JUDGMENT : 1. Heard Mr. PK Tiwari, learned Senior counsel for the petitioner in WP(C) No. 187(AP)/2021 and Ms. Nikita Darggen, learned counsel for the petitioners in WP(C) 175(AP)/2020. Also heard Mr. S Tapin, learned Senior Government Advocate, Arunachal Pradesh. 2. Brief facts of WP(C) 187 (AP)/2021: The petitioner is Class XII pass in science stream and was directly recruited as Forest Ranger in 1984 in terms of Group C (Non-Gazetted) General Central Service Recruitment Rules, 1984 which governed the recruitment of Forest Ranger. After his appointment as Forest Ranger, the petitioner underwent 2 years Forest Rangers Certificate Course. Thereafter, the petitioner was promoted to APFS-II (Grade-II) i.e. Assistant Conservator of Forest, Group B (Gazetted) vide order dated 05.10.1994 under Arunachal Pradesh Forest Service Rules, 1990. Vide order dated 20.07.2010, he was promoted to APFS-I (Grade-I) i.e. Deputy Conservator of Forest (Selection Grade) under Arunachal Pradesh Forest Service Rules, 1999. The Arunachal Pradesh Forest Service Rules, 1999 were substituted by the Arunachal Pradesh Forest Service Rules, 2019 under which the qualification for promotion from Forest Ranger to various grades of APFS as existed under the Arunachal Pradesh Forest Service Rules, 1999 was altered to Graduation/Bachelors Degree in Science/B.Sc. (Forestry) from a recognized University. As such the petitioner who was eligible for promotion under the Arunachal Pradesh Forest Service Rules, 1999 for promotion to APFS (Administrative Grade) became ineligible for such promotion. Since alteration in the qualification for promotion under the Arunachal Pradesh Forest Service Rules, 2019 generated resentment among promote officers not having qualification of graduation in science, the Government of Arunachal Pradesh by Office Memorandum dated 09.06.2020 exempted the certificate course holder from the essential qualification of graduate in Science and restored the earlier qualification for promotion under the Arunachal Pradesh Forest Service Rules, 1999 and as a result of which the petitioner again became eligible for promotion from the cadre of Deputy Conservator of Forest (Selection Grade) to Deputy Conservator of Forest (Administrative Grade). However, the Departmental Promotion Committee while recommending the APFS officers for promotion from Deputy Conservator of Forest (Administrative Grade) ignored the OM dated 09.06.2020. 3. However, the Departmental Promotion Committee while recommending the APFS officers for promotion from Deputy Conservator of Forest (Administrative Grade) ignored the OM dated 09.06.2020. 3. Brief Facts of WP(C) 175 (AP)/2020: The petitioners, 11 in numbers, are serving as Range Forest Officers (Graduate/Degree holder) under the Department of Environment and Forest, Government of Arunachal Pradesh and have filed the writ petition assailing the legality and validity of the impugned OM No. F/No. AR-143/2019 dated 09.06.2020 issued by the Secretary, Department of Administrative Reforms, Government of Arunachal Pradesh, Itanagar (respondent No. 2) to the extent whereby exemption were granted to the Forest Officers (respondent Nos. 4 to 15) undergraduate or class XII passed and the holders of the certificate of Range Forest Course, from the requirement of possessing minimum educational qualification of Graduation/Bachelor Degree in Science/B.Sc. (Forestry) from a recognized University for promotion to the higher grade in utter violation and or suppression of the governing recruit recruitment rules, namely, the Arunachal Pradesh Forest Service Rules, 2019, more particularly, the provisions as provided in Rule 5 (ii) of PART-III and Rule 6 (2) (a) of PART IV of the said Rules, which, inter-alia, unequivocally provide that only the officers who are holding the substantive post of Range Forest Officer, Group-B (Gazetted) and possess the minimum educational qualification of Graduation/Bachelor Degree in Science/B. Sc (Forestry) from a recognized University as provided in Rule 6(2)(a) shall be eligible for promotion in the Entry Grade of the Arunachal Pradesh Forest Service. 4. From the aforesaid facts and challenges made in the two writ petitions, it is clear that the bone of contention is the Office Memorandum dated 09.06.2020 issued by the Secretary to the Department of Administrative Reform, Government of Arunachal Pradesh. The petitioner in WP(C) 187 (AP)/2021 claims for benefits under the said Office Memorandum, whereas the petitioners in WP(C) 175 (AP)/2020 assail the very basis of the same. Therefore, in the aforesaid backdrop, this court is to determine whether the petitioner in WP(C) 187(AP)/2021 is entitled for the benefits under the said Office Memorandum and accordingly entitled for promotion to the next higher grade or whether the OM dated 09.06.2020 is in derogation of Service rule, 2019? 5. Therefore, in the aforesaid backdrop, this court is to determine whether the petitioner in WP(C) 187(AP)/2021 is entitled for the benefits under the said Office Memorandum and accordingly entitled for promotion to the next higher grade or whether the OM dated 09.06.2020 is in derogation of Service rule, 2019? 