[Cites 40, Cited by 0]
Madhya Pradesh High Court
Ananad Kumar Bohare vs The State Of Madhya Pradesh on 24 March, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 24th OF MARCH, 2026
WRIT PETITION No. 7469 of 2019
ANAND KUMAR BOHARE
Versus
STATE OF M.P. AND OTHERS
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Appearance:
Petitioner is present in person.
Shri Prabhat Pateriya - Government Advocate for respondents/State.
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ORDER
The present petition under Article 226 of the Constitution of
India has been filed seeking following reliefs:
"(i) That, the present petition filed by the
petitioner may kindly be allowed;
(ii) That, by issuance of the writ order or
direction directing the respondents to extend the
benefit of revised Grade Pay Rs.5400/- to the
petitioner with effect from 1.1.2006 and Clause 4 of
order Annexure P/2 may kindly be quashed/struck off
the petitioner is also entitled for consequential
benefits as the petitioner has been superannuated on
30.4.2017 so the pension and pensionary benefits
may kindly be directed to be revised by extending the
benefit of Grade Pay of Rs.5400/- from 1.1.2006,
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Rs.6600/- from 1.4.2006 and Rs.7600/- from
1.7.2014 and the outstanding arrears may kindly be
directed to be paid along with interest at the rate of
12% per annum.
(iii) That, the respondents may kindly be
directed to grant the third time scale to the petitioner
from 1.7.2014 Rs.7600/-. and also granted the grade
pay of
(iv) That, the respondents may kindly be
directed to refix the pension of the petitioner after
1.1.2006.
(iv) That, any other just, suitable and proper
relief, which this Hon'ble Court deems fit, may also
kindly be granted to the petitioner. Costs be also
awarded in favour of the petitioner."
2. Petitioner submitted that relief pertaining to third time pay
scale has already been extended to the petitioner, therefore, he has
confined his relief only to grant the benefit of revised Grade Pay of
Rs.5400/- to him w.e.f. 01.01.2006 and to quash Clause 4 of order
dated 07.06.2018 (Annexure P-2).
3. Petitioner submitted that petitioner has retired from services in
the month of April, 2017 from the post of Dy. Director Prosecution.
Initially, petitioner was appointed on the post of Assistant Public
Prosecutor, Class-II at Dewas. Thereafter, vide order dated
22.03.2007, petitioner was promoted on the post of District Public
Prosecution Officer. He was further promoted on the post of Dy.
Director Prosecution vide order dated 22.09.2012. During the service
period, 6th Pay Commission came in force w.e.f. 01.01.2006 and as
per 6th Pay Commission, petitioner's pay was fixed at pay
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Rs.16930+4200 = 21,130/- in the pay scale of Rs.9300-34800 +
Grade Pay 4200/-.
4. It is further submitted that as per Madhya Pradesh Pay Revision
Rules, 2009 (in short "Rules, 2009"), all the Government Servants
are required to get the benefit w.e.f. 01.01.2006 and Rule 14 provides
that the Rules, 2009 is having overriding effect to other orders and
submitted that as per Rule 15 of Rules, 2009, relaxation which is not
beneficial for Government Servants, that cannot be relaxed or
suspended and without considering the aforesaid aspect and contrary
to Rules, 2009, a Committee has been constituted and as per
committee recommendations, order dated 07.06.2018 has been issued,
by which, as per Clause 4, the benefit of pay scale has been extended
w.e.f. 01.01.2016 instead of 01.01.2006 and the benefit of such
revised grade pay was sanctioned from 01.01.2016 and actual arrears
were sanctioned to be given from 01.07.2018. Petitioner further
submitted that the Rules, 2009 came into force w.e.f. 01.01.2006 and
contrary to aforesaid, the order dated 07.06.2018 has been issued by
the respondent and further submitted that Rule 15 of the Rules, 2009
provides that no order, which is detrimental to the benefit of
employee or class of employee, shall be passed and Clause 4 of the
impugned order is effected on petitioner's pay and it is not
beneficiary/profitable to the petitioner, therefore, that cannot be
issued and as the Rules, 2009 is having overriding effect over any
other Orders/Rules, which may be passed by the State Government
and further submitted that the Rules have statutory force and,
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therefore, cannot be overruled by an administrative order.
