ORDER : 1. Heard Sri P. Surendar Rao, Learned Senior Counsel appearing on behalf of the petitioners, Learned Special G.P. (Panchayat Raj) for the respondents 1 & 2 and Sri J. Sudheer, Learned Counsel for respondent No. 3. 2. Having heard the Learned Counsel for the petitioners, it is apparent that the issue, which this Court is called upon to adjudicate lies in a very narrow compass i.e. whether the ratio fixed by the Government between two streams of recruitment i.e. direct recruits and promotee’s can be altered in exercise of its executive powers? 3. The issue in our opinion is no more res integra and has attained finality at the hands of the Hon’ble Apex Court, where a Three Judge Bench of the Apex Court in V.B. Badami and others vs. State of Mysore and others, (1976) 2 SCC 901 has held in Paras 35 to 37 as under: “35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantive vacancy. 36. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703 : AIR 1967 SC 1427 : 65 ITR 34 it was said that when the quota was fixed for the two sources of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promoted in excess of the prescribed quota should be held to have been illegally promoted. In Bishan Sarup’s case (supra) it was held that when it was ascertained that not more than 1/3 of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to 1/3 of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year. 37. Two principles are established in the decision referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. 37. Two principles are established in the decision referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the ground that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota.” 4. From a reading of the above, it is apparent that the sanctity of the quota rule cannot be violated in any manner whatsoever, but only in the manner as is provided under the rules, more particularly, the observation in Para 36 that the quota rule cannot be violated to suit or alter according to exigencies of a situation, which is the case that is now canvassed before this Court. It is contended that as there was lack of promotional avenues for the promotees, the State has taken resort to Rule 31 and has proceeded to alter the quota, which the Hon’ble Apex Court has held to be impermissible & illegal. That apart, even a bare reading of Rule 31 of A.P. State & Subordinate Service Rules, 1996, would leave no doubt in the mind of this Court that there is no compliance with the mandate of Rule 31 itself. The said Rule 31 reads as under: “31. Relaxation of Rules by the Governor: Notwithstanding anything contained in these rules or in the special rules, the Governor shall have the power to relax any rules contained in these rules or special rules, in favour of any person or class of persons, in relation to their application to any member of a service or to any person to be appointed to the service, class or category or a person or a class of persons, who have served in any civil capacity in the Government of Andhra Pradesh in such manner as may appear to be just and equitable to him, where such relaxation is considered necessary in the public interest or where the application of such rule or rules is likely to cause undue hardship to the person or class of persons concerned.” (Emphasis’ by this Court) 5. A bare perusal of the above rule would indicate that it can be exercised only in particular circumstances and none of the circumstances enumerated under Rule 31 appear to be prevailing at the time of issuance of the G.O, invoking the Rule 31. 6. The quota rule again came into consideration before the Hon’ble Apex Court in Gonal Bihimappa vs. State of Karnataka & Ors. 1987 (Supp) SCC 207 and the Hon’ble Apex Court was pleased to observe and held in Paras 8, 9, 10 and 11 as under: 8. It is a well settled position of law that where recruitment is from two sources to a service, a quota rule can be applied fixing the limits of recruitment from the two sources. [H.C. Sharma v. MCD, (1983) 3 SCR 372 : (1983) 3 SCC 567 : 1983 SCC (L&S) 433] First Aspect 9. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703 : AIR 1967 SC 1427 a Constitution Bench of this Court observed: The Solicitor-General on behalf of respondents 1, 2 and 3 submitted that the quota rule was merely an administrative direction to determine recruitment from two different sources in the proportion stated in the rule and a breach of that quote rule was not a justiciable issue. The Solicitor-General said that there was, however, substantial compliance with the quota rule....We are unable to accept the argument of the Solicitor-General that the quota rule was not legally binding on the government. It is not disputed that Rule 4 of the Income Tax Officers (Class I, Grade II) Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the government under this rule to determine the method or methods to be employed for the purpose of filling the vacancies and the number of candidates to be recruited by each method. In the letter of the Government of India dated October 18, 1951 there is no specific reference to Rule 4, but the quota fixed in their letter must be deemed to have been fixed by the Government of India in exercise of the statutory power given under Rule 4. In the letter of the Government of India dated October 18, 1951 there is no specific reference to Rule 4, but the quota fixed in their letter must be deemed