Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
K. P. JOSEPH AND ORS.
DATE OF JUDGMENT27/10/1972
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
GROVER, A.N.
MUKHERJEA, B.K.
CITATION:
1973 AIR 303 1973 SCR (2) 752
1973 SCC (1) 194
CITATOR INFO :
R 1974 SC 252 (16)
R 1975 SC 434 (3)
F 1975 SC1487 (22)
RF 1976 SC1913 (11)
RF 1977 SC2411 (26)
ACT:
Military Service--General Order of Government of India
Ministry of Defence dated 15th July 1960 conferring certain
benefits on retired military personnel--Exception in
paragraph (3) cl. (3) of Order, applicability of--Claim
under Order whether justiciable--Offer not
retrospective--Pay whether could be re-fixed for period
before date of Order.
HEADNOTE:
The appellant was discharged from the post of combatant
Clerk in the Indian Army on 9th June, 1953 and was re-
employed shortly thereafter. His pay was re-fixed in the
scale applicable. On 15th July 1960 the Government of India
issued a general Order relating to re-employed ex-military
personnel. Under the Order those entitled to its benefits
would get fixed 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 service. The first
respondent having exercised the option provided for in the
Order, claimed that he was entitled to the benefit of the
Order. The claim was rejected by the Government The first
respondent filed a 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 and no writ lay; (iii) that the order not being
retrospective in character, the respondent’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 paragraph (3)
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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 a period which extends to the date 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 administrative
order can never confer any right would be too wide a
proposition. There are administrative rights which confer
rights and impose duties. it is because an administrative
order can abridge or takeaway 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. [755D]
Sant Ram Sharma v. State of Rajasthan and another, [1968] 1
S.C.R. 111; and Union of India and Others v. M/s. Indo
Afghan Agencies Ltd., [1968] 2 S.C.R. 366, 377, applied to.
(3)The order was not retrospective in character. The High
Court was therefore wrong in fixing the pay with
retrospective effect from 2-7-1953.
753
The direction could only be to fix the pay with effect from
the date of the Order.
JUDGMENT:
CIVIL APPELLATE 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
appellant.
B. P. Maheshwari and C. L.. Joseph, for the respondent.
The Judgment of the Court was delivered by
MATHEW, J.-This is an appeal by Special Leave from the order
dated the 9th of September, 1966 passed by the High Court of
Mysore in a Writ Petition filed by the first respondent.
The first respondent was a combatant Clerk in the Indian
Army for a 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-
85EB-4-125-5-130. His pay was re-fixed in the above scale
at Rs. 70/- plus a personal pay of Rs. 2.50 by an Order
dated 28th October, 1958, with effect from the date of re-
employment, i.e., 2-7-1953.
On 15th July, 1960, the Government of India, Ministry of
Defence, issued a 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
length 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 scales increments equal to the total
number of completed years of military service. The Order so
far as it is relevant for the purpose of this appeal is
contained in paragraphs 3 and 4 thereof and they read as
follows :-
"3. These orders will apply to all cases of
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reemployment occurring on or after 25-11-58
and past cases will not be reopened. In the
cases of pensioners who are in service on the
date of issue of these orders and have been
re-employed from a date prior to 25-11-1958
for an unspecified period or for a period
which extends beyond the date of issue of the
present orders may, subject to their option,
be brought under the provisions of these
orders with immediate effect.
754
(4). The option should be exercised in
writing within a 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 properly 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-employment and therefore according to the terms of the
Order the case of the 1st respondent, being a past one,
could not have been reopened. To resolve this question, it
is necessary to understand the provisions of the Order. The
first sentence in para 3 of the Order makes it clear that it
is applicable only to persons reemployed 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 a date prior to 25-11-1958 for an unspecified period or
for a 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 and 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 reopened. 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 unspecified period or for
a period which extends beyond the date of the Order and who
have exercised their option in writing to be brought under
the Order.
755
There is no dispute that the first respondent has exercised
the option to be brought under the provisions of the Order.
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We, therefore, think that the High Court was right in its
view that the first respondent was entitled to the benefit
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 enforced in a Court by a
writ or order in the nature of mandamus. The appellant
submitted that the very foundation for the issue of a writ
or an order in the nature of mandamus is the existence of a
legal right and as an 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
justiciable 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(1) 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 supplement 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. M/s. Indo Afghan Agencies
Ltd.(2), this Court, in considering the) nature of 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 imposed by the Schemes upon
the departmental authorities. "
To say that an administrative order can never confer any
right would be too wide a 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 alteram partem into this area. A
very perceptive writer has written:
"Let us take one of Mr. Harrison’s instances,-
a regulation from the British War Office that
no recruit shall be enlisted who is not five
feet six inches high. Suppose a recruiting
officer musters in a man who is five feet five
inches only in height, and pays him the King’s
shilling; afterwards the officer is sued by
the
(1) [1968] 1 S.C.R. 111. (2)
[1968] 2 S.C.R. 366, 377.
756
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
exactly as effect will be given to a statute
providing that murderers shall ’be hanged, or
that last wills must have two witnesses."
(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 right to
have his pay fixed in the manner specified in the Order and
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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, the respondent’s pay
should not have been fixed with retrospective effect 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.
G.C. Appeal dismissed.
757