# Mohd. Ashraf [Objection Filed] v. State Of U.P. & Ors

- **Citation:** (2016) 4 ILRA 736
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-30
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ashraf-objection-filed-v-state-of-u-p-ors-43466
- **Pages:** 9

## Headnote

Service Law - Direct Recruitment - Group 'C' Posts - Lower Division Clerk/Typist - Rules, 2001 - Rule 6(a),
(b), (c) and Rule 7 - Preparation of Merit List - Whether Typing/Shorthand Test only qualifying or marks to be
included - Government Order dated 3.10.2001 - Executive instructions vis-à-vis statutory rules - Executive
order modifying statutory scheme - Ultra vires - Merit to be prepared strictly under Rules, 2001.

Merit list has to be prepared on the basis of written test and marks obtained by retrenched employee, if
applicable, i.e. as per marks obtained under Rule 6 (a) and 6 (b). Rule 7 thereafter contemplates that subject
to reservation under Rule 4, final merit list shall be prepared on the basis of marks obtained by candidates in
Rule 6 (a) (b) and (c) and if two candidates have secured equal marks, candidate higher in age shall be
placed higher in merit. (Para 14)

It is thus clear that for the purpose of constituting merit, marks obtained in typing/stenography or both, as
the case may be, have to be added. The marks obtained in written test are subject to reduction to 70% (of
written test) and 20% (of typing/stenography test) as stated above, would be added. (Para 15)

It is thus evident that respondents instead of proceeding strictly in accordance with Rules 2001, have guided
themselves by Government Order dated 3.10.2001 which is in deviation and contravention of scheme of
statutory Rules contained in Rules 2001. (Para 16)

Held: (Para 20-22) In the present case, statutory rules clearly make typing/shorthand test a part of
procedure of assessment of merit and total 100 marks are divided, in such cases in the manner- 70% consists
of written test, 20% of shorthand/typing and 10% for retrenched persons wherever applicable. Executive
order however has created a news scheme by excluding the typing/shorthand test, stipulated under Rule 6(c)
and making it only a qualifying test, so as to exclude from computation of total marks to be determined for
merits and confining merit to the written test only and wherever applicable, marks obtained by candidates
belonging to retrenched employees category. This is clearly inconsistent with and in the teeth of statutory
rules and executive order, i.e. Government Order dated 03.10.2001, to this extent, is ultra vires and could not
have been followed. The authorities were bound to follow Rules of 2001 strictly and nothing else.
4 All. Mohd. Ashraf [Objection Filed] Vs State Of U.P. & Ors.

737
The above discussions makes it clear that merit list has not been prepared by respondents strictly in
accordance with Rules 2001 in respect of posts where typing/ shorthand or both were necessary for the
reason that marks obtained by respective candidates under Rule 6 (c) have not been included in preparing
merit list. Non selection of petitioners on the basis of such faulty merit list can not be upheld. In the result,
writ petition is allowed.

Case Law discussed: --

## Text

736 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.09.2015

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Service Single No.- 7015 Of 2003

Mohd. Ashraf [Objection Filed] ...Petitioner
 Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Manish Kumar

Counsel for the Respondents:
C.S.C.,H A B Sinha, M.M. Asthana, Murli Manohar Srivastava,Vikas Singh,Y K Mishra

Service Law - Direct Recruitment - Group 'C' Posts - Lower Division Clerk/Typist - Rules, 2001 - Rule 6(a),
(b), (c) and Rule 7 - Preparation of Merit List - Whether Typing/Shorthand Test only qualifying or marks to be
included - Government Order dated 3.10.2001 - Executive instructions vis-à-vis statutory rules - Executive
order modifying statutory scheme - Ultra vires - Merit to be prepared strictly under Rules, 2001.

