Full Judgment Text
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PETITIONER:
DISTT. REGISTRAR PALGHAT & ORS.
Vs.
RESPONDENT:
M. B. KOYYAKUTI & ORS.
DATE OF JUDGMENT20/02/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 1060 1979 SCR (3) 242
1979 SCC (2) 150
ACT:
Kerala State & Subordinate Service Rules, 1958-r. 28(b)
(ii)-Scope of-Government servant appointed as lower division
clerk relaxing minimum educational qualification-No
provision in rule prescribing minimum educational
qualification for promotion-Executive order prescribing
qualifying test for promotion-Validity of.
HEADNOTE:
The respondent, who originally belonged to the Madras
Ministerial Service, was allotted to the State of Kerala as
a lower division clerk on the reorganisation of States. On
the ground that he belonged to a community which was
educationally backward the State Government of Madras
appointed him as a lower division clerk relaxing the
requirements of r. 29 of the Special Rules for Madras
Ministerial Service which prescribed minimum general
educational qualification for appointment to service under
the State Government.
In 1957 the State Government of Kerala issued an order
providing that, until common service rules were framed,
every officer in the service of the new State of Kerala
would be bound by the service rules of Travancore-Cochin or
Madras, to which he belonged prior to November 1, 1956.
Thereafter in supersession of all earlier rules the
Kerala State and Subordinate Service Rules, 1958 were
framed. Rule 1 of the General Rules in Part II stated that
the rules in that part shall apply to all State and
Subordinate Services and the holders of all posts appointed
before or after the date on which those rules came into
force. The Special Rules contemplated by r. 2(16) of Part I
had however, not been framed.
Rule 28(b) (ii) of Part II provided that all promotions
or appointments by transfer [other than those mentioned in
cl. (i) of this rule] shall be made in accordance with the
seniority, subject to the person’s fitness for appointment.
In 1961, persons who did not possess the general
minimum educational qualifications but were appointed as
lower division clerks, were allowed to sit for a qualifying
test for promotion to upper division clerks.
In the gradation list of officiating lower division
clerks prepared, the respondent was shown at no. 1 place.
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Even so, when two vacancies of upper division clerks
occurred, two persons junior to him in the gradation list
were promoted ignoring the respondent.
In his writ petition under Art. 226 of the Constitution
the respondent contended that the exemption granted to him
removing the bar of educational qualification enured to him
for all purposes, and therefore, promotions of two juniors,
ignoring r. 28(b)(ii) under which seniority was the basis
for promotion, amounted to denial of equal treatment
guaranteed under Arts. 14 and 16 of the Constitution.
243
A single Judge of the High Court dismissed the petition
on the ground that the exemption granted was for the limited
purpose of enabling the respondent to be appointed and
continued in the post of lower division clerk but that it
did not remove the bar of minimum qualification for
promotion.
On appeal the division bench reversed the order of the
single Judge, and directed the Government to promote him and
determine his rank in the cadre of upper division clerks.
On appeal to this Court it was contended on behalf of
the appellant that (1) the Special Rules contemplated by r.
2 of Part I read with the State Government’s order of 1957,
were the Special Rules contained in the Madras Ministerial
Service Rules; (2) even if r. 28(b)(ii) was applicable it
was well within the power of the State Government to
prescribe a test to judge the fitness of persons who were
exempted from the minimum educational qualifications when
appointed as lower division clerks and (3) there was a
reasonable basis for classifying those persons who did not
possess the minimum educational qualification as a category
apart from those who possessed such a qualification.
Dismissing the appeal,
^
HELD: 1 (a) The Special Rules, for the purposes of
Kerala Rules of 1958, would be as defined in r. 2(16) of
Part I. That definition contemplated that Special Rules
would be framed by the Governor but no such rules had been
framed. [248 H]
(b) In the matter of promotion as on upper division
clerk the respondent was governed by r. 28(b)(ii) in Part
II. [249 A]
2. It cannot be said that the impugned notification
merely "supplemented" or filled up a gap in the statutory
rules. It tended to superimpose or super-add by an executive
flat on the statutory rules something inconsistent with the
same. If the statutory rules framed by the Governor or any
law enacted under Art. 309 is silent on any particular
point, the government can fill up that gap and supplement
the rule by issuing administrative instructions not
inconstant with the statutory provisions already framed or
enacted. [253 D; 250 C]
In the instant case, however, it could not be said that
there was a gap in the statutory provisions in the matter of
promotion from the cadre of lower division clerks to that of
upper division clerks.
