Judgment and Order dated 10th July 1989 passed by the Division Bench of the Calcutta High Court in Appeal No Nil89 in Matter No 143688 till the disposal of the SLP     A Bench of this Court to which one of us Ratnavel Pandian J was a party after hearing the learned counsel for the petitioners and respondents to the SLP passed the following order on 2981989 As the Special Leave Petition is directed against the Interim order of the Division Bench of the High Court we are not inclined to interfere in the matter
The Special Leave Petition is dismissed
We however request the High Court to dispose of the Writ Petition pending in the High Court as expeditiously as possible preferably within two months from today
 It seems on 491989 Justice MN Roy who was a party to the order dated 1071989 expressed his inability to hear the appeals in the course of the said week in view of other matters being listed before him and released these appeals in question
Thereafter these two appeals had been assigned to another Division Bench comprised of the learned Judges Bimal Chandra Basak and Amarava Sengupta JJ
This Bench on the same day ie on the afternoon of 49
1989 itself extended the stay of eight weeks granted by the earlier Division Bench dated 1071989 till the disposal of the appeals and directed the status quo
On being aggrieved by the order dated 491989 extending the order of stay the original respondents in the Writ Petition filed Special Leave Petition No 1067089 before this Court which came up before the Bench of this Court presided over by the Hon ble Chief Justice along with KN Singh J
This Bench passed an interim order on the above SLP on 79 1989 the operative portion of which reads thus In the meanwhile the order passed by this Court on 298
1989 shall hold the field notwithstanding any contrary order passed by the Division Bench of the Calcutta High Court
 This SLP was finally listed before another Bench comprised of Murari Mohan Dutt J and one of us Ratnavel Pandian J
This Bench passed the following order on 29789 in Civil Appeal No 4131 of 1989 482 arising out of SLP Civil No 1067089 Special leave is granted
Perused the report
After hearing the learned counsel for both the parties we direct that in view of the order dated September 7 1989 passed by this Court no further order need be made on this appeal
The appeal is disposed of as above
There will be no order as to costs
 The submissions made on behalf of the applicants in the present Interlocutory Application 3 of 1990 are that the ex parte order extending the stay and granting status quo as on 4th September 1989 passed by the Division Bench consist ing of Bimal Chandra Basak and Amarava Sengupta JJ was in violation of the earlier order of this Court made on 29th August 1989 and that since the appeals though heard on a number of days are not yet disposed of the State Government is constrained to approach this Court for necessary orders and directionsclarifications in the interest of smooth administration and eliminating stagnation and frustration among the members of West Bengal Civil Service Executive cadres
According to the State Government there are number of posts lying vacant in the cadre of Deputy Secretary and equivalent posts in different Departments of the State Government including core Departments like Revenue Finance Education Milk Supplies Hospitals Administrative Reforms Power etc that the State Government is unable to fill up the same in view of the interim order of status quo passed on 491989 that the State Government is unable even to make transfers on promotion or sending officers on deputa tion to equivalent posts and that no service benefits could be awarded to those officials
The second respondent on his behalf and on behalf of respondents 1 3 4 and 5 has filed a counter stating that the order of extension of stay passed by the Division Bench on 49
1989 is no way inconsistent or in contravention of the order of this Court and the delay in disposal of the appeal is only on account of a dialectic tactics adopted by the applicants and the order obtained from this Court on 7th September 1989 was without any notice to and behind the back of the respondents Nos 1 to 5 and that most of the posts as shown in Annexure A  to the counter have understandably been filled up by the State Government during the pendency of the interim orders and that the grievance expressed by the State Govern 483 ment in filling up the posts is totally a false statement since all the posts mentioned have been filled up and that in case the extended stay order is disturbed the respond ents would be put to immeasurable hardships
As the two Appeals Nos 24089 and 24 189 in Matter No 1436 88 are now pending before the High Court for final disposal we without making any detailed discussion on the issues involved are inclined to dispose of this application by making only a clarification
is the admitted case that the Division BenCh consisting of Justice Roy and Justice Sudhangshu Sekhar Ganguly by their order dated 107
