Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990 Equivalent citations: 1990 AIR 1251, 1990 SCR (2) 418, AIR 1990 SUPREME COURT 1251, 1990 (2) SCC 707, 1990 LAB IC 1019, (1991) 1 LABLJ 212, (1990) 3 JT 34 (SC), (1990) 13 ATC 724, (1990) 2 LAB LN 216, 1990 SCC (L&S) 387 Author: Kuldip Singh Bench: Kuldip Singh, S.C. Agrawal PETITIONER: MALLIKARJUNA RAO AND ORS. ETC. ETC. Vs. RESPONDENT: STATE OF ANDHRA PRADESH AND ORS. ETC. ETC. DATE OF JUDGMENT10/04/1990 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) AGRAWAL, S.C. (J) CITATION: 1990 AIR 1251 1990 SCR (2) 418 1990 SCC (2) 707 JT 1990 (3) 34 1990 SCALE (1)705 ACT: Andhra Pradesh Animal Husbandry Service--Special Rules, 1977--Rule 1. Constitution of India----Article 226--Can the High Court/ Administrative Tribunal direct the State Govern- ment to frame or amend the statutory rules affecting condi- tion of service in terms of its directions. HEADNOTE: 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 Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  1 and only those Veterinary Assistant Surgeons were considered for promotion to Class IV posts who fulfilled the qualifica- tions/specialised 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 Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  2 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 Court/Administrative 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. v. Lt. Governor, Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940; State of Himachal Pradesh v. A parent of a student of medical Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  3 college, Simla & Ors., [1985] 3 S.C.C. 169 and Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors., [1989] Supp. 2 S.C.C. 364, referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3677 of 1987. From the Judgment and Order dated 4.7.1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petition No. 578 of 1978. WITH Civil Appeal Nos. 15 19/1986 and 124/1987. P.P. Rao, G.L.Sanghi, R.K. Jain, P. Rama Reddy, P.A. Choudhary, B. Kanta Rao, Mrs. S.R. Setia, G.N. Rao, Attar Singh, K.V.G. Rama Rao, Mrs. Sharda Devi, K. Ram Kumar, C.S. Vaidyanathan, A.V.V. Nair and C. Prabhakar for the appearing parties. The Judgment of the Court was delivered by KULDIP SINGH, J. The questions arising for our consider- ation in these appeals are as under: (1) Can the High Court/Administrative Tribunal direct the State Government to frame or amend the existing statutory rules to alter the conditions of service of the civil serv- ants in terms of the directions? (2) When there are specialised 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 spe- ciality-wise irrespective of the seniority? The conditions of service of the Andhra Pradesh Animal Husbandry Department were initially governed by the Andhra Pradesh Animal Husbandry Service Rules, 1961 (hereinafter called 1961 Rules). Under these Rules Veterinary Assistant Surgeons were eligible for promotion to three different categories of posts called class IV posts and Rule 6 provid- ed special eligibility qualifications for those posts. Only those Veterinary Assistant Surgeons were considered for promotion to class IV posts who fulfilled the qualifica- tions/specialised training prescribed under Rule 6 of the 1961 Rules. Some of the Veterinary Assistant Surgeons challenged the vires of Rule 6 of the 1961 Rules by way of Civil Writ Petition No. 4532 of 1971 in the Andhra Pradesh High Court. It was alleged that at the time of recruitment all the Veterinary Assistant Surgeons possessed Bachelor Degree in Veterinary Science and the special qualifications and train- ing prescribed under Rule 6 could only be acquired after joining as Veterinary Assistant Surgeon and that also at the discretion of the Government. It was open to the Government to 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. Since the Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  4 imparting of specialised qualifications/training was under the control of the Government it could pick and choose persons for the purpose and in the process making favoured persons eligible for pro- motion to class IV posts under the 1961 Rules. Learned Single Judge by his judgment dated August 24, 1973 rejected the contentions of the writ petitioners in the following words: "I do not find it possible to agree with the broad conten- tion that Rule 6 is ultra vires and unconstitutional for the reasons stated by the petitioners. As stated earlier, Rule 6 merely prescribed certain qualifications for promotion to certain posts by way of experience in a particular specia- lised service of undergoing training in a particular field. It cannot be argued and in fairness to the learned counsel for the petitioners it may be stated, it was not argued, that is not