Shamim Khan vs State Of U.P. Thru. Prin. Secy. Food And Civil Supply U.P. Govt., Lko.

"वगर्-1

(क) िवधवा/िवधुर, आजन्म अथवा पुनिववाह, जो भी पहले हो।

(ख) पुत्र /पुत्री (िवधवा पुत्री सिहत) को िववाह/पुनिववाह अथवा 25 वषर् की आयु तक अथवा जीिवकोपाजर्न की ितिथ, जो भी पहले हो, तक।

वगर्-2

(च) अिववािहत/िवधवा/तलाकशुदा पुत्री जो वगर्-1 से आच्छा िदत नहीं है, को िववाह/पुनिववाह तक अथवा जीिवकोपाजर्न की ितिथ अथवा मृ त्यु की ितिथ तक, जो भी पहले हो।

(छ) ऐसे माता-िपता जो सरकारी सेवक पर उनके जीवनकाल में पूणर्तः आिश्र त रहे हो तथा मृत सरकारी सेवक के पीछे कोई िवधवा / िवधुर अथवा ब च्चे न हो। आिश्र त माता-िपला, अिववािहत/तलाकशुदा/िवधवा पुत्री को पािरवािरक पेशन जीवनपयर्न्त िमलेगी।

वगर्-2 से आच्छा िदत अिववािहत/िवधवा/तलाकशुदा पुत्री तथा आिश्र त माता-िपला को पािरवािरक पेशन की अनुम न्य ता उसी दशा में होगी जब मृतक के पिरवार से उक्त वगर्-1 में सिम्म िलत पात्र व्यिक्त उपल ब्ध न हो तथा मृतक सरकारी सेवक के पिरवार में ऐसी कोई संतान न हो, जो िवकलांग हो। पािरवािरक पेंशन की अनुम न्य ता बच्चों को उनकी जन्म ितिथ के क्रम में होगी अथार्त पहले जन्म िलये बच्चे को अनुम न्य ता पहले होगी और उसकी पात्र ता समाप्त होने के उपरान्त बाद में ज न्म लेने वाले बच्चे की पात्र ता स्था िपत होगी।"

"(3)

'Family' means the following relative of an officer:-(v) brothers below the age of 18 years and unmarried and widowed sisters (including step brothers and step sisters."

"309.

Recruitment and conditions of service of persons serving the Union or a State-Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor [***] of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."

"It is well settled that the norms regarding recruitment and promotion of the officer belong to the Civil Service can be laid down either by a law made by the appropriate Legislature or by the rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued in Article 73 of the Constitution of India in the case of Civil Services in the Government of India and under Article 162 of the Constitution of India in the case of Civil Services in 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 rule made under the 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 latter prevails." (emphasis added)

"It is thus apparent that an executive instruction could make a provision only with regard to matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule."

"3.

The short point on which these appeals must succeed is that the Tribunal fell into an error in taking the view that since the Government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The Tribunal was, therefore, wrong in ignoring the rule."

"25........In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Article 309 of the Constitution." (emphasis added)

"14.

Neither the Circular dated 18-06-1982 nor the subsequent Circular dated 19-3-1983 modifying the earlier Circular dated 18-6-1982 can override the statutory provision contained in Rule 74(b) of the Code if it results in reduction of pay of the employee on promotion. That the Orissa Service Code has been framed under Article 309 of the Constitution of India is not in dispute. It is well settled that Statutory Rules framed under Article 309 of the Constitution can be amended only by a Rule or Notification duly made under Article 309 and not otherwise. Whatever be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace the statutory rules. The Rules made under Article 309 of the Constitution cannot be tinkered by the administrative Instructions or Circulars."