1989 stayed the operation of the order of the learned single Judge dated 233
1989 in Matter No 143688 and allowed the Government to fill up all the vacan cies and award all service benefits including appointments to higher posts or higher scales which will be subject to the results of the two appeals
However the same Bench stayed the operation of this order for a period of 8 weeks admittedly to enable the respondents in these two appeals to approach this Court
When the matter came up before this Court for admission in SLP No 992089 with the petition IA No 189 to stay the operation of the order dated 10789 staying the order of the single Judge of the High Court this Court dismissed that SLP by its order dated 29889 after hearing the counsel for both the parties
The copy of the order has already been reproduced above
This Court observing We are not inclined to interfere in the matter has upheld the order of stay dated 10789
In other words the order of stay passed by the Division Bech on 10789 has been upheld
The result was on the expiry of 8 weeks period the original order of stay dated 10789 passed by the earlier Division Bench has been revived and come into operation
The 8 weeks period from which the order dated 10789 has been stayed by the Division Bench would have in the normal course expired by 9989
It seems that meanwhile the respondents in the two appeals have ap proached another Division Bech to which the appeals have been assigned for the reasons already indicated and obtained an order of extension of stay of the operation of the judg ment of the Division Bench dated 1071989
Feeling ag grieved the appellants in the two appeals namely Sabyasachi Sengupta and others filed SLP No 10670 of 1989
This Court by its order dated 7989 directed that the order passed by this Court on 29889 ie the order passed in SLP No 992089 shall hold the field notwithstanding any con trary order passed by the Division Bench of the Calcutta High Court
The contrary order  is referrable to the order passed by the second Bench of the Calcutta High Court on 491989
Mr Ashok Desai the learned Solicitor General and Mr Ashok Sen Sr counsel appearing for the applicants forcibly arti 484 culated that in the teeth of the order passed by this Court on 791989 observing notwithstanding any contrary order passed by the Division Bench of the Calcutta High Court the order of the Court dated 2981989 shall hold the field it is made clear that the order of the High Court dated 491989 has become otiose and further request that this Court however be pleased to clarify the position in the context of the subsequent orderreport dated 1591989
Mr DP Mukherji appearing on behalf of the respondents made a fervent plea that even assuming that the order dated 491989 is in infraction of the order dated 79
1989 it would amount only to a technical infraction and as such there can be no justification to grant the relief asked for by the applicants in this interlocutory application and if the relief as prayed for is granted it would be causing substantial and grave injustice to the respondents
On a careful analysis of the facts and circumstances of the case we hold that the plea of Mr Mukherji is illogical and inconceivable and does not merit consideration
If his plea is to be accepted then it will be only a mockery of justice because it will be tantamount to nullifying our own order which has reached its finality
It is the settled principle of law that any order or direction pronounced by this apex Court in exercise of its jurisdiction in any matter pending before it that order or direction is binding on all courts within the territory of India and should be implemented and executed in all its rigour
Form the report sent by the Division Bench of the Cal cutta High Court dated 15th September 1989 it seems the latter Division Bench extended the 8 weeks stay on the grounds firstly that the order of this Court dated 2981989 has not prevented the Division Bench from passing such order and secondly that the 8 weeks stay stood vacated wef
4th September 1989
But in fact the order of this Court dated 2981989 has restored the order of the first Division Bench of the High Court dated 1071989 on the expiry of 8 weeks and that the 8 weeks stay had expired only by 991989 and not on 49
Be that as it may the order of this Court dated 791989 in SLP No 1067089 has clarified that position to the effect that the order of this Court dated 2981989 shall hold the field notwithstanding of the contrary order passed by the Division Bench of the Calcutta High Court
The contrary order mentioned in the order dated 791989 refers to the order dated 49
The resultant position is that this 485 Court by the order dated 791989 has rendered the order of the second Division Bench of the High Court dated 491989 inoperative and ineffective
Subsequently this SLP No 1067089 was disposed of after grant of leave
Thus the matter now stands concluded that from 109
