Coal India Ltd. & Ors vs Saroj Kumar Mishra on 17 April, 2007
7. While that part of the rules which insists on timely promotion
under FCS is not adhered to, executive instructions are issued violating
the rules, which grant in situ promotions, on completion of the
residency period in the feeder cadre, other conditions being fulfilled.
As held by the Apex Court in Coal India Ltd vs. Saroj Kumar
Mishra (supra), the right to promotion can be withheld or kept in
abeyance only in terms of valid rules. In the instant case, the executive
instructions are not in conformity with the regulations of in situ
promotion under the Flexible Complementing Scheme at Annexure-2
and the residency period as at Annexure-2(a). As observed by Hon'ble
Supreme Court in (2009) 12 SCC 49 Para 8, executive instructions
cannot override the rules. In the light of the above, Annexure-4 and
Annexure-5 orders are not tenable in the eyes of law as they are not in
consonance with the Flexible Complementing Scheme. Therefore, in
our considered opinion, they have to be modified and the OA is liable
to succeed.