5. Per contra, learned Government Advocate submitted that the
State Government, Finance Department, had accepted the
recommendations of the State Pay Commission constituted under the
chairmanship of Shri A.K. Agrawal, retired IAS, by which the pay of
certain categories of offices have been revised and upgraded and
further submitted that Clause/Para 4 of the aforesaid order, is having
no contradiction with the Rules, 2009 and order dated 07.06.2018 is
regarding removing the anomaly in the pay scale of certain cadres of
employees of State Government and by the aforesaid order,
recommendation of Shri A.K. Agrawal Committee was accepted by
the State Government and those cadres have been granted the
upgraded pay scale w.e.f. 01.01.2016 in the 7th Pay Commission Pay
Scale and further submitted that upgraded pay scale benefits are
extended to the cadres given in the list w.e.f. 01.01.2016 and cash
benefit of the same is admissible to those employees w.e.f.
01.07.2018 and in terms of this upgraded pay scale, pay fixation will
be done in the pay scale prescribed by the M.P. Pay Revision Rules,
2017 and between the period of 01.01.2016 to 30.06.2018 notional
fixation will be done and cash benefit will be given from 01.07.2018
and submitted that the said pay commission was constituted under the
Chairmanship of Shri A.K. Agrawal on 23.02.2008, i.e., much before
the Rules, 2009 came into force (Annexure R-2) and submitted that
date of enforcement of fixation (revised pay) is not from the date of
petitioner's choice while the same is the domain of the State.
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6. Heard both the parties and perused the record.
7. It is noted that the petitioner has retired in April 2017 from the
post of Deputy Director Prosecution, having initially been appointed
as Assistant Public Prosecutor and subsequently promoted to higher
posts during service. The petitioner's pay was fixed under the
recommendations of the 6th Pay Commission with effect from
01.01.2006. It is the contention of the petitioner that under the
Madhya Pradesh Pay Revision Rules, 2009, which came into force
from 01.01.2006, he is entitled to the revised pay benefits from that
date. The Rules are stated to have overriding effect, and any
relaxation or order detrimental to the interest of employees is
impermissible. However, by order dated 07.06.2018, based on
committee recommendations, the benefit of revised pay scale was
granted from 01.01.2016, with arrears payable from 01.07.2018.
8. Clause/Para 4 of the impugned order dated 07.06.2018 reads as
under:-
"4. उपररर्युक्त ववेतन उननरन ददिनननांक 01-01-2016 सवे
लनगगू कर नगदि लनभ ददिनननांक 01-07-2018 (अगसत 2018 मम
दिवेर) सवे ददिरन जनववे। ददिनननांक 01-01-2016 कको उपररर्युक्त अनरसनर
दिवेर गवेड ववेतन कवे आधनर पर म.प. ववेतन परनररीक्षण ननरम,
2017 मम ववेतन ननधनर्युरण दकरन जनववेगन। ददिनननांक 01-01-2016 सवे
30-06-2018 तक ककी अवनध कवे नलरवे कनलपननक ववेतन ववृदद्विरय
दिरी जनरमगगी।"
9. The said order is contrary to the statutory Rules, 2009. It is
argued that an administrative order cannot override statutory rules,
and any such action affecting the petitioner adversely is unsustainable
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in law.
