Rajesh Kumar & ORS. v. State Of Haryana & ANR.
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0 Hon'ble Supreme Court in the matter of Union of India v. Somasundaram Viswanath reported as (1989) 1 SCC 175, has held that executive instructions cannot override statutory rules framed under Article 309 of the Constitution of India. The observations of the Hon'ble Apex Court are as under: - "6. It is well-settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments.
If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature the law made by the appropriate legislature prevails.
The Group 'C' Service Rules of 1997 were notified on 12.06.1997 while the instructions were issued on 22.10.1997. Eventually, the ACP Rules were notified in the year 1998.
The State never made any effort to carry out an appropriate amendment in the Service Rules for the Promotional Posts from Clerks. Consequently, passing of the departmental test by a Clerk was never an essentiality for being promoted as an Assistant and the requirement for availing ACP was eligibility for being promoted to the next higher post. The respondent officials have chosen to read the instructions of 1997 as an amendment to the Service Rules of 1997 and then to hold that the petitioner not being eligible under the ACP Rules of 1998, the benefit cannot be given. It needs to be kept in mind that accrual or denial of service benefits are by a manner prescribed in law.
Once a benefit has been extended on fulfilment of certain conditions, it can be denied only once it is established by the respondents that they can legally withdraw the same. The vesting or withdrawing of the benefits is not to be determined from the intent alone but flows from the statutory enforceability of the decision taken by the authorities. In a legislative hierarchy, sub delegated executed instructions do not over-ride statutory rules. This aspect is assumed to be well within the knowledge of State and if it has chosen not to do an act required to be done in a prescribed manner by law, it cannot bulldoze the legislation solely on a claim of its good intent.
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