JUDGMENT U.P. Singh, C.J. 1. By order dated 10th April 1997, we allowed the appeals upholding the validity of G.O. (Ms.) No. 86/94/PW and T dated 3rd October 1994 (Ext.P-7) and G.O. (Ms.) No. 43/96/PW and T dated 9th February 1996 (Ext. P-12) and now we state the reasons for our conclusion. 2. These appeals have been filed against a common judgment of the learned Single Judge disposing of a number of Original Petitions relating to promotion to the posts of Assistant Executive Engineers in the Public Works (Roads and Buildings) Department. Some of these appeals have been preferred by the State of Kerala and the rest by the graduate Assistant Engineers, 3. The engineers working in the erstwhile Public Works Department were governed by the Kerala Engineering Service (General Branch) Rules (hereinafter called 'Special Rules') and the Kerala Engineering Subordinate Service (General Branch) Rules. Originally, the Kerala Engineering Service (General Branch) contained only four categories viz. (1) Chief Engineers (2) Superintending Engineers (3) Executive Engineers and (4) Assistant Executive Engineers. The category of Assistant Engineers originally included in the subordinate service was subsequently, by an amendment, included in the Kerala Engineering Service (General Branch) as the fifth category. The Assistant Engineers in the Public Works Department consisted of graduates, diploma holders and certificate holders. They were either directly recruited or promoted from the post of I Grade Overseer. The next promotion post is the post of Assistant Executive Engineer. The method of appointment to the post of Assistant Executive Engineer was by recruitment on transfer from Assistant Engineers. As already stated, by notification G.O.(P) No. 41/94/PW and T dated 3rd June 1.994, the Special Rules were amended and the post of Assistant Engineer was also brought into the State Service. Consequently, the Assistant Executive Engineer's post was to be filled up from the post of Assistant Engineer by promotion. The requisite qualifications for the post of Assistant Executive Engineer are prescribed under R.4(a) of the Special Rules, According to the qualifications, the incumbent should possess any degree or diploma as mentioned In item (i) or (it) of the annexure or must possess Draftsman's certificate of the College of Engineering, Guindy or S. M. T. Overseers certificate and must have put in a total service of 25 years in the department, out of which 12 1/2 years must be as Assistant Engineer. R.5 (b) of the above Rules deals with the promotion to the posts of Executive Engineers and Assistant Executive Engineers. R.5 (b) of the above Rules states as follows: "5 Promotion as Executive and Assistant Executive Engineers. (a) * * * (b) Vacancies in the category of Assistant Executive Engineers will be filled up from among Assistant Engineers in the ratio of 75:20:5 respectively from among-- (1) persons possessing any of the qualifications mentioned in item (i) or in section A in item (it) of the annexure. (2) those possessing any of the qualifications mentioned in Section B in item (ii) of the Annexure; and (3) those possessing the Draftsman certificate of the College of Engineering, Guindy or S.M.T. Overseer's certificate". Thus, under R.5(b), vacancy in the category of Assistant Executive Engineer is to be filled up from Assistant Engineers having degree, diploma or certificate in the ratio of 75:20:5. Note 1 to the Rule says that the separate quota allotted to the certificate holders will be abolished as soon as the holders of the certificate are absorbed as Assistant Engineers. Thereafter, the ratio will revert to 3:1 on cadre strength between degree holders and diploma holders. It is now submitted that since all the certificate holders have been absorbed, the ratio that is applied is 3:1 between degree holders and diploma holders. Note 2 to the Rule states that the ratio fixed for promotion to the cadre of Assistant Executive Engineers will be applied to the cadre strength of Assistant Executive Engineers as a whole, i.e. to the total number of posts of Assistant Executive Engineers in the department and not to vacancies as they arise. 4. Government was thinking of bifurcating the Public Works Department in the light of the increasing need for specialisation in the activities undertaken by the Roads and Buildings Division and the Irrigation Division. A committee was appointed to study this question and it made recommendations on the future set up of the department. Consequently, Government issued G.O. (P) No.27/90/PW and T, dated 29th March 1990 [Ext. R-2 (a,)]- By this order, the existing Public Works Department was bifurcated into two departments viz. Irrigation Department and Public Works (Roads and Buildings) Department with effect from Ist April 1990. These departments were to deal with the subjects hitherto dealt with by the Irrigation Wing and Public Works Department Wing respectively. R-2 (a,)]- By this order, the existing Public Works Department was bifurcated into two departments viz. Irrigation Department and Public Works (Roads and Buildings) Department with effect from Ist April 1990. These departments were to deal with the subjects hitherto dealt with by the Irrigation Wing and Public Works Department Wing respectively. The Government order further contained certain clauses with respect to the service conditions of the employees working in the department. Under Clause.7 (k) of the above Government order, the employees were given option either to opt to the Roads and Buildings Department or to the Irrigation Department. If the number of persons in a particular category, who had opted to a department, is in excess of the sanctioned strength of that category of that department, the junior most among such persons would be allotted to the other department on temporary basis and they would be absorbed in the department of their option later, when regular vacancies arose in that category of the opted department. Clause.7 (xvii) of the Government order is relevant to be noticed: "For the purpose of Special Rules, the entire establishment coming under the Public Works Department will be treated as one service viz. the Kerala Engineering Service (Public Works Department) and the entire establishment coming under the Irrigation Department will be treated as a different service viz. the Kerala Engineering, Service (Irrigation). The Special Rules in force in the undivided Public Works Department will apply to the newly formed Public Works Department and Irrigation Department as though they have been framed separately for such department until separate rules are duly made". Thus, the Special Rules continued to apply to persons working in the Public Works (Roads and Buildings) Department and Public Works (Irrigation) Department. 