Merit list has to be prepared on the basis of written test and marks obtained by retrenched employee, if
applicable, i.e. as per marks obtained under Rule 6 (a) and 6 (b). Rule 7 thereafter contemplates that subject
to reservation under Rule 4, final merit list shall be prepared on the basis of marks obtained by candidates in
Rule 6 (a) (b) and (c) and if two candidates have secured equal marks, candidate higher in age shall be
placed higher in merit. (Para 14)

It is thus clear that for the purpose of constituting merit, marks obtained in typing/stenography or both, as
the case may be, have to be added. The marks obtained in written test are subject to reduction to 70% (of
written test) and 20% (of typing/stenography test) as stated above, would be added. (Para 15)

It is thus evident that respondents instead of proceeding strictly in accordance with Rules 2001, have guided
themselves by Government Order dated 3.10.2001 which is in deviation and contravention of scheme of
statutory Rules contained in Rules 2001. (Para 16)

Held: (Para 20-22) In the present case, statutory rules clearly make typing/shorthand test a part of
procedure of assessment of merit and total 100 marks are divided, in such cases in the manner- 70% consists
of written test, 20% of shorthand/typing and 10% for retrenched persons wherever applicable. Executive
order however has created a news scheme by excluding the typing/shorthand test, stipulated under Rule 6(c)
and making it only a qualifying test, so as to exclude from computation of total marks to be determined for
merits and confining merit to the written test only and wherever applicable, marks obtained by candidates
belonging to retrenched employees category. This is clearly inconsistent with and in the teeth of statutory
rules and executive order, i.e. Government Order dated 03.10.2001, to this extent, is ultra vires and could not
have been followed. The authorities were bound to follow Rules of 2001 strictly and nothing else.
4 All. Mohd. Ashraf [Objection Filed] Vs State Of U.P. & Ors.

737
The above discussions makes it clear that merit list has not been prepared by respondents strictly in
accordance with Rules 2001 in respect of posts where typing/ shorthand or both were necessary for the
reason that marks obtained by respective candidates under Rule 6 (c) have not been included in preparing
merit list. Non selection of petitioners on the basis of such faulty merit list can not be upheld. In the result,
writ petition is allowed.

Case Law discussed: --

1. Himachal Pradesh vs. Suresh Kumar Verma and another, 1996 (7) SCC 562 Para 4
2. Shankarsan Dash vs. Union of India, 1991 (3) SCC 47 Para 4
3. Jai Singh Dalal and others vs. State of Haryana and another, 1993 Supp (2) SCC 600 Para 4
4. Rani Laxmibai Kshetriya Gramin Bank vs. Chand Behari Kapoor & others,(1998) 7 SCC 469 Para 4
5. Vinodan T. and others vs. University of Calicut and others, (2002) 4 SCC 726 Para 4
6. Indra Sawhney and others vs. Union of India and others, 1992 Supp (3) SCC 217 Para 18
7. Laxman Dundappa Dhamanekar and another vs. Management of Vishwa Bharata Seva Smithi and another,
JT 2001 (8) SC 171 Para 18
8. K. Kuppusamy and another vs. State of Tamil Nadu and others, 1998 (8) SCC 469 Para 18
9. Chandra Prakash Madhavrao Dadwa and others vs. Union of India and others, 1998 (8) SCC 154 Para 18
10. Vijay Singh and others vs. State of Uttar Pradesh and others (Full Bench), 2005 (2) AWC 1191 = (2004) 3
UPLBEC 2778 Para 19

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Writ petition has been restored to its original number vide order of date passed on
restoration application. As requested by learned counsel for the parties, the same is taken up for
final hearing under the Rules of this Court.

2. For Group C Posts in Lucknow including 927 Districts, selection for the posts of Lower
Division Clerks/Typists was held in accordance with procedure prescribed under Direct
Recruitment for Group C posts (outside the purview of the Public Service Commission) Rules,
2001 (hereinafter referred to as "Rules, 2001"), enforced vide notification dated 20th August, 2001.

