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PETITIONER: MALLIKARJUNA RAO AND ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH AND ORS. ETC. ETC.

DATE OF JUDGMENT10/04/1990

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) AGRAWAL, S.C. (J)

CITATION:  1990 AIR 1251            1990 SCR  (2) 418  1990 SCC  (2) 707        JT 1990 (3)    34  1990 SCALE  (1)705

ACT:     Andhra Pradesh Animal Husbandry Service--Special  Rules, 1977--Rule 1. Constitution of India----Article 226--Can  the High Court/ Administrative Tribunal direct the State Govern- ment to frame or amend the statutory rules affecting  condi- tion of service in terms of its directions.

HEADNOTE:     Andhra  Pradesh  Animal Husbandry Service  Rules,  1961, governed  the  conditions of service of the  Andhra  Pradesh Animal Husbandry Department and under those Rules Veterinary Assistant  Surgeons  were eligible for  promotion  to  three categories  of  Class  IV posts. Rule 6 of  the  said  Rules provided special eligibility qualifications for those  posts and only those Veterinary Assistant Surgeons were considered for promotion to Class IV posts who fulfilled the qualifica- tions/specialised  training prescribed under Rule 6  of  the 1961 Rules. Some of the Veterinary Assistant Surgeons  chal- lenged the vires of Rule 6 of 1961 Rules on the ground  that it was violative of Article 14 of the Constitution  inasmuch as  it conferred arbitrary powers on the Government to  pick and  choose any person for the specialised training and  may deny such an opportunity to another person who may be equal- ly or better suited for such training, there being no guide- lines  prescribed for selection of persons  for  specialised training.  The main contention was that at the time  of  re- cruitment  all the Veterinary Assistant  Surgeons  possessed Bachelor Degree in Veterinary Science and the special quali- fication and training prescribed under Rule 6 could only  be acquired  after joining as Veterinary Assistant  Surgeon  by only  those Assistant Surgeons whom the Government  selected for the purpose.     The  High Court held Rule 6 of the 1961 Rules  as  intra vires  but  made certain observations  advising  the  Animal Husbandry Department to frame a rule for the said Department and  see that as far as possible the area of  discretion  on the  part  of the authorities concerned is  reduced  if  not eliminated  altogether, so far as the question of  imparting specialised training as provided under Rule 6 was concerned. Thereupon  the State Government amended Rule 6 of  the  1961 Rules as a result whereof the 1961 Rules were superseded  by

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the Andhra Pradesh Animal Husbandry Service--Special  Rules, 1977, Rule 1 whereof pro- 419 vided  for the constitution of the service. Class IV  posts, which were re-designated as Assistant Directors, were divid- ed  into  eight  categories and Rule 2  provided  method  of promotion from Class V to Class IV. Under those Rules Veter- inary Assistant Surgeons who were Class V were only eligible for  promotion to Class IV in their  respective  categories. That  is  to say category I Class V was  only  eligible  for promotion to category I Class IV and similarly category 2 of Class  V was eligible for category 2 of Class IV and so  on, and in this way common seniority of class V officers  became irrelevant,  promotion being category-wise. Being  dissatis- fied  some officers belonging to Class IV filed  Representa- tion  Petition  before  the  Andhra  Pradesh  Administrative Tribunal  seeking  a  direction that the  special  rules  be amended or modified in terms of the observations made by the Andhra  Pradesh High Court in Civil Writ No. 4532  of  1971, referred  to above whereby the said High Court had  declared Rule  6 of 1961 Rules as intra vires. The contention  raised by the petitioner was that promotions from Class V to  Class IV  be made on the basis of seniority alone irrespective  of the  categories contemplated by 1977 Rules. The Tribunal  by its judgment allowed the petition and issued the  directions asked for by the petitioners. The Tribunal observed that not to  speak  of direction, even an observation from  the  High Court  was  binding on the State Government when  the  State Government  had not chosen to get the said  observation  set aside by the Supreme Court. Accordingly the Tribunal direct- ed  the  State  to evolve a proper and  rational  method  of determination  of seniority among the  Veterinary  Assistant Surgeons in the matter of promotions to the next higher rank of Assistant Director of Veterinary Surgeons.     Being aggrieved, the State of Andhra Pradesh and some of the  officers  who have been affected by  the  High  Court’s judgment and who were not parties before the High Court have filed these appeals.     The following questions arose for determination: (1) can the  High  Court/Administrative Tribunal  direct  the  State Government to frame or amend the existing statutory Rules to alter  the  conditions of service of the Civil  servants  in terms of the directions, and (2) when there are  specialized posts  in a feeder cadre and also in the higher  cadre,  can the Government restrict the promotions from feeder cadre  to the  higher cadre only speciality wise irrespective of  sen- iority.     Allowing  the  Appeals and remanding the matter  to  the Tribunal for decision on other points: this Court, 420     HELD: The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The High Court was aware of its  limita- tions under Article 226 of the Constitution of India and  as such the learned Judge deliberately used the words  ’advisa- ble’ while making the observations. It is neither legal  nor proper  for the High Courts or the Administrative  Tribunals to issue directions or advisory-sermons to the executive  in respect of the sphere which is exclusively within the domain of the executive under the Constitution. [428E-F]     The power under Article 309 of the Constitution of India to  frame rules is legislative power. This power  under  the Constitution  has  to be exercised by the President  or  the Governor of a State as the case may be. [429C]     The  High Court or the Administrative  Tribunals  cannot

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issue  a mandate to the State Government to legislate  under Article 309 of the Constitution of India. The Courts  cannot usurp  the  functions assigned to the  executive  under  the Constitution  and cannot even indirectly require the  execu- tive  to exercise its rule making power in any  manner.  The Courts  cannot assume to itself a supervisory role over  the rule  making  power  of the  executive  under  Article  309. [429D-E]     The Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned  directions. [429F]     Narender  Chand  Hem Raj & Ors. v. Lt.  Governor,  Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940;  State of  Himachal  Pradesh v. A parent of a  student  of  medical college, Simla & Ors., [1985] 3 S.C.C. 169 and Asif Hameed & Ors.  v.  State of Jammu & Kashmir & Ors.,  [1989]  Supp.  2 S.C.C. 364, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3677  of 1987.     From the Judgment and Order dated 4.7.1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petition No. 578 of 1978. WITH Civil Appeal Nos. 15 19/1986 and 124/1987. 421     P.P.  Rao,  G.L.Sanghi, R.K. Jain, P. Rama  Reddy,  P.A. Choudhary,  B. Kanta Rao, Mrs. S.R. Setia, G.N.  Rao,  Attar Singh, K.V.G. Rama Rao, Mrs. Sharda Devi, K. Ram Kumar, C.S. Vaidyanathan, A.V.V. Nair and C. Prabhakar for the appearing parties. The Judgment of the Court was delivered by     KULDIP SINGH, J. The questions arising for our consider- ation in these appeals are as under: (1)  Can the High Court/Administrative Tribunal  direct  the State  Government to frame or amend the  existing  statutory rules to alter the conditions of service of the civil  serv- ants in terms of the directions? (2)  When there are specialised posts in a feeder cadre  and also  in the higher cadre, can the Government  restrict  the promotions  from feeder cadre to the higher cadre only  spe- ciality-wise irrespective of the seniority?     The  conditions of service of the Andhra Pradesh  Animal Husbandry  Department were initially governed by the  Andhra Pradesh  Animal Husbandry Service Rules,  1961  (hereinafter called  1961 Rules). Under these Rules Veterinary  Assistant Surgeons  were  eligible for promotion  to  three  different categories of posts called class IV posts and Rule 6 provid- ed special eligibility qualifications for those posts.  Only those  Veterinary  Assistant Surgeons  were  considered  for promotion  to  class IV posts who fulfilled  the  qualifica- tions/specialised  training prescribed under Rule 6  of  the 1961 Rules.     Some of the Veterinary Assistant Surgeons challenged the vires  of  Rule  6 of the 1961 Rules by way  of  Civil  Writ Petition No. 4532 of 1971 in the Andhra Pradesh High  Court. It  was  alleged  that at the time of  recruitment  all  the Veterinary  Assistant Surgeons possessed Bachelor Degree  in Veterinary Science and the special qualifications and train- ing  prescribed  under Rule 6 could only be  acquired  after joining as Veterinary Assistant Surgeon and that also at the discretion of the Government. It was open to the  Government

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to  choose any person for the specialised training  and  may deny such an opportunity to another person who may be equal- ly  or better suited for such training. Since the  imparting of specialised qualifications/training was under the control of  the Government it could pick and choose persons for  the purpose and in the process making favoured persons  eligible for pro- 422 motion  to  class  IV posts under the  1961  Rules.  Learned Single Judge by his judgment dated August 24, 1973  rejected the  contentions  of the writ petitioners in  the  following words: "I  do not find it possible to agree with the broad  conten- tion that Rule 6 is ultra vires and unconstitutional for the reasons stated by the petitioners. As stated earlier, Rule 6 merely  prescribed certain qualifications for  promotion  to certain  posts by way of experience in a particular  specia- lised service of undergoing training in a particular  field. It  cannot be argued and in fairness to the learned  counsel for  the  petitioners it may be stated, it was  not  argued, that  is not permissible to prescribe  such  qualifications. The  main reason for contending that Rule 6 is  ultra  vires was  not that it prescribed certain qualifications  but  be- cause  in the absence of any guiding principles the  Govern- ment would be enable to pick and choose persons who would be given  opportunities  to obtain those  qualifications  which would enable them to get promotion. This circumstance cannot in  my view render the rule itself ultra vires. If the  Gov- ernment or the Authorities concerned posted certain  employ- ees  in  the special sections or gave  them  opportunity  to undergo a service in a special issued section for a particu- lar period or denied similar opportunity to deserving candi- dates  with  the  oblique motive of preferring  one  set  of persons  to  another for the purposes of promotion,  it  was open  to  the aggrieve officer to challenge the act  of  the Government in each particular case. The postings and  direc- tions have been made from time to time from 1962 and none of these  petitioners  approached this  court  questioning  the denial  of  the  posting  as  the  case  may  be  all  these years."  ..... "1  therefore  see no reason for declaring Rule 6  as  ultra vires and unconstitutional." While holding that Rule 6 was intra vires, the learned Judge also made the following observations: "Though  I  have held that Rule 6  is  not  unconstitutional there cannot be any doubt that as this stand at present,  it is  left to the discretion of the authorities  concerned  to post  any particular Veterinary Surgeon to any Special  Sec- tion or 423 to  give  him  training in any advanced course.  It  is  not surprising  that  such a state of affairs should  result  in dis-satisfaction  and suspicion in the mind of the  officers concerned.  Development  of animal  husbandry  is  extremely important  in the interests of economy and a  satisfied  and contented  service is a pre-requisite for such  development. It is not advisable to it that a particular authority howev- er high placed he may be to choose persons at his sweet will and  pleasure to undergo training in a particular  field  or have  service in a particular sections especially when  such training  and service would effect the chances of  promotion to higher posts. In this connected, it may be noted that  in regard  to the Andhra Pradesh Agricultural Service,  it  was realised that condition of separate section within the  same service  results in great injustice as several senior  offi-

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cers  would be deprived of their promotion while the  junior who  happened  to work in a specialised  section  get  early promotion.  By G.O. dated 27.6.1972 all these sections  were merged into one unit and all the posts were brought under  a common set of rules. It would be advisable to frame a  simi- lar  rule for the Animal Husbandry Department also  and  see that  as far as possible the area of discretion on the  part of  the authorities concerned is reduced if  not  eliminated altogether."     The State Government amended Rule 6 of the 1961 Rules on May 10, 1976 by which the categories of Class IV posts  were increased to thirteen. The 1961 Rules were superseded by the Andhra  Pradesh  Animal Husbandary  Service--Special  Rules, 1977 (hereinafter called the Special Rules) which came  into force  on  September 24, 1977. Rule 1 of the  Special  Rules provides  for  the  constitution of the  service.  Class  IV posts,    which    were    re-designated    as     Assistant Directors,    .were   divided   into    eight    categories. Similarly,.Veterinary  Assistant  Surgeons  come  under  the heading class V and are divided into seven categories.  Rule 2  of  the Special Rules provides method of  promotion  from class V to Class IV. The relevant provisions of these  Rules are reproduced as under: 1. CONSTITUTION: Class IV. Category  (1)   Assistant  Directors  of  Animal   Husbandry (formerly 424 District  Veterinary Officers & Livestock Officers  Incharge Key Villages and Regional Cattle Development Units)  includ- ing  Superintendents, Veterinary Hospitals &  Poly  Clinics, Assistant Directors of Animal Husbandry, Liverfluke  Control Scheme;  Anti  Liverfluke Control  Scheme;  Dairy  Extension Rinderpest; Animal By-Products Plant, Zoo Park, Asst. Direc- tor of Animal Husbandry (Technical in Directorate and Gazet- ted  Instructors  in Animal Husbandry,  Village  Development Officers Training Centre. Category  (2)   Assistant  Directors  of  Animal  Husbandry, Government Livestock Farms including Assistant Directors  of Animal   Husbandry   Progeny  Testing  Unit,   Feed   Mixing Plant;   Livestock  Assistants  Training  Centre;   Goshalas and   Asst.   Director  of  Animal  Husbandry   (Farms)   in Directorate. Category  (3)  Lecturers, Institute of Animal  Reproduction, including Asst. Director of Animal Husbandry (Cattle  Devel- opment)  and Centralised Semen Collection  Centre. Category (4)  Assistant Directors of Animal Husbandry, Sheep Farms  including  Assistant Directors  of  Animal  Husbandry (Sheep  Development) and Officers of similar rank  in  Sheep Section. Category  (5)  Assistant Directors of Animal Husbandry,  Pig Breeding  Station; Piggery Development Officer and  Officers of similar rank in piggery section. Category (6)  Asst. Directors of Animal Husbandry, Regional Poultry Demonstration and Research Farm and Asst.  Directors of Animal Husbandry, poultry Marketing Centres. Category (7)  Asst. Directors of Animal Husbandry  (Formerly Disease  Investigation  Officers and Research  Officers)  an Officers  of  similar rank in  Vety.  Biological  Institute, Hyderabad;  Asst.  Directors  of  Animal  Husbandry,  Animal Health  Centres, and Officers of similar rank in   Municipal Corporation of Hyderabad such as Public Health Veterinarian. 425 Category  (8)  Asst. Director of Animal  Husbandry  (Statis- tics)

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Class V. Category (1)  Veterinary Officers. Category (2)  Veterinary Officers (Cattle Farms) Category (3)  Asst. Lecturers, Institute of Animal Reproduc- tion and  Veterinary Officers, Centralised Semen  Collection Centres. Category (4)  Veterinary Officers (Sheep Farms) Category (5)  Veterinary Officers, Pig Breeding Stations. Category (6)  Veterinary Officers, Poultry Farms. Category  (7)  Veterinary Officers in Veterinary  Biological and  Research  Institute; Animal  Health  Centres,  Clinical Laboratories    and   Municipal   Corporation   of    Hydera bad." 2. APPOINTMENT: Class IV: Category (1)  Asst. Directors of ...  (i)   ...                                       (ii) by promotion from                                            among the Veteri-                                            nary included in                                            category (I) of                                            class V of the                                            said service.                                       (iii) ......... Category (2)  Asst. Directors of ...  (i) ...                                       (ii) by promotion from                                            among the Vety.                                            Officers inclu-                                            ded in Cat.(2)                                            of Class V of the                                            said Service                                      (iii) 426 Category (3)  Lecturers               (i) by promotion from                                          among the Vety.                                          Officers included                                          in Cat. (3) of                                          Class V of the said                                          service                                       (iii) ... Category (4)  Asst. Directors of ...   (i) ...                                       (ii) by promotion from                                            among the Vety.                                            Officers inclu-                                            ded in Cat.(3)                                            of Class V of the                                            said service                                        (iii) .... Category (5)  Asst. Directors of ...   (i) ...                                       (ii) by promotion from                                            among the Vety.                                            Officers inclu-                                            ded in Cat. (5)                                            of class V of the                                            said service                                        (iii) .... Category (6)  Asst. Directors of ...    (i) ...                                        (ii) by promotion                                             from among the                                             Vety. Officers                                             included in Cat.                                             (6) of class V                                             of the said ser-                                             vice Category (7)  Asst. Directors of ...    (i) ...                                         (ii) by promotion