5. As already stated, an option was given to the incumbents to opt either for the Public Works (Roads and Buildings) Department or for the Public Works (Irrigation) Department. It is now submitted that a large number of graduate Assistant Engineers opted for the Public Works (Roads and Buildings) Department. Hence, as per Ext.R-2 (a), the excess graduate Assistant Engineers were temporarily allotted to the Irrigation Department to be absorbed in the Roads and Buildings Department as and when vacancies arose. The category of Assistant Engineers consisted of degree holders and diploma holders. Hence, as per Ext.R-2 (a), the excess graduate Assistant Engineers were temporarily allotted to the Irrigation Department to be absorbed in the Roads and Buildings Department as and when vacancies arose. The category of Assistant Engineers consisted of degree holders and diploma holders. As already stated, a large number of Assistant Engineers (Graduates) opted for the Public Works (Roads and Buildings) Department. A number of Assistant Engineers, who were diploma holders, had also opted for the Public Works (Roads and Buildings) Department. Most of the graduate Assistant Engineers were seniors to the diploma Assistant Engineers and, in fact, it was submitted that many of such diploma holders had worked under the graduate Assistant Engineers when they were working as Overseers. As mentioned earlier, for promotion to the post of Assistant Executive Engineer, there was a ratio of 3:1 between degree holders and diploma holders. It was found that the number of Assistant Engineers (degree holders) were so large that many of them could not get promotion to the post of Assistant Executive Engineer and they were to stagnate at the entry cadre itself. Further, it was found that on the application of the ratio, many diploma holders, who were juniors to the degree holder Assistant Engineers were stealing a march over such seniors and became Assistant Executive Engineers. The problem of the Assistant Engineers (degree holders) was brought to the notice of the Government by the Chief Engineer. The Chief Engineer had stated that the graduates appointed as Assistant Engineers during 1973 were still continuing in the entry cadre while diploma holders, who had worked under them as Overseers, had been subsequently promoted as Assistant Executive Engineers. He was of the view that this would affect the morale of the graduate Assistant Engineers and in turn lead to disastrous consequences and he requested the Government to resolve the crisis. The Government examined the matter and issued G.O. (Ms) No. 86/94/PW and T dated 3rd October 1994, which is produced as Ext. P-7 in O. P. No. 2633 of 1996. By this order, Government ordered that Assistant Engineers, who possessed diploma qualification, would not be eligible for promotion to the category of Assistant Executive Engineer over a graduate Assistant Engineer having longer service unless he was otherwise rendered ineligible for promotion to the post of Assistant Executive Engineer. P-7 in O. P. No. 2633 of 1996. By this order, Government ordered that Assistant Engineers, who possessed diploma qualification, would not be eligible for promotion to the category of Assistant Executive Engineer over a graduate Assistant Engineer having longer service unless he was otherwise rendered ineligible for promotion to the post of Assistant Executive Engineer. The effect of the order was that a diploma holder would not be entitled to promotion as Assistant Executive Engineer if there was a graduate Assistant Engineer who had got longer service. In other words, an Assistant Engineer (graduate) who had longer service would have to be promoted before an Assistant Engineer (diploma holder) is promoted. 6. After bifurcation, it was found that there was a surplus of graduate Assistant Engineers and graduate Assistant Executive Engineers in the Public Works (Roads and Buildings) Department. It was found that graduate Assistant Engineerss were facing absolute stagnation in certain cases and some graduate Assistant Engineers had to retire on superannuation in the entry cadre itself without getting any promotion in their whole career. It was further found that the acute stagnation faced by the graduate Assistant Engineers could be removed only by restructuring the Engineering Service and redistributing the posts suitably. There were a total number of 1380 engineers in the Public Works (Roads and Buildings) Department. There were five categories viz. Chief Engineer (5 posts), Superintending Engineer (21. posts), Executive Engineer (74 posts), Assistant Executive Engineer (311. posts) and Assistant Engineer (969 posts). Therefore, the Government issued an order, G. O. (Ms) No. 43/96/PW and T dated 9th February 1996, restructuring the Engineering service, copy of which is produced as Ext. P-12 in O. P. No. 2633 of 1996. By this order, the number of categories was increased to seven. They are: Chief Engineer (5 posts), Superintending Engineer (21. posts), Special Grade Executive Engineer (74 posts), Executive Engineer (171. posts) Special Grade Assistant Executive Engineer (140 posts) Assistant Executive Engineer (462) and Assistant Engineer (507 posts). The total strength was retained as 1380. It was further stated in Ext. P-12 order that the orders regarding the method of appointment to the above categories would be issued separately- Thus, under Ext. P-1,2 order, two new categories were introduced viz. Special Grade Assistant Executive Engineer and Special Grade Executive Engineer- 969 posts of Assistant Engineers were distributed between the categories of Assistant Engineers and Assistant Executive Engineers. P-12 order that the orders regarding the method of appointment to the above categories would be issued separately- Thus, under Ext. P-1,2 order, two new categories were introduced viz. Special Grade Assistant Executive Engineer and Special Grade Executive Engineer- 969 posts of Assistant Engineers were distributed between the categories of Assistant Engineers and Assistant Executive Engineers. 385 posts distributed between the categories of Assistant Executive Engineers and Executive Engineers were distributed among the Special Grade Assistant Executive Engineers, Executive Engineers and Special Grade Executive Engineers. 