10. Rules 1 and 2 of the Rules, 2009 read as under:-
"1. सनांकक्षप्त ननम और पनरनांभ (1) इन ननरमय कन सनांकक्षप्त
ननम मधरपदिवेश ववेतन परनररीक्षण ननरम, 2009 हहै।
(2) यये ननियम 1 जनिवरर, 2006 सये प्रवत्त
व समझये जजाययेगग ।
2. शनसककीर सवेवकय कवे पवगर्यु कजनकय रवे ननरम लनगगू हकोगम
इन ननरमय द्विनरन रन इनकवे अधगीन अनरथन उपबनांध कवे नसवनर,
यये ननियम उनि समसस्त शजासककीय सवयेककों कको लजाग ग हकोगग जको
रजाजय सरकजार कये ननियम बनिजानिये ससंबसंधधी ननियसंत्रण कये अधधीनि
आस्तये हह:
रवे ननरम लनगगू नहरीनां हकोगम :-
i. उन वरकक्तरको पर, जको पगूणर्युकननलक सवेवन रकोजनन मवे नहरीनां
हहै,
ⅱ. उन वरकक्तरय पर, कजनहम मननसक आधनर ककी अपवेक्षन
अनर पकनर सवे भरगतनन दकरन जनतन हहै। उनमवे वम वरकक्त
भगी शननमल हहै, कजनहम कवेवल मनतननरपनत दिर पर भरगतनन
दकरन जनतन हहै,
iii. उन वरकक्तरय पर, जको अनरबनध पर कनरर्यु कर रहवे हहैं।
iv. उन वरकक्तरय पर जको सवेवनननववृकत्ति कवे बनदि परननः सरकनररी
ननौकररी मवे लगनरवे गरवे हहैं,
v. अकखिल भनरतगीर सवेवन कवे ववेतनमननय मवे ववेतन पननवे वनलवे
वरकक्त,
vi. कवश्वकवदनलर अनरदिनन आरकोग और अकखिल भनरतगीर
पनौदकोनगककी नशक्षन पररषद् कवे ववेतनमननय पर सनांदिनर पननवे
वनलवे वरकक्त; और
vii. उन दकसगी अनर वगर्यु रन शवेणगी कवे वरकक्तरय पर कजनहवे
मधरपदिवेश कवे रनजरपनल, आदिवेश द्विनरन, सनरवे कनरर्यों सवे अथवन
इन ननरमय मम ननदहत पनवधननय सवे कवशवेष रूप सवे
ननषकननसत करतवे हय ।
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सस्पषषरकरण-खिणड (V) कवे परकोजन कवे नलए परननः ननरकोकजत
पमशनभकोगगी कवे अनतगर्युत ववे परननः ननरकोकजत नहरीनां आएगम जको
पनतकर रन अशक्त पमशन पनप्त करतवे थवे और ऐसवे सहैननक
पमशनभकोगगी जको पनतकर रन अशक्त पमशन पनप्त करतवे थवे और
जको रनजर सरकनर कवे ननरम बनननवे कवे ननरनांतण कवे अधगीन
परननः ननरकोकजत हहैं और कवदमनन ववेतनमनन मम ववेतन आहररत
कर रहम हहैं ।"
11. Rules 14 and 15 of the Rules, 2009 read as under:-
14. ननियमकों कजा अधयजारकोहर प्रभजाव - उनि मजामलकों मग जहजाह
वयेस्तनि इनि ननियमकों दवजारजा ववननियममस्त हकोस्तजा हह, वहजासं मगल ननियम
स्तथजा ककनहर अनय ननियमकों कये उस्पबनध उस सधीमजा स्तक लजाग ग
निहरसं हकोंगये जहजाह स्तक कक वये इनि ननियमकों सये अससंगस्त हको ।
15. मशथथल करनिये ककी शककस्त - रनजर सरकनर, शनसककीर
सवेवकय कवे रन शनसककीर सवेवकय कवे पवगर्यु कवे मनमलम मम इन
ननरमय कवे उपबनधय मम सवे दकसगी भगी उपबनध कन पवतर्युन ऐसगी
ररीनत मम और ऐसगी सगीमन तक नशनथल रन ननलनांकबत कर
सकवेगगी जहैसन दक उसवे लकोकदहत मवे नरनरसनांगत और सनमरनपगूणर्यु
रन आवशरक रन समगीचगीन पतगीत हको :
स्परनस्तन ऐसजा मशथथलरकरण यजा ननिलसंबनि जको यथजाकसथनस्त
ककसधी शजासककीय सयेवक यजा शजासककीय सयेवककों कये ककसधी प्रवगर्ग कये
मलए अलजाभप्रद हको, प्रवनस्तर्गस्त निहरसं ककयजा जजाएगजा ।"
12. As per Rules, 2009, rules is applicable on all the government
servants of State Government and that Rules, 2009 came into force
w.e.f. 01.01.2006 and as per proviso of Rule 15 and as the Rule, 2009
is having overriding effect upon any other law, petitioner is entitled to
the benefit of revision of pay rules w.e.f. 01.01.2006.