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                                            from among the                                              Vety. Officers                                             included in Cat                                             (7) of class V                                             of the said                                             service Category (8)  Asst. Directors of ...      (i) ...                                           (ii) by promotion                                               Vety. Officers                                               in Class V of                                               Andhra 427                                               Pradesh                                               Animal Husban-                                               dry Service                                           (iii) ...     It  is obvious from the provisions of the Special  Rules reproduced above that the Veterinary Assistant Surgeons  who are  class V are only eligible for promotion to class IV  in their  respective  categories. Category 1 class  V  is  only eligible for promotion to category 1 class IV and  similarly category 2 of class V is eligible for category 2 of class IV and so on. Although there is one common seniority of class V officers but the promotion being category-wise the seniority becomes  irrelevant  as a senior man in category 1  class  V cannot be promoted to any other category in class IV  except category 1 and 8.     M. Srinivasan and 44 other class V officers filed Repre- sentation Petition No. 578 of 1978 before the Andhra Pradesh Administrative Tribunal seeking a direction that the Special Rules  be amended or modified in terms of  the  observations made by the Andhra Pradesh High Court in Civil Writ Petition No.  4532 of 1971. In other words., it was prayed  that  the State  Government  be directed to merge all  the  respective categories in class IV and class V of the Special Rules  and promotions from class V to class IV be made on the basis  of seniority alone. The Administrative Tribunal by its judgment dated  July  4,  1985 allowed the Petition  and  issued  the directions asked for by the petitioners. The Tribunal in its judgment  posed the question to be decided in the  following manner:          "The question to be decided is whether the  Depart- ment  of Animal Husbandry is justified in not following  the directions of the A.P. High Court referred to above." The Tribunal then answered the question as under:          "It  must be observed that not to speak  of  direc- tion, even an observation from the High Court of the land is binding  on the State Government when the  State  Government has  not  chosen to set aside the said  observation  in  the Supreme Court.          The  petitioners  are, therefore, entitled  to  the relief asked for and I find no good reasons not to grant the same. The R.P., is accordingly allowed and once again direc- tions  are  issued to the respondents to evolve  proper  and rational 428 method  of determination of seniority among  the  Veterinary Assistant  Surgeons in the matter of promotions to the  next higher rank of Assistant Director of Veterinary Surgeons  in the light of the one framed under G.O.Ms. No. 1 supra.’’     It  may  be mentioned that G.O. Ms. No. 1  dated  1.1.76 which was directed to be adopted and followed in the  Animal Husbandry Department related to the Agriculture  Department. It was argued before the Tribunal that because of functional differences  between  the two departments it  would  not  be

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possible to adopt the conditions of service prevalent in the Agriculture  Department. The Tribunal, however,  issued  the above  quoted  directions primarily on the ground  that  the State Government was bound to follow the observations of the High Court made in Civil Writ Petition No. 4532 of 1971.     The State of Andhra Pradesh has challenged the  judgment of  the  Tribunal in Civil Appeal No. 1519  of  1986,  Civil Appeal  No. 124/1987 and Civil Appeal No. 3677 of 1987  have been  filed  by the officers who have been affected  by  the judgment  of  the Tribunal but were not parties  before  the Tribunal.     The observations of the High Court which have been  made as  the basis for its judgment by the Tribunal were only  of advisory nature. The High Court was aware of its limitations under  Article 226 of the Constitution of India and as  such the  learned  Judge deliberately used the  word  "advisable" while  making  the  observations. It is  neither  legal  nor proper  for the High Courts or the Administrative  Tribunals to issue directions or advisory-sermons to the executive  in respect of the sphere which is exclusively within the domain of the executive under the constitution. Imagine the  execu- tive  advising  the  judiciary in respect of  its  power  of judicial  review  under the constitution. We  are  bound  to react scowlingly to any such advice.     This  Court relying on Narender Chand Hem Raj & Ors.  v. Lt.  Governor,  Union Territory, Himachal  Pradesh  &  Ors., [1972]  1 SCR 940 and State of Himachal Pradesh v. A  parent of  a student of medical college, Simla and Ors.,  [1985]  3 SCC  169  held  in Asif Hameed & Ors. v. State  of  Jammu  & Kashmir & Ors., [1989] Supp. 2 SCC 364, as under:          "When a State action is challenged, the function of the court is to examine the action in accordance with law 429 and  to determine whether the legislature or  the  executive has acted within the powers and functions assigned under the constitution  and  if not, the court  must  strike-down  the action.  While  doing so the court must  remain  within  its self-imposed  limits.  The  court sits in  judgment  on  the action  of  a  coordinate branch of  the  Government.  While exercising  power-of judicial review of  administrative  ac- tion, the court is not an appellate authority. The constitu- tion  does  not  permit the court to direct  or  advise  the executive  in  matters  of policy or to  sermonize  qua  any matter  which under the constitution lies within the  sphere of legislature or executive."     The Special Rules have been framed under Article 309  of the  Constitution of India. The power under Article  309  of the Constitution of India to frame rules is the  legislative power. This power under the constitution has to be exercised by the President or the Governor of a State as the case  may be.  The High Courts or the Administrative Tribunals  cannot issue  a mandate to the State Government to legislate  under Article 309 of the Constitution of India. The Courts  cannot usurp  the  functions assigned to the  executive  under  the constitution  and cannot even indirectly require the  execu- tive  to exercise its rule making power in any  manner.  The Courts  cannot assume to itself a supervisory role over  the rule making power of the executive under Article 309 of  the Constitution of India.     We  are  therefore, of the view that the High  Court  in Civil  Writ  Petition  No. 4532/71  and  the  Administrative Tribunal  in  the  judgment under  appeal  transgressed  its limits in issuing the impugned directions. We set aside  the judgment  of  the Tribunal and  dismiss  the  Representation Petition No. 578/78 filed by M. Srinivasan and 44 others  to

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the extent indicated above.     Mr.  C.S. Vaidyanathan, learned counsel,  appearing  for the  respondents, however, contends that the  Special  Rules are arbitrary and are violative of Articles 14 and 16 of the Constitution  of  India.  He contends that at  the  time  of initial recruitment to Class V the Government at its discre- tion picks-up persons for appointment to any of the  catego- ries. According to him neither there are any statutory rules or  executive  instructions  providing options  to  class  V officers  to join category of their choice nor in  fact  any such options were given at the relevant time. He has further argued  that  the posts in seven categories of class  V  are inter-transferable. He invited our attention to the docu- 430 ments  on  record  showing transfers from  one  category  to another. Mr. Madhava Reddy learned counsel appearing for the State  of Andhra Pradesh on the other hand has  controverted the above arguments. According to him options were not  only given at the time of initial recruitment into class V  serv- ice but also subsequently as and when the rules were  amend- ed. He categorically denied that the posts in various  cate- gories  are  interchangeable. The learned  counsel  on  both sides wanted us to go into the various documents in  support of  their respective contentions. We do not have  before  us the factual-matrix to appreciate the argument of Mr. Vaidya- nathan  that the special Rules are arbitrary.  We,  however, find  from the judgment under appeal that all  these  points were raised before the Tribunal in one form or the other but the  Tribunal based its judgment on the observations of  the High Court in Civil Writ Petition No. 4532/71 and did not go into any other point.     While  setting aside the judgment under appeal we  remit the  case to the Andhra Pradesh Administrative Tribunal  for decision  on other points as indicated by, us or as  may  be raised  by  the  parties. The Tribunal  shall  give  further opportunity    to   the   parties   to    file    additional affidavits/documents. We request the Tribunal to decide  the matter  expeditiously and if possible within  three  months. The appeals are disposed of in the above terms with no order as to costs. Y.   Lal                                             Appeals allowed. 431