B.K. Sharma, J.
1. The petitioner working in the rank of Commandant in the CRPF, aspiring for promotion to the rank of Deputy Inspector General (DIG) filed this writ petition in the year 2001. According to him, the executive instructions issued in the year 1983 and the Recruitment Rules framed in the year 2001 deprived him of such promotion. The challenge made in this writ petition is the aforesaid executive instructions and the provisions of the Recruitment Rules issued in the year 1983 and 2001, respectively.
2. The petitioner was first appointed in the rank of Deputy Superintendent of Police (D.S.P.) in the CRPF on 13.12.1976. He was promoted to the rank of Assistant Commandant in the year 1987. He was also considered for promotion to the rank of Commandant in the year 1997, but the result of the DPC was kept under sealed cover in view of pendency of a departmental proceeding initiated against him. However, he having been exonerated from the charge levelled against him, he was promoted to the rank of Commandant by order dated 31.01.2001 with retrospective effect, i.e. 18.04.1997, as per the recommendation of the DPC.
3. It is the case of the petitioner that on the effective date of promotion to the rank of Commandant in the year 1997, he having rendered 20 years of service was entitled to be considered for promotion to the rank of D.I.G It is the further case of the petitioner that taking into account the effective date of promotion in the year 1997, when he was actually promoted in 2001 he had deemed completion of 4 years of service in the rank of Commandant and thus, ought to have been considered for promotion to the rank of D.I.G, upon his promotion to the rank of Commandant with retrospective effect.
4. The petitioner upon a reference to the CRPF Act, 1949 (in short, 'the Act') and the CRPF Rules, 1955 (in short, 'the Rules') has contended that as per the provisions of the said Act and the Rules, he was entitled to be considered for promotion on completion of requisite length of service. The provisions to which the petitioner has placed reliance are discussed below.
5. Rule 5 of the Rules deals with the com position of the force. Under Rule 5 A.(1) the constitution of the force is as follows:
(i) Commandant;
(ii) Assistant Commandant (Second-in-Commandant);
(iii) Company Commander (Officer).
6. Superior officers in the Signal Battalion of the CRPF are mentioned in Rule 5 A.(b)(i) as follows:
(i) Commandant;
(ii) Assistant Commander;
(iii) Company Commander (Deputy Superintendent of Police).
7. The term Superior Officers has been defined under Rule 2(i) of the Rules. Superior Officer means an officer appointed to the Force by the Central Government under Sub-Section (1) of Section 4 and includes a person officiating for any such officer. All the superior officers are Class-I gazetted officers as per Rule 104 of the Rules.
8. The provisions for appointment and promotion of superior officers of the CRPF are available in Rule 105 of the Rules. Rule 105(i) prescribes the provision for filling up the post of Commandant of a Battalion other than Signal Battalion or Principal, Central Training College (CTC). Rule 105(i) and (iii) lays down that the post of Commandant may be filled up from amongst the Assistant Commandant (Second-in-Commandant/Adjutant/Junior Staff Officer, Vice Principal, Central Training College), who have either served in the post for a minimum period of two years or otherwise are eligible for promotion to the post of Commandant. Rule 105(3-A) lays down that the posts of Assistant Commandant (Second-in-Commandant or Adjutant or Junior Staff Officer or Vice Principal, Central Training College) other than Signal Battalion shall be filled up by promotion from amongst the Company Commander or Quarter Masters or Assistant Principals, CTC of the CRPF, who have completed five years gazetted service in the Force.
9. Rule 105(4) of the Rules provides that the post of Company Commander or Quarter Master in the Battalion other than Signal Battalion or Assistant Principal, Central Training College shall be filled up by direct recruitment from amongst the candidates possessing the qualification laid down therein.
10. Referring to the aforesaid provision of the Rules, the petitioner has contended that as per the statutory provisions, a D.S.P. could be promoted to the rank of Assistant Commandant after 5 years [Rule 105 (3-A)(3-B)]. From the post of Assistant Commandant, one could be promoted to the post of Commandant after two years vide Rule 105(1)(iii). Thus, it is contended that a person appointed as D.S.P. becomes eligible for the post of Commandant after 7 years of service.