to have been fixed by the Government of India in exercise of the statutory power given under Rule 4. Having fixed the quota in that letter under Rule 4, it is not now open to the Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota on account of the particular situation…. We are of opinion that having fixed the quota in exercise of their power under Rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice, it will be difficult to hold that the seniority rule i.e. Rule 1 (f) (iii) and (iv), is not unreasonable and does not offend Article 16 of the Constitution. (Underlining by this Court). In Badami Case this aspect was examined by the court. The learned Chief Justice spoke for the three-Judge Bench thus: [SCC pp. 908-911 SCC (L&S) pp. 360-363, Paras 29, 34, 36-39]. In working out the quota rule, these principles are generally followed. First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of seniority-cum-merit. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of seniority-cum-merit. A promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case. The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between September 11, 1959 and October 26, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on October 26, 1964 will not rob the direct recruits of their quota which remained unfilled from December 2, 1957. In S.G. Jaisinghani v. Union of India it was said that when the quota was fixed for the two sources of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promoted in excess of the prescribed quota should be held to have been illegally promoted. In S.G. Jaisinghani v. Union of India it was said that when the quota was fixed for the two sources of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promoted in excess of the prescribed quota should be held to have been illegally promoted. In Bishan Sarup Gupta v. Union of India, 1975 Supp SCR 491 : (1973) 3 SCC 1 : 1973 SCC (L&S) 1 it was held that when it was ascertained that not more than one-third of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to one-third of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year. Two principles are established in the decision referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the ground that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota. (Underlining by this Court) In Bachan Singh v. Union of India, (1972) 3 SCR 898 : (1972) 3 SCC 489 : AIR 1973 SC 441 the two appellants were promoted in the years 1958 and 1959. The respondents were appointed by direct recruitment in 1962, 1963 and 1964. The respondents were confirmed in their posts before the appellants. The applicants contended that the respondents who were directly appointed after the appellants had been promoted were not to be confirmed in permanent posts before the applicants. It was held that the direct recruits were confirmed against permanent vacancies within their quota. The earlier confirmation of direct recruits though appointed later was upheld on the ground that they fell within their quota of permanent vacancies. It was held that the direct recruits were confirmed against permanent vacancies within their quota. The earlier confirmation of direct recruits though appointed later was upheld on the ground that they fell within their quota of permanent vacancies. A.K. Subraman v. Union of India, (1975) 2 SCR 979 : (1975) 1 SCC 319 : 1975 SCC (L&S) 36 on which the appellants relied also held that each quota would have to be worked independently on its own force. In that case the Assistant Executive Engineers who were initially entitled to three-fourth and subsequently to two- third of the vacancies while Assistant Engineers who were entitled initially to one-fourth and subsequently to one-third of such vacancies were held to be entitled to their respective quotas independent of the fact that whether any person from one class or the other was promoted or not. It was illustrated by saying that if there were three vacancies in a year, two would go to the Assistant Executive Engineers and one would go to the Assistant Engineers and even if there were not eligible Assistant Executive Engineers who could be promoted to fill in two vacancies belonging to their quota, one vacancy is to be filled up by promotion of an Assistant Engineer, if he was eligible. Similarly, if two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Engineers for want of availability of eligible Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those years. 10. Badami’s case referred to several authorities of the court and clearly drew out the judicial consensus on the point in issue by concluding that the quota rule had to be strictly enforced and it was not open to the authorities to meddle with it on the ground of administrative exigencies. 11. The scheme in force relating to the services for fixing inter se seniority takes into account the filling up of the vacancies in the service from the two sources on the basis of the quota and, therefore, fixation of inter se seniority in the Gradation List has to be worked out on the basis of quota.” 7. 11. The scheme in force relating to the services for fixing inter se seniority takes into account the filling up of the vacancies in the service from the two sources on the basis of the quota and, therefore, fixation of inter se seniority in the Gradation List has to be worked out on the basis of quota.” 