5. In the aforesaid backdrop, now let this court examine the factual matrix, involving both the writ petitions: I. The petitioner in WP(C) 187(AP)/2021 (hereinafter referred to as Rini Riba) was directly recruited as Forest Ranger in 1984 in terms of Group C (Non- Gazetted) General Central Service Recruitment Rules, 1984. He passed Class XII in Science Stream and after his appointment as Forest Ranger had undergone two years Forest Ranger Certificate Course. II. Thereafter, Rini Riba was promoted to the post of Assistant Conservator of Forests, Group B (Gazetted) or AFPS-II (Grade II) vide Memorandum dated 05.10.1994. III. The Arunachal Pradesh Forest Service Rules, 1990 were substituted by the Arunachal Pradesh Forest Service Rules, 1999 published in the Arunachal Pradesh Gazettee dated 30.09.1999. The 1999 Rules introduced the minimum qualification of graduation in Science for direct recruitment. However, no change in the eligibility criteria for promotion from Forest Ranger to APFS-II (Grade II) or SFS Group B (Gazetted) or Assistant Conservator of Forest, Group B (Gazetted). IV. Thereafter, Rini Riba was promoted from APFS-II (Grade II) to APFS-I (Grade II), i.e. Deputy Conservator of Forests. V. Vide order dated 20.07.2010, Rini Riba was promoted to APFS (Selection Grade), i.e. Deputy Conservator of Forests (Selection Grade). VI. On 15.10.2010, the Arunachal Pradesh Forest Service (Amendment) Rules, 2010 was published in the Arunachal Pradesh Gazette. The Amendment Rules reconstituted APFS into entry, senior, selection and administrative grades, all of which were made SFS Group A (Gazetted) posts. VII. On 28.01.2014, Government of Arunachal Pradesh, Department of Administrative Reforms issued an Office Memorandum fixing the basic educational qualification as Graduation from a recognized University for promotion to the Group B and Group A posts/services in the State of Arunachal Pradesh and all the departments/organizations under the Government of Arunachal Pradesh were directed to insert the educational qualification of Graduation or Bachelor Degree from a recognized University in place of lower qualification in the existing recruitment rules of the departments. VIII. VIII. On 28.01.2014, the Government of Arunachal Pradesh, Department of Administrative Reforms issued another O.M. dated 27.05.2015, suspending such requirement of graduation provided in the OM dated 28.01.2014 for four years from the date of issue of the O.M. dated 27.05.2015 providing that the O.M. dated 28.01.2014 shall be introduced after the expiry of the four years period. Thus once again exemption of graduate qualification in promotion was granted. IX. On 18.01.2016, Government of Arunachal Pradesh issued another Office Memorandum, by which diploma holders in various disciplines, like Engineering, Architecture, Nursing, Tourism, Hotel Management and Catering Technology, Applied Arts, Crafts and Draftsman, were exempted from the requirement of possessing Graduation/Bachelors Degree for promotion to the posts/services classified as Group A & B. Thus, the diploma holders were kept out of the purview of the OM dated 28.01.2014. X. On 04.03.2019, Gradation list of Arunachal Pradesh Forest Service Officers as on 01.01.2019 was circulated. In the list, the petitioner Rini Riba was shown as the senior-most Officer in the Selection Grade of APFS. XI. The Government of Arunachal Pradesh, Department of Administrative Reforms issued yet another OM dated 29.08.2018, by which the State reintroduced the minimum educational qualification of Graduation/Bachelors Degree from a recognized University for appointment to Group A and B posts/services either by direct recruitment or by promotion with effect from the date of issue of the OM. However, it excluded from its purview the diploma holders in the disciplines of Engineering, Architecture, Nursing, Tourism, Hotel Management and Catering Technology, Applied Arts, Crafts and Draftsman. XII. The Arunachal Pradesh Forest Service Rules, 2019 repealing the Arunachal Pradesh Forest Service Rules, 1999 were enacted under proviso to Article 309 of the Constitution of India and was published in the Arunachal Pradesh Gazette (Extra Ordinary) dated 17.01.2020. The Rules provided for four Grades in the APFS, namely, Entry Grade, Senior Grade, Selection Grade and Administrative Grade. It was provided that the posts specified in all the Grades shall be State Civil Services Group A (Gazetted) posts. Rule 33 (5) laid down the minimum educational qualification of Graduation/Bachelors Degree in Science/B.Sc. (Foresty) from a recognized University for appointment/promotion as prescribed under Clause (a) of Sub-Rule (2) of Rule 6. XIII. It was provided that the posts specified in all the Grades shall be State Civil Services Group A (Gazetted) posts. Rule 33 (5) laid down the minimum educational qualification of Graduation/Bachelors Degree in Science/B.Sc. (Foresty) from a recognized University for appointment/promotion as prescribed under Clause (a) of Sub-Rule (2) of Rule 6. XIII. On 14.02.2020, the Conservator of Forrest intimated Rini Riba about his being in the zone of consideration for promotion to the Deputy Conservator of Forest (Administrative Grade) and asking the petitioner to obtain necessary Vigilance Clearances/NOC from the concerned Deputy Commissioner and to submit the same to the office of the Conservator of Forests. XIV. Proposal of exempting the holders of two years Forest Rangers Course from possessing the minimum educational qualification of Graduation/Bachelors Degree for appointment to Group A and B posts of APFS was considered in the meeting of the State Cabinet held on 08.05.2020 and the proposal was approved exempting those who had completed Forest Rangers Course from Government recognized institutions from having to possess Graduate/Bachelors Degree for appointment to Groups A and B posts of APFS. XV. On 21.05.2020, the Conservator of Forest issued letter to various Senior Forest Officials asking them about procuring Vigilance Clearances and NOCs of eligible Forest Officers in the zone of consideration for promotion to various grades of APFS including Entry Grade. XVI. On 28.05.2020, Rini Riba obtained the Vigilance Clearance NOC from the Deputy Commissioner, Namsai and handed over the same to the Conservator of Forests, Eastern Working Plan, Namsai, District Namsai and the Conservator of Forest in turn forwarded the same to the PCCF for consideration of his case for promotion to Deputy Conservator of Forests (Administrative Grade). XVII. On 09.06.2020, the impugned Office Memorandum implementing Cabinet decision dated 08.05.2020 was issued and was published in Arunachal Pradesh Gazette dated 14.08.2020 in the name of the Governor, Arunachal Pradesh. XVIII. Graduate Forest Range Officers preferred WP(C) 175 (AP)/2020 challenging the Office Memorandum dated 09.06.2020 and for a direction to carry out the selection process for promotion of the Forest Range Officers to the Entry Grade of APFS strictly under the provisions of the 2019 Rules. XIX. On 30.06.2020, this court passed an interim order restraining the State respondents from taking any further steps under the Office Memorandum dated 09.06.2020. XX. Thereafter, Rini Riba preferred the writ petition as discussed above. 