3(a) The classification made by the impugned government
order was not only unfair and irrational but also, virtually
amounted to abandonment of the test of seniority-cum-fitness
provided in r. 28(b)(ii). [252 G-H]
(h) By virtue of s. 3 of the Kerala Public Services
Act, 1968, the 1958 Rules were deemed to have been made
under the Act and were continued until superseded by rules
made under that Act. No Special Rules relating to upper
division clerks having been made the General Rules in Part
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II would be applicable to upper division clerks, also. [250
E]
(c) The 1958 Rules superseded all earlier rules. The
General Rules did not provide any minimum general
educational qualification for promotion to
244
the cadre of upper division clerks. There is nothing in r.
28(b)(ii) or elsewhere, which provides that a lower division
clerk would be presumed to be unfit for promotion to upper
division unless he possessed the minimum general educational
qualification or passed the qualifying test. [250 G-H]
There is nothing to show that the respondent was
considered for promotion but was found unfit. [251 B]
(d)(i) The impugned notification prescribed the
qualifying test for promotion, not for all, but only for one
category of persons with reference to the manner in which
they initially entered service. The respondent and others
like him, appointed as lower division clerks after granting
them exemption, had been singled out for this discriminatory
treatment. [251 F]
(d)(ii) There is nothing on record to show that the
duties discharged by the clerks of the upper division were
substantially different from those in the lower division.
[251 G-H]
(iii) The statutory rule did not warrant the
classification made by the impugned order. It impinged upon
the statutory rule inasmuch as it laid down that even if a
lower division clerk who entered service as a result of
exemption from possessing minimum educational qualification
satisfied the criterion of seniority-cum-fitness prescribed
by this rule, he shall not be considered for promotion
unless he qualified in the test. The relevant rule did not
provide any minimum general educational qualification for
promotion to upper division. [252 A-B]
Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185;
followed.
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.
AIR 1974 SC 1; held inapplicable.
4. Though ordinarily the court would not issue a
direction requiring the government to promote an aggrieved
employee and thereafter determine his rank in the cadre, in
the peculiar facts of this case the respondent satisfied the
two-fold criterion for promotion laid down in r. 28(b)(ii)
and since the existence of both the criteria for promotion
were not in dispute the High Court was justified in issuing
the direction, it did. [253 A-B; E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2036 of
1969.
Appeal by special leave from the Judgment and Order
dated 18-12-1968 of the Kerala High Court in W.A. No.
167/67.
Dr. V. A. Sayied Muhammed and K. M. K. Nair for the
Appelant.
A. S. Nambiar and D. D. Gupta for the Respondents.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave, directed
against a judgment, dated December 18, 1968, of the High
Court of Kerala, arises out of these facts:
245
Koyakutty, Respondent herein, entered service of the former,
Madras State on May 1, 1943 as temporary Section Writer on
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probation in the Registration Department. He did not possess
the minimum, general educational qualification prescribed by
Rule 29 of the Madras Ministerial Service Rules. This rule,
inter alia, provided that no person shall be eligible for
appointment to the service in any post either by direct
recruitment or by recruitment by transfer on promotion
unless he possesses the minimum general educational
qualification prescribed in the Schedule to the General
Rules. The General Rules provided that the passing of the
Secondary School Leaving Examination or other equivalent
examination shall be the minimum educational qualification
for appointment to the Ministerial Service.
The State Government, however, had the power to exempt
a person from this qualification. The Madras Government
passed an Order, dated April 15, 1954, (Ex. P-II),
exempting, him from the said qualification for being
appointed as a Lower Division Clerk in the Registration
Department. It will be useful to quote this order in
extenso:
"The Government consider that in view of the fact
that Sri M. B. Koyakutty belongs to a community which
is educationally backward, the petitioner should be
exempted from the minimum general educational
qualification, so as to enable him to be appointed as a
Lower Division Clerk in the Registration Department
under G.O. MS. No. 2858 Rev. dt. 2-11-50 in his
turn........ The Governor of Madras accordingly relaxes
rules 28 and 29 of the Special Rules for the Madras
Ministerial Service in favour of Sri M. B. Koyakutty, a
temporary Section Writer in the Registration Department
in the Registration District of Palghat in order to
enable him to be appointed as a Lower Division Clerk
in that department.