7. Several original petitions under Art.226 of the Constitution of India were filed by the diploma holders challenging Exts. P-7 and P-12 orders. Some graduate Engineers had also filed Original Petitions to effect promotion in accordance with the new orders. Before the learned Single Judge, the diploma holders contended that the service conditions of the members were governed by the Special Rules. These rules were framed under Art.309 of the Constitution of India. Under these rules, the post of Assistant Executive Engineer was to be filled up by promotion from the posts of Assistant Engineers. Since Assistant Engineers consisted of degree holders and diploma holders, a ratio of 3:1 was fixed by the Special Rules. The ratio was to be maintained taking the cadre strength as a whole. If the order (Ext. P-7) was implemented, the ratio mentioned under the Special Rules could not be maintained. Thus the contention raised was that the order dated 3rd October 1994 (Ext. P-7) was an executive order and the executive order could not amend the Special Rules framed under Art.309 of the Constitution. The diploma holders further contended that the fixation of the ratio of 3:1, between degree holder and diploma holder as per the Special Rules had been earlier challenged before this Court, but this Court upheld the ratio. Thus, the ratio had to be maintained and a diploma holder was to be promoted notwithstanding the supersession of senior degree holder Assistant Executive Engineer. The same contention was also advanced regarding the restructuring order (Ext. P-12). According to them, the two new categories viz. Special Grade Assistant Executive Engineer and the Special Grade Executive Engineer could not be created by aa executive order. It could be introduced only by an amendment to the Engineering Service Rules. Thus, the main thrust of the contention of the diploma holders was that the two executive order (Exts. P-12). According to them, the two new categories viz. Special Grade Assistant Executive Engineer and the Special Grade Executive Engineer could not be created by aa executive order. It could be introduced only by an amendment to the Engineering Service Rules. Thus, the main thrust of the contention of the diploma holders was that the two executive order (Exts. P-7 and P-12) were illegal in so far as it amended the Special Rules. 8. In reply, the Advocate General appearing for the State as also the counsel appearing for the other respondents contended that originally the conditions of service were being governed by the Special Rules framed under Art.309 of the Constitution, but after bifurcation order Ext. R 2 (a) in accordance with Clause.7 (xvii) thereof, the Special Rules lost its character as a Rule under Art.309 of the Constitution and the same is to be treated only as an executive order and thus it could be amended by an executive order Exts. P-7 and P-12 and the conditions of service are now to be governed as per the amendments brought by an executive order contained in Exts. P-7 and P-12. The other contention raised was that if the said Special Rules is still to be treated as a rule under Art.309 of the Constitution, the executive order contained in Exts. P-7 and P-12 did not amend or alter the Special Rules, but only supplemented and filled up the lacuna in the said rule, which became necessary because of the circumstances arising out of the bifurcation of the Public Works Department. 9. The learned Advocate General contended that subsequent to the bifurcation, a large number of graduate Assistant Engineers and Assistant Executive Engineers opted for Public Works (Roads and Buildings) Department. This was far in excess of the sanctioned strength. By the bifurcation order, they were temporarily accommodated in the Irrigation Department. The order itself stated that they were to be accommodated in the Roads and Buildings Department as and when vacancies arose. But the circumstances were such that most of the graduate Assistant Engineers had to retire at the entry stage itself. Thus, taking these facts into consideration, the orders Exts. P-7 and P-12 were issued. It was contended that Ext. P-7 would. not affect the ratio fixed under the Special Rules. But the circumstances were such that most of the graduate Assistant Engineers had to retire at the entry stage itself. Thus, taking these facts into consideration, the orders Exts. P-7 and P-12 were issued. It was contended that Ext. P-7 would. not affect the ratio fixed under the Special Rules. Our attention was also drawn to R.4 (c) of the Special Rules and its proviso relating to promotion from the post of Assistant Executive Engineer to the post of Executive Engineer. In support of the contention, the relevant provision of R.4 (c) with its proviso was referred to: 4(c) Not more than 5 per cent of the posts in the cadre of Executive Engineers shall be reserved to be filled by selection from among Assistant Execut Provided that an Assistant Executive Engineer. * * * * * * * * Provided that an Assistant Executive Engineer who possesses the qualifications mentioned in this sub-rule shall not be eligible for promotion over a senior graduate Assistant Executive Engineer unless the latter is otherwise rendered ineligible for promotion to the post of Executive Engineer against the vacancies under this sub rule". It was also stated that the same condition existed in regard to the promotion of certificate holders to the post of Assistant Engineer. According to those conditions, a certificate holder could not supersede a senior diploma holder for" the post of Assistant Engineer. In any event, it was submitted that there was no hardship caused to the diploma holders by the executive orders and the hardship caused to the graduate Engineers was sought to be removed. 10. The learned Single Judge framed the following questions for consideration: (1) whether the Special Rules lost its statutory force as such by the bifurcation order; (2) whether the Special Rules made applicable by an executive order are amenable to be varied, modified or amended by another executive order; and (3) whether Exts. P-7 and P-12 (promotion order and restructuring order) are only supplementing the Special Rules without amending, altering or changing the scope and ambit of those Rules. With regard to the first point, the learned Single Judge held that the Special Rules continued to apply even after" the bifurcation order and it had not lost its force as statutory rules. P-7 and P-12 (promotion order and restructuring order) are only supplementing the Special Rules without amending, altering or changing the scope and ambit of those Rules. With regard to the first point, the learned Single Judge held that the Special Rules continued to apply even after" the bifurcation order and it had not lost its force as statutory rules. With regard to the second point, the learned Single Judge held that the Rules are made by the process of subordinate legislation and such rules could be amended, varied or altered only by that process and not by the executive wing of the Government issuing executive orders. With regard to Point No. 3, the learned Single Judge held that the promotion order, Ext. P-7, abrogates the provision of R.5(b) relating to quota and hence such a provision could not be upheld. With regard to Ext. P-12 order, the learned Single Judge by the same reasoning, held that fresh categories could not be introduced by an executive order. It could be introduced only by amending the rules. According to the learned Single Judge, since the area was covered by the statutory rules, the administrative instructions or executive order could not amend the same. In his view, the two orders amended the Special Rules. Therefore, Exts. P-7 and P-12 (promotion order and restructuring order) were quashed and the original petitions were allowed by one common Judgment. Hence these appeals. 