B.D. Agarwal, J.

1. The Petitioners, who are Section Officers in the Office of the Accountant General I, II and III, Allahabad, have filed this petition under Article 226 of the Constitution for restraining the Respondent Nos. 1, 2 and 3 from promoting Respondents Nos. 4, 5 and 6, who are also working as Section Officers and belong to the scheduled castes, to the post of Accounts Officers.

2. The Petitioners case is that they are senior to Respondents Nos. 4, 5 and 6 and they cannot be promoted to the posts of Accounts Officers, through seniority quota, before the Petitioners. The promotion to the posts of Accounts Officers is regulated by the rules made by the President in exercise of powers conferred by proviso to Article 309 and Clause (5) of Article 148 of the Constitution, after consultation with the Comptroller and Auditor General of India. These rules are known as "Indian Audit and Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 1963" (hereinafter referred to as the Rules). A copy of these rules has been annexed as C.A. I to the counter-affidavit of Shri P.P. Dhir, Accountant General U.P. I, Allahabad. These rules were amended in 1965. A true copy of these Amending Rules has been annexed as Annexure C.A. II to the counter-affidavit. It has been stated in counter-affidavit that the Asstt. Accounts Officers and Assistant Audit Officers are now called Accounts Officers and Audit Officers. These rules lay down the method of recruitment to the posts of Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers (now called as Accounts Officers and Audit Officers) in the Indian Audit and Accounts Department. The method of recruitment laid down in these rules in respect of these posts is by promotion. They do not contain any specific provision for reservation, for scheduled castes and scheduled tribes.

3. The Respondents relied upon the administrative instructions contained in circular letter issued dated 25th January, 1973 issued by Comptroller and Auditor General of India for purposes of reservations for scheduled castes and scheduled tribes in these promotion posts. A true copy of the said circular is annexed as C.A. III to the counter-affidavit. The Petitioners challenge the validity of these administrative instructions contained in this circular letter dated 25th of January, 1973.

4. The lowest post in the Office of the Accountant General U.P. I, II and III is of Group D employees who are selected directly on the basis of merit. There is a quota fixed for scheduled castes and scheduled tribes. Then there are posts of clerks, a fixed percentage of which is filled in directly through examination and a quota is fixed for scheduled castes and scheduled tribes. The remaining posts are filled in by selection from class D employees by promotion on the basis of seniority. The next higher posts are the posts of Auditors. A fixed percentage whereof it filled in directly through examination and a quota is fixed for scheduled castes and scheduled tribes. The remaining posts of the Auditors are filled in by promotion from clerks on the basis of seniority. The next higher post is of Section Officers in which the Petitioners and the Respondents Nos. 4, 5 and 6 are working. These posts are filled in from the cadres of Auditors and clerks. The Auditors as well as clerks have to pass examination known as Subordinate Accounts Service. Normally more candidates pass this examination than the number of posts available for the Section Officers. Here also there is a quota fixed for scheduled castes and scheduled tribes candidates.

5. As already mentioned the posts of Accounts Officers are filled in by promotion from Section Officers. 50 per cent of vacancies are required to be filled in on the basis of merit (called the merit quota) and the remaining 50 per cent posts are required to be filled on the basis of seniority (called seniority quota). Normally the number of candidates available in the merit quota are less than 50 per cent of the posts available; hence the number of posts available in the seniority quota is usually more than 50 per cent.

6. Learned Counsel for the Union of India submitted that the present writ petition was premature and was not maintainable. It has been clearly stated by the Petitioners that the orders for promotion of Respondents Nos. 4, 5 and 6 have already been issued and they are likely to be promoted very soon. It is not the case of the Respondents that promotion will not be made. On the other hand, it has been averred in the counter affidavit that the promotions will continue to be made in accordance with existing rules and orders on the subject, namely, those referred to above, including the circular letter dated 25th January, 1973, the validity of which has been challenged by the Petitioners. In these circumstances, we are unable to accept the submission of Learned Counsel for the Union of India that the writ petition is premature. In our view, the writ petition is maintainable.

7. As mentioned above, these rules are rules, inter alia, governing promotion to the posts of Assistant Accounts Officers now called the Accounts Officers). There is no reservation for Scheduled castes and scheduled Tribes made under these rules. These Rules have been made, in exercise of powers conferred by proviso to Article 309 and Clause (5) of Article 148 of the Constitution, by the President in consultation with the Comptroller and Auditor General of India. Annexure C.A. III is a true copy of the Administrative instructions contained in letter No. 172-NGE-II/56-72-I dated 25-1-73 issued from the office of the Comptroller and Auditor General of India, new Delhi, inter alia to all Accountant Generals and Offices subordinate to them; In first paragraph of this letter reference has been made to an earlier circular letter dated 3-10-68 according to which there was no reservation for scheduled castes and scheduled tribes in appointments made by promotion on the basis of seniority subject to fitness. In this letter it is further stated that the policy in regard to reservation for scheduled caste and scheduled tribe officers in posts filled by promotion on the basis of seniority subject to fitness has been reviewed by the government of India in consultation with the Comptroller and Auditor General of India and that it has been decided, in supersession of the orders contained in the earlier circular letter dated 3-10-68, that there will be reservation at 15% for scheduled castes and 7% for scheduled Tribes in promotions made on the basis of seniority subject to fitness in appointments to all class I, class II, class III and class IV posts in grades of service in which the element of direct recruitment, if any, does not exceed 50%. The letter then reads thus (emphasis is ours):

The above orders will necessitate reservation for scheduled castes and scheduled tribes in promotions made on the basis of seniority subject to fitness to the following grades in the I.A. and A.D.

