V. Ramaswami, J.
1. In these two writ petitions the petitioners have prayed for a writ of certiorari to quash G.O. Ms. No. 716, Education, dated 6th May, 1974. These petitioners were originally appointed as lower division clerks in the then office of the Director of Public Instruction, Madras. They were later promoted as Upper Division Clerk (now designated as Assistants), The next promotion for these petitioners was to the post of Superintendent. In the meanwhile the office of the Director of Public Instruction was bifurcated in 1965 as Directorate of School Education and Directorate of Collegiate Education.
2. In the Education Department, the office of the then Director of Public Instruction was treated as one unit for purposes of appointments, transfers and promotions and the subordinate offices situate outside the city of Madras were treated as a separate unit. The result of it was the appointments, promotions and transfers arising in one unit were made from among the personnel : of that unit and there was no combined seniority in relation to the city office and the subordinate offices. When the office of the Director of Public Instruction was bifurcated into Directorate of School Education and Directorate of Collegiate Education in 1965, the personnel in the city and the subordinate offices were made mutually transferable from one Directorate to the other, but, later on in the year 1972, they were given election to opt either to the Directorate of School Education or to the Directorate of Collegiate Education. It is claimed by the Government in their counter-affidavit that those who did not opt were made permanent in the offices in which they were working at that time. Though this point was disputed by the learned Counsel for the petitioners, that does not arise for consideration and need not detain us further.
3. By the impugned Government Order, after noting that the entire Ministerial staff of the School arid. Collegiate Education Departments consisting of Superintendents, Assistants and Junior Assistants are divided into two units, one for the Directorate, and the other for the subordinate offices, for purposes of recruitment, transfer and promotion and that representations ha? been received that the 'one unit' system might be implemented for all the Ministerial staff working in the School and Collegiate Education Departments in the State to equalise the promotional opportunities among the Ministerial staff, and that the recommendation of the Second Pay Commission was also to that effect, the Government decided that the system of treating the State as a single unit for the post in the Tamil Nadu Ministerial Service in the School and Collegiate Education Departments should be introduced forthwith. The Government accordingly, treating the entire ministerial1 staff of the School and Collegiate Education Departments in the State as a. single unit, directed the concerned authorities to send draft amendments to the Special rules relating to the Tamil Nadu Services Manual immediately. The petitioners contend that by this decision of the Government the promotional prospects of the petitioners were very much affected and that the Government order is liable to be quashed. It was their further case that as per the seniority in the Directorate of School and Collegiate Education Departments, they stand in the first and second ranks for promotion as Superintendent and that if a combined seniority as per the direction in the impugned Government order is taken, they would be pushed down by 78 and 79 places respectively.
4. To have one unit for the entire Ministerial Staff of the School and Collegiate Education Departments in the State, or to have more than one unit, is certainly a policy decision which the Government alone is competent to take and the Courts are not entitled to interfere with such policy decision. But what is contended by the learned Counsel for the petitioners is that there is a statutory rule which divides the entire Ministerial staff in the State into two units, one for Directorates in the city and the other for the subordinate offices situate outside the city of Madras for purposes of appointments, transfers and promotions and that so long as the Rule has not been amended, the Government could not by an administrative direction achieve to have one unit for the entire State.
5. Rule 11 of the Madras Ministerial Services Rule s provides that for purposes of direct recruitment to the service, a 'departmental unit' shall mean (a) in the city of Madras, each office; and (b) outside the city of Madras, each department in each district, that Rule contains a. proviso which states that each of the groups specified in that proviso shall be a departmental unit. The Education Department is not one of the departmental units mentioned in the proviso; but, under the main parts each of the offices in the city of Madras would form a separate departmental unit and those outsides the city of Madras a separate departmental unit.
6. Mr. K.K. Venugopal, for the fourth respondent, contended that even before the issue of the impugned Government Order, the rule s contemplated only one unit for the Ministerial Staff in the entire State and not two units, one for the Directorates in the city and the other for the subordinate offices. He referred to Rule 10 of the said Rule s and also Rule 36(e) and Annexure II in support of his argument. Rule 10 provides that the appointing authorities for the categories arid posts specified in column (1) of Annexure II shall be the authorities specified in the corresponding entry in column (2) thereof, and that all powers of first appointment discharge, suspension or termination of probation, re-appointment, promotion) transfer and appointment as full member in respect of the said categories and posts shall be exercised by those authorities. Rule 36(c) provides that the unit of application of the General Rule s governing promotion shall be the jurisdiction of each of the authorities which according to Annexure II are competent to make promotion. In Annexure II, the relevant column (1) and column (2), read as follows :
Education DepartmentCategory and posts. Appointing Authority.(1) Superintendents, Clerks, Typists and Deputy Director of PublicStero typists in the office of the Director of Public Instruction (Personal)(2) Managers, Head Clerks Accountants, Deputy Director of PublicLibrarians and Clerks whose minimum pay Instruction (Personnel)in the time, scale is Rs. 125 and abovein the Offices and institutions except in the National Cadet Corps Units underthe control of the Director of Public Instruction.