13. It is very settled preposition of law that when the action of the
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State or its instrumentalites is not as per the Rules/statutory
provisions, the Court must exercise its jurisdiction to declare such an
act to be illegal and invalid. In the case of Sirsi Municipality Vs.
Cecelia Kom Francis Tellis (AIR 1973 SC 855), the Supreme Court
has held that "the ratio is that the rules or the regulations are binding
on the authorities". The Apex Court in the aforesaid case has held as
under:-
"The Hon'ble Supreme Court, in Sukhdeo
Singh and Ors. v. Bhagatram Sardar Singh
Raghuvanshi and Anr. (1975 AIR 1331), has
observed as under:
The statutory authorities cannot deviate
from the conditions of service. Any deviation will
be enforced by legal sanction of declaration by
Courts to invalidate actions in violation of rules
and regulations. The existence of rules and
regulations under statute is to ensure regular
conduct with a distinctive attitude to that conduct
as a standard. The statutory regulations in the
cases under consideration give the employees a
statutory status and impose restrictions on the
employer and the employee with no option to
vary the conditions.... In cases of statutory bodies
there is no personal element whatsoever because
of the impersonal character of statutory bodies...
the element of public employment or service and
the support of statute require observance of rules
and regulations. Failure to observe requirements
by statutory bodies is enforced by courts by
declaring (action) in violation of rules and
regulations to be void. This Court has repeatedly
observed that whenever a man's rights are
affected by decision taken under statutory powers,
the Court would presume the existence of a duty
9 WP-7469-2019
to observe the rules of natural justice and
compliance with rules and regulations imposed by
statute."
(Emphasis added)
14. The Hon'ble Apex Court has considered time and again the
scope of issuing the executive orders. A Constitution Bench of the
Hon'ble Supreme Court, in B.N. Nagarajan v. State of Mysore
reported in (1967) ILLJ 698 SC, has observed as under:-
"It is hardly necessary to mention that if there is
a statutory rule or an Act on the matter, the executive
must abide by thai Act or the Rules and it cannot, in
exercise of its executive powers under Article 162 of
the Constitution, ignore or act contrary to that Rule or
the Act."
15 The Hon'ble Supreme Court in Sant Ram Sharma v. State of
Rajasthan and Ors. reported in (1968) IILLJ 830 SC, has
observed as under:-
"It is true that the Government cannot amend or
supersede statutory Rules by administrative
instruction, but if the Rules are silent on any particular
point, the Government can fill-up the gap and
supplement the rule and issue instructions not
inconsistent with the Rules already framed."
(Emphasis added).
16. The law referred to above has consistently been followed and it
is settled proposition of law that the Authority cannot issue the
orders/office memorandum/executive instructions in contravention of
the statutory Rules. However, instructions can be issued only to
supplement the statutory rules but not to supplant it. (Vide
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Commissioner of Income Tax v. A. Raman & Co. [1968] 67 ITR 11
(SC); Union of India & Ors v. Majji Jangammya and Ors., [1977] 2
SCR 28; Ramendra Singh and Ors. v. Jagdish Prasad and Ors.
[1984] 2 SCR 598; P.D. Agrawal and Ors. v. State of U.P. and Ors.
[1987] 3 SCR 427; Beoper Sahayak (P) Ltd. v. Vishwa Nath [1987] 3
SCR 496; Paluru Ramkrishananiah and Ors. v. Union of India and
Ors. (1989) IILLJ 47SC; and Comptroller & Auditor General of
India and Ors. v. Mohan Lal Mehrotra and Ors. (1992) I LLJ 335
SC."
