UNION OF INDIA versus K. P. JOSEPH AND ORS.

UNION OF INDIA

K. P. JOSEPH AND ORS. October 27, 1972

A. K. MUKHEREJA, JJ.J

[A. N. GROVER, K. K. MATHEW AND

Military Service-General Order of Government of India Ministry of Defence dated 15th July 1960 conferring certain benefits on retired 1nilitary per;onnel-Exception in paragraph (3) cl. (3) of Order, applicability of-Cla.inz under Order whether justiciable--Ofier r.ot retrospective-Pay whether could be re-fixed for period before date of Order.

The appellant was discharged from the post of combatant Clerk in the Indian Army on 9th June, 1953 and was re-<!mployed shortly there-after. His pay was re-fixed in the scale applicable. On 15th July 1960 the Government of India issued :; general Order relating to re-employed ex-military personnel. Under the Order those entitled to its benefits would get Exed in the scale applicable to them by adding to the bottom of their scales increments equal to the total number of completed years of military >ervice. The first respondent having exercised the option pro-vided for in the Order, claimed that he was entitled to the benefit of the Order. The claim was rejected by the Government. The first respon-dent filed "' writ petition in the High Court. The writ petition was allowed and the High Court directed that the pay of the respondent be refixed from 2-3-1953. In appeals to this Court it was contended by Union of India: (i) that the order was not applicable to the first res-pondent as he was re-employed before 25-11-1958; (ii) that the order being an administrative ·direction was not justiciable <ind no writ l21y; (iii) that the order not being retrospective in character, the rcspo:idcnt's pay should not have been fixed with retrospective effect from 2-7-53.

HELD :-(i} The general rule under the Order was that past cases of persons re-employed prior to 25-11-1958 would not be reopened. But the effect of clause (3) of pare.graph (3) is to create an exception to the general ;rule in the case of persons re-employed before 25-11-1958 for an unspecified period or for period which extends to the da,te of order and who have exercised their option in writing to be brought under the Order. The respondent having exercised his option was therefore entitled to the benefit of the Order.

(ii) Generally speaking an administrative order confers no justiciable right but this rule like all other general rules is subject to exceptions. To say· that an administr&tive order can never confer any right would be too wide proposition. There are administrative rights which confer rights and impose duties. It is because an administrative order can abridge or take away rights that this Court imported the principle of natural justice of audi alteram partem into this area .. The order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. There was no reason 'why this Court should not enforce that right. [7550]

Sant Ram Sharma v. Stale of Rajasthan and another, [1968] 1 S.C.R. 111; and Union of India and Others v. M/s. lndo Afghan Agencfrs Ltd., Ti968] 2 S_C.R .. 366, 377, applied to.

(3) The order woo not retrospective in character. 'fhe High Court was th;orefore wrong in fixing the pay with retrospective effect from 2-7-1953.

The direction could only be to fix the pay with effect from the date of the Order.

CIVIL APPE"LLATE JURISDICTION : Civil Appeal No. 1204 \

of 1967.

Appeal by special leave from the judgment and order dated September 9, 1966 of the Mysore High Court in Writ Petition No. 885 of 1964.

P. P. Rao and S. N. Prasad and B. D. Sharma, for the appel-lant.

B. P. Maheshwari ·and C. L. Joseph, for the re;pondent.

The Judgment of the Court was delivered by

MATHEW, J.-This is an appeal oy Special Leave from the order dated the 9'th of September, 1966 passed by the High Court of Mysore in Writ Petition filed by the first respondent.

The firs•t respondent was combatant Clerk in the Indian Army fo~ period of more than 14 years. He was discharged from that post on 9th June, 1953. On 2nd July 1953, he was re-employed as an ordinary clerk on the pay scale of Rs. 55-85-EB-4-125-5-130. His pay was re-fixed in the above scale at Rs. 70/- plus personal pay of Rs. 2.50 qy an Order dated 28th October, 1958, whh effect from the date of re-employment, i.e .. 2-7-1953.

On 15th July, 1960, the Govcrnmell't of India, Ministry of Defence, issuP.d general Order called "Office Memorandum" No. 2(54)58/5801/D(Civil) providing for certain benefits to ex-military personnel on re-employment on the basis of their Ie11gth of actual military service. The general effect of that Order was that those who are entitled to its benefits, would get fixed in the scale applicable to them by adding to the bottom of. their scale~ .incremen.ts equal to the total number of completed years of m1htary service. The Order so far as it is relevant for the purpose of this appeal is contained in paragraphs 3 and 4 there-of and they read as follows :-

"3. These orders will apply to all cases of re-employJ?lent occurring on or after 25-11-58 and past cases w1~ not b~ reopened. In the cases of pensioners who are m service 011 the date of issue of these orders and have been re-employed from date prior to 25~11-1958 for an unspecified period or for period which extends ~yond the _date <_Jf issue of the present orders m;ay, sub1ect to their option, be brought under the prov1s1ons of. •these orders with immediate effect.