The learned Counsel contended that a reading of Rule's 10 and, 36(e) with Annexure II shows that the Deputy Director of Public Instruction (Personnel) is made the authority for appointments, transfers and promotions, that Rule 1J which provides for two units was only for purposes of direct recruitment and not for promotion and that therefore on a combined reading of these provisions, in so far as promotions are concerned, the Rule s state that the Ministerial Staff in the entire state is one unit, and not two units. I am unable to agree with this contention cf the learned Counsel.
7. 'Departmental Unit' is defined in Rule 11 as meaning 'in the city of Madras, each office; and outside the city of Madras each department in each district.' Rule 36(a) provides that the unit of application of the General rules governing recruitment shall be the departmental unit. Rule 36(C) deals with promotions, and even in respect of those promotions the unit is kept intact, and only the authority competent to make those promotion is referred to with reference to his jurisdiction irrespective of his unit. The result is that as per Annexure II, in all cases where the emoluments are more than Rs. 125, the Deputy Director of Public Instruction would be the competent authority at the relevant time to make promotions in respect of both the units. But that does not mean that the Rule s do not keep the units separately and independently, In making the promotions the competent authority would have to consider only the claim of persons from the concerned unit and not the claims of those in the other unit. I may also mention that the Government, in their counter-affidavit, did not take up the stand that as per the rule's, in the matter of promotion, the Ministerial Staff in the entire State formed one unit. On the other hand, they tried to support the Government Order on the ground that it was only a policy decision and that they are contemplating an amendment of the relevant statutory Rule s. These writ petitions, therefore, will have to be considered only on the basis that the offices of directorates in the city constitute a different unit from the unit constituting the subordinate offices situate outside the city of Madras.
8. The real grievance of the petitioners is that though Rule 11 of the Madras Ministerial Service Rule s is a statutory rule on the basis of the impugned Government Order a combined seniority list has been prepared and persons are being promoted, though on a temporary basis, contrary to Rule 11 even before an amendment of the rule is effected pursuant to the Government decision. I think the petitioners have a justifiable cause. So long as Rule 11 is not amended, neither the second nor the third respondent could ignore the same merely on the ground that they are contemplating an amendment of the rule in pursuance of the policy decision of the Government. In fact, the Government Order could not affect the operation of Rule 11 itself and if the impugned Government Order is to be construed as an amendment to the statutory rule that would be clearly illegal, as a statutory Rule could not be amended by an administrative direction or instruction. That such an administrative instruction affecting promotion without amending the relevant Rule s would be contrary to law, is clearly laid down by the Supreme Court in State of Haryana v. Shamsker Jang : (1972)IILLJ186SC . But, as already stated, the impugned Government Order does pot purport to amend- Rule II of the rule's but only gives a direction to the concerned authorities to submit draft amendments to the Rule s in the light of the decision of the Government. In the absence of an amendment. Rule 11 shall be deemed to be in force and the second and the third respondents should make promotions, whether temporary or otherwise, only in accordance with Rule 11 and not otherwise. The petitioners, therefore, would be entitled to be considered for promotion as if Rule 11 is still in force.
9. The learned Government Pleader contended that rightly or wrongly the respondents have made temporary promotions of a number of personnel during the pendency of the writ petitions and without notice to those persons and without considering their objections, no relief could be granted to the petitioners in this case. I am unable to agree with this contention of the learned Government Pleader. These temporary promotions were made pending the writ petitions; and by those temporary promotions, the rights of the writ petitioners could not be affected. Since the temporary promotions were made pending the writ petitions, even those persons who were promoted as Superintendents have no claim to be heard in these proceedings.
10. In the result, though the Government Order is not liable to be quashed, the petitioners are entitled to be considered for promotion on merits on the basis that Rule 11 of the Madras Ministerial Service rule s is still in force and the offices of the Directorates in the city of Madras is a separate unit. There will be a direction in these writ petitions accordingly. But it is made clear that I am not deciding the question as to whether an amendment of Rule 11 with retrospective effect is possible or legal, that questions will have to be considered as and when it is raised in a properly instituted proceeding. There will be no order as to costs.