1. Leave granted.
2. These two appeals are directed against the Division Bench judgment of the Kerala High Court.
3. The question for consideration is whether under the statutory rule the appellant has a right of consideration for promotion to the post of Deputy Superintendent of Police (DSP) and if so, whether that right can be taken away by an administrative order which is in the nature of a suggestion to the Government to exclude a particular category of people from consideration. The appellant is an Assistant Commandant in the District Armed Reserve Force. Prior to 1966, when the statutory Recruitment Rules came into force, the State Government had issued an administrative order providing that in the category of DSP in the local police, not more than 1 out of 8 vacancies should be filled up by transfer from amongst the Assistant Commandants of the District Armed Reserve and Armed Police Battalion. The statutory rules framed under proviso to Article 309 of the Constitution of India came into force on 14-6-1966 called the "Special Rules for the Kerala Police Service".
4. Under the Rules appointment to the post of DSP including the Vice-Principal, Police Training College, could be filled up from three different sources: (a) by direct recruitment; or (b) by promotion from amongst Circle Inspector; or (c) appointment from amongst Second Commandant, Adjutant and Assistant Commandants, MSP and Special Armed Police Battalions and Assistant District Armed Reserve Force. The appellant belongs to Category (c). On 29-7-1991 the Director General of Police issued a letter to the Commissioner of Police of Districts and all Commandants to obtain willingness of the Assistant Commandants who were below 45 years of age for being considered for appointment as Dy SP.
5. The appellant having the prescribed qualification indicated his willingness. But, since no appointment came through, he filed a petition in the High Court in October 1994. Before the High Court a counter-statement was filed on behalf of the Director General of Police indicating that a decision has been taken to suggest to the Government for deletion of the provision of transfer of Assistant Commandants to the General Executive Branch and draft special rules for deletion of this provision have been forwarded and the same was under active consideration of the Government. The learned Single Judge issued an interim order directing the Government to consider the representation of the appellant and pass orders within one month. On 4-8-1995 the representation was rejected obviously because of the aforesaid recommendation of the Director General of Police for deletion of Category (c) from the purview of the statutory rules. The appellant, therefore, amended his writ petition and assailed the said order of the Government rejecting the representation. The writ petition was finally heard and disposed of by the judgment dated 5-3-1996 of a learned Single Judge. The learned Single Judge came to hold that the appellant has a right of consideration in terms of the statutory rules and the order rejecting the representation was erroneous. The learned Single Judge, therefore, directed that the appellant's case be considered for being appointed as Dy SP. Against the said order the matter was carried in appeal to the Division Bench, The Division Bench, however, took the view that by an executive order, a ratio cannot be prescribed and further under the Special Rules the appellant has no right of consideration. The Division Bench having allowed the appeal, the appellant is before us.
6. Mr P.P. Rao, the learned Senior Counsel appearing for the appellant, contended that the reasons for rejecting the representation of the appellant was the so-called suggestion for amending the statutory rules and that reason cannot be sustained, in the teeth of the statutory rules and, therefore, the order is vitiated. Mr Rao further contended that the executive order of the year 1962 not being inconsistent with the statutory rules must be held to be remaining in force, more so when the statutory rules themselves confer a right of consideration for Category (c) people and any infringement thereof must be held to be violative of Articles 14 and 16 of the Constitution and in the case in hand the appellant not having admittedly been considered, his valuable right under Article 16 has been infringed and, therefore, the State must be directed to consider his case.
7. Mr Ramachandran, the learned Senior Counsel appearing for the State of Kerala, on the other hand, contended that the administrative order of the year 1962 must be held to be no longer in force, the statutory rules having been made in supersession of the Rules and orders on the subject. He further contended that even under the statutory rules an employee belonging to a particular category cannot claim a right of consideration and the same is merely an enabling provision and, therefore, if the employer chooses not to operate any clause, Clause (c) as in the case in hand, the same would not be held to be violative of a right of consideration enshrined under Articles 14 and 16 of the Constitution. Mr Ramachandran says that he does not propose to support the judgment on the ground on which the High Court in the Division Bench interfered with the order of the learned Single Judge, inasmuch as the effect of the statutory rule cannot be taken away by any administrative order more so, the administrative order being merely at the stage of a recommendation.
8. It is undisputed that the executive order issued in the year 1962 still continues to remain in force being amended from time to time but the relevant clause of that executive order contained in Clause (d) has not been touched. The statutory rules which came into force on 14-6-1966, no doubt, stipulate that it is in supersession of the rules and orders on the subject. Necessarily, therefore, if the statutory rule provides any provision corresponding to Clause (d) of the executive instructions, then the said executive instructions must give way. But if the statutory rule is silent on the same and there is no provision which can be held to be contrary to the executive instructions, then the executive instructions will continue to operate in the field for which there is no provision in the statutory rule. The executive instructions must be held to be supplemental to the statutory rules.
9. Having examined the provisions of the Recruitment Rules of 1966 as well as the executive instructions of the year 1962, we are unable to find any provision in the statutory rules which can be said to be repugnant to the earlier executive order. That apart, the said executive order continues to remain in force by various amendments though the very clause has not been amended. In this view of the matter the executive order of 1962 must be held to be continuing in force and remains operative. We are not examining the question as to whether Clause (d) really is in the nature of a quota meant for a particular category of the employee as contended by Mr Ramachandran, since in our view, on construction of the relevant provisions of the statutory rules providing different sources of recruitment for filling up the post of DSP read with the so-called administrative order of the year 1962, the appellant can certainly claim a right of consideration and in fact such right did emanate when the Director General of Police wanted his option for being considered and finally he was excluded from consideration on the basis of Ext. P-10, a suggestion to the Government for deletion of Clause (c) from the statutory rules. There cannot be any manner of doubt that the provisions of statutory rules cannot be taken away by a suggestion of the executive until and unless the rules are appropriately amended. In this view of the matter, we are of the considered opinion that in the facts and circumstances of the present case, the appellant's right of consideration has been infringed under Article 16 of the Constitution. The Division Bench of the High Court, therefore, was in error in interfering with the judgment of the learned Single Judge. We accordingly set aside the judgment of the Division Bench and affirm the judgment of the learned Single Judge. These appeals are allowed. However, there shall be no order as to costs.