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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