17. The Hon'ble Supreme Court, in Naga People' Movement of
Human Rights v. Union of India and Ors. reported in AIR 1998
SC 465, has held that the executive instructions are binding provided
the same have been issued to fill up the gap between the statutory
provisions and are consistent with the said provisions.
18. In C. Rangaswamaiah and Ors. v. Karnataka Lokayukta
and Ors. reported in [1998] 3 SCR 837, the Hon'ble Supreme Court
held that executive instructions can be passed even for creating the
post so long as they remain consistent with law/rules. In Nagpur
Improvement Trust v. Yadaorao Jagannath Kumbhera reported
in AIR 1999 SC 3084, the Hon'ble Supreme Court observed that in
absence of statutory rules, appointments can be made on the basis of
executive instructions but there is no scope of deviation of rules, if
the same exist.
19. In light of the aforesaid, it can be safely gathered that executive
instructions cannot amend or supercede the statutory rules or add
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something therein. The orders cannot be issued in contravention of
the statutory rules for the reason that an administrative instruction is
not a statutory rule nor does it have any force of law; while statutory
Rules have full force of law as held by the Constitution Bench of the
Hon'ble Supreme Court in State of U.P. and Ors. v. Babu Ram
Upadhyaya reported in 1961 CriL J773; and State of Tamil Nadu
v. M/s. Hind Stone etc. reported in [1981] 2 SCR 742.
20. In the case of Union of India v. Sri Somesundram
Vishwanath reported in AIR 1988 SC 2255, the Hon'ble Apex Court
has observed that if there is a conflict between the executive
instruction and the Rules framed under the proviso to Article 309 of
the Constitution, the Rules will prevail. Similarly, if there is a conflict
in the rules made under the proviso to Article 309 of the Constitution
and the law, the law will prevail.
21. In the case of Ram Ganesh Tripathi v. State of U.P. reported
in AIR 1997 SC 1446, the Hon'ble Supreme Court considered a
similar controversy and held that any executive instruction/order
which runs counter to or is inconsistent with the statutory rules cannot
be enforced, rather deserves to be quashed, being dehors the rules.
22. The Rajasthan High Court in the case of Ashok Kumar Vs.
State of Rajasthan and Ors. reported in 2000 (2) WLN 574 has
taken a similar view relying upon the aforesaid judgments and has
held that executive instructions cannot supercede the statutory rules.
In the present case, Rules have been framed in exercise of proviso to
Article 309 of the Constitution of India and executive instructions
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issued by the Finance Department under the signatures of the
Secretary, Finance Department will no way supercede the statutory
provision on the subject.
23. The Apex Court in the case of The Distt. Registrar, Palghat
and Others Vs. M. B. Koyakutty and Others reported in (1979) 2
SCC 150 has held that the executive instructions should be
subservient to the statutory provisions. Paragraph No.22 of the
aforesaid judgment reads as under:-
"22. There can be no quarrel with the
proposition that if the statutory rules framed by the
Governor or any law enacted by the State Legislature
under Article 309 is silent on any particular point, the
Government can fill up that gap and supplement the
rule by issuing administrative instructions not
inconsistent with the statutory provisions already
framed or enacted. The Executive instructions in order
to be valid must run subservient to the statutory
provisions. In the instant case, however, it could not be
said that there was a gap or a void in the statutory
provisions in the matter of promotion from the cadre
of Lower Division Clerks to that of Upper Division
Clerks."
24. The Apex Court in the case of State of Madhya Pradesh and
Another Vs. M/s. G. S. Dall and Flour Mills reported in 1992 Supp
(1) SCC 150 has held that the executive instruction can supplement a
statute or cover areas to which the statute does not extend. But they
cannot run contrary to statutory provisions or whittle down their
effect.
