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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