The petitioner is an Association of Diploma holders of Engineers serving in the Department of Flood Control, Irrigation, PWD and PHE of the Govt. of Assam. The members of the Association were appointed Junior Engineers by the aforesaid Department. This Association has been recognised by the Government of Assam. In the present writ petition the petitioner Association has challenged the Annexure 11 notification dated 20.11.93 issued by the 9th respondent and Annexure 12 letter dated 20.11.93 issued by the 3rd respondent to Secretary, to the four departments, viz, PWD, Flood Control, Irrigation and Public Health Engineering and prayed for issuance of writ of Certiorari and/or any other apporpriate writ or direction. 2. Facts as will appear from the record may be stated as follows : The members of the petitioner Association were appointed Junior Engineers by the Government of Assam. The Government of Assam constituted a Pay Commission consisting of 8 members including a Chairman by Resolution No. FPC 17/87/29 dated 2nd May, 1988. This Commission was later reconstituted vide notification dated 23rd June, 1988. The Commission thereafter submitted its report. The said report, inter alia recommended that the number of posts carrying the cadre of Junior Engineer might be restricted to 10% and the qualifying length of service should be minimum 8 years, for entitlement to the Senior Grade in the revised pay scale. The recommendation given in the report was accepted with certain modification by Notification No.24/1990 dated 6.12.90.The Government accordingly issued notification under Article 309 of the Constitution framing Rules as the Assam Services (Revision of Pay) Rules, 1990. As per the said Rules the Junior Engineers would be entitle to get Senior Grade scale on completion of 8 years of service on due selection and the Government issued Annexure 2 Press Note in that regard. Thereafter a meeting was held in the Office Chamber of the Chief Secretary. A Selection Board was constituted to process the case for allowing the Senior Grade pay scale to the Junior Engineer. It was further decided in the said meeting that the Selection Board would consider the Special Report for the preceding date from the date of completion of clearance from Confidential and Vigilance Department. The minutes of the said meeting were recorded. Annexure 3 is the said minute. Thereafter the Government issued Annexure 4 notification dated 23.6.92 by which the Government had constituted the Selection Board. The minutes of the said meeting were recorded. Annexure 3 is the said minute. Thereafter the Government issued Annexure 4 notification dated 23.6.92 by which the Government had constituted the Selection Board. A meeting of the Selection Board was held on 22.10.92. The Junior Engineers were selected for Senior Grade scale as per ROP Rules, 1990. 3. The Chief Engineer, PWD (Roads) on recommendation of the said Selection Board issued Annexure 5 office order dated 1.12.92 allowing the Senior Grade scale of pay in respect of 191 Junior Engineers as per ROP Rules, 1990. Thereafter the PWD had referred the case to the Finance Department who in due course conveyed their concurrence. By Annexure 7 notification dated 7.12.92 the Chief Engineer, PWD, selected 125 Junior Engineers for Senior Grade pay scale as per ROP Rules, 1990 as they had already completed 8 years of service. By yet another Annexure 8 letter dated 7.7.93 the Chief Engineer, PWD (Roads) respondent No.8 allowed 30 Junior Engineers the Senior Grade pay scale as per the provisions of ROP Rules. By Annexure 9 letter dated 28.7.93 the Chief Engineer, PWD, on the recommendation of the Selection Board allowed Senior Grade scale to 233 Junior Engineers. By Annexure 10 notification dated 2.9.93 the Government conferred Gazetted status to the Senior Grade Engineers. Thereafter, by Annexure 11 notification dated 20.11.93 the Government of Assam notified that further amendment should be made in the Schedule A to the Assam Services (Revision of Pay) Rules, 1990. The said notification was published in the Assam Gazette dated 11.12.93. The Finance Department, Government of Assam issued letter dated 20.11.93 (Annexure 12) to Secretary of PWD, Flood Control, Irrigation and Public Health Engineering intimating that it had come to the notice of the Finance Department that the Junior Engineers of PWD under the State Government who as per the recommendation of the Assam Pay Commission were entitled to the posts of Senior Engineers were not following the mandatory necessary action required to the taken by them before implementing the aforesaid recommendation of the Commission. According to the petitioner the Assam Pay Commission. 1988 had recommended creation of new cadres of Junior Engineers with clear stipulation that the aforesaid cadre would have an effective strength of 10% of cadre strength of the Junior Engineers. According to the petitioner the Assam Pay Commission. 1988 had recommended creation of new cadres of Junior Engineers with clear stipulation that the aforesaid cadre would have an effective strength of 10% of cadre strength of the Junior Engineers. Further the Commission had also recommended that the Junior Engineers having qualifying length of 8 years of service would be entitled to those posts. The above recommendation had been accepted by the Government on instruction of the concerning Department to implement this recommendation in consultation with the Department of Personnel and Finance. To implement the above recommendation it was necessary that members of the concerning department to follow the procedure as mentioned. 