permissible to prescribe such qualifications. The main reason for contending that Rule 6 is ultra vires was not that it prescribed certain qualifications but be- cause in the absence of any guiding principles the Govern- ment would be enable to pick and choose persons who would be given opportunities to obtain those qualifications which would enable them to get promotion. This circumstance cannot in my view render the rule itself ultra vires. If the Gov- ernment or the Authorities concerned posted certain employ- ees in the special sections or gave them opportunity to undergo a service in a special issued section for a particu- lar period or denied similar opportunity to deserving candi- dates with the oblique motive of preferring one set of persons to another for the purposes of promotion, it was open to the aggrieve officer to challenge the act of the Government in each particular case. The postings and direc- tions have been made from time to time from 1962 and none of these petitioners approached this court questioning the denial of the posting as the case may be all these years." ..... "1 therefore see no reason for declaring Rule 6 as ultra vires and unconstitutional." While holding that Rule 6 was intra vires, the learned Judge also made the following observations: "Though I have held that Rule 6 is not unconstitutional there cannot be any doubt that as this stand at present, it is left to the discretion of the authorities concerned to post any particular Veterinary Surgeon to any Special Sec- tion or to give him training in any advanced course. It is not surprising that such a state of affairs should result in dis-satisfaction and suspicion in the mind of the officers concerned. Development of animal husbandry is extremely important in the interests of economy and a satisfied and contented service is a pre-requisite for such development. It is not advisable to it that a particular authority howev- er high placed he may be to choose persons at his sweet will and pleasure to undergo training in a particular field or have service in a particular sections especially when such training and service would effect the chances of promotion to higher posts. In this connected, it may be noted that in regard to the Andhra Pradesh Agricultural Service, it was realised that condition of separate section within the same service results in great injustice as several senior offi- cers Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  5 would be deprived of their promotion while the junior who happened to work in a specialised section get early promotion. By G.O. dated 27.6.1972 all these sections were merged into one unit and all the posts were brought under a common set of rules. It would be advisable to frame a simi- lar rule for the Animal Husbandry Department also and see that as far as possible the area of discretion on the part of the authorities concerned is reduced if not eliminated altogether." The State Government amended Rule 6 of the 1961 Rules on May 10, 1976 by which the categories of Class IV posts were increased to thirteen. The 1961 Rules were superseded by the Andhra Pradesh Animal Husbandary Service--Special Rules, 1977 (hereinafter called the Special Rules) which came into force on September 24, 1977. Rule 1 of the Special Rules provides for the constitution of the service. Class IV posts, which were re-designated as Assistant Directors, .were divided into eight categories. Similarly,.Veterinary Assistant Surgeons come under the heading class V and are divided into seven categories. Rule 2 of the Special Rules provides method of promotion from class V to Class IV. The relevant provisions of these Rules are reproduced as under: 1. CONSTITUTION: Class IV. Category (1) Assistant Directors of Animal Husbandry (formerly District Veterinary Officers & Livestock Officers Incharge Key Villages and Regional Cattle Development Units) includ- ing Superintendents, Veterinary Hospitals & Poly Clinics, Assistant Directors of Animal Husbandry, Liverfluke Control Scheme; Anti Liverfluke Control Scheme; Dairy Extension Rinderpest; Animal By-Products Plant, Zoo Park, Asst. Direc- tor of Animal Husbandry (Technical in Directorate and Gazet- ted Instructors in Animal Husbandry, Village Development Officers Training Centre. Category (2) Assistant Directors of Animal Husbandry, Government Livestock Farms including Assistant Directors of Animal Husbandry Progeny Testing Unit, Feed Mixing Plant; Livestock Assistants Training Centre; Goshalas and Asst. Director of Animal Husbandry (Farms) in Directorate. Category (3) Lecturers, Institute of Animal Reproduction, including Asst. Director of Animal Husbandry (Cattle Devel- opment) and Centralised Semen Collection Centre. Category (4) Assistant Directors of Animal Husbandry, Sheep