11. The petitioner has further referred to Rule 2 of the said Rules defining Commandant; D.I.G of Police; Inspector General of Police; Additional Director General of Police and Director General of Police. Rule 102 of the Rules provides for other conditions of service, which lays down that the condition of service of the members of the Force in respect of matters for which no provisions is made in the Rules, shall be the same as are for the time being applicable to other officers of the Government of India of corresponding status. The term 'Member of the Force' has been defined under Section 2(d) of the Act, which provides, inter alia, that a person, who has been appointed to the Force by the Commandant, whether before or after the commencement of the Act and in Sections 1, 3, 6, 7, 16, 17, 18 and 19 includes a person appointed to the force by the Central Government, whether before or after the commencement of the Act. Section 1(1) mentions the short title of the Act. Upon a reference to these provisions, the petitioner has stated that the persons appointed to the CRPF constituted by the Act, by the Central Government, are members of the Force.
12. It is the case of the petitioner that since there is no provision either in the Act or in the Rules relating to methodology of appointment to the post of D.I.G. I.G., Additional D.G. and D.G., these posts are to be filled up by the Central Government under the provisions, which are applicable to other officers of corresponding status as envisaged in Rule 102 of the Rules. Thus, according to the petitioner, the post of D.I.G. is to be filled up by promotion from the rank of Commandant on completion of total 16 years of service, as in the case of D.I.G. of the corresponding status in I.P.S., which is filled up by promotion from the rank of Superintendent of Police having total 16 years of service. According to the petitioner, the D.I.G of Police is a corresponding status to the D.I.G in the CRPF and the Commandant in the CRPF is in the corresponding status of Superintendent of Police. A. D.I.G becomes eligible for promotion to the rank of I.G. on completion of 20 years of service in total and 4 years of service as Additional D.I.G.
13. It is the further case of the petitioner that in the Act and the Rules, there is no post of Additional D.I.G. However, the Government of India in the Ministry of Home Affairs by its letter dated 16-07-1983 (Annexure-2) addressed to the Director General, CRPF on the subject 'Cadre Review For Group-A Post In The CRPF' conveyed the sanction of the President of India for upgradation of 20 posts of Commandant in the scale of pay of Rs. 1200/-1700/- plus special pay of Rs. 100/- to the level of D.I.G in the scale of pay of Rs. 1800/-2000/- plus a special pay ofRs.100/-. The total strength of upgradation of posts was indicated as 20 (18 in Group centres and 2 in Central Training College).
14. It is the grievance of the petitioner that since no such post of Additional D.I.G. or any post in the level of Additional D.I.G has been provided in the Act and the Rules, by the aforesaid executive order no such post could have been created by way of upgradation of some of the posts of Commandant putting the rank of Additional D.I.G. in between the ranks of Commandant and D.I.G According to the petitioner, by the act of such upgradation creating the level of Additional D.I.G., a bottleneck has been created infringing the rights of many CRPF Commandants aspiring for promotion to the post of D.I.G including the petitioner.
15. As per the said Annexure-2, executive instruction dated 16-07-1983, the newly created post would come into existence from the date they were filled up till 29.02.1984 for the first instance. It has also been laid down that only those CRPF officers, who have served as Commandant for a minimum period of 16 years and have also completed 18 years of gazetted officer shall be eligible for promotion of Additional D.I.G It is also indicated in the executive instruction that a Commandant will become eligible for promotion to selection grade on completion of 16 years of gazetted service.
16. The petitioner has mentioned about the retirement age of Commandant in the year 1983, which was 55 years, while the retiring age of D.I.G was 58 years. Although no retirement age of additional DIG has been mentioned in the executive instruction dated 16-07-1983,but in practice their retirement age was also made 58 years.
