Case: State of Haryana & Others Vs. Shamsher Jang Bahadur & Others

K.S. Hegde, J. 1. 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 an addition requires the approval of Central Government under S.115 of the States Reorganization Act, 1956. 2. 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. 3. 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 Reorganisation 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. Somewhat similar are the facts in the other appeals. 4. 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 instructions issued by the Central Government under the provisions of the States Reorganization Act, 1956. Hence it is not necessary to refer to the Pepsu Secretariat (Service, Recruitment, Promotion, Punishment and Seniority) Rules, 1952.5. Rule 6 of the Rules regulates the appointment of assistants by promotion. The relevant portion of that rule reads :"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 (iii) By selection from among officials employed in departments of Government other than the Civil Secretariat. 6(2) ... ... ... 6(3) Appointment to any post by the promotion of officials already in the service or by transfer of officials employed in Government departments other than the Civil Secretariat shall be made strictly by selection, and official shall have any claim to such appointment as of right." 6. On June 21, 1958, the Government issued instructions to the effect that 25 per cent of the vacancies in the cadre of assistants in the Punjab Civil Secretariat will be filled by appointment of suitable personnel from serving officials in the offices of the heads of departments in the State while the remaining 75 per cents will be filled by promotion from amongst the clerks in the Punjab Civil Secretariat. Clause (b) of that Order provides :"For the purpose of appointment of officials from the offices of heads of departments as assistants in the Punjab Civil Secretariat as also for promotion of clerks of the Secretariat to the posts of assistants in the cadre, a test separately prescribed will be held by the Punjab Public Service Commission. For officials belonging to the offices of the heads of departments, this test will be a competitive one and for the Secretariat clerks it will be a qualifying test. As at present this test will be conducted simultaneously in accounts as also in noting and drafting. The question as to what standard of accounts test it would be fair to expect of the examinees is being considered separately." 7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions 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. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and another, [1968 - II L.L.J. 830]; (1968) 1 S.C.R. 111, that while the Government cannot amend or supersede the statutory rules by administrative instructions, 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. Hence we have to see whether the instructions with which we are concerned, so far as they relate to 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 conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and, therefore, they relate to their conditions of service. 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 merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules. 8. 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 Bhaker and others v. Y. Krishna Reddy and others, (1970) S.L.R. 768, 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 terms of proviso to sub-s.(7) of S.115 of the States Reorganization Act, 1956, it is invalid as it violates sub-s.(7) of S.115 of the States Reorganization Act. Admittedly the approval of the Central Government had not been obtained for issuing those instructions. But reliance was sought to be 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 letter has been considered by this Court in Mohammad Bhakars case (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants.

Decision:
0[ds]7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions 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. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and another, [1968 - II L.L.J. 830]; (1968) 1 S.C.R. 111, that while the Government cannot amend or supersede the statutory rules by administrative instructions, 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. Hence we have to see whether the instructions with which we are concerned, so far as they relate to 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 conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and, therefore, they relate to their conditions of service. 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 merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules8. 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 Bhaker and others v. Y. Krishna Reddy and others, (1970) S.L.R. 768, 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 terms of proviso to sub-s.(7) of S.115 of the States Reorganization Act, 1956, it is invalid as it violates sub-s.(7) of S.115 of the States Reorganization Act. Admittedly the approval of the Central Government had not been obtained for issuing those instructions. But reliance was sought to be 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 letter has been considered by this Court in Mohammad Bhakars case (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants.