1. Dispute over promotion to Assistant Executive Engineer under statutory regulations with eligibility criteria from two feeder categories. (Para 1 , 2 , 3 )
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2004 Supreme(SC) 1622
SUPREME COURT OF INDIA
V.N. KHARE, CJI., S.B. SINHA, S.H. KAPADIA, JJ.
Tamil Nadu Housing Board - Appellant
Versus
N. Balasubramaniun and others - Respondents
Civil Appeal Nos. 5907-5908 of 1999
Decided on : 15-04-2004
Executive instructions cannot override or render otiose mandatory eligibility criteria prescribed in statutory regulations. Statutory regulations take precedence, and failure to meet mandatory pre-requisites for promotion precludes the application of contradictory executive orders.
Headnote:(A) Statutory Regulations - Eligibility criteria for promotion - Conflict between statutory regulations and executive instructions - Promotion to the post of Assistant Executive Engineer - Regulations provided that Junior Engineers must complete 10 years of service and Draftsmen must complete 15 years to be eligible for promotion - Executive instructions provided that where no quota is fixed in a feeder category, promotion shall be based on the pay-scale received - It was held that since the eligibility criteria are mandatory pre-requisites under statutory Regulations, purported executive instructions cannot be given effect if they render the statutory regulations otiose. (Paras 5, 6)
Facts of the case:
Under the applicable statutory regulations, the post of Assistant Executive Engineer is filled by 75% direct recruitment and 25% promotion from feeder categories. The regulations specify a minimum service requirement of 10 years for Junior Engineers and 15 years for Draftsmen. The Board prepared a promotion panel excluding certain individuals from the Draftsmen category because they had not completed the required 15 years of service. The High Court set aside the panel, relying on an executive order that prioritizes pay-scale for promotion in the absence of a fixed quota, and directed the creation of supernumerary posts for the promotion of the affected individuals.
Findings of Court:
The court found that the eligibility criteria established in the statutory regulations are mandatory. Executive instructions cannot supersede these regulations, especially when doing so would bypass a mandatory pre-requisite for promotion.
Issues: Whether an executive instruction regarding promotion based on pay-scale can override mandatory eligibility criteria (years of service) prescribed in statutory regulations.
Ratio Decidendi: Statutory regulations prevail over executive instructions. If executive instructions were allowed to override mandatory eligibility criteria, the statutory regulations would be rendered otiose and meaningless. Therefore, once eligibility criteria are established as part of statutory regulations, they must be satisfied as a pre-requisite, and executive instructions cannot be used to bypass them. (Para 6)
Result: Appeals allowed and the judgments and orders under challenge are set aside.
Legal Category Hierarchy
Table of Contents
2. Parties disputed whether executive instructions could override statutory regulations prescribing mandatory eligibility conditions for promotion. (Para 3 , 4 )
3. Applying executive instructions would render statutory eligibility criteria otiose and lead to absurdity. (Para 5 , 6 )
4. Statutory regulations prescribing eligibility criteria for promotion prevail over executive instructions. (Para 6 , 7 )
5. Appeal allowed, High Court judgment set aside, no order as to costs. (Para 8 )
6. Can executive instructions override statutory regulations prescribing eligibility criteria?
No, executive instructions cannot override mandatory statutory regulations; doing so would render the statutory provisions otiose. (Para 6 )
7. Are eligibility conditions in statutory regulations for promotion mandatory?
Yes, eligibility criteria such as minimum service years are mandatory prerequisites and must be satisfied for promotion. (Para 2 , 6 )
8. What is the effect of applying executive instructions that conflict with statutory regulations?
Such application would lead to absurdity as it would make the statutory regulations ineffective and subordinate to executive orders. (Para 6 )
ORDER :
V.N. Khare, CJI.
The Tamil Nadu Housing Board (for short "the Board") is established and constituted under an Act known as MADRAS STATE HOUSING BOARD ACT , 1961 (hereinafter referred to as "the Act").
2. For carrying out the purposes of the Act, the Board employs a number of employees. Under Sections 17 and 19 of the Act, the Board has framed regulations known as MADRAS STATE HOUSING BOARD SERVICE REGULATIONS , 1969 (hereinafter referred to as "the Regulations"). Under the Regulations, the posts of Assistant Executive Engineer are to be filled up from two sources - 75 per cent of posts are to be filled up through direct recruitment amongst those who hold Engineering Degree and 25 per cent of the posts are to be filled up from amongst the Junior Engineers and Diploma- holders and Chief Head Draftsman/Head Draftsman and Senior Drafts Officer. Under the Regulations, a Junior Engineer is eligible for promotion to the post of Assistant Executive Engineer only on completion of 10 years of service as a Junior Engineer, whereas in the case of Chief Head Draftsman/Head Draftsman the eligibility criteria is of having put in not less than 15 years as a Draftsman.
3. The Board on the basis of the aforesaid Regulations prepared a panel from amongst the persons eligible from feeder categories for promotion to the posts of Assistant Executive Engineer. In the said panel, the names of respondents herein were not included on account of the fact that they have not put in 15 years of service as Draftsman. Aggrieved, the respondents challenged the panel so prepared by the Board by means of a petition under Article 226 of the Constitution. The High Court dismissed the writ petition. On a writ appeal being filed by the respondents, the High Court was of the view that since no quota was provided for the purpose of promotion to the posts of Assistant Executive Engineer the Executive Order dated 13.10.1984 would apply. In that view of the matter, the writ appeal was allowed, the panel prepared by the Board was set aside and the Board was directed to create supernumerary posts for the purpose of promotion of the respondents to the post of Assistant Executive Engineer. It is in this way, the appellant-Board is in appeal before us.
4. We have heard the learned Additional Solicitor General appearing for the appellant-Board and Shri V. Ramasubramanium, learned counsel appearing for the respondents.
5. It is not disputed that the Government on 13.10.1984 by an Executive Order had provided that where no quota is fixed in a feeder category the promotion shall be made on the basis of pay-scale received by the employees. Applicability of the said rule was sought to be linked with Regulation 28 of the Regulations in terms whereof the provisions of the Madras State and Subordinate Services Rules would be attracted whenever no provision is made thereunder. The Division Bench of the High Court has noticed the executive instructions issued by the Government of Tamil Nadu which read thus:
"The Government after careful consideration and in consultation with the Tamil Nadu Public Service commission order as follows :-
(i) If the scales of pay of the feeder categories are similar, for purposes of promotion a percentage for each feeder category may be prescribed, taking into consideration the cadre strength of each of the feeder categories. A cycle for promotion may also be prescribed.
(ii) If the sales of pay of the feeder categories are different, then persons holding posts carrying a higher scale of pay in the feeder category should be considered first and that, if no qualified and suitable persons are available in that post, the cases of persons holding posts carrying the next higher scale of pay in the feeder category should be considered Orders amending the General Rules for the Tamil Nadu State and Subordinate Services will be issued separately."
6. It is one thing to say that there exists no provision in the Regulations which would attract the rules specified in
