IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5759/2008 Reserved on: 4.6.2010 Decided on:5.7. 2010 _____________________________________________ Subhash Chand and another. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Subhash Sharma, Advocate. For the Respondents: Mr. Rajinder Dogra, Addl. Advocate General. _____________________________________________________ Justice Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that petitioner No.1 joined as Language Teacher in Government High School, Jassourgarh on 20.5.1988. Petitioner No.2 joined as Language Teacher on 10.3.1988. Petitioners were issued special certificates of Language Teacher as per Annexures A-2 and A-3 dated 3.12.1988. Petitioners were granted pay scale of Rs. 480-620 and thereafter they were placed in the pay scale of Rs. 1640-2925. They were granted pay scale of Rs. 5480-8925 with effect from 1.1.1996. They were regularized vide office orders dated 6.3.1999 and 4.1.1999, respectively (Annexures A-4 and 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 A-5). They were placed in the pay scale of Rs. 5000-8100 in place of Rs. 5480-8925. 2. Mr. Subhash Sharma has strenuously argued that the action of the respondents of reducing the pay scale of the petitioner after regularization from Rs. 5480-8925 to Rs. 5000-8100 is illegal, arbitrary, thus, violative of Articles 14 and 16 of the Constitution of India. He then contended that no notice was ever issued to the petitioners before reducing their pay scale. 3. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that pay scale of Rs. 5000-8100 has rightly been granted to the petitioner since according to him, they have not obtained the Shiksha Shastri qualification. He has relied upon Annexure RB dated 21.12.1989. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioners were appointed Language Teachers against the post of Junior Basic Trained Teacher. They were granted, as noticed above, pay scale of Rs. 480-620 and Rs. 1640- 2925. Since the petitioners had worked for more than ten years as Language Teacher, respondents issued special certificates vide Annexures A-2 and A-3 dated 3.12.1998. A conscious decision had been taken to regularize the services of the petitioners with effect from 6.3.1999 and 4.1.1999, respectively. However, petitioners have been placed in the pay scale of Rs. 5000-8100. 6. Mr. Subhash Sharma has drawn the attention of the Court to notification dated 23.3.1989 whereby the pay scale of 3 Shastris/ Language Teachers was prescribed and existing pay scale of Rs. 1650-2925 has been revised to Rs. 5480-8925. It is not in dispute that the petitioners had been granted pay scale of Rs. 5400-8925 with effect from 1.1.1996. Their pay scale has been reduced only after their services were regularized and they were put in the pay scale of Rs. 5000-8100. 7. Mr. Rajinder Dogra, learned Additional Advocate has vehemently argued on the basis of para 4 of Annexure-RB dated 21.12.1989 that the pay scales granted to Language Teachers/Shastris vide notification dated 23.3.1989 are only applicable/admissible to Trained Graduate Teachers. The pay scales have been paid to the Language Teachers/Shastris on the basis of notification dated 23.3.1989 under the Himachal Pradesh Civil Services (Revised Pay) Rules 1990. It is settled law by low that rules cannot be superseded by the executive/administrative instructions. In the instant case, petitioners have been deprived of higher pay scale only on the basis of communication issued by the Deputy Secretary to the Director of Education dated 21.12.1989. The executive/administrative instructions can only supplant and cannot substitute the existing rules. 8. Their Lordships of the Hon’ble Supreme Court in Sant Ram Sharma versus State of Rajasthan and others, AIR 1967 SC 1910 have held that the Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not 4 inconsistent with the rules already framed. Their Lordships have held as under: “7. We proceed to consider the next contention of Mr. N. C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found it the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” 9. Their Lordships of the Hon’ble Supreme Court in State of Haryana versus Shamsher Jang Shukla, AIR 1972 SC 1546 have held that the Government is not competent to alter by means of administrative instructions the conditions of service prescribed by the rules. Their Lordships have held as under: “7. It may be noted that herein we are dealing only with those who were promoted from the cadre to 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, (1968) 1 SCR 111 = 5 (AIR 1967 SC 1910) 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 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 Bhakar v. Y. Krishna Reddy, 1970 Serv LR 768 (SC), 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 Re-organization Act, 1956, it is invalid as it violates sub-s. (7) of S. 115 of the State Re-organization 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 6 Government regarding to 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 Mohammed Bhakar's case, 1970 Serv LR 768 (SC) (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Government to alter any conditions of service relating to promotion of the affected Government servants.” 10. Their Lordships of the Hon’ble Supreme Court in S.L. Sachdev and another versus Union of India and others, (1980) 4 SCC 562 have held that the Government cannot issue a direction inconsistent with the rules and it amounts to an amendment of the rules made by the President under Article 309 of the Constitution of India. Their Lordships have held as under: “13. Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation. It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309. That is elementary. We are unable to accept the learned Attorney General's submission that the directive the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it 7 introduces an amendment to the Rules by prescribing one more test for determining whether U. D. Cs. drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.” 11. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus Somasundaram Viswanath and others, (1989) 1 SCC 175 have held that Act shall prevail on statutory rules and rules framed under proviso to Article 309 to prevail on executive instructions issued under Article 73 in case of any conflict, but instructions, which are supplemental to the Act or rules are binding. Their Lordships have held as under: “5. According to Paragraph VII of the Office Memorandum, extracted above, it is clear that the absence of any of the members of a Departmental Promotion Committee, other than the Chairman, would not vitiate the proceedings of the Departmental Promotion Committee provided that the member absent has been duly invited but he absented himself for some reason and that there was no deliberate attempt to exclude him from the deliberation of the Departmental Promotion Committee and that the majority of the members constituting the Departmental Promotion Committee are present in the meeting. In the instant case the only person who was absent at the meeting of the Departmental Promotion Committee was the secretary to the government of India, Ministry of Defence who could not attend the meeting because he had to be present in Parliament at the same time at which the Departmental Promotion Committee had to meet. The Chairman of the Departmental Promotion Committee was present and the Chairman and the other members who were present constituted the majority of the Departmental Promotion Committee. It was urged on behalf of respondent 1 that the Office Memorandum dated 30/12/1976 which contained the various administrative instructions regarding the procedure 8 for making promotions and the functions of the Departmental Promotion Committees being merely in the nature of administrative instructions could not override the Rules which had been promulgated under the proviso to Article 309 of the Constitution of India. 6. It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be. laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature the law made by the appropriate legislature prevails. The question for consideration is whether in the instant case there is any conflict between the Rules and the Office Memorandum dated 30/12/1976, referred to above. We have already noticed that there are different rules framed under the proviso to Article 309 of the Constitution of India for making recruitments to services in the different departments and provisions have been made in them for the constitution of Departmental Promotion Committees for purposes of making recommendations with regard to promotions of officers from a lower cadre to a higher cadre. But these rules are to some extent skeletal in character'. No provision has been made in any of them with regard to the procedure to be followed by the Departmental Promotion Committees and their various functions and also to the quorum of the Departmental Promotion Committees. These details which were necessary for the proper functioning of the Departmental Promotion Committees, as a 9 matter of practice, were laid down prior to 30/12/1976 by the government of India in the form of Office Memoranda issued from time to time and that on 30/12/1976 a consolidated Office Memorandum was issued containing instructions with regard to such details which were applicable to all Departmental Promotion Committees of the various Ministries/Departments in the government of India. The said Office Memorandum deals with several topics, such as. functions of the Departmental Promotion Committees, frequency at which Departmental Promotion Committees should meet, matters to be put up for consideration by the Departmental Promotion Committees, the procedure to be observed by the Departmental Promotion 'Committees, the procedure to be followed in the case of an officer under suspension whose conduct is under investigation or against whom disciplinary proceedings are initiated or about to be initiated, validity of the proceedings of the Departmental Promotion Committees when a member is absent, the need for consultation with the Union Public Service Commission, the procedure to be followed when the appointing authority does not agree with the recommendations of a Departmental Promotion Committee, implementation of the recommendations of the 'Departmental Promotion Committees, ad hoc promotions, period of validity of panels etc. etc. The Office Memorandum dated 30/12/1976, therefore, is in the nature of a complete code with regard to the topics dealt with by it, Unless there is anything in the Rules made under the. proviso to Article 309 of the Constitution of India, which is repugnant to the instructions contained in the Office Memorandum, the Office Memorandum which is apparently issued under Article 73 of the Constitution of India is entitled to be treated as valid and binding on all concerned. In the instant case the Rules do not contain any of these details except indicating who are all the persons who constitute the Departmental Promotion Committee. We do not, therefore, find any repugnancy between the Rules and the Office Memorandum. In the circumstances we feel that the plea raised by respondent 1 in his additional affidavit dated 13/05/1988 (page 132 of the 10 paper book) that the Office Memorandum is ineffective cannot be upheld. We do not agree with the decision of the central Administrative tribunal that in the instant case the proceedings of the Departmental Promotion Committee on 7/08/1986 have been vitiated "solely on account of this reason viz., that secretary, Ministry of Defence, one of its members was not present". We hold that the proceedings of the Departmental Promotion Committee at its meeting held on 7/08/1986 are not invalid for the above reason.” 12. Their Lordships of the Hon’ble Supreme Court in Union of India and another versus Charanjit S. Gill and others, (2000) 5 SCC 742 have held that the Government has power to fill up the gaps in supplementing the rules by issuing instructions if the rules are silent on the subject provided the instructions issued are inconsistent with the existing rules. Their Lordships have held as under: “22. Further relying upon Note 2 mentioned at the foot of Rule 102 providing, "as to disqualification of a Judge-Advocate CAR 39(2)," the learned ASG submitted that the said Note having the force of law has been followed by the Army authorities from the very beginning and thus disqualifications of a Judge-Advocate are referable to only Rule 39(2) of the Rules. It is contended as the source of the Rules and the Note thereto is the same, the efficacy of Note 2 cannot be minimised. The Army authorities, according to the learned ASG have understood Rules 39, 40 and 102 in this context while making appointments of the Judge-Advocate. 