11. We have heard the learned Advocate General appearing for the appellant - State as also the counsel appearing for the other appellants and the respondents. The same contentions as raised before the learned Single Judge have been reitefated before us. Broadly speaking, two points arise for our consideration: (i) Whether, after the bifurcation of the Public Works Department, the Special Rules retained its statutory character or reduced to only administrative instruction; and (ii) Whether the two executive orders, Exts. P-7 and P-12 called 'promotion order and restructuring order' amended or altered the Special Rules or in terms, supplemented it with a view to fill up the gap and remove the lacuna without running counter to the Special Rules. Point No. 7: 12. The Special Rules applied to the Engineers of the Public Works Department. P-7 and P-12 called 'promotion order and restructuring order' amended or altered the Special Rules or in terms, supplemented it with a view to fill up the gap and remove the lacuna without running counter to the Special Rules. Point No. 7: 12. The Special Rules applied to the Engineers of the Public Works Department. These rules were framed under the proviso to Art.309 of the Constitution of India and were issued as G.O. (Ms) No. 153/65/PW dated 17th May 1965 and published in the Kerala Gazette No. 20 dated 25th May 1965. The Public Works Department was bifurcated into two departments by Ext. R-2 (a) bifurcation order dated 29th March 1990. As per the above order, the erstwhile Public Works Department was bifurcated into two departments, viz. Public works (Irrigation) Department and Public Works (Roads and Buildings) Department with effect from 1st April 1990. The Irrigation Department was to deal with the subjects which were dealt with by the Irrigation Wing of the erst while Public Works Department, while the Public Works (Roads and Building) Department was to deal with the subjects dealt with by Roads and Buildings Wing of the erst while Public Works Department. Members of the services were given option for allotment either to Public Works (Roads and Buildings) Department or to the Public Works (Irrigation) Department. As regards the application of the Special Rules, the provision contained in Clause.7 (xvii) of the bifurcation order Ext. R-2 (a) is relevant to be noted: "For the purpose of Special Rules, the entire establishment coming under the Public Works Department will be treated as one service viz. the Kerala Engineering Service (Public Works Department) and the entire establishment coming under the Irrigation Department will be treated as a different service viz. the Kerala Engineering Service (Irrigation). The Special Rules in force in the undivided Public Works Department will apply to the newly formed Public Works Department and Irrigation Department as though they have been framed separately for each Department until separate rules are duly made". On a plain reading of the aforesaid clause, it is obvious that the Special Rules in force in the undivided Public Works Department continued to apply to the newly formed Public Works Department and Irrigation Department as if they have been framed [separately for each department until separate rules were duly made. 13. On a plain reading of the aforesaid clause, it is obvious that the Special Rules in force in the undivided Public Works Department continued to apply to the newly formed Public Works Department and Irrigation Department as if they have been framed [separately for each department until separate rules were duly made. 13. The contention raised by the learned Advocate General was that the Special Rules applied only to the members of the erstwhile Public Works Department and after bifurcation, the Special Rules ceased to have any application to the members of both these departments. It was said that after the bifurcation order, the provisions of the Special Rules were made applicable to the members of both the departments by virtue of Clause.7 (xvii) of Ext. R-2 (a), an executive order. It was by means of the executive order that the Special Rules were made applicable to the members of the new departments. 14. The learned Advocate General invited our attention to the decision of the Supreme Court in Jacob v. Kerala Water Authority 1990 (2) K.L.T. 673 and in particular, reference was made to Para.14 of the above decision. In that case, the question was whether the Kerala State and Subordinate Service Rules had statutory force in its application to the members of the Kerala Water Authority. The Kerala Water Authority is a statutory body formed under the Kerala Water Supply and Sewerage Act, 1986. The question in issue was regularisation of certain workers. The Authority contended that as per R.9 (a) (i) of the Kerala State and Subordinate Service Rules, the appointment of the workers was limited to 180 days and they could not claim regularisation. The Authority also contended that the Kerala State and Subordinate Service Rules were statutory in nature. The Kerala State and Subordinate Service Rules, 1958 were framed in exercise of the powers conferred by the proviso to Art.309 of the Constitution of India in respect of the members of the State and Subordinate Services. Admittedly, the Kerala Water Authority did not form part of the State or the Subordinate Service. But the Rules were adopted by the Authority under the resolution with respect to the conditions of service of its employees. Hence, the argument was that the Rules had statutory force. Admittedly, the Kerala Water Authority did not form part of the State or the Subordinate Service. But the Rules were adopted by the Authority under the resolution with respect to the conditions of service of its employees. Hence, the argument was that the Rules had statutory force. Repelling the contentions of the Kerala Water Authority, the Supreme Court held: "These rules would undoubtedly be statutory in character in their application to the members of the Kerala Subordinate Services for whom they were enacted but when any other authority adopts them by a resolution for regulating the services of its staff, the rules do not continue to remain statutory in their application to the staff of that Authority. They are like any other administrative rules which do not have statutory force. It was not contended, as indeed it could not be, that these rules derive statutory force from S.64 or 65 of the Act. S.64 confers the rule making power on the State while S.65 empowers the authority to make regulations with the previous approval of the Government. It is nobody's