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TMI Blog1991 (10) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 6 in the writ petition to the post of Accounts Officers on the basis of the impugned circular dated 25th January, 1973. We would continue to refer to the parties as per the cause title of the writ petition in the High Court. 2. The writ petition came to be filed by the petitioners, M.L. Mehrotra and three others. The petitioners said to be working as Section Officers in the office of the Accountant General I, II and III, Allahabad and they prayed for restraining respondents 1, 2 and 3 from promoting Yamuna Prasad Kuteel, respondent No. 4, Ram Raj Ram, respondent No. 5 and Ram Dihal, respondent No. 6, in the writ petition, who were working as Section Officers and belonged to the Scheduled Caste, to the post of Accounts Officer. 3. The case of the writ petitioners was that they were senior to respondents 4, 5 and 6 and they cannot be promoted to the post of Accounts Officers through seniority quota before the writ petitioners. Their case was that the promotion to the post of Accounts Officers is regulated by the rules made by the President in exercise of the powers conferred by proviso to Article 309 and Clause (5) of Article 148 of the Constitution after consultations with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion then the number of posts available for the Section Officers. Here also there is a quota fixed for Scheduled Castes and Scheduled Tribes candidates. 6. The post of Accounts Officers (i.e. the posts in question) are filled in by promotion from Section Officers. 50 per cent of the vacancies are filled in on the basis of merit (called the merit quota) and the remaining 50 per cent are required to be filled in 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 seniority quota is usually more than 50 per cent. It was pleaded in the counter affidavit that the promotion will continue to be made in accordance the existing rules and orders on the subject namely those referred to above including the circular dated 25th January, 1973, validity of which had been challenged. 7. The High Court took the view (1) that there is no reservation for Scheduled Castes and Scheduled Tribes made under the rules; (2) that the administrative instructions contained in the circular No. 172-NGE-II/56-72-I dated 25th January, 1973 issued from the office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t alter the statutory rules in force. 9. It appears the Department of Personnel issued a memorandum No, 27/2/71. Estt. (SCT) dated 27th November, 1972 to all Ministries. The subject of this memorandum was reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness. This memorandum noted in paragraph 2 thereof that the policy in regard to reservation for Scheduled Castes and Scheduled Tribes officers in posts to be filled by promotion on the basis of seniority subject to fitness now has been reviewed and it has been decided, in supersession of the orders contained in the aforesaid para 2-C of the O.M. dated 11th July, 1968 that there will be reservation at 15 percent for Scheduled Castes and 71/2 per cent for Scheduled Tribes in promotions made on the basis of seniority subject to fitness, in grades or services in which the element of direct recruitment, if any, does not exceed 50 per cent and gave detailed procedure how promotions have to be made on the basis of seniority subject to fitness in the light of the aforesaid reservations. It was stated in the memorandum that the Ministry of Finance etc. are requested k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions proposed to be issued were in order and it was requested that a copy of the instructions when issued may be sent to their department. It was in pursuance of these consultations that the impugned circular dated 25th January, 1973 was issued from the office of the Comptroller and Auditor General of India, New Delhi. For facility of understanding the relevant part of the circular dated 25th January, 1973 issued from the office of the Comptroller and Auditor General of India, New Delhi is reproduced hereunder: No. 172-NGE-II/56-72-I OFFICE OF THE COMPTROLLER & AUDITOR GENERAL OF INDIA, NEW DELHI-1. Dated the 25-1-1973. To All Accountants General and Offices subordinate to them. All Chief Auditors of Rlys. and offices subordinate to them. All Regional Directors of Commercial Audit, Chief Auditors of Commercial Accounts and offices subordinate to them. The Directors, LA. & A.S. Staff College, Simla. The Director of Audit, Defence Services and offices subordinate to him. The Assistant Comptroller and Auditor General (P). (For G.E.I, G.E.II, & OE & A. Sections) Subject:- Reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion - pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by seniority subject to fitness has already been prepared by a Departmental Promotion Committee and approved by the appropriate authority before issue of these orders (i.e. 27.11.1972). The receipt of this circular letter may kindly be acknowledged. Yours faithfully, sd/- (R. Hariharan) Asstt. Comptr. & Ar. Genl. (N) The High Court is not right in stating that there cannot be an administrative order directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The Government could direct the reservation by executive orders. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules. (See: the observations in Santram Sharma v. State of Rajasthan and Anr. (1968) IILLJ 830 SC . In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non-selection categories of posts. They were issued to implement the policy of the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X
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