Statutory rule cannot be modified or amended by executive instructions: DB

14/05/2022

JAMMU, May 13: A Division Bench of Jammu & Kashmir and Ladakh High Court Jammu wing, Comprising Chief Justice Pankaj Mithal and Justice Moksha Khajuria Kazmi, held that a statutory rule cannot be modified or amended by executive instructions. A valid rule having some lacuna or gap can be supplemented by the executive instructions, but a statutory rule which is constitutionally invalid cannot be validated with the support of executive instructions. The instructions can only supplement and not supplant the rule."
This signficiant order has been passed in a LPA filed by Suresh Kumar & ors against the common judgment dated 18.07.2018 passed by the learned Single Judge in SWP No. 2971/2015 and other connected writ petitions where the petitioners have called in question the Government Order No. 11-ARI of 2015 dated 12.10.2015 whereby the government has accorded sanction to the re-designation of the post of Junior Inker Feeder/Senior Inker Feeder as Orderly/Jamadar respectively. The petitioners had also assailed the Advertisement Notification No.01 of 2015 dated 20.10.2015 whereby the applications for 49 posts of Orderly/Jamadar were invited pursuant to issuance of Government Order No. 11-ARI of 2015 dated 12.10.2015.
Division Bench after hearing Sr. Adv Abhinav Sharma, Advocates Anuj Dewan Raina and Krishan Dinkar appearing for the appellants, while allowing the appeal and setting-aside the judgment, observed that the initial cadre strength of Junior/Senior Inker Feeder provided at the time of framing of Recruitment Rules was by way of a statutory enactment, in exercise of the constitutional powers vested under the proviso to Section 124 of the Constitution of Jammu and Kashmir and the said statutory cadre strength of Junior/Senior Inker Feeder can only be altered/modified, either by abolition or by re-designation through the medium of a statutory amendment i.e., by issuance of a SRO or at least by issuance of a Notification which is also required to be published in a Government Gazette in terms of Rule 6 of Rules of 1956 and it is well settled that a statutory rule cannot be modified or amended by executive instructions.
DB further observed that as per Business Rules, under Section 43 of J&K Constitution, for the creation or the abolition of any post under the Government carrying a pay scale the maximum of which is above Rs.15200/- per mensem in the case of posts in the plan for the Development Schemes and Rs.12000/- per mensem and above in the case of posts borne on the Non-Plan Budget, sanction of Cabinet is required to be taken. With these observations, Division Bench quashed the the Government Order No.11-ARI of 2015 dated 12.10.2015 and Advertisement Notification No.01 of 2015 dated 20.10.2015.

Photo Gallery

BSE Sensex

NSE Nifty