case that these rules were adopted after obtaining the previous approval of the Government. If that be so, we must accept Mr. Poll's Submission that these rules in their application to the staff-members of the authority appointed after 1st April 1984 have no statutory flavour or force." This would, however, not apply to the facts of the present case. Here, undoubtedly, both the Kerala Engineering Service (Public Works Department) and the Kerala Engineering Service (Irrigation) Department are services under the State of Kerala. The Special Rules were framed for the members of the Public Works Department. But the Public Works Department was divided into two, viz. Public Works (Roads & Buildings) Department and Public Works (Irrigation) Department and the Special Rules continued to apply to the members of both the services. Here, in the present case, both these services are State Services. Even though the rules were adopted by an executive order, the same were continued to apply to the newly formed Public Works Department and Irrigation Department as if they have been separately framed for each department until separate rules were duly made. Here, in the present case, both these services are State Services. Even though the rules were adopted by an executive order, the same were continued to apply to the newly formed Public Works Department and Irrigation Department as if they have been separately framed for each department until separate rules were duly made. Hence, according to us, the Special Rules even after bifurcation of the Public Works Department, retained its statutory character in its application to the members of the Kerala Engineering Service (Roads and Buildings) and the Kerala Engineering Service (Irrigation). The first point thus raised by the learned Advocate General is rejected and the view expressed, by the learned Single Judge on the first point is affirmed. Point No. 2: 15. As stated earlier, under the Special Rules, the posts of Assistant Executive Engineers were filled up by promotion from the persons holding the post of Assistant Engineers. The category of Assistant Engineer consisted of graduates and diploma holders. Under R.5(b) of the Special Rules, a quota of 3:1 was fixed between the graduates and diploma holders for promotion to the post of Assistant Executive Engineer. Note 2 of R.5(b) stated that the ratio fixed for promotion to the cadre of Assistant Executive Engineers would be applied to the cadre strength of Assistant Executive Engineers as a whole i.e. to the total number of posts of Assistant Executive Engineers in the department and not to vacancies as they arise. Thus a diploma holder Assistant Engineer would be entitled to promotion to the post of Assistant Executive Engineer in order to maintain the ratio of 3:1 between graduates and diploma holders. By Ext. P-7 order, the Government of Kerala ordered as follows: "Assistant Engineer who possesses diploma will not be eligible for promotion to the category of Assistant Executive Engineers over a graduate Assistant Engineer having longer service otherwise rendered ineligible for promotion to the post of Assistant Executive Engineer." The bone of contention between the parties is whether such condition could be introduced by an executive order in so far as the Special Rules itself prescribed the quota for promotion to the post of Assistant Executive Engineer. On behalf of the diploma holders, it was contended that the Special Rules were framed under Art.309 of the Constitution and any change in the conditions laid therein could be made only by an amendment to the rules in the same manner. According to them, the effect of Ext. P-7 order is that even if the diploma holder was entitled to promotion as Assistant Executive Engineer, he would not be entitled to such promotion if an Assistant Engineer holding a degree is available having a longer service. Thus a diploma holder would have to wait till a senior Assistant Engineer having degree qualifications is entitled for being promoted as Assistant Executive Engineer, even though the quota for the Assistant Engineers (degree holders) was already exhausted. This, according to the diploma holders, was contrary to R.5 (b) of the Special Rules. 16. The common argument advanced by the State as well as the degree holders was that the order of the Government that a diploma holder should not be allowed to supersede a senior graduate Assistant Engineer to the post of Assistant Executive Engineer was not contrary to R.5(b) of the Special Rules. According to them, this clause could be worked out without disturbing the quota rule. The order Ext. P-7 only supplement the rules and it did not supplant the same. It was submitted that after bifurcation of the Public Works Department, a large number of graduate Assistant Engineers opted for the Public Works (Roads and Buildings) Department, a large number of graduate Assistant Engineers are seniors to diploma holders and some of the diploma holders had worked under graduate Assistant Engineers as Overseers. Many of the graduate Assistant Engineers had not been given promotion to the post of Assistant Executive Engineer and had retired at the entry cadre itself. It was to obviate the stagnancy of the graduate Assistant Engineers that the proposed Government order was introduced by the Government. By enforcement of Ext. P-7 order, the quota rule was not disturbed and the quota rule would always be maintained. The Government could fill up the gaps and supplement the rules by issuing administrative instructions and the Government had only exercised such power in order to get over the anomalous situation created on account of the bifurcation of the Public Works Department. 17. Similar contentions were raised with regard to Ext. P-12 order. By Ext. The Government could fill up the gaps and supplement the rules by issuing administrative instructions and the Government had only exercised such power in order to get over the anomalous situation created on account of the bifurcation of the Public Works Department. 