Farms including Assistant Directors of Animal Husbandry (Sheep Development) and Officers of similar rank in Sheep Section. Category (5) Assistant Directors of Animal Husbandry, Pig Breeding Station; Piggery Development Officer and Officers of similar rank in piggery section. Category (6) Asst. Directors of Animal Husbandry, Regional Poultry Demonstration and Research Farm and Asst. Directors of Animal Husbandry, poultry Marketing Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  6 Centres. Category (7) Asst. Directors of Animal Husbandry (Formerly Disease Investigation Officers and Research Officers) an Officers of similar rank in Vety. Biological Institute, Hyderabad; Asst. Directors of Animal Husbandry, Animal Health Centres, and Officers of similar rank in Municipal Corporation of Hyderabad such as Public Health Veterinarian. Category (8) Asst. Director of Animal Husbandry (Statis- tics) Class V. Category (1) Veterinary Officers. Category (2) Veterinary Officers (Cattle Farms) Category (3) Asst. Lecturers, Institute of Animal Reproduc- tion and Veterinary Officers, Centralised Semen Collection Centres. Category (4) Veterinary Officers (Sheep Farms) Category (5) Veterinary Officers, Pig Breeding Stations. Category (6) Veterinary Officers, Poultry Farms. Category (7) Veterinary Officers in Veterinary Biological and Research Institute; Animal Health Centres, Clinical Laboratories and Municipal Corporation of Hydera bad." 2. APPOINTMENT: Class IV: Category (1) Asst. Directors of ... (i) ... (ii) by promotion from among the Veteri- nary included in category (I) of class V of the said service. (iii) ......... Category (2) Asst. Directors of ... (i) ... (ii) by promotion from among the Vety. Officers inclu- ded in Cat.(2) of Class V of the said Service (iii) Category (3) Lecturers (i) by promotion from among the Vety. Officers included in Cat. (3) of Class V of the said service (iii) ... Category (4) Asst. Directors of ... (i) ... Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  7 (ii) by promotion from among the Vety. Officers inclu- ded in Cat.(3) of Class V of the said service (iii) .... Category (5) Asst. Directors of ... (i) ... (ii) by promotion from among the Vety. Officers inclu- ded in Cat. (5) of class V of the said service (iii) .... Category (6) Asst. Directors of ... (i) ... (ii) by promotion from among the Vety. Officers included in Cat. (6) of class V of the said ser- vice Category (7) Asst. Directors of ... (i) ... (ii) by promotion from among the Vety. Officers included in Cat (7) of class V of the said service Category (8) Asst. Directors of ... (i) ... (ii) by promotion Vety. Officers in Class V of Andhra Pradesh Animal Husban- dry Service (iii) ... It is obvious from the provisions of the Special Rules reproduced above that the Veterinary Assistant Surgeons who are class V are only eligible for promotion to class IV in their respective categories. Category 1 class V is only eligible for promotion to category 1 class IV and similarly category 2 of class V is eligible for category 2 of class IV and so on. Although there is one common seniority of class V officers but the promotion being category-wise the seniority becomes irrelevant as a senior man in category 1 class V cannot be promoted to any other category in class IV except category 1 and 8. Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  8 M. Srinivasan and 44 other class V officers filed Repre- sentation Petition No. 578 of 1978 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 Petition No. 4532 of 1971. In other words., it was prayed that the State Government be directed to merge all the respective categories in class IV and class V of the Special Rules and promotions from class V to class IV be made on the basis of seniority alone. The Administrative Tribunal by its judgment dated July 4, 1985 allowed the Petition and issued the directions asked for by the petitioners. The Tribunal in its judgment posed the question to be decided in the following manner: "The question to be decided is whether the Depart- ment of Animal Husbandry is justified in not following the directions of the A.P. High Court referred to above." The Tribunal then answered the question as under: "It must be observed that not to speak of direc- tion, even an observation from the High Court of the land is binding on the State Government when the State Government has not chosen to set aside the said observation in the Supreme Court. The petitioners are, therefore, entitled to the relief asked for and I find no good reasons not to grant the same. The R.P., is accordingly allowed and once again direc- tions are issued to the respondents to evolve 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 in the light of the one framed under G.O.Ms. No. 1 supra.'' It