Case: Union of India Vs. K.P. Joseph &amp; Others

2. The first respondent was a combatant Clerk in the Indian Army for a period of more than 14 years. He was discharged from the post on 9th June, 1953. On 2nd July 1953, he was re-employed as an ordinary clerk on the pay scale of Rupees 55-3-85-EB-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., 2-7-1953.3. 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 followsThese orders will apply to all cases of 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 reemployed 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 presents orders may, subject to their option, be brought under the provisions of these orders with immediate effect.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 the extended he should be given its benefit.5. 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 Rupees 89/- as from 2-7-1953 and to make consequential adjustments and payments.

Reasoning:
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, (1968) 1 SCR 111  = (AIR 1967 SC 1910 ) 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 conditions of service.10. In Union of India v. M/s. Indo Afghan Agencies Ltd. (1968) 2 SCR 366   at p. 377 = (AIR 1968 SC 718 ), this Court, in considering the nature of the Import Trade Policy saidthat 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 departmentalsay 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 audid alteram partem into this area. A very perceptive writer has writtenus take one of Mr. Harrisons 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 Kings shilling; afterwards the officer is sued by the 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 that was part of the conditions of his service. We see no reason why the Court should not enforce that right.