7. A reading of the above would reveal that the Apex Court in the subsequent Judgment has reiterated the position as settled by the Three Judge Bench in Badami’s case. That apart, the refrain of the respondents that the petitioners have done precious little, apart from approaching the Tribunal and that the petitioners have not taken any effective steps to fulfill the direction issued by the Tribunal and that they should have resorted to litigation in the form of writ petitions to ensure implementation of the order or ought to have initiated contempt proceedings for not implementing the orders, is to state the least obnoxious and a inequitable stand. The object of the State is to ensure a litigation free administration and not encourage resort to litigation. If the said contention is accepted, it would amount to this Court being a party to an act, which has the audacity to defy lawful directions. That apart, we reject the said contention keeping in view the nature of the direction issued by the Tribunal. The operative portion of the orders rendered in O.A. reads as under: “7. The Respondents did not dispute the quota provided under the Special Rules. When there are Special Rules fixing the quota in a particular category, the general rules will not prevail and the special rules prevail over the general rules. Since the quota under the Rules is fixed at 50% for direct recruits, the Respondents are not expected to confine the other recruitment only to 50% and they are not entitled to reduce the quota meant for direct recruits. The Respondents did not mention whether any amendment to the Rules was brought even till to-day. This shows that they are acting only on the basis of the executive instructions without amendment to the Rules. Therefore, it can be safely concluded that the reduction of quota from 50% to 30% for direct recruits is illegal and arbitrary and the orders issued by the Government from time to time reducing the quota of direct recruits from 50% to 30% are illegal. Therefore, it can be safely concluded that the reduction of quota from 50% to 30% for direct recruits is illegal and arbitrary and the orders issued by the Government from time to time reducing the quota of direct recruits from 50% to 30% are illegal. The Respondents are directed to maintain 50% quota for direct recruits from the date of reduction of direct recruits quota from 50% to 30% and prepare the seniority list of Asst. Engineers accordingly and consider the cases of the applicants for promotion to the post of Deputy Executive Engineer on the basis of the said seniority list. The O.A. is disposed of accordingly. M.A. is closed. No order as to costs.” 8. From a reading of the above, it is apparent that the order is nothing but a direction to the competent authority to act in accordance with law in the matter of settling the lis. That apart, we are also of the opinion that the observations are a direct answer to the contention that the Government Servants should have resorted to multiple rounds of litigation. The Apex Court has categorically disapproved such conduct. We have perused the G.O.Ms. No. 237, dated 20.02.2006. A cursory reading of the G.O would indicate that it is the law laid down by the Hon’ble Apex Court as noted supra. That apart, we observe that the 2nd respondent has admitted to achieve indirectly what could not have been achieved directly. If the source of appointments to a post are more than one and if quotas are fixed under the rules for each source, then it is not open to exceed the quota under the rule i.e. quota rule, then the same could not have been breached by granting appointments to a percentage of persons in excess of the quota fixed under the rule by resorting to the provisions of Rule 31 i.e. relaxation. 9. As noted supra, Rule 31 pertaining to relaxation does not invest the authority with the latitude to exercise the power arbitrarily but only in the circumstances mandated there under. Be that as it may. The law with regard to tinkering with the quota can be achieved only by amending the CADA under recruitment rules and cannot be determined in any other manner. Be that as it may. The law with regard to tinkering with the quota can be achieved only by amending the CADA under recruitment rules and cannot be determined in any other manner. As the quota has been fixed by the respondent- State in exercise of its discretion by inviting the relevant rules, in our opinion, the power of relaxation cannot be exercised to carryout amendments. As acceptance of such a position would amount to permitting the party to achieve indirectly what he could not have achieved directly. That apart, it is no more res integra that the power to alter or amend the rules cannot be exercised by resorting to executive power as provided under Articles 162 and 309 of the Constitution of India. A bare reading of the Articles would belie any such notions. 10. Further, a useful reference could be made to the Division Bench ruling of the Karnataka High Court rendered in the case of M.V. Dixit and Ors. Vs. State of Karnataka and Ors. wherein it has been pleased to hold in Paras 22, 23, 24 and 25 as under: 22. After the coming into force of the Civil Services Act, creation and abolition of posts (i.e. specifying different categories of posts in different branches of Public Service, specifying the total number of posts and nature of posts in each category and the scales of pay admissible to each category) can only be by way of Rules made in the manner prescribed in Section 3(2) of the said Act and not by any executive order issued under Article 162 of the Constitution. The field of Regulation of creation and abolition of posts, method of recruitment and conditions of service is now occupied by an enactment of State Legislature. Therefore, exercise of the power in regard to regulation of the matters falling in the occupied field can only be in accordance with the said Act and not otherwise by an executive order. 