B.S. Chauhan, C.J.
1. This Writ Petition has been filed for quashing the Order Dated 4.10.2004 (Annex.-8) by which the Petitioner has been reverted from the post of Junior Clerk to the post of Daftari (Class IV).
2. The facts and circumstances giving rise to this case are that the Petitioner was appointed in a regular cadre as Daftari (Class-IV) in district judgeship of Kandhamal-Boudh in-December, 1981. The District Judge, Kandhamal-Boudh by letter dated 1.6.2002 asked the other Judicial Officers to submit list of Class IV employees who were eligible for promotion to Class III cadre in terms of resolution issued by P & S Department No. 7427/GEN. dated 6.4.1966 (hereinafter called 'the Resolution dated 6.4.1966') which provided 121/2 % reservation for Class IV employees to the vacancies in Class III. In response to the same, the Judicial Officers submitted a list of eligible candidates and in all candidature of 11 candidates was considered. Seven vacancies were filled up offering appointment to Class IV employees on the posts of Junior Clerk and they were asked to join vide letter dated*27.6.2002 (Annex.-5). Subsequently some complaints were received by this Court on administrative side and the Administrative Judge of the district conducted an inquiry suo motu and held that the selection had been made in accordance with law. At a later stage an inspection was made by another Administrative Judge and it was found that the appointments of various persons had been made without following any procedure prescribed by law including the present Petitioner. Several Class IV employees had been promoted to Class III posts illegally without holding interview and written examination and without adjudging their suitability. They had been promoted by adopting pick and choose method. The direct appointment of lady stenographers was made without following the procedure prescribed under law and without advertisement of the vacancies. As a consequence thereof, the District Judge issued show cause dated 21.8.2004 (Annex.-6) to the Petitioner as to why his promotion be not declared illegal and he should not be reverted to Class IV post. Petitioner filed a reply to the said show-cause on 30.8.2004 (Annex.-7). After considering the same he was reverted to Class IV post vide Order Dated 4.10.2004. Hence this petition.
3. Mr. G.A.R. Dora, Learned Senior Counsel for the Petitioner has submitted that the selection was held strictly in terms of the aforesaid Resolution dated 6.4.1966. Thus, no fault can be found with the selection process. The District Judge, who had made the appointment also faced the Departmental Proceeding on these charges. However, subsequently the proceedings initiated against him were dropped. Therefore, the Petitioner could not have been reverted. The Writ Petition deserves to be allowed.
4. On the other hand, Mr. P.K. Khuntia, Learned Additional Government Advocate has vehemently opposed the petition contending that large number of identical petitions have already been dismissed by this Bench. Seven posts could not be filled by promotion as it exceeded the quota, even if the Resolution dated 6.4.1966 is made applicable. Thus, the Resolution dated 6.4.1966 is not applicable at all. Appointments are to be made under the provisions of the Orissa District & Subordinate Courts Ministerial Services (Method of Recruitment and Conditions of Service) Rules, 1969 (hereinafter referred to as '1969 Rules') and the said Rules do not contain any provision to fill up the post of Junior Clerk by promotion of Class IV employees. Even if the Resolution dated 6.4.1966 had been adopted by the High Court it stood impliedly repealed by the 1969 Rules. Therefore, the petition is liable to be dismissed.
5. We have considered the rival submissions of the Learned Counsel for the parties and perused the record.
6. It is settled legal proposition that executive instruction cannot override the statutory Rules.
7. A Constitution Bench of the Hon'ble Supreme Court, in B.N. Nagarajan and Ors. v. State of Mysore and Ors. AIR 1966 SC 1942, has observed as under:
It is hardly necessary to mention that if there is a statutory Rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of its executive powers under Article 162 of the Constitution ignore or act contrary to that Rule or the Act.
8. Similarly, another Constitution Bench of the Hon'ble Supreme Court in Sant Ram Sharma v. State of Rajasthan and Ors. AIR 1967 SC 1910, has observed as under:
It is true that the Government cannot amend or supersede statutory Rules Jay administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the Rule and issue instructions not inconsistent with the Rules already framed.
9. The law laid down above, has consistently been followed and it is settled proposition of law that an Authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory Rules but not to supplant it. Such instructions should be subservient to the statutory provisions. Vide The Commissioner of Income-tax, Gujarat v. A. Raman & Co. : [1968]67ITR11(SC) ; Union of India and Ors. v. Majji Jangammayya and Ors. : [1977]2SCR28 ; The District Registrar, Palghat and Ors. v. M.B. Koyyakutty and Ors. AIR 1979 SC 1060; Ramendra Singh and Ors. v. Jagdish Prasad and Ors. : [1984]2SCR598 ; P.D. Aggarwal and Ors. v. State of U.P. and Ors. : [1987]3SCR427 ; Beopar Sahayak (P) Ltd. and Ors. v. Vishwa Nath and Ors. : [1987]3SCR496 ; Paluru Ramkrishnaiah and Ors. v. Union of India and Anr. : (1989)IILLJ47SC ; Comptroller & Auditor General of India and Ors. v. Mohan Lal Mehrotra and Ors. : (1992)ILLJ335SC ; and C. Rangaswamaiah and Ors. v. Karnataka Lokayukta and Ors. : [1998]3SCR837 .
