JUDGMENT : N. Kotiswar Singh, J. Heard Mr. D. Das, learned Senior counsel assisted by Mr. H.K. Nath, for the appellant. Also heard Mr. B.D. Goswami, learned Additional Advocate General, State of Arunachal Pradesh, appearing for respondent Nos.2-4 and Mr. M.H. Laskar, learned counsel appearing for the respondent No.1/writ petitioner. 2. In this appeal, the appellant has challenged the order dated 11.06.2019 passed by the learned Single Judge in WP(C) No.319(AP)/2016, by which the absorption of the appellant vide order dated 21.12.2015 issued on 31.12.2015 WA 166/2019 vide Memo No.DSJE-90/2014(E)/284 to the post of Deputy Director in the Department of Social Justice, Empowerment & Tribal Affairs, Government of Arunachal Pradesh was set aside with further direction to the respondent authorities to consider the case of the respondent No.1/writ petitioner for promotion to the post of Deputy Director in accordance with the Deputy Director (SW) Group-A, Recruitment Rules, 1998. 3. The aforesaid writ petition was filed by the present respondent No.1 primarily on the ground that the initial deputation of the appellant to the Department vide order dated 26.09.2014 and his subsequent permanent absorption vide order dated 21.12.2015 was dehors the Recruitment Rules and also by ignoring the claim of the respondent No.1/writ petitioner. It was also submitted that though there was an office memorandum issued by the State Government on 28.01.2014 specifying that the minimum qualification for appointment by way of promotion to the said post of Deputy Director would be graduate, which also recommended making amendments in the relevant Recruitment Rules, it was contended that the said office memorandum could not have the effect of superseding the Recruitment Rules, in which no such educational qualification was provided, till the Recruitment Rules were amended. It was contended that at the time of deputation and absorption of the appellant, the Recruitment Rules had not been amended. Accordingly, the learned Single Judge also held that the said office memorandum dated 28.01.2014 issued by the Chief Secretary, Government of Arunachal Pradesh is a general office memorandum fixing basic educational qualification as graduation from a recognized university for promotion to Group-A, Group-B post. In the present case, the Deputy Director post is a Group-A post. It was also observed that the said memorandum provided for initiating the process for amendment of the existing service rules. In the present case, the Deputy Director post is a Group-A post. It was also observed that the said memorandum provided for initiating the process for amendment of the existing service rules. According to the learned Single Judge, however, it was found that no amendment to the Recruitment Rules pertaining to the post of Deputy Director, Social Justice, Empowerment & Tribal Affairs Department was carried out and in absence of such corresponding amendment made to the Recruitment Rules, the decision taken by the office memorandum dated 28.01.2014 prescribing the minimum qualification as graduation for promotion to Group-B and Group-A being merely an executive order, could not have the effect of superseding the Recruitment Rules. As such, since the respondent No.1/writ petitioner had already 3 years of regular service, which is also provided in the Recruitment Rules and as it did not stipulate the educational qualification, the respondent No.1/writ petitioner was also eligible and the absorption of appellant to the post of Deputy Director without considering the claim of the respondent No.1 was not valid and accordingly, the learned Single Judge passed the aforesaid order setting aside the absorption of the appellant vide order dated 21.12.2015 issued on 31.12.2015. 4. Learned Senior counsel for the appellant submits that the fact remains that subsequently on 01.11.2016, necessary amendments were brought in the relevant Recruitment Rules by which it was specifically mentioned that the minimum qualification for promotion to the post of Deputy Director would be graduation. He also submits that when the order was passed by learned Single Judge on 11.06.2019, the Recruitment Rules had already been amended and given effect to, providing for possession of minimum qualification of graduation for promotion to the post of Deputy Director, Department of Social Justice, Empowerment & Tribal Affairs, Government of Arunachal Pradesh and as such, there is no illegality with the absorption order. 5. Learned Senior counsel for the appellant further submits that even otherwise also, the aforesaid office memorandum dated 28.01.2014 though was issued as an executive instruction, had the effect of filling up the void and clarifying which was not provided under the Recruitment Rules. 