3. An advertisement was published by respondent no. 2 on 2.9.2001 for appointment on
Group C posts in District Lucknow including 927 posts of Lower Division Clerks/Typists. Pursuant
thereto, selection was held by conducting written examination on 7.10.2001 and result thereof was
displayed on notice board in the office of opposite parties. Final result was not declared by
respondents though appointment letters were issued to some of the candidates. Petitioners
approached respondent authority to find out their result but have not been disclosed any
information in this regard. However, it has also come to notice of petitioners that despite issuance
of appointment letters to some candidates, 50 such candidates had not joined and vacancies are still
available but no further appointment letters have been issued to other selected candidates including
petitioners. Petitioner 1 belongs to Other Backward Caste while petitioners 2 and 3 are in General
Category.
738 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Respondents have filed counter affidavit, admitting that process of selection to the post
of Junior Clerk/Lower Division Clerk/Typist was undergone by holding a written test as well as
typing test. Selection has been made according to procedure contained in Rules 2001. District
Level Committee never declared petitioners successful. Candidate selected and lowest in merit in
General Category had secured 126 marks and his date of birth is 1st July 1974. Petitioners 2 and 3
have also secured 126 marks but their date of birth is 8th June 1977 and 2nd June 1979, respectively,
and being lower in age, they have not been declared successful, in view of Rule 7 of Rules 2001.
Similarly, lowest selected candidate in Other Backward Category has secured 120 marks and his
date of birth is 2nd March 1976. Petitioner 1 also secured 120 marks but his date of birth is 1st
January 1979, therefore, being lower in age, he has not been declared successful in view of Rule 7
of Rule 2001. They also submitted that there is no provision for maintaining waiting list, hence
District Level Committee prepared merit list of candidates, recommending their names without
preparing any waiting list. Since petitioners have not been selected by Selection Committee, hence,
question of issuing appointment letters to them does not arise. Candidates who are not selected and
at the best, could have been placed in waiting list, have no indefeasible right of appointment.
Selection has to be made strictly in accordance with Rules of Recruitment and in this respect,
reliance is placed on Himachal Pradesh Vs. Suresh Kumar Verma and another 1996(7) SCC
562; Shankarsan Dash vs Union Of India 1991 (3) SCC 47; Jai Singh Dalal And Ors. vs State
Of Haryana And Anr.1993 Supp (2) SCC 600; Rani Laxmibai Kshetriya Gramin Bank Vs.
Chand Behari Kapoor & ors., (1998) 7 SCC 469 and Vinodan T. and others v. University of
Calicut and others (2002) 4 SCC 726. A copy of list of candidates securing marks in written test,
typing test, interview etc. has also been filed as Annexure CA 2 to counter affidavit.

5. Respondents have relied upon a copy of a Government Order dated 3rd October 2001 and
stated that for selection, merit list is prepared according to aforesaid Government Order and,
therefore, petitioners have no claim at all.

6. It appears that this matter came up before Court earlier on 17.8.2004. Hon'ble Devi
Prasad Singh, J. after hearing arguments of respective parties opined that preparation of merit list
and selection has been made more in accordance with Government Order dated 3rd October 2001
than Rules 2001. Government Order dated 3rd October 2001 states that typing test is only a
qualifying test and candidates would be required to possess minimum qualifying marks in typing
test, and, wherever necessary, in shorthand test. Those who have not passed typing test, will stand
disqualified. However, marks obtained in typing or shorthand test would not be included for
preparing final merit list, after declaring typing/shorthand test as qualifying test. This fact was
admitted by officials of respondent, then present before Court. This Court thus observed, when
Rules contemplate a different thing/procedure, efficacy of Rules could not have been whittled
down by an executive order. State Government tried to modify procedure prescribed in Rules 2001
by virtue of an executive order, i.e. Government Order dated 3rd October 2001, which is not legal
and in violation of relevant Rules. Respondent 3, therefore, was required by Court to give details of
persons who have applied for post of typist, stenographers etc. The relevant extract of order passed
by this Court on 17.8.2004 reads as under:-
4 All. Mohd. Ashraf [Objection Filed] Vs State Of U.P. & Ors.

739
"Put up on 25th August, 2004 for further hearing. The learned Standing Counsel is
directed to submit a list giving the numbers and names of the candidates who have applied for the
post of Typist /Stenographers and number of those candidates who have applied for other posts.
The respondents are further directed to submit a list of candidates who have got success for
appointment on the post of Typist /Stenographers by the next date . No further appointment on any
Samuh Ga Post shall be done till further orders of this Court."