10. The Constitution Bench of the Hon'ble Supreme Court, in Naga People's Movement of Human Rights v. Union of India. AIR 1998 SC 431, held that the executive instructions are binding provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.
11. Thus, it is settled law that executive instructions cannot amend or supersede the statutory Rules or add something therein. The orders cannot be issued in contravention of the statutory Rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while statutory Rules have full force of law as held by the Constitution Bench of the Hon'ble Supreme Court in State of U.P. and Ors. v. Babu Ram Upadhya : 1961CriLJ773 ; and State of Tamil Nadu v. Hind Stone etc. etc. : [1981]2SCR742 .
12. Similar view has been reiterated in Union of India and Ors. v. Sh. Somasundaram Viswanath and Ors. AIR 1988 SC 2255; Union of India and Anr. v. Amrik Singh and Ors. : AIR1994SC2316 ; Union of India and Ors. v. Rakesh Kumar : [2001]2SCR927 ; Swapan Kumar Pal and Ors. v. Samitabhar Chakraborty and Ors. : [2001]3SCR641 ; Khet Singh v. Union of India : 2002CriLJ1832 ; Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. : [2003]3SCR409 ; D.D.A. and Ors. v. Joginder S. Monga and Ors. : (2004)2SCC297 ; ITW Signode India Ltd. v. Collector of Central Excise : 2003ECR783(SC) ; Pahwa Chemicals (P) Ltd. v. Commissioner of Central Excise, New Delhi AIR 2005 SC 1532; Dilip Kumar Ghosh and Ors. v. Chairman and Ors. : AIR2005SC3485 ; and Punjab Water Supply & Sewerage Board v. Ranjodh Singh and Ors. AIR 2007 SC 1082, and it has been observed that statutory Rules create enforceable rights which cannot be taken away by issuing executive instructions.
13. In K.P. Sudhakaran and Anr. v. State of Kerala and Ors. : AIR2006SC2138 , the Apex Court held that where statutory Rules governed the field, prior executive instructions cease to apply.
14. In the instant case, even if Resolution dated 6.4.1966 has been adopted by the High Court it stood implied repealed by the 1969 Rules. The 1969 Rules do not provide any mode of promotion to the post of Junior Clerk. All the vacancies have to be filled up by direct recruitment. This view stands fortified by a Division Bench decision of this Court in P. Dandapani Dora v. District Judge, Ganjam 69 (1990) CLT 279 wherein after taking note of the statutory provisions of 1969 Rules, particularly Rules 4, 8, 9 and 10 and considering the Resolution dated 6.4.1966, this Court came to the conclusion as under:
A bare reading of Rule 4 makes it clear that the method of recruitment in respect of Lower Division Clerks, Copyists and Grade In Stenographers is by a competitive examination in accordance with Rule 6 and in respect of other posts by promotion in accordance with Rule 10. The requirements of the competitive examination as referred to in Rule 4 are indicated in Rule 6. Here we are concerned with the method relating to the first category of employees referred to in Rule 4. Obviously Rule 4 does not provide for any promotion from Class IV to Class III. On the other hand, the method of recruitment as afore stated has to be made in terms of Rule 6 by holding a competitive examination. According to the Petitioners, Rule 4 does not specifically exclude promotion and therefore, the executive instructions still hold the field. We find it difficult to accept this contention in view of the categorical provisions made in Rule 4 relating to recruitment of specified posts. The legislative intent appears to be further clear from the mode of fixation of seniority as provided in Rule 8. Sub-rule (1) of Rule 8 specifically provides that seniority of Lower Division Clerks, Typists, Copyists and Stenographers inter se is to be determined in accordance with the positions secured by them in the competitive examination held in a particular year. This provision by implication makes it clear that the only method of recruitment is in terms of Rule 4 and not otherwise. Therefore, the reversion seems to be in order. But one disturbing feature which has perplexed us is the undisputed position that promotions from Class IV to Class III in terms of the Resolution dated 6.4.1966 and the General Letter dated 10.12.1966 continue to be given by other District Judges, as evident from various orders riled by the Petitioners along with the additional affidavit. The assertion has not been disputed by the Opposite Parties. This has certainly created a very anomalous situation. The Petitioner's submission that there has been continued acceptance of the applicability of the aforesaid Resolution and the General Letter is not without substance. Needless to say, two apparently conflicting methods should not have been and should not be followed.
15. Thus, it is evident from the Judgment referred to hereinabove that post of Junior clerk has to be filled up by direct recruitment and not by promotion. In Sudhakaran (supra), the Apex Court held that 'where statutory Rules govern the field, prior executive instructions cease to apply'. Therefore, in such a fact situation, the resolution dated 6.4.1966 lost its applicability on commencement of the 1969 Rules.
16. This matter stands squarely covered by the aforesaid Judgment of this Court. We do not see any cogent reason to take a view contrary to that.
17. The Writ Petition lacks merit and is accordingly dismissed.
B.N. Mahapatra, J.
I agree.