5. Learned Senior counsel for the appellant further submits that even otherwise also, the aforesaid office memorandum dated 28.01.2014 though was issued as an executive instruction, had the effect of filling up the void and clarifying which was not provided under the Recruitment Rules. Drawing attention of this Court to the relevant Recruitment Rules, learned Senior counsel submits that in the pre-amended Recruitment Rules for the aforesaid post of Deputy Director, which was to be filled up by promotion, as regards prescription of the age and educational qualification, nothing was mentioned and as such, the said office memorandum issued on 28.01.2014 would have the effect of filling up the said absence of any prescription of the educational qualification and as such, the said Recruitment Rules does not require to be amended for the purpose of prescribing graduation as a minimum educational qualification for the said post. In this regard, learned Senior counsel has placed reliance on the following decisions of the Hon'ble Supreme Court as well as this High Court to buttress his submission that the Recruitment Rules can always be supplemented by the executive instruction wherever any such lacuna/void or gap exists:- (i) Senior Superintendent of Post Offices, Allahabad & Ors. Vs. Izhar Hussain. [ (1989)4 SCC 318 ] (ii) Sant Ram Sharma Vs. State of Rajasthan & Ors.[ AIR 1967 SC 1910 ] (iii) Union of India Vs. H.R. Patankar & Ors. [1984 (Supp) SCC 359] (iv) I Ayangla Imchen Vs. State of Nagaland & Ors.[(2009)5 GLR 741] 6. Accordingly, it has been submitted that since the appellant was deputed to the department and subsequently absorbed after the coming into force of the said office memorandum dated 28.01.2014 which had the effect of filling up the gap as regards the educational qualification, the deputation and absorption of the appellant does not suffer from any irregularity or illegality. Further, it has been submitted that the respondent No.1/writ petitioner himself is not yet qualified in as much as he is merely a Class-XII passed, who does not have the graduation and as such being not eligible does not have any locus standi to challenge the absorption. 7. Further, it has been submitted that the respondent No.1/writ petitioner himself is not yet qualified in as much as he is merely a Class-XII passed, who does not have the graduation and as such being not eligible does not have any locus standi to challenge the absorption. 7. This Court agrees with the submission advanced by the learned Senior counsel for the appellant that though the Recruitment Rules which had been framed under proviso to Article 309 of the Constitution of India, can be amended only by another set of rules made under proviso to Article 309 of the Constitution, however, when any such void or gap exists in the Recruitment Rules, such void or gap can be filled up by an executive instruction in view of the decision rendered by the Hon'ble Supreme Court, as referred to above. In other words, such executive instruction can supplement any such void or gap in the Recruitment Rules though it cannot supplant. 8. In this regard, the observation of the Hon'ble Supreme Court in the aforesaid decisions may be referred to. In Sant Ram Sharma (supra) it was held as follows:- “7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. 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 or 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.” The Hon'ble Supreme Court in H.R. Patankar (supra) also held as under:- “4. …........................................................ There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. …........................................................ There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down a rule for determining inter se seniority in such a situation and this could be done by the Government of India even by an executive order. It is now well settled law that 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 in 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 Government of India could have therefore in the present case issued an executive order laying down a rule for determining inter se seniority between officers appointed to the Service prior to April 11, 1958 on the one hand and officers appointed to the Service on or after that date on the other. ….....................................” The Apex Court in Izhar Hussain (supra) similarly held as under:- “6. Shri Anil Dev Singh, appearing for the Union of India, contended that the Government of India has issued instructions dated 11-7-955 and 8-2-1956 which lay down that the retirement under Rule 2(2) of the Pension Rules should be effected when such retirement is necessary in public