Sd/-S. K. Chettu,
Secretary to Govt."
As a result of this exemption, Koyakutty was appointed
a Lower Division Clerk in the Registration Department on May
19, 1954.
Consequent on the reorganisation of the States in 1956,
Koyakutty was allotted to the Kerala State Service as Lower
Division Clerk in the Registration Department.
On May 16, 1961, the Government of Kerala issued an
Order, in consultation with the Public Service Commission,
that "all such
246
persons who did not possess the general minimum educational
qualification and were appointed as Lower Division Clerks,
after granting them exemption from that qualification", may
be allowed to sit for a qualifying test to be conducted by
the Commission, and in case they secure a certain minimum
percentage of marks, they may be regarded as possessing the
minimum general qualification of the S.S.L.C. Standard for
purpose of promotion to Upper Division and higher grades or
continuance in the Upper Division, as the case may be. The
order further stated that the case of those who have been
appointed and are continuing in the Upper Division, they
need not be disturbed for the present, but they should be
reverted, if they fail to qualify at the next such
examination of the Commission. According to para 3 of the
Order, "the minimum marks to be obtained for being declared
eligible for promotion to or continuance in the Upper
Division etc........ will be issued separately."
A gradation list of Clerks was prepared by the District
Registrar, Palghat, in which Koyakutty was shown at No. 1
among the officiating Lower Division Clerks, while the
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original respondents 1 and 2 were shown at Nos. 7 and 6,
respectively.
In July 1966, two vacancies occurred in the cadre of
Upper Division Clerks in the Department. The original
respondents 1 and 2, who were junior to Koyakutty, were
promoted against those vacancies as Upper Division Clerks.
Koyakutty thereupon filed a writ petition under Article
226 of the Constitution in the Kerala High Court, praying
that the promotion of original respondents 1 and 2 be
quashed and a direction be issued requiring the District
Registrar, Palghat, and the State of Kerala to consider his
claim and to promote him in preference to the original
respondents 1 and 2.
Koyakutty’s contention was that under the Rules,
seniority should be the basis for promotion; and promotion
of his juniors amounted to a denial of equable treatment
guaranteed under Article 14 and 16 of the Constitution. His
stand was that the exemption granted to him by the
Government, removing the bar from being appointed in the
Ministerial Service enured for all purposes. This contention
was rejected by the trial Judge, who held that the exemption
granted to Koyakutty was for the limited object of enabling
him to be appointed and continued in the post of a Lower
Division Clerk and did not remove the bar of minimum
educational qualification for his promotion to the post of
Upper Division Clerk. In the result, Koyakutty’s writ
petition was dismissed.
247
On appeal by Koyakutty, a Division Bench of the High
Court reversed the judgment of the learned Single Judge, and
directed the District Registrar, Palghat, and the State
Government to treat Koyakutty as eligible for promotion as
an Upper Division Clerk and pass necessary orders on that
basis. The Division Bench further directed that Koyakutty’s
rank in the cadre of Upper Division Clerks will, also, be
determined after he is promoted to that Cadre.
Hence this appeal by the District Registrar, Palghat
and the State.
The first question that falls to be considered is,
whether in the matter of promotion to the cadre of Upper
Division Clerks, the respondent was governed by the Madras
Ministerial Service Rules or by the Kerala State and
Subordinate Service Rules, 1958 ?
The Government of Kerala, on February 25, 1957, issued
an Order S(D)S-43405/56/PD to the effect that as an interim
arrangement, every officer in the service of the new State
would be bound by the Service Rules of Travancore-Cochin or
Madras, as the case may be, to which he belonged prior to
November 1, 1956 until common service rules are framed and
issued.
