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18........... DOP&T OMs dated 18.3.1988, 19.7.1989, 25.3.1996 and 24.9.1997 can well be considered as if issued by the executive of the Union in the legislative powers conferred upon it by Article 73 of the Constitution. They deal with uncovered issues, i.e., a situation where a junior may be considered for promotion over and above his seniors, and where a senior may not have the eligibility criteria. Such a situation is not covered under the Rules of 1962. The OMs may not specifically make a mention of Article 73, but it is too well settled a proposition of law that non-mentioning of the provision or making mention of wrong provision would not make any difference. The real test is that there should be a power to do what has been done by the legislature or the executive. There is a mandate in the OMs that all cadre controlling authorities should insert a Note in the respective recruitment rules to the effect that whenever a junior who has completed the requisite eligibility service is considered for promotion, then all his seniors should also be considered. The directive issued by the DOP&T has admittedly been complied with by many cadre controlling authorities by inserting the Note in the respective recruitment rules, and wherever such Note has not been incorporated, the Government has been freely making resort to exemption or relaxation in the rules as regards eligibility. While dealing with the subject of relaxation involved in the present case, we will make a detailed mention as regards the consistent stand of the Government in that regard. At this stage, we may only refer to the note dated 14.11.2008 available on records, wherein it is clearly recorded that DOP&T has been adopting a consistent policy of allowing up to a maximum of two years relaxation in qualifying service in promotions in all services, and that UPSC too has been accepting this from time to time in accordance with DOP&T OM dated 25.3.1996. It has also been mentioned that OM dated 24.9.1997 has been issued by way of clarification on the basis of judgment of the Apex Court in R. Prabhadevis case (supra), and that from a perusal of the judgment of the Supreme Court and OM aforesaid, it would be clear that it is neither a direction of the Supreme Court nor the intent of the DOP&T to supersede its earlier circular dated 25.3.1996, and that in fact, DOP&T has consistently adopted the policy of allowing relaxation of up to two years of service as qualifying service in case of promotions in all services. The applicant has indeed brought on record rules of at least two services where the note as ordained above in the OMs aforesaid has been inserted. The applicant has also brought on record some orders giving relaxation in rules as regards eligibility where juniors were to supersede seniors. Article 73 of the Constitution reads as follows:

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.

Perusal or provisions contained in Article 73 would manifest that the power of the Union shall extend to matters with respect to which Parliament has power to make laws. By virtue of clause (1)(a), the executive power is co- extensive with the legislative power of the Union Parliament. It has been held by the Supreme Court that under the Constitution the functions of the executive are not confined to the execution of laws made by the legislature already in existence. Articles 73 and 162 indicate that the powers of executive of the Union and of a State are co-extensive with the legislative power of the Union and of a State, as the case may be. While the executive cannot act against the provisions of a law, it does not follow that in order to enable the executive to function relating to a particular subject, there must be a law already in existence, authorizing such action. Reference in this connection may be made to judgments of the Honble Supreme Court in Naraindas Indurkhya v State of Madhya Pradesh & others [AIR 1974 SC 1232] and M/s Bishamber Dayal Chandra Mohan, etc. v State of Uttar Pradesh & others [AIR 1982 SC 32]. Whereas, the first judgment deals with Article 162 of the Constitution, which is as regards the extent of executive power of State, the second judgment referred to above deals with Article 73, which is as regards the extent of executive power of the Union. In M/s Bishamber Dayal (supra) it has been held that the State in exercise of its executive power is charged with the duty and responsibility of carrying on the general administration of the State, and so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed, and further that if there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. This Tribunal in the matter of Sadhana Khanna (supra) has already held that the OMs which are directives, have to be read with the rules, and the judgment, as mentioned above, has been confirmed by the highest Court of the land. This Tribunal, in view of the very instructions subject matter of dispute which, it was held by the Tribunal, are to be read along with the recruitment rules, so confirmed by the Apex Court, may not have much choice but for to follow the said precedence. We may, however, give additional reasons as to why the instructions relied upon have to be read along with the rules. In addition to that these OMs are directives and even though Article 73 of the Constitution may not have been specifically mentioned, the same can be treated to have come into existence by powers exercised by the executive under Article 73, the first DOP&T OM dated 18.3.1988, it may be recalled, came into being immediately after the decision of the Honble Supreme Court in R. Prahadevis case (supra). The same came into being to take care of seniors so that they may not be superseded by their juniors because they were not having the requisite eligibility criteria provided under the rules. The said criteria vide OM dated 25.3.1996 is to be reduced only by two years. The Government has slept over the matter insofar as, the very department, i.e., DOP&T, which is the nodal agency for all Government employees, for a period of almost two decades. Meanwhile, as mentioned above, the Note came to be inserted in some other services, whereas in other services relaxation in rules has been given. In the circumstances as mentioned above, if, therefore, the applicant was to seek a writ in the nature of mandamus directing the respondents to insert the Note in the service rules, could there be any meaningful resistance to such a writ by the Government? We are conscious that to make laws is in the exclusive domain of the legislature, but the present case is not where the applicant may have sought directions to be issued to the Government to amend the rules. It would have been simple case to act upon the decision already taken by the Government so as to amend the rules. The decision to amend the rules having already been taken, the applicant would have been well within her right to seek a mandamus directing the respondents to insert the Note in the Rules of 1962. .......

Thus, Garima Singh's judgment is not per incuriam of the law laid down by Hon'ble Supreme Court.

27. However, Full Bench has given reasons as to why in their opinion the DoP&T OMs dated 18.03.1988, 19.07.1989, 25.03.1996 and 24.09.1997 would not be covered by this law. According to them, these OMs can well be considered to have been issued by the Executive of the Union in the Legislative power conferred upon by Article 73 of the Constitution. They deal with uncovered issues i.e. a situation where a junior is being considered for promotion even though his senior was not being so considered owing to the fact that he does not have the prescribed eligibility service. Full Bench has held that such a situation had not been covered by the relevant Service Rules. Further, they have gone on to hold that in the aforesaid OMs there was a mandate that all cadre controlling authorities should insert a note in their respective Rules to the effect that when a junior was being considered for promotion then his seniors should also be considered by giving relaxation in the eligible service. Full Bench has observed that the directive issued by DoP&T has admittedly been complied with by many cadre controlling authorities by inserting such a note in the Recruitment Rules. Moreover, in cases where such a note has not been incorporated, Government has been freely resorting to taking relaxation in the rules as regards eligibility.

28. Further, they have observed that in Sadhna Khanna Vs. Union of India & Ors. (OA No. 1271/1993 decided on 24.09.1999) this Tribunal has already held that OMs which are directives have to be read with the rules and this judgment has been affirmed by the highest Court of the Land. Further, they have stated that if a Member of the service in whose case such a note has not been inserted in the Recruitment Rules, were to seek a writ in the nature of mandamus directing the respondents to insert such a note in the service rules, there cannot be any meaningful resistance to such a writ by the Government. Finally, they have stated that if relaxation is given in some service where such note has been incorporated in the service rules and not given in services where such incorporation has not been done, it would amount to invidious discrimination and be violative of the provisions of the Article 14 of the Constitution. They have gone on to state that the directives of DoP&T issued through OMs are applicable across the board i.e. all services of the Government of India and for that reason have to be taken as if they are legislation by the executive under Article 73 of the Constitution.