interest. The instructions being supplementary to the rule, according to him, the order of retirement has to be in “Public Interest” and as such there is no vice of arbitrariness in the rule. We do not agree with this contention of the learned counsel. A statutory rule cannot be modified or amended by executive instructions. A valid rule having some lacuna of gap can be supplemented by the executive instructions, but a statutory rule which is constitutionally invalid cannot be validated with the support of executive instructions. The instructions can only supplement and not supplant the rule.” 9. In the present case as noted above, it is very clear that in the pre-amended Recruitment Rules there was no prescription as regards the educational qualification for promotion to the post of Deputy Director. The instructions can only supplement and not supplant the rule.” 9. In the present case as noted above, it is very clear that in the pre-amended Recruitment Rules there was no prescription as regards the educational qualification for promotion to the post of Deputy Director. However, that void was sought to be filled up by the aforesaid executive instruction issued on 28.01.2014, for which amendment of the Recruitment Rules was not obligatory, though, the Recruitment Rules were subsequently amended. As such, this Court is satisfied that there was no illegality on the part of the authorities in appointing the appellant on deputation and as such, in absorbing his services vide order dated 21.12.2015. 10. Mr. Laskar, learned counsel for the respondent No.1/writ petitioner, submits that the respondent No.1/writ petitioner otherwise, was not keen to pursue the said writ petition for certain personal reasons and had accordingly instructed his counsel, but it appears that the said instruction of the respondent No.1 was not conveyed to the learned Single Judge and the learned Single Judge went on to decide the matter on merit. 11. It has been submitted that in spite of the order passed by the learned Single Judge in favour of the respondent No.1, the respondent No.1 is not inclined to pursue the case against the present appellant and to that effect an affidavit has been filed by the respondent No.1/writ petitioner on 05.12.2019 before this Court, wherein it has been mentioned in paragraphs 2 and 3 as follows:- “2. That without going to the merit to the writ appeal, the humble deponent begs to state that the Writ Petition being numbered W.P.(C) 319(AP)/2016 was filed by the deponent challenging the Order dated 21.12.2015 issued by the Commissioner (Social Justice, Empowerment and Tribunal Affairs), Government of Arunachal Pradesh, whereby the Appellant herein was permanently absorption to the post of Deputy Director in the Department of Social Justice, Empowerment and Tribal Affairs. The deponent further challenged the speaking order dated 15.04.2015 and the Office memorandum dated 28.01.2014 respectively issued by the Chief Secretary, Government of Arunachal Pradesh. 3. That the deponent begs to state that the deponent suffered from serious ailment, and admitted to the Hospital for which the deponent could not take updates about the pending of the writ petition. The deponent further challenged the speaking order dated 15.04.2015 and the Office memorandum dated 28.01.2014 respectively issued by the Chief Secretary, Government of Arunachal Pradesh. 3. That the deponent begs to state that the deponent suffered from serious ailment, and admitted to the Hospital for which the deponent could not take updates about the pending of the writ petition. The deponent due to ailment, had instructed his engaged counsel to inform the Hon'ble Court that he is no more interested to pursue the writ petition filed by the deponent and further instructed to withdraw the writ petition pending before the Hon'ble court. As such deponent though that the writ petition was withdrawn by the learned engaged counsel of the deponent.” 12. Accordingly, in the light of the above submission made, as well as the legal principles discussed above, we set aside the impugned order dated 11.06.2019 passed by the learned Single Judge in WP(C) No.319(AP)/2016. 13. It has been submitted by the learned Senior counsel for the appellant that the appellant is holding the post of Director on in-charge basis since 28.04.2017. It is for the respondent authorities to take necessary steps for filling up the said post of Director on regular basis as per rules by considering the case of the appellant also, as the impediment caused earlier as far as the appellant is concerned by the impugned judgment and order dated 11.06.2019 passed in WP(C) No.319(AP)/2016 does not exist any longer. 14. The appeal is accordingly, allowed, however, without any cost.