6. XIX. On 30.06.2020, this court passed an interim order restraining the State respondents from taking any further steps under the Office Memorandum dated 09.06.2020. XX. Thereafter, Rini Riba preferred the writ petition as discussed above. 6. Submissions of the learned counsel for the petitioner in WP(C) 187 (AP)/2021 (Rini Riba). Mr. P K Tiwari, learned Senior counsel for the petitioner Rini Riba submits the followings: I. The Office Memorandum dated 09.06.2020 was issued in implementation of the Cabinet decision dated 08.05.2020 exempting the holders of two years Forest Rangers Certificate Course from possessing the minimum educational qualification of graduation/bachelors degree for appointment to Group A and Group B posts of APFS. The said office memorandum laid down the principle of general application to be observed in respect of those Forest Officers who had completed two years Forest Rangers Certificate Course and the office memorandum was duly authenticated by a signature under the endorsement “By an order in the name of the Governor of Arunachal Pradesh” and was intended to be applicable straightaway and as such the same will amount to rules framed in exercise of powers under proviso to Article 309 of the Constitution. Hence the said office memorandum has to be read within the APFS Rules 2019, thereby exempting those APFS Officers who had undergone two years Certificate Forest Rangers Course from the requirement of possessing the educational qualification of graduation/Bachelors Degree in Science/B.Sc. (Forestry) from a recognized University for the purpose of promotion to the higher posts including Administrative Grade post in the APFS. In this connection, the learned counsel relies on the Full Bench decision of the Bombay High Court in the case of Chandrakant Sakharam Karkhanis Vs State of Maharashtra reported in (1976) SCC online Bom 109 and also Agani Charan Das & Ors. Vs. State of Orissa & Anr reported in 2008 0 Supreme (Ori) 900. II. The learned Senior counsel further contends that the Office Memorandum mainly and substantially deal not only with the topic of recruitment to higher post but also of the service condition of a Government servant. Further the said Office Memorandum contains principle of general applicability of granting exemption to a distinct class of Forest Officers who had completed two years Forest Rangers Certificate Course from having to possess the educational qualification of Graduation/Bachelors Degree from a recognized University for appointment to Group A and B posts of APFS. Further the said Office Memorandum contains principle of general applicability of granting exemption to a distinct class of Forest Officers who had completed two years Forest Rangers Certificate Course from having to possess the educational qualification of Graduation/Bachelors Degree from a recognized University for appointment to Group A and B posts of APFS. He further submits that the OM dated 09.06.2020 published in the Arunachal Pradesh Gazette dated 14.08.2020 fulfills the twin test laid down by the Full Bench of the Bombay High Court for such circular, order or resolution in order to be read as the rules framed under the proviso to Article 309 of the Constitution. It is submitted that it is not necessary for the said OM dated 09.06.2020 to specifically refer to the APFS Rules, 2019 clearly expressing its intent to amend such Rules for exempting the Forest Service Officers having undergone two years Forest Rangers Certificate Course from requirement of possessing the qualification of Bachelors Degree for promotion to Group A and B posts of APFS. It would be sufficient compliance of the law if the object, purpose and intention of such OM deal with the same subject as covered by the Rules made under proviso to Article 309 of the Constitution. Moreover, the Cabinet cannot be attributed the ignorance of APFS Rules, 2019. It is to be presumed that the Cabinet was well aware of the APFS Rules, 2019 and the qualification prescribed which incorporated in compliance of the Government decision contained in the OM dated 28.01.2014. The Cabinet in its wisdom chose to mention the OM dated 28.01.2014 and not the Rules under proviso to Article 309 of the Constitution which incorporated the qualification suggested by the OM dated 28.01.2014. So long as the core of the subject matter and the intention and purpose of the OM dated 09.06.2020 is clear, namely, granting exemption to Forest Officers having completed two years Forest Rangers Certificate Course from the requirement of possessing Bachelors Degree for promotion to the higher grades in APFS, it will have to be read in sync with the Rules framed under proviso to Article 309 of the Constitution carving out the necessary exception for the concerned Forest Officers for whose benefit such OM is issued. III. III. The learned Senior counsel submits that the Hon’ble Supreme Court in Jaipur Development authority vs. Vijay Kr