# l:l v. SHAMSHER JANG BAHADUR ETC. ETC

- **Citation:** [1973] 1 S.C.R. 249
- **Court:** Supreme Court of India
- **Decided:** 1972-04-19
- **Case number:** Civil Appeals Nos. 1639 to 1641 of 1968
- **Bench:** K. S. l!EGDE, A. N. Grover, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-l-v-shamsher-jang-bahadur-etc-etc-5783
- **Pages:** 5

## Headnote

Consti1ulion of Jndia-,Art. 3()9 and the
Punjab
Civil
Secretariat
(State Service Class Jll°) Rules, 1952 made thcrmnder, if can be modified
by admi.nislrative instructions issued by the State Govt.-Whether ~·uch
modifications require appwval of the Central
Government under s.115
of the States' Re-organization Act, 1956.
The facts in these appeals are similar and the facts in C.A. No. 1639
of 1968. are· as follows :-S. the Respondent, joined Govt. service as a
clerk in Ovil Secretariat of the. erstwhile Pepsu State. Pepsu state became
a part of the State of Punjab in 1956 under the provisions of the States'
Reorganisation . .Act 1956. S. was· provisionally promoted as an Assistant
in the Punjab Civil Secretariat but later, was reverted as a clerk on the
ground that he failed to qualify the te•t prescribed under certain adminis··
trative instructio11s inuaa ~y the State Govt. He filed a civil suit challenging his reversion.
The trial Court decreed the suit and the appellate
court aJso affirmed the decree.
'fhe High Court. howe•-"er dismiso;ed tht·
second appeal filod· by the State.
It was contended before this Court that the appellants at the relevant
time, was governed by the Punjab Civil Secretariat (State Sorvice Class
III) Rules, 1952 and Rule 6 whi<'/l regulated the appointment of Assistants
by promotion, provided that posts in the service shall be filled in the case
of assistants by. promotion of senior clerks or by selection from other
government official.
In 1958, State Government issued instroctions that 25 per cant of the
vacancies in the cadre of Assistants in the Punjab Civil Secretariat will be
filled by appointment of suitable personnel from other departments and
the remaining 75 per cent will be filled by promotion from amongst the
clerks in the Punjab _Civil' Secretadat.
The order further provided that
for the purpose of appointment as assistants, the officials will have to sit
for a test. Two questions arose for decision in the present case :-(a)
Whether the G.ovt. was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed unc!er
Art. 309 and (\l) Whether such an addition requires the approval of the
Central Govt. under S. I 15 of the States Reorganisation Act, 195'6.
Dismissing the appeals.
HELD :
( 1) The Government is not competent to alter the rules
framed under Art. 309 by me.ans of administrative instructions.
In Sant
Rmn Sharma v. fkate of Rajasthan and another, [1968] 1 S.C.R:. I 11 It
was decided th~t while the go,·emment cannot amend or supersede
tlte
statutory rules by administrative instructions,, if the. rules are silent on any
particular point, the Govt, can fill. up the gaps, not inconsistent with the
rules already framed.
In the μresent' case, the Rules can be. implemented
Without• any dift!cultv·and· there· is no gap· in the Rules. The impugned instmcliwts alter· the rulCI! relating. to promotion.
Hence the
instructions
in. q11fl!ti011 ar;> void,
[75'&.Bl.
17-1208SupCl/72
250
SUPREME COUR :· REPORTS
[1973] l S.C.R.
(2) The approval of the Central Government had also not been obtained for issuing those instructions in terms of proviso to sub-s. (7) of
s. 115 of the States Reorganisation Act, 1956 and therefore, the instructions are invalid.
Mohammad Bhakar and ors. v. Y. Krishna Reddy and ors.
(1970)
Service Law Reporter u768, followed.