25. The Apex Court in the case of Union of India and Another
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Vs. Ashok Kumar Aggarwal reported in (2013) 16 SCC 147 has
again dealt with the executive instructions. Paragraphs No.58, 59 and
60 of the aforesaid judgment reads as under:-
"58. A Constitution Bench of this Court while
dealing with a similar issue in respect of executive
instructions in Sant Ram Sharma Vs. State of
Rajasthan & Ors., AIR 1967 SC 1910, held:
"7. ... It is true that the Government cannot
amend or supersede statutory Rules by
administrative instruction, but if the Rules are
silent on any particular point, the Government can
fill-up the gap and supplement the rule and issue
instructions not inconsistent with the Rules
already framed."
59. The law laid down above has consistently
been followed and it is a settled proposition of law that
an authority cannot issue orders/office memorandum/
executive instructions in contravention of the statutory
Rules. However, instructions can be issued only to
supplement the statutory rules but not to supplant it.
Such instructions should be subservient to the statutory
provisions. (Vide: Union of India & Ors. v. Majji
Jangammayya & Ors., AIR 1977 SC 757; P. D.
Aggarwal & Ors. v. State of U. P. & Ors., AIR 1987
SC 1676; Paluru Ramkrishnaiah & Ors. v. Union of
India & Anr., AIR 1990 SC 166; C. Rangaswamaiah &
Ors. v. Karnataka Lokayukta & Ors., AIR 1998 SC
2496; and JAC of Airlines Pilots Association of India
& Ors. v. The Director General of Civil Aviation &
Ors., AIR 2011 SC 2220).
60. Similarly, a Constitution Bench of this
Court, in Naga People's Movement of Humant Rights
v. Union of India., AIR 1998 SC 431, held that the
executive instructions have binding force provided the
same have been issued to fill up the gap between the
statutory provisions and are not inconsistent with the
14 WP-7469-2019
said provisions."
It has been held that the executive instructions are
subservient to the statutory provisions and can be issued only to
supplement the statutory rules and not to supplant them.
26. In the case of State of Haryana Vs. Mahendra Singh and
Others reported in (2007) 13 SCC 606, it has been held by the Apex
Court that executive instructions cannot prevail over the statutory
rules. A similar view has been taken by the Apex Court in the case of
DDA and Others Vs. Joginder S. Monga and Others reported in
(2004) 2 SCC 297 and it has been held that executive instructions if
they are in conflict with statutory provision, the statutory provision
will prevail and in absence any conflict both will prevail.
27. In the case of Accountant General, State of Madhya Pradesh
Vs. S. K. Dubey and Another reported in (2012) 4 SCC 578, the
apex Court in paragraph No.31, 33 and 39 has held as under:-
"31. Subject to the provisions of the
Constitution, the executive power of a State extends to
the matters with respect to which the Legislature of the
State has power to make laws. This is what is provided
in Article 162 of the Constitution. In other words, the
executive power of the State Executive is coextensive
with that of the State Legislature.
33. The Constitution Bench of this Court in Lalit
Mohan Deb (1973) 3 SCC 862 (para 9; pg. 867) said :
"9. It is true that there are no statutory rules
regulating the selection of Assistants to the
selection grade. But the absence of such rules is
no bar to the Administration giving instructions
regarding promotion to the higher grade as long
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as such instructions are not inconsistent with any
rule on the subject..........".In Union of India and
another v. Central Electrical and Mechanical
Engineering Service (CE&MES) Group 'A'
(Direct Recruits) Association, CPWD and
others16, this Court held that the executive
instructions could fill in gaps not covered by rules
but such instructions cannot be in derogation of
the statutory rules.
39. I am of the considered view that there is no
difference in the legal position in a case where power
conferred on the State Government for framing rules
has been exercised but such rules remain silent on
certain aspects although it had power to make rules
with regard to those aspects and in the situation where
no rules have been framed in exercise of the power
conferred on it, insofar as executive power of the State
is concerned. The power that vests in the State
Government in Section 30(2) to carry out the
provisions contained in Section 16(2) does not take
away its executive power to make provision for the
subjects covered in Section 16(2) for which no rules
have been framed by it. The exercise of such power by
the State Government, obviously, must not be
inconsistent with the constitutional provisions or
statutory provision in Section 16(2) or the State Rules
framed by it. In the present case, the exercise of power
by the State Government by issuance of the order
dated April 5, 2002 does not suffer from any such
vice."