Data reported in (2011) 12 SCC 94 laid down the principle of law that only an order expressed in the name of the Governor and authenticated in the manner specified in the Rules made under Article 166(2) & (3) of the Constitution can be treated to be an order made on behalf of the Government. In the present case, in conformity with the Arunachal Pradesh Rules of Executive Business, 1987 made under Article 166 (2) and (3) of the Constitution and pursuant to the Cabinet decision dated 08.05.2020, the OM dated 09.06.2020 was issued in the name of the Governor and was published in the Arunachal Pradesh Gazette dated 14.08.2020. Therefore, the said OM will have the same force as that of the APFS rule, 2019 made under proviso to Article 309 of the Constitution and consequently will have to be read in the said Rules carving out necessary exception for the APFS Officers who had undergone two years Forest Rangers Certificate Course for promotion to the higher grades in APFS. IV. The learned Senior counsel also submits that there is yet another significant aspect of the present case. The educational qualification of Graduation prescribed in the APFS Rules, 2019 for promotion to various grades of APFS has created an anomalous/inconsistent situation for the under graduate Forest Officers, who are otherwise eligible for promotion to Indian Forest Service (IFS) under the Indian Forest Service (Appointed by Promotion) Regulations, 1966. Regulation 5 of the 1966 Regulation provides for preparation of a list of suitable officers for promotion to the Indian Forest Service (IFS). The third proviso to Regulation 5(2) of the Regulation mandates that the member of the State Forest Service (SFS) substantive in the State Forest Service having completed not less than 8 years of continuous service is eligible for promotion to the IFS. The petitioner being the senior most SFS officer in the Selection Grade of APFS is eligible for promotion to IFS under the 1966 Regulation. Accordingly, the Government of Arunachal Pradesh by letter dated 29.10.2021 furnished the proposal for convening selection committee meeting for promotion of SFS Officers to IFS for the select year 2018. In the proposal dated 29.10.2021, the name of the petitioner can be seen at serial No. 5. Accordingly, the Government of Arunachal Pradesh by letter dated 29.10.2021 furnished the proposal for convening selection committee meeting for promotion of SFS Officers to IFS for the select year 2018. In the proposal dated 29.10.2021, the name of the petitioner can be seen at serial No. 5. However, due to certain reasons, the meeting of the Selection Committee was postponed and the decision to postpone the meeting of the Selection Committee was communicated by the UPSC in its letter dated 28.03.2022 to the Chief Secretary to the Government of Arunachal Pradesh. Subsequently, the PCCF/HoFF-Cum- Principal Secretary, Environment, Forest & Climate Change, by his letter dated 21.04.2022 to the under Secretary, UPSC, seeking a clarification in respect of the Rini Riba and some other officers, who had the educational qualification of Class XII Science and were elevated to State Forest Service in terms of the then existing recruitment Rules that as to whether such officers are eligible for induction into IFS. The UPSC in turn forwarded the query of the PCCF/HoFF to the Government of India, Ministry of Personnel, Public Grievances & Pension, which by letter dated 20.05.2022 to the Secretary, UPSC clarified that the IFS Recruitment Rules provides for two distinct modes of recruitment to All India Services, namely, direct recruitment and recruitment by promotion from the State Services and these two distinct modes of recruitment have their mutually independent conditions of eligibility. It was clarified that the conditions of eligibility for recruitment by promotion to the all India Services are exclusively governed by the relevant IAS/IPS/IFS (Appointment by Promotion) Regulation, 1955/1966, respectively. V. Accordingly, Mr. Tiwari, learned Senior counsel submits that in spite of being an under graduate under the existing IFS (Appointment by Promotion) Regulation, 1966, Rini Riba is eligible for promotion to IFS and is also under the zone of consideration for the same and the proposal containing his name has also been furnished by the Government of Arunachal Pradesh to the UPSC for convening the meeting of the Selection Committee. However, Rini Riba under the existing APFS Rules, 2019, is not eligible for promotion from the Selection Grade to the Administrative Grade in the State Forest Service if he is not given the benefit of exemption as prescribed in the OM dated 09.06.2020. It is clearly an anomalous situation and defies the common sense. However, Rini Riba under the existing APFS Rules, 2019, is not eligible for promotion from the Selection Grade to the Administrative Grade in the State Forest Service if he is not given the benefit of exemption as prescribed in the OM dated 09.06.2020. It is clearly an anomalous situation and defies the common sense. It is submitted that the OM dated under graduate SFS Officers who had completed two years Forest Rangers Certificate Course and exempts these officers from the recruitment of having graduation/Bachelor degree for promotion from Selection Grade to Administrative Grade. 