may be mentioned that G.O. Ms. No. 1 dated 1.1.76 which was directed to be adopted and followed in the Animal Husbandry Department related to the Agriculture Department. It was argued before the Tribunal that because of functional differences between the two departments it would not be possible to adopt the conditions of service prevalent in the Agriculture Department. The Tribunal, however, issued the above quoted directions primarily on the ground that the State Government was bound to follow the observations of the High Court made in Civil Writ Petition No. 4532 of 1971. The State of Andhra Pradesh has challenged the judgment of the Tribunal in Civil Appeal No. 1519 of 1986, Civil Appeal No. 124/1987 and Civil Appeal No. 3677 of 1987 have been filed by the officers who have been affected by the judgment of the Tribunal but were not parties before the Tribunal. 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 limitations under Article 226 of the Constitution of India and as such the learned Judge deliberately used the word "advisable" 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. Imagine the Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  9 execu- tive advising the judiciary in respect of its power of judicial review under the constitution. We are bound to react scowlingly to any such advice. This Court relying on Narender Chand Hem Raj & Ors. v. Lt. Governor, Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940 and State of Himachal Pradesh v. A parent of a student of medical college, Simla and Ors., [1985] 3 SCC 169 held in Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors., [1989] Supp. 2 SCC 364, as under: "When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike-down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power-of judicial review of administrative ac- tion, the court is not an appellate authority. The constitu- tion does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive." The Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the 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. The High Courts 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 of the Constitution of India. We are therefore, of the view that the High Court in Civil Writ Petition No. 4532/71 and the Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned directions. We set aside the judgment of the Tribunal and dismiss the Representation Petition No. 578/78 filed by M. Srinivasan and 44 others to the extent indicated above. Mr. C.S. Vaidyanathan, learned counsel, appearing for the respondents, however, contends that the Special Rules are arbitrary and are violative of Articles 14 and 16 of the Constitution of India. He contends that at the time of initial recruitment to Class V the Government at its discre- tion picks-up persons for appointment to any of the catego- ries. According to him neither there are any statutory rules or executive instructions providing options to class V officers to join category of their choice nor in fact any such options were given at the relevant time. He has further argued that the posts in seven categories of class V are inter-transferable. He invited our attention to the docu- ments on record showing transfers from one category to another. Mr. Madhava Reddy learned counsel appearing for the State of Andhra Pradesh on the other hand has controverted the above arguments. According to him options were not only given at the time of initial recruitment into class V serv- ice but also subsequently as and when the rules were amend- ed. He categorically denied that the posts in various cate- gories are interchangeable. The learned counsel on both sides wanted Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  10 us to go into the various documents in support of their respective contentions. We do not have before us the factual-matrix to appreciate the argument of Mr. Vaidya- nathan that the special Rules are arbitrary. We, however, find from the judgment under appeal that all these points were raised before the Tribunal in one form or the other but the Tribunal based its judgment on the observations of the High Court in Civil Writ Petition No. 4532/71 and did not go into any other point. While setting aside the judgment under appeal we remit the case to the Andhra Pradesh Administrative Tribunal for decision on other points as indicated by, us or as may be raised by the parties. The Tribunal shall give further opportunity to the parties to file additional affidavits/documents. We request the Tribunal to decide the matter expeditiously and if possible within three months. The appeals are disposed of in the above terms with no order as to costs. Y. Lal Appeals allowed. Mallikarjuna Rao And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 10 April, 1990  11