IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5 of 2007 1. BASUDEO PRASAD s/o Dukhharan Singh, Village- Khaprail Chak, P.S. Parsa Bazar, District- Patna, presently posted as Head Clerk in the office of Joint Director-cum- Controller, Weights and Measures, Bihar, Patna. 2. Harsh Nath Ram s/o Sri Sadha Prasad, resident of Mohalla- Khalasi, P.S. Buxar Town, District- Buxar. Versus 1. THE STATE OF BIHAR through the Secretary, Agriculture Department, Govt. of Bihar. 2. Secretary, Agriculture Department., Govt. of Bihar, Patna. 3. The Secretary –cum- Agriculture Production Commissioner, Govt. of Bihar. 4. The Director, Agriculture, Bihar New Secretariat, Patna. 5. The Joint Director –cum- Controller, Weights and Measures, Raza Bazar, Patna. ------ For the Petitioner :M/s Sanjay Kumar Verma & Sanjay Kumar For the Respondents : A.C. to S.C. 17. 4 30.11.2010 Learned counsel for the petitioners seeks permission to withdraw the application in so far as petitioner no.2 is concerned, in as much as he has already been granted promotion. Counter affidavit having been filed, with the consent of the parties the writ petition is being disposed of at this stage itself. It is not in dispute that upon satisfactory completion of ten years of service and passing departmental examination , under the rules, as then existed, the petitioner was entitled to be considered for promotion to the post of Inspector, Weight and Measures, which is a statutory post as well. In 1985, the Central Government enacted the Standards of Weight and Measures (Enforcement) Act, 1985. Section 72 thereof delegated the rule making power to the State 2 Government but conditioned that it could exercise that power after consultation with the Central Government. The rule making power was for the purposes of the Act. It appears pursuant thereto, the State Government made Bihar Standards of Weights and Measures (Enforcement) Rules, 1988. In the said rule we are concerned with Rule 20 and in particular the operation of sub- rule 2 of Rule 20 is quoted hereunder: “ 20. Qualification of Inspectors- (1) No person shall be appointed as inspector unless he- (a) is a graduate of a recognized university in Science (with physics as one of the subjects), technology or engineering, or holds a recognized diploma in engineering; and (b) is able to speak, read and write at least one of the regional languages of the State. (2) Nothing in sub- rule (1) shall apply to persons who have been working as Inspectors or are eligible for promotion as inspectors before the commencement of these rules. (3) The person appointed to the post of Inspector shall have to complete the basic training course at the Indian Institute of legal Metrology established by the Central Government under Section 76 of the Standards Act before he is considered for confirmation to the post.” Petitioner‟s case is that though he is only a matriculate (Pravesika) by virtue of over ten years of satisfactory service, he became eligible for being considered for promotion to the post of Inspector, Weights and Measures in the year 1985 itself. 3 He was not considered. Petitioner has stated that in 1989, the case for promotion was finally taken up by the Departmental Promotion Committee but it was neither approved nor rejected and effectively kept in abeyance. He then made a representation and all departmental authorities recommended the case of the petitioner for promotion to the post of Inspector, Weights and Measures. When the matter came before the Joint Director, Agriculture, he noted that on 4.3.1989, the State Government had taken an executive decision wherein ,inter alia, it was provided that no one would be promoted or appointed as Inspector, Weights and Measures unless he was a Science graduate. The Joint Director opined that in view of rule 20(2) of the rules aforesaid , the petitioner‟s case could still be considered for appointment as Inspector, Weights and Measures but ultimately nothing happened. A legal notice was then sent by the petitioner, in response whereto ultimately on 7.4.2008, the Director, Agriculture, Bihar, Patna passed the impugned order- Annexure 16 to the interlocutory application being I.A. No. 6455 of 2009. In substance, the writ petitioner now is challenging the aforesaid order of the Director, Agriculture, Bihar, Patna. The Director, Agriculture, Bihar, Patna has denied relief to the petitioner only on the basis of Executive Circular dated 4.3.1989. He has not found that the petitioner was not ineligible for consideration for promotion in the year 1988. He has blocked the promotional avenue only by virtue of Executive Circular. Thus, ultimately, the question would be 4 whether an Executive Circular