17. Referring to the aforesaid factual aspects of the matter, the petitioner has contended that he became eligible for promotion to the rank of D.I.G. when he completed 20 years of service in 1997 and thereafter, 4 years of deemed service as Commandant in the year 2001. The grievance of the petitioner is that the aforesaid executive instruction creating the post of Additional D.I.G deprived him of direct promotion to the rank of D.I.G It is the case of the petitioner that since there is no post of Additional D.I.G mentioned in the Act and the Rules, the additional post of Additional D.I.G. could not have been created by an executive instruction so as to frustrate existing right of the Commandants like that of the petitioner for promotion to the rank of D.I.G
18. By Annexure-3, letter dated 29.10.1997, the Government of India in the Ministry of Home Affairs informed the Director General, CRPF about the eligibility condition for promotion of cadre officers to various ranks, in terms of which a Commandant in the selection grade would be eligible for promotion to the rank of Additional D.I.G on completion of 18 years Group-A service of which at least 2 years service should be in the rank of Commandant (Selection Grade). By the said letter, it was also requested to take necessary action towards necessary amendments in the relevant Rules to prescribe the eligibility conditions for promotion to the various ranks indicated in the letter. At the time of filing of the writ petition, no such amendment having been made, the petitioner raised the grievance that such creation of additional post of Additional D.I.G. was detrimental to the promotion prospect of the Commandant like that of the petitioner.
19. By Annexure-4, letter dated 05.04.2001, the Government of India in the Ministry of Home Affairs intimated the Director General of CRPF, BSF etc. regarding revision of eligibility conditions for promotion of cadre officers to various ranks. The letter provided for farther revision of eligibility conditions for promotion to the rank of Additional D.I.G In the letter further request was made to carry out amendment in the relevant recruitment rules to prescribe the eligibility conditions for promotion to various ranks. According to the petitioner, no such amendment was brought but the authorities were taking action in the matter of promotion on the basis of the executive instructions, which according to the petitioner, could not have been taken recourse to in violation of the specific provisions in the Act and the Rules.
20. In paragraph 27 of the writ petition, the petitioner has cited the example of one Mr. C.M. Bahuguna, Additional D.I.G.P. In January, 1998 said Shri Bahuguna was Commandant and was to retire on 31.01.1998 on reaching the then prescribed age of superannuating, which was 55 years. But on 23.01.1998 he was promoted to the rank of Additional D.I.GR, which naturally extended his age of retirement upto 58 years. Thus, be cause of creation of the intermediary post of Additional D.I.G.P., said Shri Bahuguna could block the career advancement of other officers below him as he did not retire at the age of 55 years. Thereafter, on the recommendation of 5th Central Pay Commission, the retirement age of the officers has been extended to 60 years.
21. After the aforesaid creation of 20 posts of Additional D.I.G, it becames 56 about which the petitioner has made a mentioned in paragraph 31 of the writ petition. According to him, such posts were created illegally overriding the provisions of the Act and the Rules. The petitioner's case is that although Section 18 of the CRPF Act gives power to make rules by the Central Government for carrying out the purposes of the Act, such a power cannot go to the extent of issuance of executive instruction towards creation of additional posts blocking the promotion prospect of the Commandants, like that of the petitioner.
22. It appears that during the pendency of the writ petition, the Central Government framed the Rules, namely Central Reserve Police Force Group-A (General Duty) Officers Recruitment Rules, 2001, copy of which has been annexed to the counter affidavit as Annexure-R-1. In this set of Rules the post of Additional D.I.G. is the intermediary post between Commandant and D.I.G Thus, what was provided in the executive instruction has since been incorporated in the Rules of 2001. The petitioner has also put challenge to the said Rules of 2001 inter alia, contending that the vested and/or accrued right as per the provisions of the Act and the Rules could not have been taken away by the said Rule.
23. From the above narration of facts, what could be gathered is that the grievance of the petitioner is that because of the creation of the additional post of Additional D.I.G. between the ranks of Commandant and D.I.G, the petitioner was deprived of his promotion directly to the rank of D.I.G. According to the petitioner, such intermediary post with change of eligibility criteria could not have been introduced in violation of the provisions of the Act and the Rules framed thereunder.
