Excelsior Correspondent
JAMMU, May 13: Division Bench of High Court comprising Chief Justice Pankaj Mithal and Justice Moksha Khajuria Kazmi has held that a statutory rule cannot be modified or amended by executive instructions. Moreover, 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 DB was dealing with a LPA filed by Suresh Kumar and others against the common judgment dated 18.07.2018 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 No. 11-ARI of 2015 dated 12.10.2015.
After hearing Senior Advocate Abhinav Sharma, Advocates Anuj Dewan Raina and Krishan Dinkar appearing for the appellants, 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 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.
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 Government Order No.11-ARI of 2015 dated 12.10.2015 and Advertisement Notification No.01 of 2015 dated 20.10.2015.
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