1989 onwards the order of the first Division Bench dated 1071989 has become operative and executable and the interim direction given by that order is brought back to life and resuscitated
There fore it is open to the State Government to act in accord ance with the order dated 1071989
With this clarifica tion the above application is disposed of with no order as to costs
GN Application dis posed of


Summary:
Andhra Pradesh Animal Husbandry Service Rules 1961 governed the conditions of service of the Andhra Pradesh Animal Husbandry Department and under those Rules Veterinary Assistant Surgeons were eligible for promotion to three categories of Class IV posts
Rule 6 of the said Rules provided special eligibility qualifications for those posts and 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 chal lenged the vires of Rule 6 of 1961 Rules on the ground that it was violative of Article 14 of the Constitution inasmuch as it conferred arbitrary powers on the Government to pick and 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 there being no guide lines prescribed for selection of persons for specialised training
The main contention was that at the time of re cruitment all the Veterinary Assistant Surgeons possessed Bachelor Degree in Veterinary Science and the special quali fication and training prescribed under Rule 6 could only be acquired after joining as Veterinary Assistant Surgeon by only those Assistant Surgeons whom the Government selected for the purpose
The High Court held Rule 6 of the 1961 Rules as intra vires but made certain observations advising the Animal Husbandry Department to frame a rule for the said Department and see that as far as possible the area of discretion on the part of the authorities concerned is reduced if not eliminated altogether so far as the question of imparting specialised training as provided under Rule 6 was concerned
Thereupon the State Government amended Rule 6 of the 1961 Rules as a result whereof the 1961 Rules were superseded by the Andhra Pradesh Animal Husbandry Service Special Rules 1977 Rule 1 whereof pro 419 vided for the constitution of the service
Class IV posts which were re designated as Assistant Directors were divid ed into eight categories and Rule 2 provided method of promotion from Class V to Class IV
Under those Rules Veter inary Assistant Surgeons who were Class V were only eligible for promotion to Class IV in their respective categories
That is to say category I Class V was only eligible for promotion to category I Class IV and similarly category 2 of Class V was eligible for category 2 of Class IV and so on and in this way common seniority of class V officers became irrelevant promotion being category wise
Being dissatis fied some officers belonging to Class IV filed Representa tion Petition 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 No 4532 of 1971 referred to above whereby the said High Court had declared Rule 6 of 1961 Rules as intra vires
The contention raised by the petitioner was that promotions from Class V to Class IV be made on the basis of seniority alone irrespective of the categories contemplated by 1977 Rules
The Tribunal by its judgment allowed the petition and issued the directions asked for by the petitioners
The Tribunal observed that not to speak of direction even an observation from the High Court was binding on the State Government when the State Government had not chosen to get the said observation set aside by the Supreme Court
Accordingly the Tribunal direct ed the State to evolve a proper and rational 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
Being aggrieved the State of Andhra Pradesh and some of the officers who have been affected by the High Court s judgment and who were not parties before the High Court have filed these appeals
The following questions arose for determination 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 servants in terms of the directions and 2 when there are specialized 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 speciality wise irrespective of sen iority
Allowing the Appeals and remanding the matter to the Tribunal for decision on other points this Court 420 HELD 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 limita tions under Article 226 of the Constitution of India and as such the learned Judge deliberately used the words advisa ble  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
428E F The power under Article 309 of the Constitution of India to frame rules is 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
429C The High Court 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
429D E The Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned directions
429F Narender Chand Hem Raj  Ors
vs Lt Governor Union Territory Himachal Pradesh  Ors   State of Himachal Pradesh vs A parent of a student of medical college Simla  Ors 1985 3 SCC 169 and Asif Hameed  Ors
vs State of Jammu  Kashmir  Ors
 1989 Supp 2 SCC 364 referred to