23. The field of Regulation of creation and abolition of posts, method of recruitment and conditions of service is now occupied by an enactment of State Legislature. Therefore, exercise of the power in regard to regulation of the matters falling in the occupied field can only be in accordance with the said Act and not otherwise by an executive order. 23. It is contended by the promotes/Transferees belonging to Public Works/Irrigation Department that Section 3(1) merely provides that the State Government may, by notification, make rules relating to recruitment and conditions of service, and specify different categories of posts, number of posts, nature of posts and scale of pay; and nat Section 3(1) is only an enabling provision permitting the State to make Rules in the manner stipulated and until Rules are made under 3(1), the executive power is not taken away in regard to matters specified in Section 3(1). It is submitted that as no Rule as contemplated in Section 3(1) has been made prescribing the cadre strength of the Accounts Superintendents or their number and nature of posts in each category in respect of Public Works or Irrigation Department, the executive power of State to create or abolition of posts is not taken away; and as a consequence, the State can by executive order, bifurcate any cadre or create a cadre by reducing the strength of an existing cadre and at the same time, create new cadre consisting of the downgraded posts. A combined reading of Article 162 of the Constitution and Section 3 of the Civil Services Act shows that the said contention is not tenable. As noticed above, executive power in regard to a subject comes to an end when a law is made in regard to such subject by the State Legislature and such law occupies the field. Prior to the enactment of Karnataka State Civil Services Act, the recruitment and conditions of services were not regulated by any law made by the Legislature. In those circumstances, the manner of recruitment and the minimum qualifications therefore were regulated by Rules made under Article 309; and the creation and abolition of posts with prescription of cadre strength and pay scales were regulated by executive orders under Article 162. In those circumstances, the manner of recruitment and the minimum qualifications therefore were regulated by Rules made under Article 309; and the creation and abolition of posts with prescription of cadre strength and pay scales were regulated by executive orders under Article 162. Once the Karnataka Civil Services Act, 1978 enacted and came into force on 4.3.1992, the field relating to recruitment and conditions of service (including creation of abolition of posts, fixing the number and nature of posts) became a field occupied by law made by the State Legislature. The law is made in regard to ‘recruitment in a wider sense which includes not only the method of Recruitment, but also creation and abolition of posts by specifying different categories of posts in different branches of public service specifying total number of posts, nature of such posts and scales of pay admissible to such posts. As the field relating to creation and abolition of posts is occupied by an enactment of the State Legislature, regulating the entire field of recruitment, the State can abolish or create posts only by making rules as contemplated in Section 3(2) of the Karnataka Civil Services Act and not by an executive order under Article 162. We are therefore of the view that the cadre strength of I Accounts Superintendents in public works and Irrigation departments could not have been altered by government by issuing an executive order under Article 162 on 5.12.2001. 24. Sub-Section (3) of Section 3 provides that all rules relating to matters referred to in Sub-Section (1) and in force on the date of commencement of the Civil Services Act shall be deemed to be the rules made under Sub-Section (1) of Section 3 and shall continue in force until they are modified or replaced by rules made under the said Act. Four types of Rules are mentioned in Sub-Section (3) of Section 3 one of which is rules made by the Government under any law for the time being in force. Four types of Rules are mentioned in Sub-Section (3) of Section 3 one of which is rules made by the Government under any law for the time being in force. When the State Government issues a notification sanctioning the establishment of any particular cadre, or creating or abolishing any post or determining the strength of each cadre and character of the post therein, such a notification issued in exercise of executive power under Article 162 will have to be considered as “Rules made by the Government under any law for the time being in force.” In fact, it is of some interest to note that whenever the State establishes service cadres for any Department, the notification is issued in two parts, normally on the same day. All cadre and recruitment rules