24.The respondents have filed their counter affidavit justifying the executive instructions of 1983 and the Recruitment Rules of 2001. It has been contended that the services rendered by the petitioner and/or having had the requisite length of service does not necessarily mean that he should be promoted inasmuch as such promotion depends on availability of vacancies and suitability to be assessed by the DPC. In paragraph 5 of the counter affidavit, the respondents have disputed the comparison made by the petitioner with the purported corresponding grades of IPS. According to them, the post of D.I.G. in the CRPF is to be filled up by promotion from the rank of Additional D.I.G.P. on completion of 20 years of Group-A service and has no comparison with the corresponding status in IPS. It has been contended that in the CRPF, there is separate cadre rules of recruitment/promotion of cadre officers and hence, it is irrelevant to compare the method of recruitment/promotion of cadre officers with that of IPS cadres.
25. The respondents have justified the creation of the post of Additional D.I.G.P. in between the ranks of Commandant and D.LGP. They have denied the contention of the petitioner that the post of Additional D.I.G.P. was created creating bottle-neck in the matter of promotion of Commandant to the rank of D.I.G.P. and has infringed the right of CRPF Commandants. It has been stated that the post of Additional D.I.G.P. was created by upgrading equal numbers of post of Commandant and the post of Commandant was made the feeder post for promotion as Additional D.I.G. According to the respondents, such provision no way affects the right of senior Commandants, as they will be promoted subject to assessment by the DPC to the rank of Additional D.I.G.P. and thereafter, to the rank of D.I.G.
26. In the rejoinder affidavit filed by the petitioner, the contentions raised in the writ petition have been reiterated to which the respondents have also filed additional counter affidavit reiterating their stand in the counter affidavit.
27. I have heard Mr. K.N. Bhattacharjee, learned Sr. counsel assisted by Mr. Section Roy, learned Counsel for the petitioner as well as Mr. P.K. Biswas, learned Assistant Solicitor General of India appearing for the respondents.
28. Mr. Bhattacharjee in his persuasive pursuits and upon a reference to the factual aspects of the matter submitted that the right accrued to the petitioner under the provisions of the Act and the Rules could not have been taken away, firstly by executive instruction and then by the Recruitment Rules of 2001. He has referred to the decisions of the Apex Court in Food Corporation of India and Ors. v. Om Prakash Sharma and Ors. reported in : (1999)ILLJ1215SC , U. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. reported in : AIR2006SC2145 and in Union of India and Anr. v. Central Electrical and Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD& Ors. reported in AIR 2008 SC 03.
29. Countering the above argument, Mr. Biswas, learned Assistant Solicitor General of India defending the action of the respondents submitted that the petitioner having failed to show that he has been deprived of his promotion inspite of being in the zone of consideration and suitability against the available vacancies, he is not entitled to any relief. He submitted that there is nothing wrong in upgrading 20 posts of Commandant to that of Additional D.I.G, which was by way of cadre review.
30. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. I have also considered the materials available on record.
31. The only question, which falls for consideration is that whether the creation of the additional posts of Additional D.I.G in any way created any obstruction for promotion to the post of D.I.G. While it is the case of the petitioner that such creation of the additional posts as the intermediary rank between the rank of Commandant and D.I.G deprived of his promotion to the rank of DIG, it is the case of the respondents that such creation of additional posts was in view of the cadre restructuring, which is an incident of service.
32. There is no dispute that there is no provision in the Act and the Rules laying down the methodology of promotion to the post of D.I.G and upwards. Upon a reference to Rule 102 of the Rules, it is the case of the petitioner that such posts are to be filled up as per the provisions, which are applicable to the officers of the corresponding status. In this connection, the petitioner has referred to the provisions relating to IPS officers. According to the petitioner, since in the IPS an officer is entitled to get promotion on completion of 16 years of service, he was also entitled to get promotion on completion of such length of service. Such a contention has been raised referring to the provision of Rule 102 of the Rules.
