Full Judgment Text
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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
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
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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 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
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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
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.
421
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
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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 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-
422
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
423
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-
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cers 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
424
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 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.
425
Category (8) Asst. Director of Animal Husbandry (Statis-
tics)
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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)
426
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) ...
(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
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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
427
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.
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
428
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
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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 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
429
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
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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-
430
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 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.
431