issued by the State Government could curtail or override the statutory provision of rule 20(2) of the rules aforesaid. The short answer to this is known. It is well established that the rule making power by executive circular in terms of Article 309 of the Constitution can be used to fill up a vacuum .It cannot amend, it cannot subtract and it cannot sub plant an existing rule. Those rules are statutory rules. They can be amended or varied only by the statutory procedure in that regard and not by executive order much less by executive circular. Thus, it becomes necessary to consider the import of rule 20(2) of the rules . If one would read rule 20, he would find that the intention of the legislature was to prescribe an educational qualification of Inspector, Weights and Measures, which is a statutory provision. While doing so, the legislature was conscious that the post is also filled up by promotion but the qualification in the promotional avenue is not what is prescribed by sub rule 1 of Rule 20 .Thus, the legislature enacted an exception and a relaxation to the substantive part of Rule 20 by providing sub rule 2 of Rule 20. Now, if we consider sub rule 2 of rule 20, the meaning would be clear. It only means that all persons, who were eligible for being considered for promotion on the date when the rules came into force would be exempted from the qualification required for appointment of Inspector , Weights and Measures. The expression used is „eligible‟ for promotion and not promoted in fact. In the present case, the petitioner has pleaded and it has not been denied that 5 the petitioner became eligible for promotion upon completion of ten years of satisfactory service. Thus, he became eligible for being considered for promotion in 1985 itself i.e much prior to the coming into force of the rules. Thus, the rules making an exception in the case and permit him to be considered to be promoted and appointed as Inspector, Weights and Measures. Now coming to the problem that is created by the Government resolution dated 4.3.1989. The Government resolution makes no exception. It , inter alia, provides that the rules are silent with regard to quota as amongst promotion and direct recruitment for filling up the post of Inspector, Weights and Measures . This resolution was issued to fill up that gap.To that extent the resolution cannot be criticized but then while doing so the resolution goes forward and prescribe that henceforth the educational qualification would be Science Graduate only with no exception. This executive decision come in direct conflict with sub rule 2 of rule 20 of the rules. It is virtually obligatory. Sub rule 2 of rule 20 cannot be ignored in exercise of power under Article 309 of the Constitution. The legislature would have to take substantive step to amend the rules. The executive circular cannot override the statutory provision in the shape of the rules. To that extent the executive circular cannot stand in the way of the petitioner and it must be held that the circular, though prescribed educational qualification, the provision as enacted in sub rule 2 of rule 20 is inherently to be read into the circular itself as an exception 6 otherwise the circular would be rendered ultra vires. I do so accordingly. The effect is that the petitioner being otherwise qualified for being considered for promotion and appointment as Inspector, Weights and Measures when 1988 rules came into being as prospect of promotion could not have been shut out by the circular, in question. Incidentally, I may note that in writ petition it is clearly demonstrated that while considering the matter of promotion of petitioner, the file was sent to the Personnel Department for opinion. The Personnel Department took the executive view which this Court is stating and advised the department of agriculture accordingly but the better wisdom did not prevent. They chose to err. Thus, I have no option but to hold that the executive circular dated 4.3.89 would be read along with exception in terms of rule 20(2) and not alone. Accordingly, as a consequence, the petitioner would be entitled for being considered for promotion and appointment as Inspector, Weight and Measures as per his seniority in the cadre from the time promotion was due to him. Notwithstanding the so called vacancy being filled up, for which a shadow post may have to be created for a fault committed by the department, the petitioner cannot be made to suffer. The Director, Agriculture, Bihar, Patna would see that the order of this Court is implemented in letter and spirit at the earliest and not later than two months from today, The writ petition is allowed. Singh ( Navaniti Prasad Singh, J.) 7