KULDIP SINGH, J.

1. Per Kuldip Singh. JThe question arising for our consideration in these appeals are as under :

2. The conditions of service of the Andhra Pradesh Animal Husbandry Department were initially governed by the Andhra Pradesh Animal Husbandry Service Rules, 1961 (hereinafter called 1961 Rules). Under these rules, Veterinary Assistant Surgeons were eligible for promotion to three different categories of posts called Class IV posts and rule 6 provided special eligibility qualifications for those posts. Only those Veterinary Assistant Surgeons were considered for promotion to Class IV posts who fulfilled the qualifications/specialised training prescribed under rule 6 of the 1961 Rules.

3. Some of the Veterinary Assistant Surgeons challenged the vires of rule 6 of the 1961 Rules by way of Civil Writ Petition No. 4532 of 1971 in the Andhra Pradesh High Court. It was alleged that at the time of recruitment all the Veterinary Assistant Surgeons possessed Bachelor Degree in Veterinary Science and the special qualifications and training prescribed under rule 6 could only be acquired after joining as Veterinary Assistant Surgeon and that also at the discretion of the Government. It was open to the Government to choose any person for the specialised training and may deny such an opportunity to another person who may be equally or better suited for such training. Since the imparting of specialised qualifications/training was under the control of the Government it could pick and choose persons for the purpose and in the process making favoured persons eligible for promotion to Class IV posts under the 1961 Rules. Learned Single Judge by his judgment, dated 24 August 1973, rejected the contentions of the writ petitioners in the following words :

4. While holding that Rule 6 was intra vires, the learned Judge also made the following observations :

5. The State Government amended Rule 6 of the 1961 Rules on May 10th, 1976 by which the categories of Class IV posts were increased to thirteen. The 1961 Rules were superseded by the Andhra Pradesh Animal Husbandry Service - Special Rules, 1977 (hereinafter called the Special Rules) which came into force on September 24th 1977. Rule 1 of the Special Rules provides for the constitution of the service. Class IV posts, which were re-designated as Assistant Directors, were divided into eight categories. Similarly, Veterinary Assistant Surgeons come under the heading Class V and are divided into seven categories. Rule 2 of the Special Rules provides method of promotion from Class V to Class IV. The relevant provisions of these Rules are reproduced as under :

1. CONSTITUTION :

Class IV

Category (1) Assistant Directors of Animal Husbandry (formerly District Veterinary Officers and Livestock Officers Incharge, Key Villages and Regional Cattle Development Units) including Superintendents, Veterinary Hospitals and Poly Clinics, Assistant Directors of Animal Husbandry, Liverfluke Control Scheme, Anti-Liverfluke Control Scheme, Dairy Extension Rinderpest, Animal By-Products Plant, Zoo Park, Asstt. Director of Animal Husbandry (Technical) in Directorate and Gazetted Instructors in Animal Husbandry, Village Development Officers Training Centre.

Category (2) : Assistant Directors of Animal Husbandry, Government Livestock Farms including Assistant Directors of Animal Husbandry Progeny Testing Unit, Feed Mixing Plant, Livestock Assistants Training Centre, Goshalas and Asstt. Director of Animal Husbandry (Farms) in Directorate.

Category (3) : Lecturers, Institute of Animal Reproduction, including Asstt. Director of Animal Husbandry (Cattle Development) and Centralised Semen Collection Centre.Category (4) : Assistant Directors of Animal Husbandry, Sheep Farm including Assistant Directors of Animal Husbandry (Sheep Development) and Officers of similar rank in Sheep Section.

Category (5) : Assistant Directors of Animal Husbandry, Pig Breeding Station, Piggery Development Officer and Officers of similar rank in Piggery Section.

Category (6) : Asstt. Directors of Animal Husbandry, Regional Poultry Demonstration and Research Farm and Asst. Directors of Animal Husbandry, Poulty Marketing Centres.

Category (7) : Asst. Directors of Animal Husbandry (Formerly Disease Investigation Officers and Research Officers) and Officers of similar rank in Vety. Biological Institute, Hyderabad, Asst. Directors of Animal Husbandry Animal Health Centres and Officers and similar rank in Municipal Corporation of Hyderabad such as Public Health Veterinarian.

Category (8) : Asst. Director of Animal Husbandry (Statistics)

Class V

Category (1) : Veterinary Officers.

Category (2) : Veterinary Officers (Cattle Farms)

Category (3) : Asstt. Lecturers, Institute of Animal Reproduction and Veterinary Officers, Centralised Semen Collection Centres.

Category (4) : Veterinary Officers (Sheep Farms)

Category (5) : Veterinary Officers, Pig Breeding Stations.

Category (6) : Veterinary Officers, Poultry Farms

Category (7) : Veterinary Officers in Veterinary Biological and Research Institute, Animal Health Centres, Clinical Laboratories and Municipal Corporation of Hyderabad.

2. APPOINTMENT :

Class IV

Category (1) : Asstt. Directors of ..............

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

(ii) by promotion from among the Veterinary Officers included in Category (1) of Class of the said service.(iii) ...............................

Category (2) : Asstt. Directors of .............

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

(ii) by promotion from among the Vety. Officers included in Cat. (2) of Class V of the said service.

(iii) ..................................

Category (3) : Lecturers ...................

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

(ii) by promotion from among the Vety. Officers included in cat. (3) of Class V of the said service.

(iii) ...................................

Category (4) : Asst. Directors of ..........