4. Thereafter, the Chief Engineer, PWD (Roads) respondent No.8 by Annexure 13 letter dated 13.12.93 cancel led the order allowing the Senior Grade pay scale to the Junior Engineers with effect from the date of issue of the said orders. 5. Being aggrieved the Association submitted a petition before the Commissioner and Special Secretary to the Govt. of Assam, PWD 2nd respondent expressing its grievances. The Association also submitted that on due selection as per the Assam Service (Revision of Pay) Rules, 1990 the Senior Grade scale was conferred in pursuance of the meeting held on 1.4.92 under the Chairmanship of the Chief Secretary with representatives of the Finance and four other Departments and the benefit was given to the Junior Engineers who were over stagnant putting over 30 years in the said posts without even enjoying single promotion. As per recommendation of the Pay Commission, 1988 the earlier two promotions in service career for the incumbents was recommended and the Association appreciated that the Junior Engineers who had completed 8 years of service should be allowed to enjoy the Senior Grade scale without any restriction and necessary formula under FR 22 (1) (a) (i) be made applicable to all the eligible Senior Grade Engineers in all the four Departments uniformally along with the other eligible Junior Engineers of the rest of the Departments. 6. The Association further submitted a representation to the Chief Secretary v (Annexure 15) and in the said representation the Association requested the Chief Secretary to cancel the notification dated 20.11.93 and also the letter dated 20.11.93 issued by the Finance Department. But nothing was done. Hence the present petition. An additional affidavit has also been filed by the petitioner. 7. The Association further submitted a representation to the Chief Secretary v (Annexure 15) and in the said representation the Association requested the Chief Secretary to cancel the notification dated 20.11.93 and also the letter dated 20.11.93 issued by the Finance Department. But nothing was done. Hence the present petition. An additional affidavit has also been filed by the petitioner. 7. According to the petitioner Association the Junior Engineers of the Association were allowed Senior Grade scale of pay with effect from the date showing against each Junior Engineers of the Association as per ROP Rules. 1990 and thereafter the petitioner has acquired substantial right to the respective substantive posts and therefore, the notification issued by the Finance Department was illegal, ultra vires and against the mandatory provision of Article 309 of the Constitution and the same would be null and void and in view of the matter, according to the petitioner the notification dated 20.11.93 was also illegal and void and it is against the principles of natural justice and not binding against the members of the petitioner Association. The petitioner further submitted that the amendment to the ROP Rules giving restrospective effect was in violation of Article 14 and 16 of the Constitution and Article 309 does not give that power to the Government to make amendment giving restrospective effect. It is further stated that the authority had no power to make law with retrospective effect and it can only be prospective in nature. Concurrence of the Personnel Department was not necessary in such case as these posts were not to be created merely to upgrade the scale of the existing Junior Engineers. 8. I heard both sides. 9. Mr. BK Das, learned counsel appearing on behalf of the petitioner submitted that the impugned notification and order (Annexure 11 and 12) were, illegal and without jurisdiction. Therefore, it cannot sustain in law. Learned counsel further submitted that the Government had accepted the recommendation of the Pay Commission with modification and therefore whatever was accepted cannot be altered by impugned notification and order. Mr. SN Bhuyan, learned Advocate General, on the other hand, tried to justify the action of the Government. According to him the Govt. accepted the recommendation with modification and those which were not accepted specifically mentioned. The 10% referred to was omitted at page 156 of column 4 of ROP Rules. Mr. SN Bhuyan, learned Advocate General, on the other hand, tried to justify the action of the Government. According to him the Govt. accepted the recommendation with modification and those which were not accepted specifically mentioned. The 10% referred to was omitted at page 156 of column 4 of ROP Rules. Annexure 11 was not amendment but in the nature of a corrigendum. He had also drawn my attention to page 112, 114 and 118 i.e. 10.73, 10.81 and 10.92 of the ROP Rules. Therefore, the Govt. had every right to pass orders as referred to in Annexures 11 and 12. 