In the aforesaid case, the Apex Court has held that
executive instructions can fill in gaps not covered by rules but such
instruction cannot be in derogation of the rules.
28. The Apex Court in the case of Joint Committee of Air Line
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Pilots' Association of India (ALPAI) and Others Vs. Director
General of Civil Aviation and Others reported in (2011) 5 SCC 435
in paragraphs No.17 and 20 to 23 has held as under:-
"17. The CAR 2007 is neither a statute nor a
subordinate legislation. Provisions contained in
Section 4A, 5 & 6A of the Act 1934 and Rules 42A &
133A of the Rules 1937, make it evident that the same
are merely executive instructions which can be termed
as "special directions". The executive instruction can
supplement a statute or cover areas to which the statute
does not extend, but it cannot run contrary to the
statutory provisions or whittle down their effect.
(Vide: State of M. P. & Anr. v. M/s. G.S. Dall & Flour
Mills (1992) supp. (1) SCC 150.
20. Thus, an executive order is to be issued
keeping in view the rules and executive business,
though the executive order may not have a force of
law but it is issued to provide guidelines to all
concerned, who are bound by it.
21. In Union of India & Anr. v. Amrik Singh &
Ors., AIR 1994 SC 2316, this Court examined the
scope of executive instructions issued by the
Comptroller and Auditor General for making the
appointments under the provisions of Indian Audit and
Accounts Department (Administrative Officers,
Accounts Officers and Audit Officers) Recruitment
Rules, 1964, and came to the conclusion that the
Comptroller and Auditor General of India had
necessary competence to issue departmental
instructions on matters of conditions of service of
persons serving in Department, being the Head of the
Department, in spite of the statutory rules existing in
this regard. The Court came to the conclusion that an
enabling provision is there and in view thereof, the
CAG had exercised his powers and issued the
instructions which are not inconsistent with the
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statutory rules, the same are binding for the reason that
the provision in executive instructions has been made
with the required competence by the Comptroller and
Auditor General.
22. Thus, it is evident from the above that
executive instructions which are issued for guidance
and to implement the scheme of the Act and do not
have the force of law, can be issued by the competent
authority and altered, replaced and substituted at any
time. The law merely prohibits the issuance of a
direction, which is not in consonance with the Act or
the statutory rules applicable thereunder.
23. This Court in State of U.P. & Ors. v.
Hirendra Pal Singh etc., JT (2010) 13 SC 610,
considered a large number of judgments particularly in
Firm A.T.B. Mehtab Majid & Co. v. State of Madras
& Anr., AIR 1963 SC 928; B. N. Tewari v. Union of
India & Ors., AIR 1965 SC 1430; Indian Express
Newspapers (Bombay) Private Ltd. & Ors. v. Union of
India & Ors., AIR 1986 SC 515; West U.P. Sugar
Mills Association & Ors. v. State of U.P. & Ors., AIR
2002 SC 948; Zile Singh v. State of Haryana & Ors.,
(2004) 8 SCC 1; and State of Kerala & Anr. v.
Peoples Union for Civil Liberties, Kerala State Unit &
Ors., (2009) 8 SCC 46, and came to the conclusion
that once the old rule has been substituted by the new
rule, it stands obliterated, thus ceases to exist and
under no circumstance, can it be revived in case the
new rule is held to be invalid and struck down by the
Court, though position would be different in case a
statutory amendment by the Legislature, is held to be
bad for want of legislative competence. In that
situation, the repealed statutory provisions would
revive automatically."
The Apex Court in the aforesaid case has held that
executive instructions cannot run contrary to statutory provision or
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whittle down their effect.
