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| Statutory rule can’t be modified or amended by executive instructions: DB | | | Early Times Report
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.
This order has been passed in a LPA filed by Suresh Kumar & ors against the common judgment dated 18-7-2018 passed by the 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 11-ARI of 2015 dated 12-1-.2015. The DB 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.
The DB 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 government order 11-ARI of 2015 dated 12-10-2015 and Advertisement Notification No.01 of 2015 dated 20-10-2015. |
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