JUDGMENT : [A.M. Bujor Barua, J.] 1. Heard Mr. N. Ratan, learned counsel for the petitioner and also heard Mr. R.H. Nabam, learned Additional Advocate General for the respondents. 2. The petitioners, who were Accountants in the Directorate of Food & Civil Supplies were allowed to officiate as Superintendent of Accounts (Group “B”) Non-Gazetted in the scale of Pay of PB-2 Rs. 9300-34800/-plus Grade pay Rs. 4600/-,as per the orders dated 19.03.2013 and 06.03.2013 respectively, of the Director of Food & Civil Supplies, Government of Arunachal Pradesh. 3. By the notification dated 14.07.2014, under the signature of the Chief Secretary to the Government of Arunachal Pradesh, in exercise of powers conferred by the proviso to Article 309 of the Constitution and in supersession of the Arunachal Pradesh (Accounts Officer/Treasury Officer) Recruitment Rules, 1993”, the “Finance & Accounts Officer/Treasury Officer (Group-A) (Entry Grade) (Gazetted) Recruitment Rule 2014”(hereinafter termed as Rules of 2014) was notified. 4. Rule 2 of the Rules of 2014 provides that the number of posts, classification and the pay band/grade pay/pay scale attached therein shall be as specified in column 2 to 4 to Schedule ‘A’ to the Rules. Column 1 to the Schedule ‘A’ provides the name of the post to be Finance & Accounts Officer/Treasury Officer and column 2 provides that the number of posts would be 61 as in the year 2014, subject to variation depending upon the workload. 5. Rule 3 of the Rules of 2014 provides that the method of recruitment to the aforesaid 61 posts shall be as provided in columns 5 to 13 to Schedule ‘A’. Column 10(1) to Schedule ‘A’ provides that 25% of the posts shall be filled up by direct recruitment through Open Competitive Examination in the manner provided therein. Column 10(2)(a) to Schedule ‘A’ provides that 20% of the posts shall be filled up by Limited Departmental Competitive Examination, whereas 10(2)(b) provides that 55% of the posts shall be filled up by Departmental Promotion. Infurtherance thereof, column 11(1) provides that 55% of the posts of the promotion quota shall be filled up in the manner provided therein as extracted:- 11 In case of recruitment by promotion/ deputation /transfer grades from which promotion/ deputation/transfer to be made. “1. Infurtherance thereof, column 11(1) provides that 55% of the posts of the promotion quota shall be filled up in the manner provided therein as extracted:- 11 In case of recruitment by promotion/ deputation /transfer grades from which promotion/ deputation/transfer to be made. “1. 55% of the posts of the promotion quota shall be filled up from the following feeder grades as shown against each grade:- (i) 55% of the post of the promotion quota shall be filled up by Assistant Audit Officers with (3) three years regular service in the grade. (ii) 24% of the post of the promotion quota shall be filled up by Sub-Treasury Officers with 3(three) years regular service in the grade. (iii) 9% of the post of the promotion quota shall be filled up by Superintendents of Directorate of Accounts & Treasuries with 3(three) years regular service in the grade. (iv) 6% of the post of the promotion quota shall be filled up by Superintendents of Directorate of Audit & Pension with 3(three) years regular service in the grade. (v) 6% of the post of the promotion quota shall be filled up by Superintendents of Accounts with 3(three) years regular service in the grade. NB:- Promotion quota of Superintendent of Accounts to the posts of FAO/TO shall stand phased out on retirement/death etc of existing incumbent officer(s).” 6. A reading of the extracted portion of the provisions of Schedule ‘A’ makes it discernible that 55% of the total number of posts shall be filled up by promotion from Assistant Audit Officers with 3(three) years of regular service in the grade; 24% of the 55% of the postsby promotion from Sub-Treasury Officers with 3(three) years regular service; 9% of the 55% of the posts by promotion from the post of Superintendents of Directorate of Accounts & Treasuries with 3(three) years of regular service; 6% of the 55% of the postsby promotion from Superintendents of Directorate of Audit & Pension with 3(three) years of regular service; and 6% of the 55% of the postsby promotion from Superintendents of Accounts with 3(three) years regular service in the grade. Column 11(1) of Schedule ‘A’ also provides a note that the promotion quota of the Superintendent of Accounts to the post of FAO/TO shall stand phased out on retirement/death etc. of the existing incumbent officer(s). 