( 4). The option should be exercised in writing within period of three months from the date of issue of these orders. The option once exercised shall be final."

The first respondent claimed that he was entitled to the benefit of the Order but the claim was rejected by the Government and so he filed the Writ Petition contending that as he answered the description of one to whom the benefit of the Order could pro-perly be extended he should be given its benefit.

The High Court allowed the writ petition ·and issued an order directing respondent No. 2 to refix the pay of respondent No. 1 in the scale of pay of Rs. 55-3-85-EB-4-125-130 at 89/- as from 2-7-1953 and to make consequential adjustments and payments.

The appellant contended before us that the Order was not

applicable to the first respondent, as he was re-employed before 25-11-1958 and his pay had already been fixed after re-employ-ment and therefore according to the terms of the Order the case of the !st respondent, being past one, could not have been re, opened. To resolve this question, it is necessary to understand the provisions of th~ Order. The first sentence in para 3 of the Order makes it clear that it is applicable only to persons re-employed on or after 25-11-1958. Respondent No. 1 clearly does not come within this category. The Order then goes on to say that past cases will not be re-opened. That means that cases of persons re-employed prior to that date will not be re-opened. But the contention of the first respondent is that although he was re-employed prior to 25-11-1958, he is governed by clause (3) of paragraph 3, and as he has exercised the option pursuant to clause ( 4) of the Order he is entitled to the benefit of the Order. In other words, the contention was that an exception to the general rule that past cases will not be re-opened has been created by clause ( 3) of paragraph 3 of the Order in favour of persons who were re-employed from date priorto 25-11-1958 for an unspeci-fied period or for period which extended beyond the date of the issue of the Order and who exercised the option to be brought under the provisions of the Order with immediate effect ruid as his case fell within the exception, he was entitled to the benefit of the Order. We think that the contention of the first respondent is well founded. It is no doubt true that past cases, namely, cases of persons re-employed prior to 25-11-1958 will not be re-opened. That is the general rule. But the effect of clause (3) of paragraph ( 3) is to create an exception to the general rule in the case of persons re-employed before 25-11-1958 for an un-specified period or for period which extends beyond the date of the Order and who have exercised their option in writing to be brought under the Order.

There is no· dispute that the first respondent has exercised the option to bie brought under the provisions of the Order. We, therefore, think that the High Court was right in its view that the first respondent was entitled to the bjenefit of the Order.

The appellant, however, contended that the Order being an administrative direction conferred no justiciable right upon the first respondent which could be en.forced in Court by writ or order in the nature of marniamus. The appellant submitted that the very foundation for the issue of writ or an order in the nature of mandamus is the existence of legal right and as un administrative order could confer no justiciable right, the High Court was wrong in issuing the order directing the second respondent to fix the pay of the first respondent in accordance with the Order.

Generally speaking, an administrative Order confers no justici-able right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan and Another(') that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supple-ment the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the condi-tions of service.

In Union of India and Others v. Mis. lndo Afghan Agencies Ltd.('), this Court, in considering the nature oi the Import Trade Policy said :

"Granting that it is executive in character, this Court

has held that Courts have the power in appropriate cases to compel performance of the obligations ii;nposed by the Schemes upon the departmental authorities."

To say that an administrative order can never confer any right would be too wide proposition. There are. administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi a/teran1 partem ill'to this area. very perceptive writer has written :

"Let us take one of Mr. Harrison's instances -a regull!'tion from the British War Office that no ~ruit shall be enlisted. yiho is not five feet six inches higr.. Suppose recru1!Jng officer musters in man who is fi~e ~eet ~v~ inches only in height, and pays him the Kmg s sh1llmg; afterwards the officer is sued by the (I) [19681 I S.C. R. ll !. (2) [1968) 2 S.C.R. 366, 317.

Government for being short in his ·accounts; • among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it. by the Court ex:actly as effect will be given to statute providing that murderers shall be hanged, or that last wills must have two wit-nesses." (John Chipman Gray on· "The Nature and Sources of the Law").

We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the righot to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right. It was contended on behalf of the appellant that the Order not being retrospective in character, 1he respondent's pay should not have been fixed with retrospective effec·t from 2-7-1953. The Order is not retrospective in character. The High Court was therefore wrong in fixing the pay with retrospective effect from 2-7-1953. The direction could only be to fix the pay with effect from the date of the Order and the first respondent did not contend otherwise in this Court. The second respondent will, therefore, fix the pay of the 1st respondent in accordance · with the provisions of the Order with effect from the date of the Order.

The appeal is dismissed with this modification, but, in the circumstances, we make no order as to costs.

Appeal dismissd.