Thereafter, in exercise of the powers under the proviso
to Article 309 of the Constitution, the Governor of Kerala
in supersession of all rules on the subject, framed the
Kerala State and Subordinate Services Rules, 1958. Part I of
these Rules deals with preliminary matters. Rule 2(16) in
Part I defines "Special Rules" as meaning "the rules in Part
III applicable to each service or class of service." Such
Special Rules have not, however, been framed by the
Governor. Part II contains the General Rules. Rule 1 in Part
II delineates the scope of the General Rules. It runs thus:
"The rules in this Part shall apply to all State
and Subordinate Services and the holders of all posts,
whether temporary or permanent in any such service,
appointed thereto before, or after the date on which
these rules come into force as provided in sub-rule (b)
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of rule 1 in Part 1 except to the extent otherwise
expressly, provided (a) by or under any law for the
time being in force, or (b) in respect of any member of
such service by a contract or agreement subsisting
between such member and the State Government."
248
Rule 2 in the same Part provides:
"2. Relation to the Special Rules.-If any
provision in the General Rules contained in the Part is
repugnant to a provision in the Special Rules
applicable to any particular service contained in Part
III, the latter shall in respect of that service,
prevail over the provision in the General Rules in this
Part."
It will bear repetition that since no Special Rules, as
defined in Rule 2(16) of Part I, have so far been framed by
the Governor under Article 309 of the Constitution, Rule 2
in Part II has remained otise.
Rule 28 in Part II provides regarding promotion. Clause
(i) of clause (b) of this rule deals with promotion and
appointment by transfer to a selection category or Selection
Grade in a service. Such promotion shall be made on the
basis of merit and ability, seniority being considered only
where merit and ability are approximately equal. Sub-clause
(ii) of clause (b) of Rule 28 is captioned: "Promotion and
appointment by transfer to higher posts according to
seniority". Its material part, as it stood before the
amendment of December 28, 1970, reads as under:
"All other promotions or appointments by transfer
shall, subject to the provisions of these rules and the
special rules, be made in accordance with seniority
subject to the person’s fitness for appointment."
It is contended on behalf of the appellants that by
virtue of the Kerala Government Order dated February 25,
1957, referred to earlier, the Special Rules contained in
the Madras Ministerial Service Rules, continued to govern
the respondent because those Special Rules have not been
superseded by the Kerala Rules of 1958. The point sought to
be made out is that the Special Rules, within the meaning of
Rule 2 in Part II read with the aforesaid Government Order
dated February 25, 1957, will mean the Special Rules
contained in the Madras Rules. A similar argument was raised
before the Appellate Bench of the High Court, also, and it
was repelled, and, in our opinion, rightly. Special Rules
for the purpose of the Kerala Rules, 1958, will be as
defined in Rule 2(16) in Part I. That definition
contemplates that Special Rules in Part III will be framed
by the Governor of Kerala. But, no such rules have so far
been framed.
We have, therefore, no hesitation in holding, in
agreement with the High Court, that in the matter of
promotion as an Upper Division
249
Clerk, the appellant was governed by Rule 28(b)(ii) in Part
II.
The alternative contention that has been advanced on
behalf of the appellant is that even if Rule 28(b)(ii) was
applicable, then also, it was well within the power of the
State Government to prescribe a test to judge the fitness of
those persons who did not possess the minimum educational
qualification and were appointed as Lower Division Clerks on
being exempted from that qualification by Government Order.
In this connection, reference has been made to Article
162 of the Constitution, to show what the State Government
could do by framing a statutory rule under Article 309,
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proviso, could well be done by an executive order, the
executive power of the State being co-extensive with its
legislative power. It is maintained that the power of the
Government to prescribe selective test for promotion to
higher service has been recognised by this Court in several
decisions. Reference has been made in this connection to the
decisions of this Court in B. N. Nagarajan & Ors. v. State
of Mysore & Ors., Union of India etc. v. Majji Jangamayya
etc., State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.
It was further submitted that the possession of the
minimum educational qualification, i.e. a certificate of
having passed the S.L.C. Examination or any equivalent
examination is presumptive proof of the fitness of the
holder thereof, for promotion to the cadre of Upper Division
Clerks. Therefore, according to the counsel, there was a
reasonable basis for classifying those who did not possess
this minimum educational qualification as a category apart
from those who possessed such a qualification. In this
context, it is further emphasised that the exemption was
granted only for the purpose of being appointed as a Lower
Division Clerk, and not for the purpose of further
promotion.