## Text

A
E
l:l
249
v.
SHAMSHER JANG BAHADUR ETC. ETC.
April 19, 1972
[K. S. l!EGDE, A. N. GROVER AND G. K. MITTER, JJ.]
Consti1ulion of Jndia-,Art. 3()9 and the
Punjab
Civil
Secretariat
(State Service Class Jll°) Rules, 1952 made thcrmnder, if can be modified
by admi.nislrative instructions issued by the State Govt.-Whether ~·uch
modifications require appwval of the Central
Government under s.115
of the States' Re-organization Act, 1956.
The facts in these appeals are similar and the facts in C.A. No. 1639
of 1968. are· as follows :-S. the Respondent, joined Govt. service as a
clerk in Ovil Secretariat of the. erstwhile Pepsu State. Pepsu state became
a part of the State of Punjab in 1956 under the provisions of the States'
Reorganisation . .Act 1956. S. was· provisionally promoted as an Assistant
in the Punjab Civil Secretariat but later, was reverted as a clerk on the
ground that he failed to qualify the te•t prescribed under certain adminis··
trative instructio11s inuaa ~y the State Govt. He filed a civil suit challenging his reversion.
The trial Court decreed the suit and the appellate
court aJso affirmed the decree.
'fhe High Court. howe•-"er dismiso;ed tht·
second appeal filod· by the State.
It was contended before this Court that the appellants at the relevant
time, was governed by the Punjab Civil Secretariat (State Sorvice Class
III) Rules, 1952 and Rule 6 whi<'/l regulated the appointment of Assistants
by promotion, provided that posts in the service shall be filled in the case
of assistants by. promotion of senior clerks or by selection from other
government official.
In 1958, State Government issued instroctions that 25 per cant of the
vacancies in the cadre of Assistants in the Punjab Civil Secretariat will be
filled by appointment of suitable personnel from other departments and
the remaining 75 per cent will be filled by promotion from amongst the
clerks in the Punjab _Civil' Secretadat.
The order further provided that
for the purpose of appointment as assistants, the officials will have to sit
for a test. Two questions arose for decision in the present case :-(a)
Whether the G.ovt. was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed unc!er
Art. 309 and (\l) Whether such an addition requires the approval of the
Central Govt. under S. I 15 of the States Reorganisation Act, 195'6.
Dismissing the appeals.
HELD :
( 1) The Government is not competent to alter the rules
framed under Art. 309 by me.ans of administrative instructions.
In Sant
Rmn Sharma v. fkate of Rajasthan and another, [1968] 1 S.C.R:. I 11 It
was decided th~t while the go,·emment cannot amend or supersede
tlte
statutory rules by administrative instructions,, if the. rules are silent on any
particular point, the Govt, can fill. up the gaps, not inconsistent with the
rules already framed.
In the μresent' case, the Rules can be. implemented
Without• any dift!cultv·and· there· is no gap· in the Rules. The impugned instmcliwts alter· the rulCI! relating. to promotion.
Hence the
instructions
in. q11fl!ti011 ar;> void,
[75'&.Bl.
17-1208SupCl/72
250
SUPREME COUR :· REPORTS
[1973] l S.C.R.
(2) The approval of the Central Government had also not been obtained for issuing those instructions in terms of proviso to sub-s. (7) of
s. 115 of the States Reorganisation Act, 1956 and therefore, the instructions are invalid.
Mohammad Bhakar and ors. v. Y. Krishna Reddy and ors.
(1970)
Service Law Reporter u768, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1639 to
1641 of 1968.
Appeal from the judgment and decree dated De!;ember 14, 1967
of the Punjab amd Haryana High Court in Regular Second Appeals
Nos. 357, 359 and 418 of 1967 respectively and Civil Appeals
Nos. 31 and 1279 of 1969.
Appeals from the judgmellts and orders dated March 22, 1968
of the Punjab and Haryana High Court in Civil Writ Nos. 536 of
1966 and 836 of 1967 and Civil Appeals No. 2227 of 1969.
Appeal ijy special leave from the order dated February 17, 1969
of the Punjab and Haryana High Court in Regular Second Appeal
No. 1624 of 1968.
Bishan Narain and R. N. Sachthey, for the appellant (in C.A.
Nos. 1639 to 1641 of 1968).
V. C. Mahajan and R. N. Sachthey, for the appellants (in C.A.
No. 31 of 1969).
A
B
c
D
K. S. Chawla and R. N. Sachthey, for the appellants (in C.A.
E
No. 1279 of 1969).
M. C. Chagla and R. N. Sachthey, for the appellants (in C.A.
No. 2227 of 1969).
C. K. Daphtary, Hardev Singh, K. L. Mehta, S. K. Mehta,
K. R. Nagaraja and M. Qamaruddin, for the respondent (in C.A.
No. 1639 of 1968).
Hardev Singh, K. L. Mehta, S. L. Mehta, K. R. Nagaraja and
M. Qamaruddin, for the respondents (in C.A. Nos. 1640 and 1641
of 1968).
F
Hardev Singh, for the respondents (in C.A. Nos. 31 and i279
G
of 1969).
S. K. Mehta, Hardev Singh, K. L. Mehta, K. R. Nagaraja and
M. Qamaruddin, for the respondent (in C.A. No. 2227 of 1969).
The Judgment of the Court was delivered by
Hedge, 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
H
·< ..
"
•
A
B
c
D
E
HARYANA V. S. J, BAHADUR (Hegde, /,)
251
to the promotion of a Government servant, prescribed under Art.
309 of the Constitution and· further whether such ari addition
requires the approval of the Central Government under s. 115 of
the States' Re-organization Act, 1956.
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.
Shamsher Jang Bahadur, the respondent in that appeal joined
Government service as a clerk in the erstwhile Pepsu Secretariat
on January 3, 1955, Pepsu State became a part of the State of
Punjab on November 1, 1956 under the provisions of the States'
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 he 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 decreed 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.
