Executive Instructions Can Supplement The Rules But Cannot Supplant Statutory Rules: Allahabad HC
The Allahabad High Court has held that executive instructions can supplement the rules but cannot supplant the statutory rules.
“It is well settled law that the statutory rules cannot be amended by the executive instructions. The executive instructions can supplement the rules, but cannot supplant the statutory rules”, Justice Dinesh Kumar Singh held.
The Court made this observation while dealing with a plea challenging the seniority list of Area Rationing Officers in Department of Food and Civil Supplies, Government of Uttar Pradesh in so far as it related to placing the petitioners below the 173 Senior Supply Inspectors, the post which got merged with the post of Area Rationing Officer.
The petitioners were selected to the post of Area Rationing Officer by the Uttar Pradesh Public Service Commission in pursuance to the advertisement issued by the Commission for 12 posts of Area Rationing Officer.
The Government issued an Order dated June 30, 2011 to implement the recommendation of the Pay Committee for Food and Civil Supplies Department providing for merger of post of Senior Supply Inspector in the post of Area Rationing Officer and the post of Area Rationing Officer would be filled up only by promotions from amongst the substantively appointed Supply Inspectors having five years service. It was also directed that the relevant rules should be amended as early as possible. Thus, source of recruitment was directed to be amended and post of Senior Supply Inspector was to be abolished.
By amendment in rules, two important changes were brought in i.e. abolition of post of Senior Supply Inspector and as the said post got merged in the post of Area Rationing Officer, and only source of recruitment for the post of Area Rationing Officer would be promotion from the substantively appointed Supply Inspectors having put in minimum five years of service on the first day of year of recruitment.
The Uttar Pradesh Public Service Commission informed the State Government that promotion to the vacant posts of Area Rationing Officer, for which requisition was sent, would not be proper to be made in pursuance to the Government Order dated June 30, 2011 in absence of requisite amendment in the Service Rules.
Thereafter, the State Government prepared a draft rules, namely, Uttar Pradesh Food and Civil Supplies (Supply) (Fourth Amendment) Rules, 2012 to implement the decision. The said draft rules of Fourth Amendment Rules were notified later.
Advocate Gaurav Mehrotra appeared for the petitioner whereas Senior Advocate Sandeep Dixit appeared for private opposite parties.
The Court observed that “The Government Order dated 30.6.2011 is nothing but a policy decision, which itself prescribed that the necessary amendment in the rules be carried out forthwith. However, the said amendment came into existence only on 6.9.2013”
The Court held that by taking policy decision, the statutory rules would not get amended. It further added that in order to give effect to the policy decision, the statutory rules were required to be amended as provided in the Government Order itself.
“The petitioners are to be treated as senior to the private opposite parties, who got designation of the post of Area Rationing Officer as a result of merger of the posts of Senior Supply Inspector in Area Rationing Officer inasmuch as the said merger would have taken effect only w.e.f 6.9.2013 and not w.e.f. 30.6.2011. Therefore, the seniority list and the promotion orders are liable to be set aside.”, the Court concluded.
Cause Title- Sushil Mishra and another v. State Thru Addl.Chief Secy/Prin.Secy. Food and Civil Supply others