K.S. Radhakrishnan, J.

1. Can the Ministry of the Government of India through an executive order interfere with the Central Civil Service (Revised Pay) Rules, 1997 issued by the President of India in exercise of the powers conferred by the proviso to Article 309 and Clause 5 of Article 148 of the Constitution of India is the question that has come up for consideration in these cases.

2. Fifth Pay Commission recommended for revised pay scales and for upgrading pay scales for the post of Radio Operator under the Pension Scheme. Post of Radio Operator was previously having the pay scale of Rs. 1320-2040 which was revised by the recommendation to Rs. 4500-7000. Accepting the report of the Pay Commission, President of India in exercise of the powers conferred by the proviso to Article 309 and C1.5 of Article 148 of the Constitution and after consultation with the Comptroller and Auditor General in relation to persons serving in the Indian Audit and Accounts Department, issued the Central Civil Services (Revised Pay) Rules, 1997. The categories to which the applicants belong came under the caption Telecom Wing in SI.No.XI dealing with 'Ministry of Finance'. Those categories fall in serial numbers 41 to 45. The revision of pay scales in respect of the categories of staff to which the applicant belong was implemented by order dated 1.1.1998. Later order dated 31.8.1998 was issued indicating the revised pay scales as recommended by the Pay Commission and that was accepted and implemented by the Government of India.

3. All India Association of Customs, Central Excise and Narcotic Electronic Maintenance Engineers and others filed O.A.No.1244 of 2001 before the Madras Bench of the Tribunal for a direction to the Ministry of Finance to place Radio Technicians, Technical Assistants and Senior Technical Assistants in the pay scale of Rs. 5000-8000,5500-9000 and 6500-10500 respectively. That application was disposed of by order dated 30.8.2002 directing the Secretary, Ministry of Finance, Department of Revenue, New Delhi to reconsider the matter in the light of the judgment of the Principal Bench of the Central Administrative Tribunal in O.A. Nos. 1003 to 1005 of 2000.

4. Ministry of Finance felt that the established parity between pay scales in the various posts of operational, maintenance and cipher stream in the department was disturbed because of the Fifth Central Pay Commission which had recommended upgradation of pay scales for the post of Radio Operator under the operational stream under the erroneous impression that the prescribed minimum qualification for appointment to the posts included Diploma in Radio Engineering and that with a view to set right the anomaly, restore the parity and not to compound the anomaly. Further it was also noticed that Fifth Pay Commission also recommended higher pay scales for Supervisor and Communication Assistant. Ministry also felt that the parity with the posts in the Cipher Stream had also been disturbed as a result of restructuring of the post of Cipher Operator in two grades and the consequential upgradation of the post of Cipher Assistant. Further it is also pointed out that the recommendations of the Fifth Pay Commission were based on a wrong facts as the post of Radio Operator in the Operation Stream does not actually require Diploma in Radio Technology since as per the Recruitment Rules prescribed for the said post, the minimum qualification is only matriculation plus a second class certificate in Wireless proficiency. It was also noticed that the qualifications prescribed for the corresponding post of Radio Technician (non-diploma holder) in the maintenance stream are also identical. Ministry of Finance on the basis of the above mentioned facts and circumstances had reconsidered the entire matter and issued notification dated 30.4.2002 in partial modification to the Government notification GSR No. 569(F) dated 30.9.1997 where entries at Sl.Nos.41 to 45 mentioned under the heading of Telecommunication Wing of the Department of Revenue have been treated as deleted. Notification dated 30.4.2002 reads as follows:

'In partial modification of this Department's Notification GSR No. 569 (E) dated 30th September 1997 the entries at serial number 41 to 45 mentioned under the heading Telecommunication Wing of the Department of Revenue may be treated as deleted. Entries from serial number 46 onwards would stand renumbered appropriately. Consequently those posts in the Telecommunication Wing of the Department of Revenue which were earlier placed at serial No. 41 to 46 would only be given the normal replacement pay scales corresponding to the applicable pre-revised scales of pay'.