7. A supplementary affidavit sworn on 13.10.2004 by Sri Anil Kumar, Deputy Collector,
Sadar, Lucknow has been filed, giving details of different vacancies, referring to Rule (6) (c) as
well as Government Order dated 3rd October 2001, stating that typing and shorthand test is only a
qualifying test and merit list has to be prepared only on the basis of marks obtained in written test.
Averments to this effect, contained in paras 7 and 8 of supplementary affidavit read as under:-

7. यह तक शासनादेश संख्या 20/4/2001/का-2/2001, कातमयक अनुभाग 2, लखनऊ तदनांक 03.10.2001 के द्वािा
यह तनणय तलया गया तक उ0 प्र0, लोक सेवा आयोग के क्षेत्र के बाहि समूह ''ग ''के पदों पि सीिी भिी के तलए चयन प्रतरया तनयमावली 2001 के
तनयम 6 (6) (ग) में यह प्रातविान है तक ऐसे पद तजसमें टंकण या आशुतलतप औि टंकण अतनवायय अहयिा के रूप में तवतहि है, चयन तकए जाने वाले
अभ्यतथयों की दशा में टंकण या आशुतलतप औि टंकण की पिीक्षा आयोतजि की जायेगी औि अभ्यर्थियों को टंकण या आशुर्िर्ि और टंकण में
न्यूनतम अर्िता प्राप्त करनी अर्नवायि र्ोगी। यर् िरीक्षा केवि अर्िकारी प्रकृर्त की र्ोगी।

"7 That vide Government Order No. 20/4/2001/Ka2/2001, Karmik Anubhag-2,
Lucknow dated 03.10.2001, it was decided that, there being a provision in Rule 6 (6)(ga) of Rules
2001 for direct recruitment on posts outside the purview of U.P. Public Service Commission,
providing that for posts wherefor typing or stenography and typing both is an essential
qualification, in case of candidates to be selected, a test of typing or stenography with typing shall
be held and candidates have to secure minimum qualifying eligibility (marks). This test shall only
be of qualifying nature..." (English translation by Court)

"8. यह मक यहााँ यह भी उललेख करन आिश्यक है मक चयन हेतु सभी अभ्यर्थियों को समान रूप से शासनादेश र्दनाांक
03.10.2001 के आधार पर र्िर्ित परीक्षा में प्राप्त अांकों के आधार पर मेररट सूची बनाई गई। टांकण एवां आशुिेिन की परीक्षा को
अहिकारी (क्वार्िफाइांग) योग्यता रिा गया। मनयि िली, 2001 के अनुस र यमि टांकण एिां आशुलेखन की अहिक री परीक्ष (क्ि मलि इांग) के ब ि
मलमखि परीक्ष के प्र ि ांक के प्रमिशि क 20% ि मलमखि परीक्ष के प्र ि ांक के प्रमिशि क 70% अांक मिय ज ि है। िेररट पर मकसी प्रक र क
कोई प्रभ ि नहीं होि है। एस0सी0ए0-2, जो मक ियमनि अभ्यमिियों द्व र प्र ि ांकों से सम्बमन्धि है, के क लि सां0 8, 9 एिां 10 के अिलोकन से यह
स्पष्ट है मक क लि सांख्य 6 द्व र प्रिमशि िेररट एिां क लि सांख्य 11 िें प्रिमशिंि िेररट पर कोई अन्िर नहीं है एिां ियमनि अभ्यमिियों की िेररट उसी िि
िें है।"

" It is also necessary to note here that for selection of candidates, merit list was
prepared following Government Order dated 3.10.2001 and on the basis of marks secured by all
candidates in written test. Typing and shorthand test was held as qualifying eligibility, and as per
Rules 2001, 20% and 70% of marks secured in written test are given and merit remains unaffected.
From a perusal of columns 8, 9 and 10 of SCA-2 which is related to marks secured by selected
candidates, it is evident that merit shown in columns 6 and 11 does not indicate any difference and
740 INDIAN LAW REPORTS ALLAHABAD SERIES
selected candidates are at the same serial number of merit."(English translation by Court)
(emphasis added)

8. Now the only question up for consideration before this Court is, "whether Rules 2001
provide that typing/ shorthand test would be only a qualifying test and marks obtained therein shall
not be included along with written test for the purpose of preparing merit list", and, "whether
Government Order dated 3rd October 2001 is consistent with Rules 2001 or being contrary thereto,
is ultra vires to that extent?"

