Judgement

HEGDE, J:- These appeals by certificate raise two common questions of law for decision viz. whether the Government can by administrative instructions add to the conditions of service relating to the promotion of a Government servant, prescribed under Art, 309 of the Constitution add further whether such an addition requires the approval of the Central Government under S. 115 of the States Re-organization Act. 1956.

2. For deciding the two questions of law formulated earlier, it would be sufficient if we refer to the facts of any one of the aforementioned cases. Hence we shall refer to the facts in Civil Appeal No. 1639 of 1968.

3. Shamsher Jang Bahadur, the respondent in that appeal joined Government service as a clerk in the erstwhile Pepsu Secretarial on January 3, 1955. Pepsu State became a part of the State of Punjab on November 1, 1956 under the provisions of the State Re-organization Act, 1956. Shamsher Jang Bahadur was provisionally promoted as an Assistant on December 9, 1959 in the Punjab Civil Secretariat at Chandigarh. He was reverted as a clerk on February 3, 1960 on the ground that the failed to qualify the test prescribed under certain administrative instructions issued on June 21, 1958. He filed a civil suit challenging his reversion. The suit was decree by the trial Court. That decree was affirmed by the appellate Court. The High Court of Punjab and Haryana dismissed the Second Appeal filed by the State. Somewhat similar are the facts in the other appeals.

4. It was conceded before us that the appellants at the relevant time were governed by the Punjab Civil Secretariat (State Service Class III) Rules, 1952 (to be hereinafter referred to as the Rules), in view of certain instructions issued by the Central Government under the provisions of the States Re-organization Act, 1956. Hence it is not necessary to refer to the Pepsu Secretariat Service. Recruitment, Promotion Punishment and Seniority Rules, 1952.

5. Rule 6 of the Rule regulates the appointment of Assistants by promotion. The relevant portion of that rule reads :

"6 (1) Posts in the Service shall be filled :

(a) ...... ..........

(b) ...... ..........

(c) ...... ..........

(d) ...... ..........

(e) ...... ..........

(f) in the case of Assistants

(i) ...... ..........

(ii) By promotion of Senior Clerks; or

(iii) By selection from among officials employed in departments of Government other than the Civil Secretariat.

6(2) ...... ............

6 (3) Appointment to any post by the promotion of officials already in the service or by transfer of officials employed in Government departments other than the Civil Secretariat shall be made strictly by selection, and no official shall have any claim to such appointment as of right."

6. On June 21, 1958, the Government issued instructions to the effect that 25 per cent of the vacancies in the cadre of Assistants in the Punjab Civil Secretariat will be filled by appointment of suitable personnel from serving official in the offices of the heads of Departments in the State while the remaining 75 per cent will be filled by promotion from amongst the clerk in the Punjab Civil Secretariat. Cl. (b) of that Order provides:

"For the purpose of appointment of officials from the offices of Heads of Departments as Assistant in the Punjab Civil Secretariat as also for promotion of Clerks of the Secretariat to the posts of Assistants in the cadre, a test-separately prescribed will be held by the Punjab Service Commission. For officials belonging to the offices of the Heads of Departments, this test will be a competitive one and for the Secretariat Clerks it will be a qualifying test. As at present this test will be conducted simultaneously in Accounts as also in Noting and Drafting. The question as to what standard of accounts test it would be fair to except of the examinees is being considered separately."

7. It may be noted that herein we are dealing only with those who were promoted from the cadre to clerks in the Secretariat. The fir