25. It is not disputed that Section 191 of the Army Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and Section 192 to make regulations for all or any of the provisions of the Act other than those specified in Section 191. All Rules and Regulations made under the Act are required to be published in the official gazette and on such 11 publication shall have the effect as if enacted in the Act. No power is conferred upon the Central Government of issuing Notes or issuing orders which could have the effect of the Rules made under the Act. Rules and Regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the Rules and Regulations framed thereunder. The administrative instructions issued or the Notes attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in Supplementing the rules by issuing instructions if the Rules are silent on the subject provided the instructions issued are not inconsistent with the Rules already framed. Accepting the contention of holding Note 2 as supplementing Rules 39 and 40 would amount to amending and superseding statutory rules by administrative instructions. When Rule 39 read with Rule 40 imposes a restriction upon the Government and a right in favour of the person tried by a court-martial to the effect that a person lower in rank shall not be a member of the Court martial or be a judge-advocate, the insertion of Note 2 to Rule 102 cannot be held to have the effect of a Rule or Regulation. It appears that the 'notes' have been issued by the authorities of the Armed Forces for the guidance of the officers connected with the implementation of the provisions of the Act and the Rules and not with the object of supplementing or superseding the statutory Rules by administrative instructions. After examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of the court-martial conducted against the respondent No. 1, we are of the opinion that the judge-advocate though not forming a part of the Court, yet being an integral part of it is required to possess all such qualifications and be free from the disqualifications which relate to the appointment of an officer to the court-martial. In other words a judge-advocate appointed with the court-martial should not be an officer of a 12 rank lower than that the officer facing the trial unless the officer of such rank is not (having due regard to the exigencies of public services) available and the opinion regarding non-availability is specifically recorded in the convening order. As in the instant case, judge-advocate was lower in rank to the accused officer and no satisfaction/opinion in terms of sub-rule (2) of Rule 40 was recorded, the Division Bench of the High Court was justified in passing the impugned judgment, giving the authorities liberty to initiate fresh court-martial proceedings, if any, if they are so advised in accordance with law and also in the light of the judgment delivered by the High Court.” 13. Their Lordships of the Hon’ble Supreme Court in Dr. Rajinder Singh versus State of Punjab and others, (2001) 5 SCC 482 have held that the administrative instructions/circulars/ orders cannot be a substitute for statutory rules. Their Lordships have held as under: “3. It is not disputed that service conditions of the appellant and respondent No.3 are governed by the statutory rules made in exercise of the powers conferred upon the Government under Article 309 of the Constitution which are known as Punjab Civil Medical (State Service Class I) Rules, 1972 (here-in-after referred to as "PCMS Class I Rules"). Rule 9 deals with the matters of recruitment and provides that recruitment to any post in service excepting the post of Director (Health Services), Joint Director (Health Services) and Dy. Director (Health Services) be made in the manner prescribed therein. Rule 9A dealing with the appointment to the senior posts provides: "Appointment to Senior Posts - No person shall be appointed – (a) to the post of Director, Health Services, unless he has an experience of working on the post of Joint Director, Health Services for a minimum of one year. 13 (b) to the post of Joint Director, Health Services, unless he has been a member of service for a minimum period of twelve years including two years as Deputy Director, Health Services, and (c) to the post of Deputy Director Health Services, unless he has been a member of the service for a minimum period of ten year." 5. It has not been disputed before us that at the relevant date when the respondent No.3 was recommended for promotion, he had not completed 10 years of service within the meaning of Rule 9A read with Rule 2(2) of the PCMS Class 1 Rules. As the respondent No.3 was not possessing the requisite qualifications on the relevant date, he could not be considered for promotion to the post of Deputy Director, Health Services.” 14. Their Lordships of the Hon’ble Supreme Court in Virender Singh Hooda and others versus State of Haryana and another, (2004) 12 SCC 588 have held that if an executive instruction is contrary to statutory rules, the rules will prevail and not the executive instructions. Their Lordships have held as under: “24. The aforesaid circular is general in nature and does not refer to any particular service or service rules. In law if an executive instruction is contrary to Statutory Rules, the Rules will prevail and not the executive instructions. Further reading of aforesaid circular shows that it is applicable to pre-existing vacancies. 26. What we have stated above in respect of 1957 circular is equally applicable to 1972 circular as well. In addition, it seems that this circular has not correctly read 1957 circular but in view of decision In Hooda's case, it is neither necessary nor possible for us to 1C 1838) go into this question. 32. Rules do not contemplate any waiting list for the filling up of vacancies in excess of the number determined by initiating the recruitment process. Hooda's decision is based 14 on aforesaid two circulars. We, as already stated, are