9. Learned counsel for petitioners submitted that as per Rule 7 of Rules, 2001, final merits
list was to be prepared showing marks obtained as per Rule 6 (a),(b) and c of Rules, 2001
However, in the present case, marks obtained by candidates in typing/shorthand tests have not been
shown/included in final merits list. Petitioners approached respondent 2 repeatedly to know as to
why appointment letters were not issued, even after fulfillment of all formalities, but no reason
was communicated.

10. Learned Standing Counsel appearing on behalf of respondents submitted that
clarification in this regard was issued vide Government Order dated 3.10.2001, (SA-3 to the writ
petition), wherein, it has been stated that marks relating to typing or stenography are qualifying
marks only and shall not be added to the marks obtained by candidates aspiring for the post of
stenographer/typist.

11. The question, whether typing/shorthand test is only a qualifying test or marks obtained
therein need be included with marks obtained in written test, has to be seen after perusing Rules 6
and 7 of Rules 2001, which read as under:

"6. चयन के तलए पिीक्षा एक सौ पचास अंको की होगी।
अभ्यतथयों की श्रेष्ठिा सूची तनम्न िीति से िैयाि की जाएगीीः-
क. (एक) वस्िुतनष्ठ प्रकाि की एक तलतखि पिीक्षा होगी तजसमें सामान्य तहन्दी सामान्य ज्ञान औि सामान्य अध्ययन का एक
प्रश्न-पत्र होगा। तलतखि पिीक्षा में प्राि अंकों के प्रतिशि का नब्बे प्रतिशि प्रत्येक अभ्यथी को तदया जाएगा, तसवाय ऐसे अभ्यतथयों के तजनका चयन तकसी
ऐसे पद पि तकया जाना हो तजसके तलए टंकण या आशुतलतप औि टंकण अतनवायय अहयिा के रूप में तवहि हो। चयन तकये जाने वाले अभ्यतथयों की दशा में
तलतखि पिीक्षा में प्राि अंकों के प्रतिशि का सत्ति प्रतिशि ऐसे अभ्यतथयों को तदया जाएगा।
पिन्िु ऐसे पद तजनके तलए कोई शािीरिक मानक, अतनवायय अहयिा के रूप में या भिी के ढंग के रूप में तवतहि तकये गये हों, िो
तलतखि पिीक्षा के पश्चाि अभ्यतथयों से तवतहि शािीरिक पिीक्षण किाने की अपेक्षा की जाएगी औि केवल उन्हीं अभ्यतथयों को सेवा में आने की अनुमति
दी जाएगी जो पद के तलए तवतहि न्यूनिम मानकों को पूिा कििे हों।
(दो) अभ्यतथयों को, प्रश्न पत्र एवं उत्ति पत्र (दो प्रति में) तदये जायेंगे। जब पिीक्षा समाि होगी िो अभ्यतथयों को अपने साथ उत्ति
पत्र की काबयन प्रति ले जाने की अनुमति दी जाएगी।
(ख) छटनीशुदा कमयचािी को तनम्नतलतखि िीति से अंक तदया जाएगा जो चयन के तलए पिीक्षा हेिु तनयि कुल अंकों का
अतिकिम दस प्रतिशि होगा।
(एक) सेवा के प्रथम पूणय वषय के तलए 6 प्रतिशि अंक
(दो) सेवा के दूसिे औि प्रत्येक पूणय प्रत्येक वषय के तलए वषय के तलए दो प्रतिशि अंक
4 All. Mohd. Ashraf [Objection Filed] Vs State Of U.P. & Ors.