10. It is to be seen whether the Annexures 11 and 12 of the petition can sustain in law. 11. The Government of Assam constituted a Pay Commission by resolution dated 2.5.88 to examine and recommend the changes that were desirable in the structure, emoluments and conditions of service of different classes of State Government employees: to examine the existing amenities and facilities relating to death-cum-retirement benefit etc and other matters. The Commission submitted its report to the Government on 8.5.90 with recommendations. The Government on consideration of the recommendations of the Pay Commission had generally accepted the recommendation with the modification that the benefit of stagnation increment should be allowed upto the pay scale of Rs.2975-4750 subject to the condition that pay plus stagnation increment should not exceed Rs.5050/-. In the report of the Pay Commission (Annexure A) at 10.72 the Commission recommended that with a view to relieve congestion at the level of Assistant Executive Engineer a cadre of Deputy Executive Engineer in the revised pay scale of Rs.2555-4600/- be created above the rank of Assistant Executive Engineer. The strength of the cadre should be 10% of the cadre of Assistant Executive Engineer who have completed 8 years or more period of service as such should be eligible for this scale subject to fulfilment of other procedural formalities. 12. At 10.73 of the recommendation it was stated that 30% promotion quota from Junior Engineer to Assistant Engineer should be mandatory and Personnel Department should be entrusted with the responsibility of overseeing that the quota was fully utilised. To relieve congestion in the cadre of Junior Engineer a junior cadre in the revised scale of Rs. 12. At 10.73 of the recommendation it was stated that 30% promotion quota from Junior Engineer to Assistant Engineer should be mandatory and Personnel Department should be entrusted with the responsibility of overseeing that the quota was fully utilised. To relieve congestion in the cadre of Junior Engineer a junior cadre in the revised scale of Rs. 1475-3825/- was suggested and the number of posts carrying this cadre ought to be restricted to 10% of the cadre of Junior Engineer and the qualifying length of service should be minimum 8 years. But in the resolution on the report (Annexure B) of the ROP Rules at page 56 Junior Engineer (Senior Grade) would be entitled to the pay scale referred to in column 3 at page 53. But in column 4 a remark was made as follows : "The scale will be admissible to the Junior Engineer on completion 8 years' service and on due selection." However, there is no reference how much and what will be the quota for getting the Senior Grade scale. Annexure 11 is a sample letter dated 23.12.90 issued by the Officer on Special Duty, Finance (PRU) Department addressed to various authorities on the report of the Pay Commission. This letter was with a copy of the Press Note on the decision of the Government. This Press Report indicates that the Government accepted all the general recommendations of the Pay Commission with a little modification in respect of pay scale. However, there is a specific mention at serial No.6 that the Commission recommended for creation of a new cadre of Deputy Executive Engineer in the Public Works Department, Irrigation and Public Health Engineering. However, the Government decided on the basis of the report of the Pay Commission that there would be a Senior Grade Junior Engineer on the revised scale of Rs. 1475-3825/- corresponding to the scale of Rs.6700-7500/-. The Junior Engineer would be eligible to receive the said scale only on completion 8 years service as Junior Engineer. By Annexure 6 letter issued by the Deputy Secretary to the Govt. of Assam (E) Public Works Department, Dispur, the Government fixed the Senior Grade Junior Engineer as per provision of FR 22 (1) (a) (i). The Junior Engineer would be eligible to receive the said scale only on completion 8 years service as Junior Engineer. By Annexure 6 letter issued by the Deputy Secretary to the Govt. of Assam (E) Public Works Department, Dispur, the Government fixed the Senior Grade Junior Engineer as per provision of FR 22 (1) (a) (i). But thereafter by Annexure 11 notification dated 20.11.93 further amendment was made to the Schedule A of the Assam Services (Revision of Pay) Rules, 1990 which I quote as follows : "Under the Head 'Flood Control Department' (at page 156), 'Irrigation Department' (at page 230), Public Works Department (at page 253) and 'Public Health Engineering Department' (at page 273) the entries under the Remarks (column 4) against the post of Junior Engineer (Senior Grade), the following shall be added after the existing entries : Remarks (4): The number of posts of Junior Engineer (Senior Grade) should be restricted to 10% of the cadre strength of Junior Engineer." Again by Annexure 12 letter of the same date, the Secretary to the Govt. of Assam, Finance Department, informed the Secretary of the various Departments that the Assam Pay Commission, 1988, vide their recommendation against paras 10.73,10.81,10.92 and 10.114, recommended creation of a new cadre of Junior Engineer (Senior Grade) with the clear stipulation mat the aforesaid cadre would have an effective strength of 10% of the cadre strength of Junior Engineer. Further, the Commission had also recommended that Junior Engineer having qualifying length of 8 years of service would be entitled to this post. It was further mentioned that the above recommendation had been accepted by the Government vide para 15 of the Govt. resolution (notification No.FPC.24/90/ 12B, dated 6th December, 1990) with instructions to the concerning Departments