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

(ii) by promotion from among the Vety. Officers included in Category 4 of Class V of the said service.

(iii) ....................................

Category (5) : Asstt. Directors of .. .. .. .. (i) ......................................

(ii) by promotion from among the Vety. Officers included in Cat. (5) of Class V of the said service.

(iii) .....................................

Category (6) : Asst. Directors of ............

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

(ii) by promotion from among the Vety. Officers included in Cat. (6) of the Class V of the said service

(iii) .....................................

Category (7) : Asst. Directors of ............

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

(ii) by promotion from among the Veterinary Officers included in Cat. (7) of Class V of the said service.

(iii) ......................................

Category (8) : Asst. Directors of .............

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

(ii) by promotion from the veterinary Officers in Class V of Andhra Pradesh Animal Husbandry Service.(iii) ......................................

6. It is obvious from the provisions of the Special Rules reproduced above that the Veterinary Assistant Surgeons who are Class V are only eligible for promotion to Class IV in their respective categories. Category 1, Class V is only eligible for promotion to Category 1, Class IV and similarly Category 2 of Class V is eligible for Category 2 of Class IV and so on. Although there is one common seniority of Class V officers but the promotion being category-wise the seniority becomes irrelevant as a senior man in Category 1, Class V cannot be promoted to any other category in Class IV except Category 1 and 6.

7. M. Srinivasan and 44 other Class V officers filed Representation Petition No. 578 of 1978 before the Andhra Pradesh Administrative Tribunal seeking a direction that the Special Rules be amended or modified in terms of the observations made by the Andhra Pradesh High Court in Civil Writ Petition No. 4532 of 1971. In other words, it was prayed that the State Government be directed to merge all the respective categories in Class IV and Class V of the Special Rules and promotions from Class V to Class IV be made on the basis of seniority alone. The Administrative Tribunal by its judgment dated July 4th, 1985 allowed the Petition and issued the directions asked for by the petitioners. The Tribunal in its judgment posed the question to be decided in the following manner :

8. It may be mentioned that G.O.Ms. No. 1 dated 1st January 1976 which was directed to be adopted and followed in the Animal Husbandry Department related to the Agriculture Department. It was argued before the Tribunal that because of functional differences between the two departments it would not be possible to adopt the conditions of service prevalent in the Agriculture Department. The Tribunal, however, issued the above quoted directions primarily on the ground that the State Government was bound to follow the observations of the High Court made in Civil Writ Petition No. 4532 of 1971.

9. The State of Andhra Pradesh has challenged the judgment of the Tribunal in Civil Appeal No. 1519 of 1986. Civil Appeal No. 124/1987 and Civil Appeal No. 3677 of 1987 have been filed by the officers who have been affected by the judgment of the Tribunal but were not parties before the Tribunal.

10. The observations of the High Court which have been made as the basis for its judgment by the Tribunal were only of advisory nature. The High Court was aware of its limitations under Article 226 of the Constitution and as such the learned Judge deliberately used the word "advisable" while making the observations. It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. Imagine the executive advising the judiciary in respect of its power of judicial review under the Constitution. We are bound to react scowlingly to any such advice.

11. This Court relying on Narender Chand Hem Raj v. Lt. Governor. Union Territory. Himachal Pradesh 1971 AIR(SC) 2399as under (Para 19) :

12. The Special Rules have been framed under Art. 309 of the Constitution. The power under Art. 309 of the constitution to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution. The Courts cannot even indirectly require the executive to exercise its rule-making power in any manner. The Courts cannot assume to itself a supervisory role over the rule-making power of the executive under Article 309 of the Constitution.

13. We are, therefore, of the view that the High Court in Civil Writ Petition No. 4532/71 and the Administrative Tribunal in the judgment under appeal transgressed its limits in issuing the impugned directions. We set aside the judgment of the Tribunal and dismiss the Representation Petition No. 578/78 filed by M. Srinivasan and 44 others to the extent indicated above.

14. Mr. C. S. Vaidyanathan, learned Counsel appearing for the respondents, however, contends that the Special Rules are arbitrary and are violative Arts. 14 and 16 of the Constitution of India. He contends that at the time of initial recruitment to Class V the Government at its discretion picks-up persons for appointment to any of the categories. According to him neither there are any statutory rules nor executive instructions providing options to Class V officers to join category of their choice nor in fact any such options were given at the relevant time. He has further argued that the posts in seven categories, of Class V are inter-transferable. He invited our attention to the documents on record showing transfers from one category to another. Mr. Madhava Reddy learned Counsel appearing for the State of Andhra on the other hand has controverted the above arguments. According to him options were not only given at the time of initial recruitment into Class V service but also subsequently as and when the rules were amended. He categorically denied that the posts in various categories are interchangeable. The learned Counsel on both sides wanted us to go into the various documents in support of their respective contentions. We do not have before us the factual matrix to appreciate the argument of Mr. Vaidyanathan that the Special Rules are arbitrary. We, however, find from the judgment under appeal that all these points were raised before the Tribunal in one form or the other but the Tribunal based its judgment on the observations of the High Court in Civil Writ Petition No. 4532/71 and did not go into any other point.

15. While setting aside the judgment under appeal we remit the case to the Andhra Pradesh Administrative Tribunal for decision on other points as indicated by us or as may be raised by the parties. The Tribunal shall give further opportunity to the parties to file additional affidavits/documents. We request the Tribunal to decide the matter expeditiously and if possible within three months. The appeals are disposed of in the above terms with no order as to costs.