17. Similar contentions were raised with regard to Ext. P-12 order. By Ext. P-12, the categories of posts in the Kerala Engineering Service were increased from 5 to 7. Two additional categories were included viz. Special Grade Executive Engineer immediately above the category of Executive Engineer and Special Grade Assistant Executive Engineer immediately below the post of Executive Engineer. The contention of the respondents is that the above addition of categories of posts amounts to amendment of the Special Rules and is illegal. The contention of the State is that Ext. P-12 order does not amend the Special Rules, but only supplement the Special Rules and hence, it is valid in law. 18. It cannot be disputed that once the Rules are framed under the proviso to Art.309 of the Constitution regarding the conditions of service of members of the service then the Rules will have to be strictly followed in regard to matters specified in the Rules. If the Government want to introduce any change regarding the conditions of service, then the Rules would have to be amended by framing fresh rules. But that does not mean that till statutory rules are framed, the Government cannot issue administrative instructions and if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. This questions came up for consideration before the Supreme Court in the case of Sant Ram Sharma v. State of Rajasthan and others A.I.R. 1967 S.C. 1910. This case was decided by a Bench of five Judges. Their Lordships were considering the provisions of the Indian Police Service (Pay) Rules (1954) and the Indian Police Service (Regulation of Seniority) Rules (1954). The question for consideration was with regard to the procedure to be followed in the matter of promotion of I.P.S. Officers to the selection grade. The contention of the appellant in that case was that he was senior to the respondent and he was entitled to be promoted to the selection grade earlier than the respondent. The question for consideration was with regard to the procedure to be followed in the matter of promotion of I.P.S. Officers to the selection grade. The contention of the appellant in that case was that he was senior to the respondent and he was entitled to be promoted to the selection grade earlier than the respondent. After going through the relevant rules, the Supreme Court found that the statutory rules did not contain any provision governing promotion to selection grade post. Government relied on certain administrative instructions for promotion to the selection grade. The executive instructions held that promotion to the selection grades or selection posts are to be based primarily on merit and not on seniority alone. The question was whether such executive instructions could be taken into consideration for promotion to the selection grade. Dealing with that contention, the Supreme Court in Para.7 of the Judgment, held as follows: "It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf, the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend of supersede statutory rules by administrative instructions. But if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and Issue instructions not inconsistent with the rules already framed". Thus, as per the above decision, administrative instructions could be issued, if the Rules are silent on any particular point and the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. 19. A similar question arose for consideration before the Supreme Court in Union of India v. H. R. Patankar AIR 1984 SC 1587 . There, the Court was considering the Indian Administrative Service (Regulation of Seniority) Rules (1954). The Court only found that at the material time, the Rules in question did not apply for determining the inter seniority of the parties. There, the Court was considering the Indian Administrative Service (Regulation of Seniority) Rules (1954). The Court only found that at the material time, the Rules in question did not apply for determining the inter seniority of the parties. In dealing with this question, the Court held as follows: "Even if there are no statutory rules in force for determining seniority in a service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate seniority rules or to fill the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent". The same question was considered in State of Gujarat v. Akhilesh AIR 1987 SC 2135 . In that case, the Supreme Court, in Para.6, held thus: ''It is not disputed that the circular of the Home Ministry was with reference to the Indian Police Service (Probation) Rules. We have not been shown that these instructions run counter to the rules. It is well settled that within the limits of executive powers under the Constitutional scheme, it is open to the appropriate Government to issue instructions to cover the gap where there be any vaccum or lacuna. Since instruction do not run counter to the rules in existence, the validity of the instructions cannot be disputed". The Court relied on the earlier decision reported Sant Ram Sharma's case AIR 1967 SC 1910 (supra). 20. In Krushna Chandra Sahu v. State of Orissa AIR 1996 SC 352 , the question in issue was regarding the appointment to the post of Junior Teachers under the Orissa Homoeopathy Medical Teaching Service (Methods of Recruitment and Conditions of Service) Rules, 1980. The rules did not prescribe any guidelines for adjudging the suitability of the candidates. Government also did not issue any orders with regard to the procedure. But the Selection Board followed a procedure of its own. The question was whether the procedure was correct or not. Dealing with this contention, the Supreme Court held as follows: "If the Statutory Rules, in a given case, have not been made, either by the Parliament or the Governor of the State, it would be open to the appropriate Government (the Central Government under Art.73 and the State Government under Art.162) to issue executive instructions. Dealing with this contention, the Supreme Court held as follows: "If the Statutory Rules, in a given case, have not been made, either by the Parliament or the Governor of the State, it would be open to the appropriate Government (the Central Government under Art.73 and the State Government under Art.162) to issue executive instructions. However, if the rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions". It further held that the members of the Selection Committee do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Art.309. 21. Union of India and others v. Somasundaram Viswandth and others 1989 (1) SCC 75 is another case where the validity of the executive instructions came up for consideration before the Supreme Court. In that case, the rules were framed with regard to promotion and under the rules, a Departmental Promotion Committee was constituted under the Indian Defence Accounts Service (Recruitment) Rules, 1958. Government issued orders with regard to the procedure of the Departmental Promotion Committee and under the order, it was held that the proceedings of the Departmental Promotion Committee shall be legally valid and can be operated upon notwithstanding the absence of any of its members other than the Chairman provided that the member was duly invited but he absented himself for one reason or the other. The question was whether this executive instruction issued by the Government would be enforced in the light of the relevant rules. The Court held as follows: "The Government of India's O.M. dated December 30th, 1976 is in the nature of a complete code with regard to the topics dealt with by it. Unless there is anything in the rules made under the proviso to Art.309, which is repugnant to the instructions contained in the office memorandum, the office memorandum