to implement this recommendation in consultation with the Department of Personnel and the Finance Department. To implement the above recommendation it was necessary on the part of the concerning Works Departments to follow the procedure as mentioned. A concrete proposal might be moved to the personnel and Finance Department regarding clearance/concurrence of new creation of the post of Junior Engineer (Senior Grade) in the scale of Rs. 1475-3025/- were to be created out of the 10% of the existing cadre strength of Junior Engineer by way of upgradation from the post of Junior Engineer. Further by Annexure 13 office order dated 13.12.93 in pursuance to Govt. 1475-3025/- were to be created out of the 10% of the existing cadre strength of Junior Engineer by way of upgradation from the post of Junior Engineer. Further by Annexure 13 office order dated 13.12.93 in pursuance to Govt. letter No. RBEB. 13492/Pt/10 dated 7.12.93 communicated the order dated 5.11.93 allowing Senior Grade pay scale to the Junior Engineers were cancelled. 13. In the affidavit-in-opposition filed by the respondent No.3, this respondent has stated thus : "The Governor of Assam is the appointing authority in the cadre of OSD which is a Class I Gazetted post equivalent to the post of Under Secretary and till date OSD is appointed from amongst the Under Secretary of the Assam Secretariat Services. The Officer-on-Special Duty in Finance (Pay Research Unit) Department is specifically empowered to sign the orders, instruction of the Govt. in Finance (Pay Research Unit) Department. As such his authority in signing the notification (20.11.93) cannot be challenged in view of Rule 12 of he Assam Rules of Executive Business." It is further stated in the said affidavit that regarding the cadre strength etc referred to in para 4 it is not the cadre strength, but the 10% of total posts in the cadre. The Works Departments are to calculate the percentage of posts in order to create the Senior Grade posts of Junior Engineer and thereafter process the same in the line as clarified vide Govt. letter No. FPC. 17/92/18? dated 20.11.93. It has also been mentioned that the Rules and orders in questions were issued only after the formal acceptance of the recommendation of the Pay Commission by the Cabinet, The notification dated 20.11.93 issued by the Finance Secretary is an executive instruction and not an amendment. While accepting recommendations with modification, Government had clearly indicated that the recommendation with modification should be implemented by the concerned Administrative Department in consultation with Personnel and Finance Department. Assam Rules of Executive Business also empowers the Finance Department under Rule 33 (1) to regulate the numbers, grading or cadre etc and that Finance Department would be responsible for seeing that these rules are properly applied and therefore, according to this respondent the action by the Secretary, Finance Department was in accordance with law. 14. Learned Advocate General had stated that the amendment was in the nature of an executive instruction and not an amendment of the ROP Rules. 14. Learned Advocate General had stated that the amendment was in the nature of an executive instruction and not an amendment of the ROP Rules. It has also been mentioned in the counter affidavit filed by the Government that the orders were issued only after formal acceptance of the recommendation of the Pay Commission by the Cabinet. The notification dated 20.11.93 issued by the Secretary, Finance Department was an executive instruction and not an amendment even if it is accepted that the impugned amendment was duly authenticated by the Officer on Special Duty in Finance (Pay Research Unit) Department who had the power to do so. 15. On the recommendation of the Pay Commission, the Government had accepted the recommendation regarding condition of service including the upgradation of the post of Junior Engineer on completion of 8 years of service and after the acceptance of the recommendation this becomes a condition of service. Pursuant to this the Government by Annexure 4 notification dated 2nd January, 1992 constituted various Selection Boards to process the cases of allowing the Senior Grade pay scale to the Engineers completing 8 years of services as per ROP Rules, 1990. By Annexure 4A the Selection Board after considering allowed Senior Grade scale to some of the Engineers and as per Annexure 5 the recommendation of the Selection Board constituted vide Commissioner and Special Secretary, PWD, Assam's notification dated 23.6.92, 191 Nos. of Junior Engineers (Civil and Mechanical) under Chief Engineer, PWD, (Roads) were allowed Senior Grade scale of pay as per ROP Rules, 1990. Thereafter by Annexure 6 letter dated 4th September, 1993 issued by the Deputy Secretary to the Govt. of Assam (E), PWD, Dispur wrote to the Chief Engineer, PWD (Roads), Assam, Chandmari, Guwahati communicating that the Govt. was pleased to allow fixation of pay to Senior Grade Junior Engineers as per provision of FR 22(1) (a) (i) with effect from 1.12.92. By Annexure 7 the Chief Engineer, PWD, Building Assam, Guwahati issued a notification dated 7th December, 1992 regarding selection of the Junior Engineers for receiving Senior Grade pay scale who had already completed 8 years of service. Later by Annexure 10 notification dated 2nd