made by the State Government prior to the coming into force of the Civil Services Act in the year 1992, consisted of two parts, the first part of the Notification containing an executive order under Article 162 relating to establishment of State services cadre, specifying the strength of the cadre, number and character of the posts and the scales of pay; and the second part of the notification containing the rules made in exercise of power under the proviso to Article 309 of the Constitution regulating the method of recruitment and prescribing the minimum qualification. Both parts of the notification are together referred to as the cadre and recruitment rules. The cadre and Recruitment Rules (Vol. 1) compiled by the General Administration Department has more 30 of such cadre and recruitment rules made between 1959 and 1961. We may refer to some of them by way of illustrations. (i) The Mysore Public Works Department Engineering Services Cadre and Recruitment Rules issued as per notification No. GAD/8/GRR/57 dated 3.12.1960 made up of the first part issued under Article 162 relating to establishment of the services cadres and second part under Article 309 of the Constitution relating to regulating the recruitment. Rules 1959 of issued as per notification. (ii) The Mysore State Accounts Services Cadre and Recruitment No. GAD 13 GRR 57 dated 26.5.1959 made up of the first part issued under Article 162 establishing the several cadres under the Mysore State Accounts service and the second part issued under Article 309, regulating recruitment. Rules 1959 of issued as per notification. (ii) The Mysore State Accounts Services Cadre and Recruitment No. GAD 13 GRR 57 dated 26.5.1959 made up of the first part issued under Article 162 establishing the several cadres under the Mysore State Accounts service and the second part issued under Article 309, regulating recruitment. Therefore a notification issued under Article 162 sanctioning the establishment of the State service cadres and indicating the strength and nature of each cadre and the scale of pay of such cadre have all along been treated as ‘Rules’ made by the government under the law for the time being in force. They will therefore be rules, which will be deemed to be the rules made under Subsection (1) of Section 3 and will therefore continue in force until they are modified or replaced by the Rules made under the Act. In view of the categorical provision in Sub-Section (3) of Section 3, after the State Civil Services Act, 1978 came into force, the State can modify or replace any notification or Government control relating to establishment of cadres or fixing the strength of the cadre or number and character of the posts only by the rules made in terms of Section 3(2) of the Civil Services Act and not by any Executive order under Article 162. 25. It is stated that exercise of executive power under order dated 5.12.2001 was nothing but a repetition of exercise of such power under order dated 18.6.1999 and that order was upheld by a learned Single Judge of this Court in Karnataka State Accounts Department Employees’ Association v. State of Karnataka and Ors. As that decision has attained finality, it is contended by the promotees/transferees that the subsequent order dated 5.12.2001 on the very same lines is not open to challenge.” We are in respectful agreement with the view expressed by the Division Bench of the High Court of Karnataka. 11. In view of the above discussion, we are of the considered opinion that the petitions, without doubt warrant appropriate direction from this Court to the competent authority to review the anomaly. 12. It is fairly submitted that what is now prepared is the provisional seniority list. 11. In view of the above discussion, we are of the considered opinion that the petitions, without doubt warrant appropriate direction from this Court to the competent authority to review the anomaly. 12. It is fairly submitted that what is now prepared is the provisional seniority list. Though a provisional seniority list would not give a cause of action, but in view of the fact that any elbow room to the competent authority to continue in the chosen path would result in docket explosion and as it is apparently contrary to the settled position in law and as the issue is no more res integra we deem it appropriate to entertain the Writ Petition by issuing the following directions: (i) The 2nd respondent is directed to consider the law as settled by the Apex Court in Gonal Bihimappa’s case and V.B. Badami’s case, the law as explained by the Division Bench of High Court of Karnataka in M.V. Dixit’s case and the observations of this Court, herein above and thereafter to proceed to afford an opportunity to the parties to submit their objections to the proposed seniority list and after hearing the parties, the competent authority shall prepare and finalize the seniority list. (ii) This order shall be notified by the 2nd respondent in its website and objections shall be called for by granting at least 15 days period enabling the employees to file their statements and thereafter the process shall be expedited and completed within a period of two (2) months from the date of completion of the hearings at any rate within 6 months from the date of publication of the notification inviting the objections. 13. The Writ Petition is partly allowed. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.