Case: G.J. Fernandez Vs. State of Mysore &amp; Others

it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and cope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant on the breach of mere administrative instructions.13. Coming now to the argument under Article 14 the first contention is that though seven days, time had expired on August 26, 1966 the Chief Engineer took into account the letter of respondent No. 3 which came to him on August 31, 1966 and that this is discriminatory. We have already indicated that no such argument was apparently put forward in the High Court; nor do we think that there is any substance therein. The seven days, period given is not a period of limitation and it cannot be said that it was not open to the Chief Engineer to take into account a letter which came a few days later. There might have been some case of discrimination if at that stage i. e. on August 31, 1966, the Chief Engineer had rejected any other tenderers reply on the ground that it was beyond seven days or if some ones conditional tender was rejected on the ground that it was not made unconditional by August 31, 1966. But no such thing happened and therefore there can be no question of discrimination on the ground that the letter of August 31, 1966 written by respondent No. 3 was acted upon by the Chief Engineer. Besides, it appears that in a letter dated August 25, 1966 the appellant was asked to reply by August 31, 1966 and so it seems that the seven days time fixed by the Chief Engineer for reply was not absolutely rigid and that explains why he wrote to the appellant also to send a final reply by August 31, 1966. We are therefore of opinion that the fact that the Chief Engineer acted on the letter of respondent No. 3 which came to him on August 31, 1966 cannot be said to amount to discrimination.14. The other discrimination alleged is about what happened on October 15, 1966. The case of the appellant is that some negotiations were carried on by the Chief Engineer with respondent No. 3 alone after sealed tenders were opened at 4 p. m. on October 15, 1966. But the Chief Engineer has clearly denied that and his case is that all the tenderers were called by him at 7 p. m. and he asked them all whether they were prepared to make any further reduction. His case further is that six of them were not prepared to make any change while two said that they would send a reply later. His case further is that respondent No. 3 sent a letter the same day reducing the rates 4 per cent below the estimated cost. The High Court has accepted the Chief Engineers version. The appellant does not deny that there was a meeting with the Chief Engineer after the tenders were opened at 4 p. m. on October 15, 1966. His first affidavit on this point was vague and it was only in the reply affidavit that he stated that the Chief Engineer had not asked all the tenderers whether they would be prepared to reduce rates further or withdraw conditions. Nothing has been brought to our notice which would induce us to disagree with the view taken by the High Court, namely, that the Chief Engineers assertion that he asked all the tenderers whether they were prepared to make any furthers reductions or withdraw any conditions is correct. If that is so-and we have no difficulty in accepting the Chief Engineers assertion in that behalf- there is no question of discrimination in connection with what happened on October 15, 1966.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and cope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant on the breach of mere administrative instructions.13. Coming now to the argument under Article 14 the first contention is that though seven days, time had expired on August 26, 1966 the Chief Engineer took into account the letter of respondent No. 3 which came to him on August 31, 1966 and that this is discriminatory. We have already indicated that no such argument was apparently put forward in the High Court; nor do we think that there is any substance therein. The seven days, period given is not a period of limitation and it cannot be said that it was not open to the Chief Engineer to take into account a letter which came a few days later. There might have been some case of discrimination if at that stage i. e. on August 31, 1966, the Chief Engineer had rejected any other tenderers reply on the ground that it was beyond seven days or if some ones conditional tender was rejected on the ground that it was not made unconditional by August 31, 1966. But no such thing happened and therefore there can be no question of discrimination on the ground that the letter of August 31, 1966 written by respondent No. 3 was acted upon by the Chief Engineer. Besides, it appears that in a letter dated August 25, 1966 the appellant was asked to reply by August 31, 1966 and so it seems that the seven days time fixed by the Chief Engineer for reply was not absolutely rigid and that explains why he wrote to the appellant also to send a final reply by August 31, 1966. We are therefore of opinion that the fact that the Chief Engineer acted on the letter of respondent No. 3 which came to him on August 31, 1966 cannot be said to amount to discrimination.14. The other discrimination alleged is about what happened on October 15, 1966. The case of the appellant is that some negotiations were carried on by the Chief Engineer with respondent No. 3 alone after sealed tenders were opened at 4 p. m. on October 15, 1966. But the Chief Engineer has clearly denied that and his case is that all the tenderers were called by him at 7 p. m. and he asked them all whether they were prepared to make any further reduction. His case further is that six of them were not prepared to make any change while two said that they would send a reply later. His case further is that respondent No. 3 sent a letter the same day reducing the rates 4 per cent below the estimated cost. The High Court has accepted the Chief Engineers version. The appellant does not deny that there was a meeting with the Chief Engineer after the tenders were opened at 4 p. m. on October 15, 1966. His first affidavit on this point was vague and it was only in the reply affidavit that he stated that the Chief Engineer had not asked all the tenderers whether they would be prepared to reduce rates further or withdraw conditions. Nothing has been brought to our notice which would induce us to disagree with the view taken by the High Court, namely, that the Chief Engineers assertion that he asked all the tenderers whether they were prepared to make any furthers reductions or withdraw any conditions is correct. If that is so-and we have no difficulty in accepting the Chief Engineers assertion in that behalf- there is no question of discrimination in connection with what happened on October 15,High Court has observed that therules in the Code are not framed either under any statutory enactment or under any provision of the Constitution. They are merely in the nature of administrative instructions for the guidance of the department and have been issued under the executive power of the State. Even after having said so, the High Court has considered whether the instructions in the Code were followed in the present case or not. Before however we consider the question whether instructions in the Code have been followed or not, we have to decide whether these instructions have any statutory force. If they have no statutory force, they confer no right on anybody and a tenderer cannot claim any rights on the basis of these administrative instructions. If these are mere administrative instructions it may he open to Government to take disciplinary action against its servants who do not follow these instructions butof such administrative instructions does not in our opinion confer any right on any member of the public like a tenderer to ask for a writ against Government by a petition under Article 226. The matter may be different if the instructions contained in the Code are statutory rules. Learned counsel for the appellant is unable to point out any statute under which these instructions in the Code were framed. He also admits that they are administrative instruction by Government to its servants relating to the Public Works Department. But his contention is that they are rules issued under Article 162 of the Constitution. Now Article 162 provides that "executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws". This Article in our opinion merely indicates the scope of the executive power of the State; it does not confer any power on the State Government to issue rules thereunder. As a matter of fact wherever the Constitution envisages issue of rules it has so provided in specific terms. We may for example, refer to Article 309, the proviso to which lays down in specific terms that the President or the Governor of a State may make rules regulating the recruitment and the conditions of service of persons appointed to services and posts under the Union or the State.We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and cope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant on the breach of mere administrative instructions.