which is apparently issued under Art.73 is entitled to be treated as valid and binding on all concerned. In the instant case, the rules do not contain any of the details with regard to the procedure to be followed by the Departmental Promotion Committees and their various functions and also to the quorum of the committee. In the instant case, the rules do not contain any of the details with regard to the procedure to be followed by the Departmental Promotion Committees and their various functions and also to the quorum of the committee. Therefore, there is no repugnancy between the rules and the O.M. and the O.M. is not in effective. According to paragraph VII of the O.M., the absence of any of the members of a Departmental Promotion Committee, other than the Chairman, would not vitiate the proceedings of the Departmental Promotion Committee provided that the member absent has been duly invited but he absented himself for some reason and that there was no deliberate attempt to exclude him from the deliberation of the committee and that the majority of the members constituting the committee are present in the meeting. In the instant case, the only person who was absent at the meeting of the Departmental Promotion Committee was the Secretary to the Government of India, Ministry of Defence who could not attend the meeting because he had to be present in Parliament at the same time at which the committee had to meet. In the circumstances, the proceedings of the committee cannot be said to have been vitiated solely because the said Secretary was not present. The proceedings were thus valid''. 22. In Comptroller and Auditor General of India v. Mohan Lal Mehrotra The Court relied on the earlier decision reported Sant Ram Sharma's case AIR 1967 SC 1910 (supra). of the Accountant General, Allahabad and they prayed for restraining the respondents from promoting certain party respondents, who were working as Section Officers and who belonged to Scheduled Caste, to the post of Accounts Officer. According to the petitioners, they were seniors to the party respondents and as per the seniority quota rules, petitioners were to be promoted early. The promotions were regulated by the Rules framed under Art.309 of the Constitution. Rules did not contain any provision for reservation for Scheduled Caste and Scheduled Tribe. But the Comptroller and Auditor General relied upon the administrative instructions contained in the circular dated 25th January 1973 for the purpose of reservation for the Scheduled Caste and Scheduled Tribe for the promotion post. Petitioners questioned the applicability of the administrative instructions contained in the circular dated 25th January 1973. But the Comptroller and Auditor General relied upon the administrative instructions contained in the circular dated 25th January 1973 for the purpose of reservation for the Scheduled Caste and Scheduled Tribe for the promotion post. Petitioners questioned the applicability of the administrative instructions contained in the circular dated 25th January 1973. The High Court held that since the relevant rules framed under Art.309 of the Constitution did not contain any provision for reservation for Scheduled Caste, such a provision cannot be enforced by administrative instructions. Dealing with the contention, the Supreme Court, in Para.12, held as follows: "The High Court is not right in stating that there cannot be an administrative order directing reservation for S.G. and S.T. as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The Government could direct the reservation by executive orders. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules". 23. The validity of the orders Exts. P-7 and P-12 as passed by the Government is to be considered in the light of the principles enunciated by the Supreme Court in the aforesaid cases, We shall first consider the validity of Ext. P-7 order. In this context, the statement in Para.5 of the counter affidavit filed by the Commissioner and Secretary to Government, Public Works Department in C.M.P. No. 24243 of 1994 in O.P. No. 13823 of 1994 points out the necessity and compulsion in issuance of Ext. P-7 order. It reads: "And on merits of the dispute also it is respectfully submitted that Ext. P-7 order is not likely to vitally affect the rights of the petitioners and similarly situated people, for the main reason that Ext. P-7 order has not sought to any way take away the 25 per cent quota for promotion to the post of Assistant Executive Engineers. It may kindly be noted that for the post of Executive Engineer also there is a reservation of 5 per cent for the diploma holding Assistant Executive Engineer shall not be eligible for promotion over a senior graduate Assistant Executive Engineer, in spite of the reserved quota. Government having thought that such a similar restriction is only a lacuna in the prevailing service conditions, sought to remedy the situation by issuing Ext. Government having thought that such a similar restriction is only a lacuna in the prevailing service conditions, sought to remedy the situation by issuing Ext. P-7 order. It is respectfully reiterated that in Ext. P-7 order also the reservation of 25 per cent for a diploma holding Assistant Engineer for promotion to the category of Assistant Executive Engineers is well protected. However, only in the interest of justice and for administrative reasons, the Government now incorporated the same restriction mentioned above for promotion from the post of Assistant Engineer to that of Assistant Executive Engineer, so that an Assistant Engineer who possesses a diploma will not be eligible for promotion to the category of Assistant Executive Engineers over a graduate Assistant Engineer having longer service. In the absence of such a clarification, it would lead to an anomalous situation of the juniors stealing a march over the seniors merely on account of a reservation quota". 