741
(ग) तकसी ऐसे पद पि तजसके तलए टंकण या आशुतलतप औि टंकण अतनवायय अहयिा के रूप में तवतहि हो, चयन तकये जाने वाले
अभ्यतथयों की दशा में यथातस्थति टंकण या आशुतलतप औि टंकण की पिीक्षा होगी। उक्त पिीक्षा में प्रािाकों के प्रतिशि का बीस प्रतिशि केवल ऐसे
अभ्यतथयों को तदया जाएगा तजन्होंने यथातस्थति टंकण या आशुतलतप औि टंकण के तलए तवतहि न्यूनिम गति प्राि कि ली हो। टंकण
पिीक्षा या आशुतलतप औि टंकण पिीक्षा के तलए बुलाये जाने वाले अभ्यतथयों की संख्या रितक्तयों की संख्या की चाि गुना होगी।
इस प्रयोजन के तलये, तनयम 4 में तनतदयष्ट आिक्षण के उपबन्िों को ध्यान में िखिे ह ये, अभ्यतथयों की ज्येष्ठिा सूची उनके द्वािा खण्ड (क) औि (ख) के
अिीन प्राि अंकों के आिाि पि पृथक रूप से िैयाि की जायेगी।
7.- चयन सतमति, तनयम 4 में तवतनतदयष्ट आिक्षण के प्राविानों पि ध्यान देिे ह ए, योग्यिा रम में अभ्यतथयों की सूची िैयाि किेगी
जैसा तक परितस्थतियों, तम.तनयम (6) के खण्ड (क) (ख) औि (ग) के अिीन उनके द्वािा प्राि अंकों के योग से प्रदतशयि हो। यतद दो या अतिक अभ्यथी
समान अंक प्राि किेंगे, िो आयु में वरिष्ठ अभ्यथी को सूची में उच्च स्थान पि िखा जाएगा।"
(emphasis added)

12. Rule 6 (a) provides that selection shall be made by holding a test comprising 150
marks, maximum. Selection will consist of written test comprising of General Hindi, General
Knowledge and General Studies question papers. Written test will provide 90% marks to all
candidates except those who have applied for such posts where typing and stenography or both is
compulsory. In later category, written test would comprise only 70% of marks. If for same posts
there are some physical standard fixed, then only such candidates would be allowed to proceed
further, after written test, who satisfy required physical standard. If a candidate is a retrenched
employee, he shall be given maximum 10% marks, comprising 6 marks for first year of service
and two marks each for second and subsequent completed years of service.

13. Clause (c) of Rule 6 provides that typing/ shorthand test or both would be conducted in
cases where candidates have applied for such posts, where typing/shorthand or both is necessary.
These tests would constitute maximum 20% marks for the purpose of preparing list of candidates
invited for typing/shorthand or both.

14. Merit list has to be prepared on the basis of written test and marks obtained by
retrenched employee, if applicable, i.e. as per marks obtained under Rule 6 (a) and 6 (b). Rule 7
thereafter contemplates that subject to reservation under Rule 4, final merit list shall be prepared on
the basis of marks obtained by candidates in Rule 6 (a) (b) and (c) and if two candidates have
secured equal marks, candidate higher in age shall be placed higher in merit. At the pain of
repetition, therefore, from a harmonious reading of Rules 6 and 7 it is clear that a written test shall
be held consisting of only single paper having subjects of General Hindi, General English and
General Studies. Out of total marks obtained in written test, 90% thereof shall be taken towards
merits of all candidates except candidates who are to be selected for the post where knowledge of
typing or stenography or both is necessary. In such cases, marks obtained by candidates in written
test shall be reduced to 70%. Out of total marks obtained by candidates in typing/stenography test
or both, 20% thereof shall be accounted while computing merit.

15. It is thus clear that for the purpose of constituting merit, marks obtained in
typing/stenography or both, as the case may be, have to be added. The marks obtained in written
742 INDIAN LAW REPORTS ALLAHABAD SERIES
test are subject to reduction to 70% (of written test) and 20% (of typing/stenography test) as stated
above, would be added. This is what is clear from Rules 6(a) and (c).