As against this, Mr. Nambiar, appearing for the
respondents, submits that once the bar of minimum
educational qualification was removed for appointment as
Lower Division Clerk, further promotion of the respondent
was governed by Rule 28(b)(ii), Part I of the Kerala Rules
of 1958. After their appointment, the respondent or others
like him who had been exempted from possessing the minimum
educational qualification, had become integral members of
the same cadre. They could not be singled out for hostile
treatment. Counsel has submitted that the rule enunciated by
this Court in Triloki Nath
250
Khosa’s case (ibid), is not applicable because the facts of
that case were entirely different. Counsel further stated
that any executive order issued by the Government, cannot
supplant the statutory rules framed by the Governor under
Article 309. Executive instructions can operate only in
areas not covered by the rules. But here the area was fully
occupied by the statutory rule 28(b)(ii).
There can be no quarrel with the proposition that if
the statutory rules framed by the Governor or any law
enacted by the State Legislature under Article 309 is silent
on any particular point, the Government can fill up that gap
and supplement the rule by issuing administrative
instructions not inconsistent with the statutory provisions
already framed or enacted. The Executive instructions in
order to be valid must run subservient to the statutory
provisions. In the instant case, however, it could not be
said that there was a gap or a void in the statutory
provisions in the matter of promotion from the cadre of
Lower Division Clerks to that of Upper Division Clerks.
After the enactment of the Kerala Public Services Act
of 1968, the position was that by virtue of Section 3 of
that Act, the Kerala State Subordinate Services Rules of
1958 framed by the Governor under the proviso to Article 309
of the Constitution were deemed to have been made under the
Act and were continued until superseded by rules made under
that Act. As noticed already, no Special Rules relating to
Upper Division Clerks have been framed. The General Rules in
Part II will, therefore, be applicable to Upper Division
Clerks, also.
It will bear repetition that the preamble to the Rules
and Rule 1 in Part II, indicate that all the previous rules
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have been superseded. These General Rules do not provide any
minimum general educational qualification for promotion to
the cadre of Upper Division Clerks from that of Lower
Division Clerks. All that is required by rule 28 (b) (ii)
which governs the promotions from the Lower Division to the
Upper Division, is that promotions shall be made in
accordance with seniority subject to the person’s fitness
for appointment. There is nothing in this sub-rule or
elsewhere which provides that a member of the Lower Division
will be presumed to be unfit for promotion to the Upper
Division unless he possesses the minimum general educational
qualification, or
251
passes a qualifying test. It is conceivable that the State
Government may prescribe a general test for all Clerks of
the Lower Division to judge their fitness for promotion to
the Upper Division. But, such is not the case here. The
respondent and the others like him who were appointed as
Lower Division Clerks after granting them exemption from
possessing the minimum general educational qualification
have been singled out for this discriminatory treatment.
There is nothing on the record to show that the case of the
respondent was considered for promotion and he was found
unfit.
The ratio of Triloki Nath Khosa’s case (ibid) does not
advance the case of the appellant State. Therein, persons
appointed directly and by promotion were integrated into a
common class of Assistant Engineers. Rule 12 provided that
Graduates among the Assistant Engineers, shall be eligible
for promotion to the cadre of Executive Engineers, to the
exclusion of diploma-holders. This rule was a statutory
rule. Its constitutional validity was challenged on the
ground that it violated Articles 14 and 16 of the
Constitution. This Court, speaking through Chandrachud J.
(as he then was), repelled this contention with the
reasoning that the classification of Assistant Engineers
into degree-holders and diploma-holders could not be held to
rest on any unreal or unreasonable basis. The classification
was made with a view to achieving administrative efficiency
in the Engineering Services.
It will be seen that Triloki Nath’s case, is
distinguishable from the one before us, at least, in three
important aspects. Firstly, in that case, the statutory rule
in question did not make any discrimination in relation to
the source of recruitment, it simply provided that Graduates
alone shall go into the higher cadre of Executive Engineers,
irrespective of whether they were appointed as Assistant
Engineers directly or by promotion. In the present case, the
impugned notification prescribes a qualifying test for
promotion, not for all but only for one category of persons
with reference to the manner in which they initially entered
service. Secondly, in Triloki Nath’s case the post of the
Executive Engineer carries higher responsibility and duties
of a supervisory character requiring higher mental equipment
and administrative skill. Thus, there, the classification
rested on intelligible differentia having a direct nexus to
the object (viz., administrative efficiency), to be
achieved. In the instant case, there is nothing on record to
show that the duties discharged by the clerks of the Upper
Division are substantially different from those in the Lower
Division. Thirdly, in the instant case the statutory rule
does not warrant the classification made by the impugned
Government Order. The primary criterion for promotion to the
Upper Division prescribed by Rule 28(b) (ii) in seniority if
the person concerned is otherwise not unfit. The
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252
impugned Government Order impinges upon that statutory rule
inasmuch as it lays down that even if a Lower Division Clerk
who entered service as a result of exemption from possession
minimum educational qualification, satisfied the criterion
of seniority-cum-fitness prescribed by this Rule, he shall
not be considered for promotion unless he qualifies in the
test.