24. According to the Special Rules, diploma holder's are entitled for promotion to 25 per cent of the post of Assistant Executive Engineers. As per Note 2 to R.5(b) of the Rules, the ratio would be applied to the cadre strength of Assistant Executive Engineers as a whole and not to vacancies as and when they arise. Thus, if the total cadre strength of Assistant Executive Engineers is 100, 25 posts are to be filled up by promoting diploma holders. It is clear from the counter affidavit that the ratio was not . going to be affected. Even after implementing Ext. P-7 order, the ratio is to be maintained. Thus, the promotion order could not be said to have amended the Special Rules. The graduate Assistant Engineers are promoted on the basis of their inter se seniority in the cadre of Assistant Engineers. Similarly, the diploma Assistant Engineers are promoted on the basis of their inter se seniority in the cadre of Assistant Engineers. Seniority in the cadre of Assistant Executive Engineers is dependent on the date of promotion to that cadre. Thus, depending on the date of promotion, a diploma holder may become senior to a graduate in the cadre of Assistant Executive Engineers. It appears from the counter affidavit that a large number of graduate Assistant Engineers opted for the Public Works (Roads and Buildings) Department. Thus, depending on the date of promotion, a diploma holder may become senior to a graduate in the cadre of Assistant Executive Engineers. It appears from the counter affidavit that a large number of graduate Assistant Engineers opted for the Public Works (Roads and Buildings) Department. Many of the graduate Assistant Engineers were far more senior to the diploma holders in the same cadre. Since the number of graduate Engineers was large compared to their quota in the post of Assistant Executive Engineers, their chance for promotion became less. Further, many diploma holders, who were juniors to the graduates, were entitled to promotion. This affected the morale of the graduate Assistant Engineers. After all, it is the duty of the employer to see that the morale of its employees is kept high. Further, it will be the ambition of every Government servant to secure promotion to higher post rather than being glued to the chair to which he was originally posted. It was as a solution to the above problem that the promotion order was issued. The embargo put by the aforesaid order was that a junior diploma holder would not be promoted superseding a senior graduate Assistant Engineer. The object of the order was to maintain the seniority of the graduate Engineer in the cadre of Assistant Engineer also. So long as the ratio for promotion is not affected, this order could not be said to be illegal. It was issued as supplementing the Rules in order to rectify the anomaly created by a large number of graduate Assistant Engineers being seniors. It does not trespass into the field covered by the Special Rules. Hence, according to us, Ext. P-7 order could not be challenged as one amending the rules, since it was issued only to supplement the statutory rules in order to cover up the gap where vacuum or lacuna was created and , therefore, these instructions did not run counter to the Special Rules. 25. Now we shall consider the validity of Ext. P-12 order. Originally, the Kerala Engineering Service consisted of four categories of officers, viz. Chief Engineers, Superintending Engineers, Executive Engineers and Assistant Executive Engineers. By an amendment of the Rules effected by G.O. (P) No. 41/94/PW and T, dated 3rd June 1.994, the categories were increased to five by including the post of Assistant Engineers also. P-12 order. Originally, the Kerala Engineering Service consisted of four categories of officers, viz. Chief Engineers, Superintending Engineers, Executive Engineers and Assistant Executive Engineers. By an amendment of the Rules effected by G.O. (P) No. 41/94/PW and T, dated 3rd June 1.994, the categories were increased to five by including the post of Assistant Engineers also. By the impugned Government order, two additional categories were included, viz. Special Grade Executive Engineer immediately above the category of Executive Engineer and Special Grade Assistant Executive Engineer immediately below the post of Executive Engineer". Before going into the validity of the above Government order, let us examine the circumstances which led to the issuance of the above order and which is found to be stated in the order itself. The order refers to the bifurcation of the erstwhile Public Works Department. As a consequence of the option exercised by several graduate Assistant Engineers and Assistant Executive Engineers in favour of the Public Works Department far in excess of the sanctioned posts available in the Public Works Department, the surplus optees had to be first accommodated in the Irrigation Department for some time and absorbed in the Public Works Department later as and when vacancies arose. Owing to the paucity of vacancies in the Public Works Department, the graduate Assistant Engineers were facing absolute stagnation and in certain cases, some graduate Assistant Engineers had to retire on superannuation in the entry cadre itself without getting any promotion in their whole career. It was stated that the acute stagnation faced by the graduate Engineers could be removed only by restructuring the Engineering Service and redistributing the posts suitably. Originally, the number of posts involving five categories was 1380. There were 74 posts of Executive Engineers. A certain percentage of these posts was to be in the higher scale of pay of Rs. 3900 5075. Similarly, out of 311 posts of Assistant Executive Engineers, 33 per cent were in the higher scale of Rs. 2650-4200. The number of posts had not been increased even after restructuring. The number of posts were distributed amongst various categories. It further stated that orders regarding method of appointment to the above categories will be issued separately. 26. 3900 5075. Similarly, out of 311 posts of Assistant Executive Engineers, 33 per cent were in the higher scale of Rs. 2650-4200. The number of posts had not been increased even after restructuring. The number of posts were distributed amongst various categories. It further stated that orders regarding method of appointment to the above categories will be issued separately. 26. Considering the facts and circumstances appearing from various affidavits and counter affidavit filed by the State and after considering the contentions raised by the parties as discussed in preceding paragraphs, we are of the view that Ext. P-12 order did not affect the rights of the diploma holders. On the other hand, if Ext. P-12 order is implemented, the promotion prospects of the diploma holders will also be increased. The strength of the diploma holders in the category of Assistant Executive Engineers will be increased from 78 to 116. Besides, they are entitled for promotion to the category of Special Grade Assistant Executive Engineers. Thus the above order does not in any way interfere with any of the legitimate rights of the diploma holders Assistant Executive Engineers. The new categories were made as supplemental to the categories already existing. The order was made on account of the circumstances which arose due to bifurcation and to avoid stagnation at the entry cadre. It could not be laid that Ext. P-12 order amended or varied the Special Rules. There was nothing wrong in introducing the above categories by an executive order. In this view, we hold that Ext. P-12 order did not amend or run counter to the Special Rules. The judgment of the learned Single Judge quashing Exts. P-7 and P-12 orders is, therefore, set aside and the appeals are allowed, but without any order as to costs. The contempt case (C.C.C. No. 40 of 1997) is accordingly dismissed.