16. In the present case, respondents have admitted that in view what has been stated above
in Government Order dated 3.10.2001, merit list has been prepared only on the basis of marks
obtained in Rule 6 (a) and (b) while marks obtained under Rule 6 (c) have been treated only
qualifying marks and excluded for the purpose of merit list. It is thus evident that respondents
instead of proceeding strictly in accordance with Rules 2001, have guided themselves by
Government Order dated 3.10.2001 which is in deviation and contravention of scheme of statutory
Rules contained in Rules 2001.

17. It is well established that executive orders can not modify divert, or contravene a
statutory rule and if any such contingency occurs, an executive order has to subserve statutory
rules. In other words, such executive orders shall stand superseded. Statutory rules thus shall
prevail executive orders. If later contain certain directions which are contrary to rules, the
authorities are bound to adhere statutory rules.

18. In Indra Sawhney and others Vs. Union of India and others, 1992 (Suppl) 3 SCC
217, Apex Court held that though executive orders can be issued to fill up the gaps in the rules if
the rules are silent on the subject but executive orders cannot be issued which are inconsistent with
the statutory rules already framed. In Laxman Dundappa Dhamanekar and another Vs.
Management of Vishwa Bharata Seva Smithi and another, JT 2001 (8) SC 171 also the same
view was taken. In K. Kuppusamy and another Vs. State of T.N. and others, 1998 (8) SCC 469,
the Court said that statutory rules cannot be overridden by executive orders or executive practice
and merely because the government has taken a decision to amend the rules does not mean that the
rule stood obligated. So long as the rules are not amended in accordance with the procedure
prescribed under law the same would continue to apply and would have to be observed in words
and spirit. In Chandra Prakash Madhavrao Dadwa and others Vs. Union of India and others,
1998(8) SCC 154 also, Court expressed the same view holding that the executive orders cannot be
conflicted with so as to override the statutory rules of 1977.

19. A Full Bench of this Court in Vijay Singh And Ors. vs State Of Uttar Pradesh And
Ors. on 28 July, 2004 2005 (2) AWC 1191=(2004) 3 UPLBEC 2778 took the same view after
making a detailed discussion in paras 6 to 11 of the judgment which read as under:

"6. It is settled legal proposition that executive instructions cannot override the
statutory provisions [Vide B.N. Nagrajan v. State of Mysore, AIR 1966 SC 1942; Sant Ram
Sharma v. State of Rajasthan and Ors., AIR 1967 SC 1910; Union of India and Ors. v. Majji
Jangammyya and Ors., AIR 1977 SC 757; B.N. Nagarajan and Ors. v. State of Karnataka and
Ors.,AIR 1979 SC 1676; P.D. Agrawal and Ors. v. State of U.P. and Ors., (1987) 3 SCC 622; M/s.
Beopar Sahayak (P) Ltd. and Ors. v. Vishwa Nath and Ors., AIR 1987 SC 2111; State of
Maharashtra v. Jagannath Achyut Karandikar, AIR 1989 SC 1133; Paluru Ramkrishananiah and
Ors. v. Union of India and Ors., AIR 1990 SC 166; Comptroller and Auditor General of India and
4 All. Mohd. Ashraf [Objection Filed] Vs State Of U.P. & Ors.

743
Ors. v. Mohan LalMalhotra and Ors., AIR.1991 SC 2288; State of Madhya Pradesh v. G.S. Dall and
Flour Mills, AIR 1991 SC 772; Naga People's Movement of Human Rights v. Union of India and
Ors., AIR 1998 SC 431; C. Rangaswamaeah and Ors. v. Karnataka Lokayukta and Ors., AIR 1998
SC 96.]

7. Executive instructions cannot amend or supersede the statutory rules or add
something therein, nor the orders be issued in contravention of the statutory rules for the reason
that an administrative instruction is not a statutory Rule nor does it have any force of law; while
statutory rules have full force of law provided the same are not in conflict with the provisions of the
Act. (Vide State of U. P. and Ors. v. Babu Ram Upadhyaya, AIR 1961 SC 751; and State of Tamil
Nadu v. M/s. Hind Stone etc., AIR 1981 SC 711).