7. Column 11(1) of Schedule ‘A’ also provides a note that the promotion quota of the Superintendent of Accounts to the post of FAO/TO shall stand phased out on retirement/death etc. of the existing incumbent officer(s). 7. Being aggrieved by the provisions of the Rules aforesaid, the petitioners submitted a representation dated 30.10.2017, before the Chief Secretary to the Government of Arunachal Pradesh as below:- “In this regards, your personal intervention is highly requested to re-look to consider for partly Amendment/Modification of the Recruitment Rules of Finance & Accounts Officer/Treasury Officer2014 and to struck off to the extended NB “Promotion quota of Superintendent of Accounts to the posts of Finance & Accounts Officer/Treasury Officer shall stand phased out on retirement/death etc. of existing incumbents officer(s)” in the column 11(v) of the recruitment rule of Finance & Accounts Officer/Treasury Officer rules 2014 which has deprived the original feeder posts that is Superintendent of Accounts of the erstwhile, Directorate of Supply & Transport and Directorate of Food & Civil Supplies (now merged with Directorate of Food & Civil Supplies) with total strength of 4(four) posts of Superintendent of Accounts for considering 6% promotional quota and requested to struck off the phrase as mentioned above to enabling promotional avenue of the Superintendent of Accounts.” 8. A reading of the second sub-paragraph of paragraph 12 of the said representation makes it discernible that the petitioner is aggrieved by the provisions of the note to column 11(1) of Schedule ‘A’ Rules of 2014. A reading of the second sub-paragraph of paragraph 12 of the said representation makes it discernible that the petitioner is aggrieved by the provisions of the note to column 11(1) of Schedule ‘A’ Rules of 2014. In this writ petition, the petitioners assails the provisions of the note to column 11(1)of Schedule ‘A’ to the Rules of 2014, and the prayer made in the writ petition is extracted below:- “This petition is filed under Article 226 of the Constitution of India praying for setting aside and quashing the NB(nota bane) for “promotion quota of Superintendent of Accounts to the posts of FAO & TO shall stands phased out on retirement/death etc of existing incumbent officer(s)” specified in the column 11(v) below of the notification (Recruitment Rule) No.DA/FAS/E-67/10/Pt-I(A) dated 14th July 2014, and to give the promotional avenue to the petitioners @ 6% specified in column 11(v) of the notification dated 14th July 2014, from the posts of Superintendent of Accounts to the posts of Finance & Accounts Officer (FAO)/Treasury Officer (TO) and also to set aside and quashed the order issued by the respondent No. 1 vide No.DA/FAS/E-67/10/Pt-I(A) VOL-II dated 25.08.2018.” 9. A reading of the prayer also makes it discernible that the petitioners assails the provisions of the note (NB) to column 11 (1)of Schedule ‘A’ to the Rules of 2014. 10. Mr. N. Ratan, learned counsel for the petitioners in course of the hearing submits that the Rules of 2014 itself would be untenable inasmuch as while framing the Rules, the process required under Article 166 of the Constitution of India, i.e. through the method of a Cabinet decision under the Rules of Executive Business was not done, and in support of his contention refers to a judgment of this Court rendered in Kirba Lomi & another vs. State of Arunachal Pradesh & others reported in (2012) 5 GLT 524. 11. A further contention raised by Mr. N. Ratan, learned counsel for the petitioners is that whether or not Rules of 2014 are unsustainable because of not being processed under Article 166, the note to Column 11(1) of Schedule ‘A’ to the Rules of 2014 are arbitrary, discriminatory and irrational. 12. Mr. 11. A further contention raised by Mr. N. Ratan, learned counsel for the petitioners is that whether or not Rules of 2014 are unsustainable because of not being processed under Article 166, the note to Column 11(1) of Schedule ‘A’ to the Rules of 2014 are arbitrary, discriminatory and irrational. 