33. Rule 102 of the Rules provides that the condition of service of members of the Force in respect of matters for which no provision is made in the Rules shall be the same as are for the time being applicable to other officers of the Government of India corresponding status. Since there is no provision in the rules relating to promotion to the rank of D.I.G and upwards, the petitioner has contended that he was entitled to get promotion to the rank of D.I.G on completion of 16 years of service and 4 years of service as Commandant taking into account the comparable grade in other such services.
34. It is true that in the Act and the Rules as it stood before the 2001 Recruitment Rules, there was no provision regarding methodology and eligibility of promotion to the rank of D.I.G and upwards. However, in the meantime, the Government of India in the Department of Home issued the executive instruction vide Annexure-2, letter dated 16.07.1983. By the said executive instruction, altogether 20 posts of Commandant were upgraded to the level of Additional D.I.G Such upgradation was necessitated because of the cadre review in respect of Group-A post in the CRPF. Needles to say that the cadre review is an incident of service and such cadre review may be occasioned due to various reasons.
35. Section 3 of the Act dealing with the constitution of the force lays down that the Force shall be constituted in such manner, and the members of the Force shall receive such pay, pension and other remuneration, as may be prescribed. Section 4 of the Act prescribes that the Central Government may appoint to the force Commandant and such other persons it thinks fit to be Assistant Commandant and Company Officers. The Commandant and every other officer so appointed, shall have, and may exercise, such powers and authority as may be provided by or under the Act. Section 8 provides that the Superintendence of, and control over, the force shall vest in the Central Government, and the Force shall be administered by the Central Government in accordance with the provisions of the Act and of any rules made thereunder through such officers as the Central Government may from time to time appoint in this behalf.
36. The CRPF Rules, 1955 has been framed under Section 18 of the CRPF Act, 1949. Upon a reference of the Rule 2 of the Rules, it has been contended by the petitioner that there is no post of Additional D.I.G.P. mentioned in the definitions under Section 2. From that the petitioner has drawn the analogy that since the definitions do not include the post of Additional D.I.G.P., the executive instruction of 1983 could not have introduced the post of Additional D.I.G.P. by way of upgradation of 20 posts of Commandant. Merely because the definitions do not include the post of Additional D.I.G.P., it cannot be said that such post could not have been created by the authorities. Although Rule 102 lays down that condition of service of members of Force in respect of matters for which no provisions is made in the rules shall be the same as are for the time being applicable to other officers of the Government of India of corresponding status, it cannot be said that such a provision takes into its fold even the eligibility and suitability criteria of promotion from the rank of Commandant to D.I.G.P. and onwards. Even if it is held to be so, nothing precluded the authorities from issuing the executive instructions.
37. The Annexure-2, executive instruction dated 16-07-1983, was issued on the basis of the cadre review for Group-A post in the CRPF. As already noted above, the cadre review is an incident of service. Upon such cadre review if a decision was taken to upgrade 20 posts of Commandants to the level of Additional D.I.GP, it cannot be said that such upgradation pursuant to the cadre review is opposed to the provisions of the Act and the Rules. Likewise there was nothing wrong in laying down the eligibility criteria for promotion to the rank of Additional D.I.GP. By now, it is well established principle of law that the Government is empowered to issue executive instruction to fill up the gap in the rules. In Sant Ram Sharma v. State of Rajasthan and Ors. reported in : (1968)IILLJ830SC , the Apex Court dealing with the question of promotion of the petitioner, an IPS officer, repelled the contention raised on his behalf that in the absence of any statutory rules governing promotions to the selection grade posts, the Government can not issue administrative instructions and such administrative instructions can not impose any restrictions not found in the Rules already framed observed thus:.It is true that there is no specific pro vision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative in structions regarding the principle to be followed in promotions of the officers concerned to se lection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can All up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
38. In B.N. Nagarajan v. State of Mysore reported in : (1967)ILLJ698SC , it was pointed out by the Apex Court that it is not obligatory under the proviso to Article 309 of the Constitution to make rules of recruitment etc. before a service can be constituted or post created or filled, and secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. It was observed that there is nothing in the terms of Article 309 of the Constitution, which abridges the power of the executive to act under Article 162 of the Constitution with out a law. A similar view was taken by the Apex Court in T. Cajee v. U. Jormonik Stem reported in : (1961)ILLJ652SC .