The relevant statutory Rules governing the appellant do
not provide any minimum general education qualification for
promotion to the Upper Division.
The case in point is Roshal Lal Tandon v. Union of
India. In that case, before the impugned notification was
issued, there was only one rule of promotion for both the
departmental promotees and the direct recruits, and that
rule was seniority-cum-suitability, and there was no rule of
promotion separately made for application to direct
recruits. As a result of the impugned notification, a
discriminatory treatment was made in favour of the direct
recruits, i.e. existing Apprentice Train Examiners who had
already been absorbed in Grade ’D’ by March 31, 1966,
because the notification provided that this group of
Apprentice Train Examiners should first be accommodated en
bloc in Grade ’C’ upto 80 per cent of vacancies reserved for
them without undergoing any selection. Ramaswami J.,
speaking for a Bench of five learned Judges, held that the
impugned notification violated the guarantee under Articles
14 and 16 of the Constitution. The reason was that once the
direct recruits and promotees were absorbed in one cadre,
they formed one class and they could not be discriminated
against for the purpose of further promotion to the higher
Grade ’C’. In that case, it was not disputed that before the
impugned notification was issued there was only one rule of
promotion for both the departmental promotees and the direct
recruits and that rule was ’seniority-cum-suitability’. The
impugned notification was discriminatory because in the case
of that category who were appointed as Train Examiners by
promotion the aforesaid test of ’seniority-cum-suitability’
prescribed by the rule for further promotion to the higher
Grade ’C’ was abandoned and, instead, selection on merit
only was adopted.
The principle enunciated in Roshan Lal Tandon v. Union
of India applied with greater force to the facts of the
present case because here the classification made by the
impugned Government Order is not only unfair and irrational
but also, virtually amounts to abandonment of the test of
seniority-cum-fitness provided in rule 28 (b) (ii).
The last point for consideration is, whether it was
proper for the High Court to issue a positive direction
requiring the appellant to
253
promote the respondent to the Upper Division and thereafter
to determine his rank in the cadre of Upper Division Clerks.
Ordinarily, the court does not issue a direction in such
positive terms, but the peculiar feature of this case is
that it has not been disputed that Koyakutty respondent
satisfies the two-fold criterion for promotion laid down in
the statutory rule 28(b)(ii). Indeed, the District
Registrar, Palghat, who was impleaded as respondent 3 in the
writ petition, expressly admitted in paragraph 8 of his
counter-affidavit filed before the High Court, "that the
seniority of service is the basis of promotion from the
ranks of Lower Division Clerks to the ranks of Upper
Division Clerks provided they are fully qualified by passing
the departmental tests for the purpose". It was never the
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case of the Registrar that Koyakutty was not otherwise fit
for promotion. Indeed, even in the grounds of appeal to this
Court, incorporated in the Special Leave Petition, it is not
alleged that Koyakutty did not satisfy the criterion of
seniority-cum-fitness prescribed by Rule 28(b)(ii). The
position taken by the appellant, throughout, was that this
rule should be deemed to have been "supplemented" by the
impugned Government Notification. It is not correct that the
impugned Notification merely "supplements" or fills up a gap
in the statutory rules. It tends to super-add or super
impose by an Executive fiat on the statutory rules something
inconsistent with the same. Since the existence of both the
criteria viz., seniority and fitness for promotion to the
Upper Division prescribed by the statutory Rule 28(b)(ii),
in the case of Koyakutty was not disputed, the High Court
was justified in issuing the direction, it did.
For the foregoing reasons the appeal fails and is
dismissed with costs.
P.B.R. Appeal dismissed
254