Sd/-

Usha Mathur

Joint Secretary to Government of India

Later on the basis of the above mentioned notification, Ministry of Finance issued letter dated 9.10.2002 to all the Heads of Departments stating that the posts which were earlier placed at Sl.No.41 to 45 of the Notification dated 30.8.1997 would only be given the normal replacement pay scales corresponding to the applicable pre-revised scales of pay. Further it was ordered that the order would take effect only from 1.5.2002 and that no recoveries would be made for the excess payment from 1.1.1996 to 30.4.2002 on account of extension of these higher pay scale. Applicants are aggrieved by the above mentioned notifications. It was contended before the Central Administrative Tribunal that the notification dated 30.4.2002 and the letter dated 9.10.2002 are illegal and go contrary to the Central Civil Service Rules, 1997. The Tribunal found force in the said contention and set aside the above mentioned notification. Aggrieved by the same Union of India and others have approached this Court.

5. When the matter came up for hearing we heard Senior Central Government Standing Counsel Sri.John Varghese. Counsel submitted that sufficient reasons existed for issuing the notification dated 30.4.2002. Further it was submitted that the Ministry was only rectifying the anomaly crept in the Pay Commission report for justifiable reasons. Counsel submitted that on the basis of the erroneous decision of the Fifth Pay Commission, higher pay scales have been granted to the applicants whereas legally they are not entitled to the grant of pay scales to the posts which resulted in disparity in pay scales which can always be corrected by the Government. Counsel also submitted that a contrary view has been taken by the Principal Bench in O.A.No.3088 of 2002 and connected matters and therefore the Tribunal was not justified in taking a different view. Counsel appearing for the respondent Sri.T.C.Govindaswamy on the other hand contended that the Government have no power to modify, whittle down or interfere with the Rules framed by the President under Article 309 of the Constitution of India. Counsel also submitted that no power of relaxation has been conferred on the Government to amend the rules and therefore the Tribunal was justified in quashing the Government notification dated 30.4.2002.

6. The Central Pay Commission had recommended the upgraded pay scales for. posts in the Operation Stream. The Pay Commission Report was accepted by the Government. Later in exercise of the powers conferred by the proviso to Article 309, and clause (5) of Article 148 of the Constitution and after consultation with the Comptroller and Auditor General, the President made the Central Civil Services (Revised Pay) Rules, 1997 which came into effect on 1.1.1996. Ministry has taken the view that the Fifth Pay Commission had recommended upgradation of pay scales under the erroneous impression that the prescribed minimum qualification for appointment to that post included Diploma in Radio Technology. Ministry also felt that the post of Radio Operator in the Operation Stream does not actually require Diploma in Radio Technology and as per the recruitment rules the minimum qualification is only matriculation plus a second class certificate in wireless proficiency.

7. We are of the view assuming that above is the factual situation, the question to be considered is whether Government of India in exercise of its executive power could modify or relax the rules framed by the President of India under the proviso to Article 309 of the Constitution and CI.(5) of Article 148 of the Constitution of India. Law is well settled that the power of the rule making authority under the proviso to Article 309 of the Constitution of India is legislative in character. Constitution enables the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, to make rules regulating the recruitment and the conditions of persons appointed, to such service and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under Article 309 and any rules so made shall have effect subject to the provisions of any such Act. The Apex Court in A.K.Bhatnagar v. Union of India, (1991) 1 SCC 544, held that the rules framed in exercise of powers conferred under the proviso to Article 309 is binding on the Government and acting contrary to the rules will create problem and dislocation and must be regulated by the rules. Such a rule can be struck down only if it violates Arts. 14 and 16 of the Constitution of India. In Ex.Capt. K.Balasubramanian and Ors. v. State of Tamil Nadu & Ann, (1991) 2 SCC 708, the Apex Court held that statutory rules framed cannot be altered by administrative instruction. Law is well settled that such a rule can be amended only by proper legislation. However, we may point out, Central Civil Service (Revised Pay) Rules, 1997 has also authorised the President of India to relax the rules. R.I3 reads as follows:

13. Power to relax -- Where the President is satisfied that the operation of all or any of the provisions of these rules causes undue hardship in any particular case, he may, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner.

Above being the legal position, we are of the view notification issued by the Ministry on 30.4.2004 and the Circular dated 9.10.2002 issued by the Government to various Heads of Departments have no legs to stand since they are in conflict with the provisions of the Central Civil Service (Revised Pay) Rules, 1997. Consequently we find no reason to interfere with the order passed by the Tribunal. The same is upheld and the Writ Petitions stand dismissed.