12. Mr. R. H. Nabam, learned Additional Advocate General for the State of Arunachal Pradesh on the other hand, submits that the Rules of 2014 being framed under the proviso to Article 309 of the Constitution of India, there is no requirement under the law for the Rules to be processed as per Article 166 of the Constitution of India while being framed and as such, the rules cannot be said to be not valid for the purpose. As regards the note to column 11 (1) of Schedule ‘A’ to Rules of 2014, Mr. R. H. Nabam, learned Additional Advocate General for the State of Arunachal Pradesh submits that the said note was required to be brought in because of the advent of the 6th Pay Commission and to arrived at a comparison to the earlier existing Rules. 13. With regard to the first contention of Mr. N. Ratan, learned counsel for the petitioners, we take note that as per the notification dated 14.07.2014, the Rules of 2014 has been framed in exercise of the powers under the proviso to Article 309 of the Constitution of India, and in supersession of the earlier existing Rules. The proviso to Article 309 of the Constitution of India provides that it shall be competent for the President or such persons as he may direct in case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in case of services and posts in connection with the affairs of the State, to make Rules regulating the recruitment and conditions of service of persons appointed to such services and posts, until provisions on that behalf is made by or under an Act of the appropriate legislature. 14. 14. A plain reading of the proviso to Article 309 of the Constitution of India makes it discernible that the Rules framed thereunder may be framed by any such person who, in case of a State is directed by the Governor of such State for framing the Rules and therefore no requirement of the Rules to be routed through the procedure under Article 166 of the Constitution by following the procedure prescribed in the Rules of Executive Business through the State Cabinet can be read under provisions of the proviso to Article 309. 15. Mr. N. Ratan, learned counsel for the petitioners refers to paragraphs No. 47, 48 & 49 of a judgment of this Court in Kirba Lomi & another (Supra) to substantiate his submission that even for a Rule framed under the proviso to Article 309, there is a necessity of a Cabinet decision by following the Rules of Executive Business. 16. We have examined the provisions provided in paragraphs No. 47, 48 & 49 of the judgment of this Court in Kirba Lomi (Supra).Paragraph 48 of the judgment in Kirba Lomi (Supra) makes it discernible that in the Rules that were under consideration in the said judgment, Item 19 to the Schedule to the Rules itself provided that any important alteration in the conditions of service of the members of the State service or in the method of recruitment to service shall be made by a decision of the State Cabinet. 17. In the instant case, we take note that there is no such equivalent provision in the Rules of 2014, that the Rules itself has to be framed as per a decision of the State Cabinet, nor there is any such condition or provision that any change to be made in the service conditions are to be done only upon a decision of the State Cabinet. 18. In view of the noticeable difference in the provisions of the two Rules i.e. the Rules under consideration in the Kirba Lomi & another (Supra) and the Rules in the present writ petition, we cannot accept the submission of the learned counsel for the petitioners that for the purpose of framing every Rules under the proviso to Article 309, the procedure of it being made by the State Cabinet by following the procedures under the Rules of the Executive Business is mandatorily required to be followed. 19. 19. In view of such conclusion, we are unable to accept the first contention of the petitioners that the Rules of 2014 is required to be struck down on the ground that it was not made through a Cabinet decision under the Rules of Executive Business. As regard to the second contention regarding the note to column 11(1) of Schedule ‘A’ to Rules of 2014, we notice that the said provision is only a note after the substantial provision of the Rules. The substantial provision of the Rules through column 11(v) of Schedule ‘A’ provides that 6% of the 55% of the total no. of posts shall remain the promotional quotato be filled up by Superintendent of Accounts having 3(three) years of regular service. The said provision on its own is eminently clear that 6% of the 55% of the total available posts i.e. which would roughly amount to 2 numbers of post shall be the quota for promotion from Superintendent of Accounts. 