Some-what similar are the facts in the other appeals.
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 instructi0ns 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.
F
Rule 6 of the 'Rules' regulates the appointment of Assistants
by promotion.
Thei relevant portion of that rule reads :
"6 ( 1) Posts in the Service shall be filled :
(a)
G
(b)
(c)
(d)
(e)
H
(f) in the case of Assistants
(i)
• :
(ii) By promotion of Senior Clerks; or
252
SUPREME COURT REPORTS
[1973] 1 S.C.R.
(ill) 13y selection from among officials e~p!o>.:ed .in
departments of Government other than the Civil Secretariat.
·
6(2)
6(3) Appointment to any post by the promotion of
officials already in Uie service or by transfer of officials
employed in Goverrunent departrnenJs other than the
Civit Secretariat shall be made strictly by selection, and
no official shall have any claim to such appointment as
of right." .
· ·
On June 21, 1958, the Government fosued instructions to the
effect that 25 per cent of the vacancies in the cadre of Assistants
in the Punjab Civil Secretariat will be tilled qy appointment of
suitable personnel from serving officials in the offices of the Heads
of Departments in the Sta~e while tile remaining 7 5 per cent will
be filled by J?iomotion from amongst the clerics in the Punjab
Civil Secretanat.
Chi use ( b) of that Order provicjes :
"For the purpose of appointment of officials from
the offices of Heads of DepartmeI)ts as Assistant in the
Punjab Civil Secretariat as also fot promotion of Clerks
of the Secretariat· to the posts of Assistants in tbe cadre,
a test-separately prescribtid will be held by the Punjab
Public Service Commission.
For officials qel9μging to
the offices of the Heads of Departments, tltis test will be
a competitive one and for t!Je Secretariat Clerks it will
be a qualifying test. . As at present this test will Qt: con'
ducted simultaneously in accounts as .also in Noti11g and
Prafting.
T1te ques
.. tion as to wqat standard of accounts
test it would be fair to expect of tile examinees is being
considerea separ.ately."
It may be noted that herein we are dealing on)y with those who
were promoted from the cadre of clerks in the Secretariat. the
first question arising for decision is whether the Government :was
com~tent to add by means of administrative instructipns to the
qualifications prescribed under the Rules framed under Art. 309.
The High Court and the courts below have come to the conclusion that the Government was incompetent to do so.
TI:us Court
has ruled in Sant Rarn Sharma v. State of Rajasthan and anr. ( 1)
that while the Government cannot amend, or supersede the statutory rules by administrative instructions, if tile rules are silent on
any particular point, the Government can fill up tile gaps and
supplement the rules and issue instrμctions not inconsistent with
the rules alread:y framed.
Hence, we have to see whC?:lfier the
instructions with which we are concerned, so far· as they relate to
(I) [1968) I S.C.R.111.
•
i
c
D
E
F
G
K
• '
~
i F
' '
cj
t
i
'·
A
B
c
D
E
p
G
H
HARYANA v. s. J, BAHADUR (Hegde, !.)
253
the clerks in the Secretariat amend or alter the conditions of service
prescribed by the rules framed under Art. 309.
Undoubtedly the
instructions issued by the Government add to those qualifications.
By adding to the qualifications already prescribed by the rules, the
Government has really altered the existing conditicns of service.
The instructions issued by the Government undoubtedly affect the
promotion of concerned. officials and therefore they relate to their
conditions of seriice.
The Government is not competent to alter
the rules framed under Art. 309 by means of administrative instructions.
We are unable to agree with the contention of the
State that by issuing- the instructions in question, the Government
had i;nerely filled up a gap in the rules.
The ruleuan be implemented without any difficulty.
We see no gap in the rules.
There is a further difficulty in the way of the Government. The
additional qualification prescribed under the administrative instructions referred to earlier undoubtedly relates to the conditions of
service of the Government servants.
As laid down by this Court
in Mohammad Bhakar and ors. v. Y. Krishna Reddy and Ors.( 1),
any rule which affects the promotion of a person relates to his
conditions of serviCe and therefore unless the same is approved by
the Central Government in tenns of proviso to sub-s. ( 7) of s. 115
of the States Re-organization Act, 1956, it is invalid as it violates
sub-s. (7) of s. 115 of the States Re-organization Act. Admittedly
the approval of the Central Government had not been obtained
for issuing those instructions.
But reliance \\las sought to he
placed on the letter of the Central Government dated March 27,
1957 wherein the Central Government accorded advance approval
to the State Governments regarding the change in the conditions
of service obtaining immediately before November 1, 1956 in the
matter of travelling allowance, discipline, control, classification,
appeal, conduct, probation and departmental
promotion.
The
scope of that Jetter has been considered by this Court in M ohammad Bhakar's case (supra).
Therein this Court held that the
Jetter in question cannot be considered as pennitting the State
Governments to alter any conditions of service relating to promotion of the affected Government servants.
For the rea~ons mentioned above these appeals fail and they
are dismissed with costs.
S.N
Appeals dismissed.
~~~~~~~~~-
(!) [1970] s,rvico Law Report 768.