39. The aforesaid view of the Apex Court finds mention in the case of Central Electrical and Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD (supra) referred to by the learned Sr. counsel for the petitioner. This case has been referred to, to bring home the point of argument that while executive instructions can only fill in the gaps not covered by rules, same can be in derogation of statutory Rules. It will be too much to accept the contention that the 1983 executive instruction was not in conformity with the Rules. As noted above and as also admitted by the petitioner that the Act and the Rules as it stood prior to issuance of the executive instruction and the Recruitment Rules of 2001 did not provide for the methodology of promotion to the ranks of D.I.G, I.G, Additional D.G and D.G The Rules were completely silent. Thus it is not a case where a conflict has arisen between a statute or a statutory rule on the one hand and an executive instruction, on the other. Only in a case where a conflict arises between a statute and an executive instruction, indisputably, the former will prevail over the latter.
40. Above being the position, we are of the considered opinion that there was nothing wrong in issuing the executive instructions, firstly in 1983 and thereafter, in 1997. Annexure-3 is the letter dated 29.10.1997 laying down the eligibility conditions for promotion of the cadre officers to various ranks. Same was followed by Annexure-4, letter dated 05.04.2001, revising the eligibility conditions for promotion of cadre officers to various ranks.
41. The next decision on which the learned Sr. counsel for the petitioner has placed reliance is Om Prakash Sharma (supra). This case has been relied upon so as to contend that the benefit already available to the Commandants under the existing rule could not have been taken away by executive instructions and the recruitment rules framed in 2001. The Apex Court dealing with the expressions 'vested rights' or 'accrued rights' observed that such rights cannot be taken away by making the new provision retrospectively operative. There is no quarrel with the proposition that if any rule is framed taking away vested or accrued rights, same can be termed as arbitrary, discriminatory and violative of rights guaranteed under Articles 14 and 16 of the Constitution of India.
42. In the instant case, it is not the case of the petitioner of any vested rights or accrued rights. The whole basis of the claim of the petitioner is on some suppositions. It has already been held that the authority was empowered to issue executive instruction to fill up the gap. It has also been held that there is nothing wrong in creation of intermediary grades between Commandant and D.I.G.P. The petitioner has also not been able to show that but for the creation of the posts of Additional D.I.G.P., he would have definitely earned his promotion to the rank of D.I.G.P. Before a person could be promoted to the next higher grade, he will have to first come within the zone of consideration. He will also have to be eligible for such promotion. Thereafter, his suitability will be assessed by the DPC. In the instant case, apart from the assertion that the petitioner became eligible for promotion to the rank of D.I.GP. in the year 1997 followed by 2001, nothing has been brought on record that he was within the zone of consideration and the existing vacancy positions would have permitted to consider his case for such promotion.
43. The next decision on which Mr. Bhattacharya, learned Sr. counsel for the petitioner has placed reliance is U. Raghavendra Acharya (supra). This decision has been relied upon on the plea of the petitioner that the impugned executive instruction and the recruitment rules having had the effect of retrospective application, they are unreasonable and arbitrary. There is no question of curtailing the accrued and/or vested right of the petitioner by way of promulgating the executive instruction of 1983 and the Recruitment Rules of 2001. The recruitment Rules of 2001 is virtually in consonance with the earlier executive instructions. Once it is held that the authority is empowered to fill up the gaps in the rules by way of executive instruction, this decision is of no help to the case of the petitioner.
44. In Reserve Bank of India v. C.T. Dighe and Ors. reported in : (1981)IILLJ223SC , the Apex Court dealing with the contention that alteration in condition of eligibility of the stenographers and personal assistants involved in the case was detrimental to their the interest, observed as follows:
It is difficult to see how alteration of the conditions of eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged to another cadre, assuming for the present that the said conditions were conditions of service. The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from an other cadre who are already in the panel or even of those who were expecting to be included in the panel, but it is not possible to agree that this would amount to changing their conditions of service. It is difficult to think of the conditions of service of an employee as including an implied right to prevent the employer from altering the conditions of service of other employees....
45. In Reserve Bank of India and Ors. v. C.N. Sahasranaman and Ors. reported in 1986 (Supp.) SCC 143, dealing with the grievance of the respondents that there was violation of the constitutional right and that the modified scheme would hamper development of a All India Institution and All India Cadre, the Apex Court observed thus:.It has to be born in mind that in ser vice jurisprudence there cannot be any service rule which would satisfy each and every em ployee and its constitutionality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touchstone.
46. It is not a case of altogether obliterating the chances of promotion of the petitioner. The authority thought it prudent to introduce the intermediary rank of Additional D.I.GP. pursuant to the cadre review. With the introduction of the said rank of Additional D.I.G.P., the petitioner will earn his promotion to the rank of D.I.G.P. through the intermediary rank of Additional D.I.GP. Such a decision cannot be said to be blocking his way to promotion to the rank of D.I.G.P.
47. The writ petition was filed in the year 2001, when the executive instruction dated 16.07.1983 (Annexure-2) was in existence for long 18 years. By virtue of such introduction of the intermediary rank of Additional D.I.G.P. many Commandants must have been promoted to the said rank. They are also not party respondents to this proceeding. Apart from this, there was delay in making challenge to the Annexure-2, letter dated 16.07.1983, by about 18 years. The beneficiaries of the said scheme are also not party to the said proceeding and in the event of any interference with the same, their accrued and/or vested rights about which the petitioner has much emphasized will be affected, which cannot be done in their absence.
48. The Annexure-2, letter dated 16.07.1983, was followed by Annexures-3 and 4 instructions dated 29.10.1997 and 05.04.2001, respectively, laying down the eligibility conditions for promotion to the ranks of Additional D.I.G.P. and D.I.G and I.G There is no independent challenge to the An- nexure-3, letter dated 29.10.1997. As noted above, the only challenge made in the writ petition is the Annexure-2, letter dated 16.07.1983, and Anenxure-4, letter dated 05.04.2001. Annexure-4, letter dated 05.04.2001, was issued by way of revision of eligibility conditions already laid down in the earlier two letters, more particularly the one dated 29.10.1997 (Annexure-3), to which there is no challenge.
49. Once it is held that the authority is empowered to issue executive instruction to fill up the gaps in the Rules, the challenge to such executive instructions falls through.
50. As regards the plea of the petitioner that the Recruitment Rules of 2001 (Annexure-R-1 to the counter affidavit) is violative of the provisions of the Rules, we are not inclined to accept the plea. As per the own admission of the petitioner, in the Rules there was no provision for promotion to the post of D.I.G., I.G, Additional D.G. and D.G If the authorities first decided to fill up the gap by way of executive instruction and then to frame the Recruitment Rules making provisions for promotion to the said grades, no fault can be attributed to them. The whole basis of challenge of the petitioner to the executive instruction and the Recruitment Rules of 2001 is on presuppositions. This Court exercising its power of judicial review under Article 226 of the Constitution of India cannot act on such presuppositions. Law is well settled that the provisions of an enactment are always held to be valid unless the same is conclusively shown and established to be ultra vires.
51. The aforesaid executive instructions and the Recruitment Rules of 2001 have been operating in the CRPF throughout the country. Nothing has been brought to our notice that any grievance has been raised to the same by any other members of the CRPF. We hasten to add that although the same by itself will not preclude the petitioner to make a grievance against the same, but in view of our above conclusions, same cannot be said to be out of context as was contended by Mr. Biswas, the learned Assistant Solicitor General of India.
52. For all the aforesaid reasons we are of the considered opinion that no relief can be granted to the petitioner in the framework of the writ petition and the relief sought fox A Consequently, the writ petition is liable to be dismissed, which we accordingly do.
54. Writ petition is dismissed leaving the parties to bear their own costs.