20. The note, following the said substantial provision seeks to carve out an exception or a limitation that the promotional quota for the Superintendent of Accounts shall stand phased out on the retirement/death etc. of the existing incumbent officer(s). The expression existing incumbent officer(s) is sought to be given different meanings by the petitioners and by the respondents. 21. Be that as it may, the provisions of the note that the promotional quota would be phased out on the retirement/death of the incumbent officer(s) would mean that whenever the existing Superintendent of Accounts, either retires from service or would not remain in service because of death, in such event, the quota of 6% of 55% of total posts, i.e., 2 posts would be phased out. When we look into the implications of the said provision that the 2 posts will phased out, and put a query to the learned Additional Advocate General as to in what manner the posts would be phased out? The answer provided is that the 2 posts will be utilised for the purpose of direct recruitment. If we accept the said contention, the implication thereof would be that the quota available for direct recruitment of 25% would increase beyond 25%. 22. The answer provided is that the 2 posts will be utilised for the purpose of direct recruitment. If we accept the said contention, the implication thereof would be that the quota available for direct recruitment of 25% would increase beyond 25%. 22. On the other hand, if the 2 posts are added to any of the other categories still that will result in an increase in the quota earmarked to that category as indicated above. But, the Rules itself are clear on its own that the respective percentage of quotas are fixed and earmarked and no scope of variation is available within the Rules. Secondly, if we accept the contention that whosoever was a Superintendent of Accounts as on date when the Rules were framed would have to be construed to be the existing Superintendent of Accounts, we also put a query as to whether the entry to the post of Superintendent of Accounts would be stopped after the Rules were framed? But, the answer given is that it may not be so because by virtue of another Rules relating to the Upper Division Assistants, there is a promotional avenue to the post of Superintendent of Accounts, meaning thereby that in future also there would be inflow to the post of Superintendent of Accounts. 23. If it happens that the inflow to Superintendent of Accounts would continue because of the provisions of some other Rules, and the promotional avenue available for Superintendent of Accounts would be phased out after the existing Superintendent of Accounts either retires or dies, in that event, the Rules should have to be read that the Superintendent of Accounts, who will come in subsequently will not be provided with any promotional avenue. 24. The said interpretation itself would be contrary to the proposition laid down by the Supreme Court that a person joins the Government service for an entire career and providing for a promotional avenue is a legal right. As the said interpretation of the law would be contrary to an established legal principle, we have to reject such an interpretation as regards the implication of the note column 11 (1) to Schedule ‘A’ of the Rules of 2014. 25. As the said interpretation of the law would be contrary to an established legal principle, we have to reject such an interpretation as regards the implication of the note column 11 (1) to Schedule ‘A’ of the Rules of 2014. 25. In other words, if the note to column 11(1) to Schedule ‘A’ of the Rules of 2014 is given the meaning as sought to be given, it would be contrary to certain other established propositions of law and therefore, such interpretation will have to be rejected. 26. Further, if the note to column 11(1) to Schedule ‘A’ of the Rules of 2014 is allowed to remain, the same would result in an arbitrariness, unreasonableness and also irrationality and therefore, would be unsustainable in law. 27. Accordingly, the note to column 11(1) to Schedule ‘A’ of the Rules of 2014 is struck off. 28. In the above manner, the issues raised in the writ petition is answered and the prayer as regards setting aside the note to column 11(1) to Schedule ‘A’ of the Rules of 2014 is allowed. 29. Writ petition allowed as indicated allowed.