8. It would, thus, be found that this letter merely indicates the policy decision taken, in regard to reservation for scheduled caste and scheduled tribe officers as quoted above. The language itself indicates that a necessity was felt for making necessary provisions for such reservations. The letter, on its own, does not make a provision for these proposed reservations, in pursuance to the policy decision.

9. Shri Yatindra Singh, Learned Counsel for the Petitioner then submitted that even assuming that the aforesaid circular dated 25th of January,1973 laid down the rules oft reservation in regard to scheduled castes and scheduled tribes, then these administrative instructions would be of no avail to the Respondents. It was submitted by him that these administrative instructions cannot alter the statutory rules made by the President of India after consultation with the Comptroller and Auditor General of India in due exercise of power conferred by proviso to Article 309 and Clause (5) of Article 148 of the Constitution. In Sant Ram Sharma v. State of Rajasthan : AIR 1967 SC 1910 [LQ/SC/1967/223] , a question arose as to whether in the absence of any statutory rules governing promotions of selection grade posts, the Government can issue administrative instructions and as to whether such administrative instructions could impose any restrictions not found in the rules already framed. Supreme Court held that till statutory rules are not framed, the Government can issue administrative instructions in that regard. Supreme Court further observed that the statutory rules cannot be amended or superseded by administrative instructions except where, if the rules are silent on any particular point then gaps can be filled in and rules can be supplemented and instructions can be issued which are not inconsistent with the rules already framed.

10. As already discussed above, the statutory rules were not silent on the subject of promotion to the posts of Assistant Accounts Officers (now called the Accounts Officers). This being so, it was not open to the Government to supplement the statutory rules to fill up the gaps. This could only be done by amending the statutory rules in compliance with the provisions of Article 148(5) of the Constitution. Similar view has been taken by a Division Bench of Madras High Court in Accountant General, Tamil Nadu, Madras v. S. Doraswamy 1974 Lab IC 384.

11. This very circular letter dated 25th of January, 1973 came up for consideration before the High Court of Orissa, in Original Jurisdiction cases Nos. 357 and 359 of 1974 P. Prabhakar Rao v. Union of India and Duryodhan Bhol v. Union of India decided on 31st of July, 1978. The Petitioners in those cases challenged the reservation provided under an office memorandum, issued on the basis of the aforesaid circular letter dated 25th January, 1973, issued by Comptroller and Auditor General of India. It was contended that the reservations provided therein were ultra vires on account of non-compliance of the provisions of Article 148(5) of the Constitution. It was held, following an earlier Bench decision of that Court in case Naba Kishore Pat v. Union of India ILR 1972 Cut 400 that the alterations in the existing rules introduced by these administrative instructions were not valid, and, the existing rules could be modified only by rules made by the President after consultation with the Comptroller and Auditor General of India as provided for under Article 148(5) of the Constitution. Writ applications were allowed and it was declared that these administrative instructions did not change the conditions of service and were not enforceable, and the promotions made on that basis were quashed.

12. In our opinion, therefore, these administrative instructions contained in the circular letter dated 25th January, 1973 (Annexure C.A. III to the counter-affidavit) cannot help Respondents and no reservation for scheduled castes and scheduled tribes can be made on this basis.

13. Counsel for the Petitioners, in order to further show, that, these administrative instructions could not be said to be rules made by the President after consultation with the Comptroller and Auditor General of India as contemplated by Article 148(5) of the Constitution, referred to the language of the circular dated 25th January, 1973. The relevant portion of paragraph 2 of this circular is extracted hereunder :

The policy in regard to reservations for scheduled caste and scheduled tribe officers in posts filled by promotion on the basis of seniority subject to fitness has now been reviewed by the Government of India in consultation with the Comptroller and Auditor General of India and it has been decided....

14. In the supplementary counter-affidavit of Shri P.P. Dhir Accountant General I, Allahabad, it has only been stated that upon the language used in this circular (as quoted above) in substance, they are the orders of the President of India. No other material has been referred to in the counter-affidavit filed, which may show that the instructions contained in the circular dated 25th of January, 1973 were based on the decision of the President of India. However, we consider it unnecessary to go into this question any further, since we have already held above, that, these administrative instructions contained in the circular letter were of no avail to the Respondents, as they could not alter the statutory rules in force.

15. The counsel for the Petitioner next contended that no reservation can be made in respect of a selection post. He placed reliance for this submission on M.R. Balaji v. State of Mysore : AIR 1963 SC 649 [LQ/SC/1962/324] . He has also placed reliance upon the case of State of Kerala v. N.M. Thomas : AIR 1976 SC 490 [LQ/SC/1975/362] . We need not, however, go into this question since we are of the opinion that no reservations for scheduled castes and scheduled tribes in appointments made by promotion, on the basis of seniority subject to fitness, can be made on the basis of the instructions contained in this circular.

16. For the reasons mentioned above, we are of the opinion that the writ petition deserves to be allowed. We accordingly allow the writ petition and issue a writ of mandamus directing the Respondents Nos. 1, 2 and 3 not to enforce the circular letter dated 25th of January, 1973 as a rule regarding reservation of scheduled castes and scheduled tribes in relation to filling of posts by promotion on the basis of seniority subject to fitness. We further restrain the Respondents Nos. 1, 2 and 3 from promoting Respondents Nos. 4, 5 and 6 to the posts of Accounts Officers on the basis of this circular letter dated 23-1-1973. The Petitioners will get their costs of this petition from the contesting Respondents.