7. Submissions of the learned counsel for the petitioner in WP(C) 175 (AP)/2020 (Graduate Forest Rangers). Ms. N Darggen, learned counsel representing the petitioners in WP(C) 175 (AP)/2020 submits the followings: I. The O.M. dated 09.06.2020 does not refer to the APFS Rules, 2019, which was made in exercise of powers under proviso to Article 309 of the Constitution incorporating therein the eligibility criteria as decided by the Government of Arunachal Pradesh in its O.M. dated 28.01.2014 and therefore, the said O.M. dated 09.06.2020 cannot be read in sync with the APFS Rules, 2019 and cannot have the same force as that of the Rules made under proviso to Article 309 of the Constitution. II. The learned counsel for the petitioners in WP(C) No. 175(AP)/2020 submits that if the statutory rules framed by the Governor or any law enacted by the State legislature under Article 309 is silent on any particular point, the Government can fill up that gap and supplement the rules by issuing administrative instructions not in consistent with the statutory provisions already framed or enacted. The executive instructions in order to be valid must run subservient to the statutory provisions. In the instant case, however, it could not be said that there was a gap or a void in the statutory provisions in the matter of promotion. Therefore, the OM can’t be made part of the Rule, 2019. In support of her submission, learned counsel relies on in the case of District Registrar, Palghat vs M.B. Koyyakuttti :: AIR 1979 SC 1060 . III. The learned counsel for the petitioners in WP(C) No. 175(AP)/2020 presses an argument that since there was no gap or void in the APFS Rules, 2019 in the matter of promotion and the educational qualification was specifically prescribed therein, the same could not have been altered for. III. The learned counsel for the petitioners in WP(C) No. 175(AP)/2020 presses an argument that since there was no gap or void in the APFS Rules, 2019 in the matter of promotion and the educational qualification was specifically prescribed therein, the same could not have been altered for. To buttress his submission, the learned counsel relies on the decision of the Hon’ble Apex court in District Registrar, Palghat (supra). IV. The further submission of Ms. N Darggen, learned counsel is that the Govt. of Arunachal Pradesh took a policy decision by O.M. No. AR-74 dated 28/30-01- 2014 (issued by respondent No. 2) wherein it was decided to fix graduation/degree as a minimum qualification for appointment to Group A/B posts in direct recruitment and or promotion. The aforesaid O.M. was kept in abeyance for a period of 4 years w.e.f. 27.05.2015 to enable undergraduate officers to earn graduation degrees and it was latter re-introduced on 29.08.2019. Therefore, the Govt. had given enough opportunity to non-graduates to advance in their careers to remove any hardships which they might have faces due to OM No. AR-74 dated 28/30-01-2014. V. It was under these circumstance that the Arunachal Pradesh Forest Service Rules, 2019, more particularly, the provisions as provided in Rule (ii) of PART III and Rule 6(2)(a) of PART IV of the said rules, which, inter-alia, unequivocally provide that only the officers who are holding the substantive post of Range Forest Officer, Group-B (Gazetted) and possess the minimum educational qualification of Graduation/Bachelor Degree in Science/B.Sc. (Forestry) from a recognized University as provided in Rule 6 (2)(a) shall be eligible for promotion in the Entry are responsible for this kind of training and all the Forest Institutes in India are under their control, submits the learned counsel. VI. The learned counsel concluded her argument by submitting the followings. (a). The recruitment Rules cannot be supplanted, Rules made under Article 309 of the Constitution of India without proper amendment cannot be diluted by Executive Instructions. (b). Administrative instruction cannot add something which is not there in Rules. (c). Statutory Rules cannot be overridden by Administrative instruction. (d). Administrative Instruction can ‘SUPPLEMENT’ but cannot ‘SUPPLANT’ Rules. (e). No one can issue a direction which amounts to amendment of Rules. (f). If Article 309 Recruitment Rules is holding field policy decision even under Article 162 would be illegal and without jurisdiction. (g). (c). Statutory Rules cannot be overridden by Administrative instruction. (d). Administrative Instruction can ‘SUPPLEMENT’ but cannot ‘SUPPLANT’ Rules. (e). No one can issue a direction which amounts to amendment of Rules. (f). If Article 309 Recruitment Rules is holding field policy decision even under Article 162 would be illegal and without jurisdiction. (g). If there is a conflict between rules under Article 309 and Administrative Instruction, Rules made under Article 309 will prevail. VII. The Govt. seems to have backtracked its decision by issuing the impugned O.M. dated 09.06.2020, wherein exemption from O.M. No. AR-74 dated 28/30- 01-2014, i.e. possessing a graduation degree on the ground that similar exemptions have been given to diploma holders in fields like engineering, tourism, nursing etc. by another OM No. AR-74/2013 dated 18.01.2016 because forest department officers are all holders of Range Forest Course Holders and such Forest Range Course was treated to be at par with graduation degree. VIII. The learned counsel relies in PD Agarwal & Others vs. State of Uttar Pradesh and Others reported in (1987) 3 SCC 622 para 20, K Kuppusamy & Another vs State of Tamilnadu & Ors. reported in (1998) 8 SCC 469 para 3, Ajay Kumar Das vs State of Orrissa & Ors. reported in (2011) 11 SCC 136 para 14, A.K. Bhatnagar Vs. Union of India reported in (1991) 1 SCC 544 para 13, K Kuppusamy & Ors vs State of T.N and Others reported in (1998) 8 SCC 469 para 3, District Registrar, Palghat and Others Vs. M.B. Koyakotty reported in AIR 1979 SC 1060 para 22 and 26 in support of her submission. 8. Questions to be determined: In the aforesaid projection made by the learned counsel for the parties, the issues to be determined in the present lis are as under: (i) Whether Office Memorandum dated 09.06.2020 can be treated to be part of the Rules framed in exercise the power under Article 309 of the Constitution namely APFS Rule, 2019 to grant exemption to nongraduate forest rangers having Forest Ranger Certificate course to APFS Officers from the essential qualification of possessing of graduation/bachelor degree in forestry for the purpose of promotion to the higher post including administrative grade post? or (ii) Whether the impugned Office Memorandum is an administrative instruction to supplant or supplement the APFS Rules, 2019? 9. Decision and Reasons and conclusion: A. Answer to question No. 1. or (ii) Whether the impugned Office Memorandum is an administrative instruction to supplant or supplement the APFS Rules, 2019? 9. Decision and Reasons and conclusion: A. Answer to question No. 1. (i) Article 309 of the Constitution of India empowers the legislature to regulate the recruitment and conditions of service of persons appointed to public services and post in connection with the Union or of any State as the case may be, subject to the other provisions of the Constitution. Proviso to Article 309 gives competence to the Governor of a State or such person as he may direct to make rules regulating the recruitment and until provision in that behalf is made by the legislature under Article 309 as stated hereinabove. Thus, it is clear that under the Constitutional scheme, the principal power is conferred upon the legislature to make rule regarding condition of service of person appointed in connection with affairs of the State, however subject to other provision of Constitution. The proviso to Article 309 is for the purpose of transitory period till the State or the Union legislature enact any regulation under Principal Part of Article 309 of Constitution of India. (ii) The Rules made under proviso to Article 309 of Constitution of India are having Legislative character. (iii) The Article 162 of the Constitution of India is the executive power of the State in respect of the subjects, which the Legislature of the State is having power to make Law, subject to and limited by the executive power expressly conferred upon the Union or other authorities by the Constitution or by any law made by Parliament. (iv) To treat any order circular etc. to be an act under the proviso to Article 309 of the Constitution, it would be necessary and essential that such circular order etc deals with the recruitment Rules and or service conditions of Government employee. It is also be necessary that such order, circular etc. is having general applicability as the language of proviso to Article 309 clearly depicts that such power is to make Rules regulating the recruitment and condition of service of persons appointed i.e. such Rule is having general applicability to the persons appointed to the services of the State or the Union as the case may be. is having general applicability as the language of proviso to Article 309 clearly depicts that such power is to make Rules regulating the recruitment and condition of service of persons appointed i.e. such Rule is having general applicability to the persons appointed to the services of the State or the Union as the case may be. (v) Article 166 (1) of the Constitution of India provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Any order or other instrument and/or executed in the name of Governor is required to be authenticated in a manner specified in Rules made by the Governor. (vi) The Article 166 depicts that executive action of the State Government shall be expressed to be in the name of Governor. By now, Law is well settled that it is not always necessary to declare or use the word ‘by order and in the name of Governor’ inasmuch as the question whether the same has been issued in the name of Governor can be seen from other materials, if such question arises. (vii) The Article 166 (2) of Constitution of India also mandates that the order issued under Article 166 (1) shall be made in the manner which is specified in the Rules to be made by Governor in this regard. (viii) A reading of Article 162, Article 166 and proviso to Article 309 shows that any decision taken Rule framed under Article 162 or proviso to Article 309 are required to be authenticated in the name of the Governor. (ix) Article 166 (2) mandates for making Rule for the laying down procedure to make executive action by State. However, the aforesaid two Articles, in the considered opinion of this court, do not prescribe (use a different word) any particular form. However, to avoid ambiguity and confusion, in the considered opinion of this court, it is highly desirable to declare under what provision such Rule/instruction is made. (x) To have a character of a Rule under Article 309 the same must relate to condition of service of the services under Union or the State as the case may be and the same must have a general applicability to the condition of services for whom such Rule is published. (x) To have a character of a Rule under Article 309 the same must relate to condition of service of the services under Union or the State as the case may be and the same must have a general applicability to the condition of services for whom such Rule is published. In absence of such character, even if any Rule is published in exercise of power under Article 309 the same may not be treated to be so. B. Power of Governor: (i) In Cabinet system of Government and under the scheme of Constitution of India, the Governor is the Constitutional Head of the State and he exercises powers and function conferred upon him on the aid and advice of the council of Ministers. Except in those situation where the Constitution itself empowers the Governor to exercise his power in his discretion, the decisions are required to be taken by following the laid down procedure under the Rules of executive business and such is to be taken in the name of Governor and thus a policy of Government is taken. C. Fact of the present case: (i) In the case in hand the undisputed fact remains that the APFS Rule 2019 was promulgated in exercise of power under proviso to Article 309 and said Rule is made for regulating the condition of service of the employees under Arunachal Pradesh Forest Service. Though said Rule introduced minimum qualification of graduation in science for direct recruitment, no change in eligibility criteria for promotion to APFS Grade-II or to SFS Group B or to ACF Group B Gazetted were made. By amendment Rules, 2005, the service was reconstituted into entry, senior, selection and administrative grade. In the meantime, on 14.03.2019, the petitioner Rini Riba was shown to be the Senior most officer in the selection list of APFS. (ii) The fact also remains that the minimum educational qualification of graduate/bachelor degree in science/B.Sc.(Forestry) was made essential by virtue of Arunachal Pradesh Forest Rules,2019. By way of the said Rule, 2019, existing APFS Rule was repealed. (iii) The Cabinet took a decision on 08.05.2020 to exempt holder of two years forest ranger course from possessing minimum educational qualification of graduate bachelor degree for appointment to Group A and B of APFS. Such fact is undisputed. By way of the said Rule, 2019, existing APFS Rule was repealed. (iii) The Cabinet took a decision on 08.05.2020 to exempt holder of two years forest ranger course from possessing minimum educational qualification of graduate bachelor degree for appointment to Group A and B of APFS. Such fact is undisputed. Pursuant to such Cabinet decision, the impugned Office Memorandum dated 09.06.2020 was published in Arunachal Pradesh Gezette on 14.08.2020 as per procedure laid down in Arunachal Pradesh Rule of Executive Business, 1987, more particularly Rule 8, Rule 14 and the Schedule. (iv) Thus, it is clear that the impugned OM was issued in implementation of the Cabinet decision dated 08.05.2020. (v) A reading of the impugned OM clearly shows that the exemption sought to be given is generally made applicable in respect of those forest officers who had completed two years of FRC course. Thus, the said OM is issued regulating giving exemption of service condition, which is to be made applicable to the forest service employee who are not otherwise having the minimum qualification of graduate/bachelor degree but had the qualification while entering into services and till enactment of the Rule, 2019. The OM also clearly depicts that the OM has been issued by order and in the name of Governor of Arunachal Pradesh. The OM substantially deal with the topic of promotion to higher post as well as service condition of a distinct class of forest officers and the same is made applicable generally to those class of officers and the same has also been issued following the due process under Arunachal Pradesh Rule of Executive Business, 1987 relating to formulation of Rule under proviso to Article 309. Therefore, said OM is akin to rule which regulate promotion and condition of service of APFS officers. The question is answered accordingly. D. Answer to question No. 2: (i) Coming to the prime argument of the Graduate Forest Ranger that the Government by issuing impugned OM has attempted to treat equal unequally and such attempt is itself is a negation of Principle of Equality under Article 14 of the Constitution of India, this court is of the considered opinion that the essential qualification brought in the Rule 2019 has treated unequals equally inasmuch as while entering in to the service, there was no requirement of graduation as essential qualification initially. The APFS Rules were amended by APFS Amendment Rules, 2010, then also such essential qualification was not brought in. For the first time by way of OM dated 28.01.2014 bachelor degree were made for promotion to Group A and B and such notification dated 28.01.2014 meant for all department/organizations under Government of Arunachal Pradesh and not specifically made for the APFS cadre. The notification dated 28.01.2014 was suspended by notification dated 27.05.2015 and re-introduced on 29.08.2019. The Cabinet decision 08.05.2020 and notification dated 09.06.2020 reflects the State in its wisdom had taken a policy decision not to treat these two unequal set of employees equally and notified the impugned notification and thus created a special class under the service and exempted them from the essential qualification of graduation taking an overall view. (ii) In the present case, the Cabinet has taken decision to fix separate qualification for those persons who were having only FRC certificate and entered into the service prior to the enactment of the Rules, 2019. The said decision can be termed as a policy decision by the competent authority of the State by following the laid down principles. (iii) Therefore, in the background fact as discussed in details hereinabove, the impugned Cabinet decision is a policy decision of the Government. In the given fact of the case, this court is of the considered opinion that the impugned policy decision taken by the Cabinet is having a rational basis inasmuch as the persons who entered into the service in question were having required qualification at the time of entry into the service and they in the meantime reached a much higher position than that of the petitioners Graduate Forest Service Officers and the enactment of the Rules, 2019 has adversely affected future prospect of promotion and therefore the decision of the Cabinet to exempt the non-graduate forest rangers from the essential qualification, is in the considered opinion of the court, cannot be termed as either illegal or irrational or can be said that there are procedural impropriety. (iv) The State as an employer is having the power to exempt a class of employee from such essential qualification in the exigencies of services. Even the same could have done while enacting the Rule, 2019. (iv) The State as an employer is having the power to exempt a class of employee from such essential qualification in the exigencies of services. Even the same could have done while enacting the Rule, 2019. Therefore, it cannot be said that by way of the impugned notification, the Rule, 2019 more particularly the rule relating to the qualification has been supplanted/replaced, rather in the considered opinion of the court by way of the impugned notification the State has incorporated a separate educational qualification to a separate class of employee who are not equally situated with the other employees. Such power even is traceable in the shape of Rule 34 of the Rules, 2019. (v) The Rule 34 of the Rules’ 2019 empowers the Government to make any regulation or issue instruction not inconsistence with the Rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to this Rules. Thus, the Rules, 2019 itself empowers the State to issue administrative instruction for all matters when it becomes necessary or expedient for the purpose of giving effect to these Rules. (vi) Though it is well settled that a Rule made under proviso to Article 309 cannot be modified or amended by executive instruction, some lacuna of gap can be supplemented by the executive instruction. In the given fact of the case, this court for the reasons discussed above is of the considered opinion that to supplement the situation relating to the non-graduate forest rangers, the impugned notification was issued and the same cannot be said to be illegal, irrational or hit by procedural impropriety. (vii) There is no dispute that by virtue of incorporation of the educational qualification in the Rule 2019 the promotional avenues of the non-graduate forest rangers who had entered into the service prior to enactment of Rule 2019 has been blocked to Group A or Group B though they were otherwise eligible for promotion to Group A and B by virtue of earlier rules. The issue whether classification can be made amongst employees on the basis of educational qualification was a subject matter in the case of Chandan Benarjee and Ors. vs. Krishna Prasad Ghosh & Ors. reported in 2021 SCC OnLine SC 773. The issue whether classification can be made amongst employees on the basis of educational qualification was a subject matter in the case of Chandan Benarjee and Ors. vs. Krishna Prasad Ghosh & Ors. reported in 2021 SCC OnLine SC 773. The Hon’ble Apex Court after referring to different judgments of the Hon’ble Apex court on that point laid down the following principles at paragraph 27. “27 The principles which emerge from the above line of precedents can be summarised as follows: (i) Classification between persons must not produce artificial inequalities. The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16; (ii) Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16; (ii) Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature or its delegate with their own; (iii) Generally speaking, educational qualification is a valid ground for classification between persons of the same class in matters of promotion and is not violative of Articles 14 and 16 of the Constitution; (iv) Persons drawn from different sources and integrated into a common class can be differentiated on grounds of educational qualification for the purpose of promotion, where this bears a nexus with the efficiency required in the promotional post; (v) Educational qualification may be used for introducing quotas for promotion for a certain class of persons; or may even be used to restrict promotion entirely to one class, to the exclusion of others; (vi) Educational qualification may be used as a criterion for classification for promotion to increase administrative efficiency at the higher posts; and (vii) However, a classification made on grounds of educational qualification should bear nexus to the purpose of the classification or the extent of differences in qualifications.” (viii) In the case is hand and as discussed hereinabove, the classification sought to be made by the impugned notification will not produce any inequalities rather the classification is made through the impugned notification as by virtue of Rule 2019 promotional avenues of the non-graduate forest rangers are blocked though they entered into the service long back inasmuch as this court cannot make mathematical evaluation of the classification or replace the wisdom of the Cabinet in the given fact of the present case. Accordingly, this court is of the considered opinion that the impugned notification does not suffer from any arbitrariness and no right of the graduate forest rangers are violated under Article 14 and 16 of the Constitution of India. 10. Accordingly in the final conclusion, this court holds that on both the counts, the impugned notification is valid. Accordingly, this court is of the considered opinion that the impugned notification does not suffer from any arbitrariness and no right of the graduate forest rangers are violated under Article 14 and 16 of the Constitution of India. 10. Accordingly in the final conclusion, this court holds that on both the counts, the impugned notification is valid. In view of the aforesaid, this court cannot accept the contention of the learned counsel for the Forest Rangers that by way of the impugned notification the Rules made under proviso to Article 309 is sought to be supplanted. Accordingly, the question No. 2 is answered. 11. Accordingly the WP(C) 175/2020 is dismissed and the WP(C) 187/2021 is allowed. The authority shall consider the case of the petitioner Rini Riba for promotion in terms of the forgoing discussion and reason if otherwise he is entitled.