September, 1993, the Secretary to the Govt. of Assam, PWD, Dispur conferred Gazetted status to the Senior Grade Junior Engineers with immediate effect. Later by Annexure 10 notification dated 2nd September, 1993, the Secretary to the Govt. of Assam, PWD, Dispur conferred Gazetted status to the Senior Grade Junior Engineers with immediate effect. But by Annexure 11 notification dated 20th November, 1993 the Officer of Special Duty, Finance (Pay Research Unit) Department issued notice making further amendment to the Schedule A to the Assam Services (Revision of Pay) Rules, 1990. By the said amendment it was notified that the number of posts of Junior Engineer (Senior Grade) should be restricted to 10% of the cadre strength of Junior Engineer. Thereafter by Annexure 13 office order dated 13th December, 1993, the Chief Engineer, PWD (Roads), Assam, Chandmari, Guwahati cancelled the order allowing Senior Grade pay scale to the Junior Engineers by order dated 5.11.93. 16. The recommendation of the Pay Commission was placed before the Cabinet and the Cabinet accepted the recommendation including the recommendation of giving Senior Grade pay scale to the Junior Engineers who had completed 8 years of service. Thereafter necessary notification were published and that became a condition of service. Thereafter, the Junior Grade Engineers who had completed 8 years of service were selected to receive Senior Grade pay scale as mentioned above. This condition of service was varied by Annexure 11 notification dated 20th November, 1993 by which the number of posts of Junior Engineer (Senior Grade) was restricted to 10% of the cadre strength of Junior Engineer. As per the recommendation of the Pay Commission the Junior Engineers were entitled to get the Senior Grade scale of pay only on condition of their completing 8 years of service. This condition of service was sought to be varied by Annexure 12 letter dated 20th November, 1993 inasmuch as number of posts was restricted to only 10% by Annexure 11. This notification was issued by the Officer on Special Duty, Finance (Pay Research Unit) Department. 17. From the affidavit-in-opposition it appears that the OSD was equivalent to the post of Under Secretary. Therefore, he had the power to authenticate the order. Both in the affidavit-in-opposition as well as per the submission made by the learned Advocate General Annexure 11 notification was only an executive instruction and not an amendment. After the acceptance of the recommendation by the Cabinet this Annexure 11 was issued by the Officer on Special Duty. Therefore, he had the power to authenticate the order. Both in the affidavit-in-opposition as well as per the submission made by the learned Advocate General Annexure 11 notification was only an executive instruction and not an amendment. After the acceptance of the recommendation by the Cabinet this Annexure 11 was issued by the Officer on Special Duty. From the record it does not appear that this was placed before the Cabinet for further modification and for that reason in the affidavit-in-opposition as well as the submission made by the learned Advocate General in his argument stated that this was not an amendment but an executive instruction whereby the right to be considered for promotion to the Senior Grade had been curtailed. 18. In the State of Maharashtra & another vs. Chandrakant Anant Kulkarni & others reported in AIR 1981 SC 1990 the Supreme Court had the occasion to consider the effect of modification of rules framed under proviso to Article 309. In that case the question arose whether the State Government by its resolution and memorandum could effect a change in the recruitment rules by an executive order. After considering all aspects the Supreme Court observed that there can be no dispute with the proposition that a rule framed under the proviso to Article 309 of the Constitution cannot be modified by an executive order. 19. In this case the service condition so far the promotion to the Senior Grade scale was sought to be varied by an executive order, in my opinion this cannot be done. Therefore, I hold that Annexure 11 notification is illegal and without jurisdiction and liable to be set aside. However, it is open to the Government to make amendment of the rules under proviso to Article 309 in appropriate manner as per the procedure prescribed. The Engineers who were promoted to the Senior Grade after dm selection also could not be cancelled without giving any opportunity of hearing. After the upgradation those Engineers had acquired valuable right entailing civil consequences and this right could not be taken away without affording reasonable opportunity of hearing. 20. In view of the above Annexure 12 letter restricting the promotion to 10% of the cadre and Annexure 13 order of cancellation are illegal, without jurisdiction and violative of the principles of natural justice and liable to be set aside. 21. 20. In view of the above Annexure 12 letter restricting the promotion to 10% of the cadre and Annexure 13 order of cancellation are illegal, without jurisdiction and violative of the principles of natural justice and liable to be set aside. 21. Accordingly, I hereby hold that Annexure 11,12 and 13 are illegal and without jurisdiction and therefore I set aside and quash the same. 22. In the facts and circumstances of the case, I make no order as to costs.