8. In Union of India v. Sri Somasundaram Vishwanath, AIR 1988 SC 2255, the
Hon'ble Apex Court observed that if there is a conflict between the executive instruction and the
Rules framed under the proviso to Article 309 of the Constitution, the Rules will prevail. Similarly,
if there is a conflict in the Rules made under the proviso to Article 309 of the Constitution and the
law, the law will prevail.

9. Similar view has been reiterated in Union of India v.Rakesh Kumar, AIR 2001
SC 1877; Swapan Kumar Pal and Ors. v. Samitabhar Chakraborty and Ors., AIR 2001 SC 2353;
Khet Singh v. Union of India, (2002) 4 SCC 380; Laxminarayan R. Bhattad and Ors. v. State of
Maharashtra and Anr., (2003) 5 SCC 413; and Delhi Development Authority v. Joginder S. Monga,
(2004) 2 SCC 297, observing that statutory rules create enforceable rights which cannot be taken
away by issuing executive instructions.

10. In Ram Ganesh Tripathi v. State of U.P., AIR 1997 SC 1446, the Hon'ble
Supreme Court considered a similar controversy and held that any executive instruction/order
which runs counter to or is inconsistent with the statutory rules cannot be enforced, rather deserves
to be quashed as having no force of law. The Hon'ble Supreme Court observed as under :-

"They (respondents) relied upon the order passed by the State. This order
also deserves to be quashed as it is not consistent with the statutory rules. It appears to
have been passed by the Government to obliqe the respondents and similarly situated ad
hoc appointees."

11. Thus, in view of the above, it is evident that executiveinstructions cannot be
issued in contravention of the Rules framed under the proviso to Article 309 of the Constitution and
statutory rules cannot be set at naught by the executive fiat."

20. Exposition of law well established from aforesaid authorities is that an executive order
cannot be issued which is inconsistent with statutory rules inasmuch as, scheme and provisions
contained therein, cannot be overridden by executive order. In the present case, statutory rules
clearly make typing/shorthand test a part of procedure of assessment of merit and total 100 marks
744 INDIAN LAW REPORTS ALLAHABAD SERIES
are divided, in such cases in the manner- 70% consists of written test, 20% of shorthand/typing and
10% for retrenched persons wherever applicable. Executive order however has created a news
scheme by excluding the typing/shorthand test, stipulated under Rule 6(c) and making it only a
qualifying test, so as to exclude from computation of total marks to be determined for merits and
confining merit to the written test only and wherever applicable, marks obtained by candidates
belonging to retrenched employees category. This is clearly inconsistent with and in the teeth of
statutory rules and executive order, i.e. Government Order dated 03.10.2001, to this extent, is ultra
vires and could not have been followed. The authorities were bound to follow Rules of 2001 strictly
and nothing else.

21. The above discussions makes it clear that merit list has not been prepared by
respondents strictly in accordance with Rules 2001 in respect of posts where typing/ shorthand or
both were necessary for the reason that marks obtained by respective candidates under Rule 6 (c)
have not been included in preparing merit list. Non selection of petitioners on the basis of such
faulty merit list can not be upheld.

22. In the result, writ petition is allowed. Respondents are directed to prepare merit list by
including marks in typing/stenography test, as the case may be, in the manner stated in Rule 6(a)
and (c), as observed above, and thereafter proceed further. This exercise shall be completed within
three months from the date of production of a certified copy of this order before the authority
concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2016

BEFORE

THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J.

Rent Control No. - 8362 Of 2016

Asad Ali ...Petitioner
Versus
Special Judge E.C. Act/District Judge Hardoi & Ors. ...Respondents

Counsel for the Petitioner:
Shri Ravi Nath Tilhari, Shri Shiv Nath Tilhari

Counsel for the Respondents:
Shri Anurag Narain

Held -

Introduction: