NAGABHUSHANARAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This writ petition concerns the question of the validity of the executive instructions issued by the Government in Memo No. 4189/E1/55-4. dated 20-1-1956, from the Secretary to Government, Public Works and Transport Departmet, to Sri C. Seshavatharam, B. E.,C.E., (Hons), Chief Engineer, P.W.D., (General and Buildings), Andhra, Kurnool, whereby it was directed that pending decision on the question of amending Rule 2(d) (ii) of the Special Rules for the Andhra. Engineering Service, the qualification on minimum service for the Upper Subordinates and Licentiates in Civil Engineering Diploma for being considered for appointment as Assistant Engineers by promotion be raised from 5 years to 10 years' service Secondly, it is averred that the proportion of 2 to 1 as contained in the said rule is not being maintained by the Chief Engineer, but on the other hand, a proportion of 4 to 1 is being followed by him.

(2.) In so far as the first contention is concerned, the Government conceded in their counter that Rule 2(d) (ii) of the Special Rules for the Andhra Engineerig Service whereby the qualification for Upper Subordinates and Licentiates in Civil Engineering Diploma for being considered for promotion as Assistant Engineers was fixed at 5 years' service has not been amended and that having regard to the exigencies of service and for maintaining efficiency they have, by the impugned Memo, pending formal amendment of the Special Rules for the Andhra Engineering Service, directed that further appointments as Assistant Engineers should be made from Supervisors possessing the Upper Subordinate or Licentists in Civil Engineering Diploma who had put in a minimum servce of 10 years, if their record was good. The counter denied the second allegation viz., effect it being given to the Chief Engineer's proposal of the ratio of 4 to 1 contrary to the ratio of 2 to 1 prescribed in the Rule. In the reply affidavit, the petitioners gave certain figures challenging the denial in the counter. Mr. N. V. B Sankara Rao, on behalf of the Government, does not deny that these executive instructions contravene the Rule. This concession, no doubt, takes note of the clear position of law on this aspect of the matter, namely where a rule having a force of law is in torce, no executive instructions can abrogate, amend or vary it. The Special Rules for the Andhra Engineering Service are rules made under the proviso to Article 309 of the Constitution by the Governor of the State. These have legal force and consequently cannot be amended by executive instructions. Their Lordships of the Supreme Court, by a maiority, in Mannalal Jain v. State of Assam observed at page 393 :

(3.) On the second question, I an satisfied that there has been no breach of the rule relating to the ratio of 2 to 1. The counter frankly set out the facts and stated that even the proposal of the Chief Engineer to raise it to 4 to 1 was not accepted and that he was directed to adhere to 2 to 1. I have no doubt that this adherence is being maintained.