29. In the case of S.Sivaguru Vs. State of Tamil Nadu and
Others reported in (2013) 7 SCC 335, the Apex Court while again
dealing with executive instructions has held that executive instruction
cannot supplant statutory rules.
30. In the case of Lok Prahari Vs. State of Uttar Pradesh and
Others reported in (2016) 8 SCC 389, the Apex Court in paragraphs
No.39 and 44 has held as under:-
"39. There is one more and most important
reason for which the 1997 Rules cannot be said to be
legal. The 1981 Act deals with the salaries and
perquisites to be given to all the Ministers, including
the Chief Ministers. The said provisions are statutory,
but the 1997 Rules are not statutory and they are only
in the nature of executive instructions. If there is any
variance in statutory provision and executive
instruction, the statutory provision would always
prevail. This is a very well-known principle and no
further discussion is required on the subject. When the
1981 Act enables the Chief Minister to have residential
accommodation only during his tenure and for 15 days
after completion of his tenure, the 1997 Rules
providing for an accommodation for life to the Chief
Minister cannot be said to be legal and valid. For this
sole reason, validity of the 1997 Rules cannot be
upheld.
44. There cannot be any dispute that when the
rules and regulations or executive institutions are
contrary to any statutory provision, the statutory
provision would prevail and the rules or executive
institutions, so far as they are contrary to the statutory
provisions, would fail."
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In the aforesaid case, it has been held that in case
executive instructions are contrary to any statutory rules, statutory
provision shall prevail and the executive instructions, so far as they
are contrary to the statutory provision, would fail.
31. The Apex Court in the case of Narinder S. Chadha and
Others Vs. Municipal Corporation of Greater Mumbai and
Others reported in (2014) 15 SCC 689 has declared the executive
instructions as ultra vires which were contrary to the statutory
provisions. Thus, it can be safely gathered that executive instructions
which are not in consonance with the statutory provision are void ab
initio.
32. The Hon'ble Justice G.P. Singh in "Principle of Statutory
Interpretation (Tenth Edition)", while dealing with delegated
legislation has dealt with circulars and notifications which are issued
by governments and has observed that circulars or instructions which
have no statutory backing do not amount to law and cannot dilute or
override the effect of a constitutional or statutory provision. (See:
Municipal Corporation of Amritsar v. Senior Superintendent of Post
Offices Amritsar Division, (2004) 3 SCC 92; Rampal Kundu Vs.
Kamal Sharma, (2004) 2 SCC 759).
33. The Government of M.P. in exercise of power conferred under
Article 309 of the Constitution of India framed the Madhya Pradesh
Vetan Punrikshan Niyam, 2009 and made it applicable w.e.f.
01.01.2006 for its government employee and the Rules, 2009 is
applicable w.e.f. 01.01.2006, therefore, by not granting the benefit of
20 WP-7469-2019
6th Pay Commission w.e.f. 01.01.2006 and the benefit granted w.e.f.
01.01.2016 is arbitrary, discriminatory and unreasonable and it is
admitted that the petitioner is a Government Servant and once the
benefit of the Rules, 2009 has been extended to some of the
employees w.e.f. 01.01.2006, then the petitioner being the State
Government employee is also entitled to get the benefit of the Rules,
2009 w.e.f. 01.01.2006 at par with the other State Government
employees and the State Government could not have taken arbitrary
decision not to grant same from the same date, from which, the other
State Government employees were granted and, therefore, Clause 4 of
the order dated 07.06.2018 (Annexure P-2) is contrary to the Rules,
2009 and the petitioner cannot be discriminated on the basis of
administrative instructions dated 07.06.2018 (Clause 4) and the State
Government has not mentioned any reasonable ground for granting
the said benefit w.e.f. 01.01.2016 instead of 01.01.2006.
34. The said decision is arbitrary and discriminatory and also
violative of the doctrine of "Equal Pay for Equal Work". In the case
of Surinder Singh and Anr. vs. Engineer-in-chief CPWD and Ors.
reported in (1986) 1 SCC 639, the Court held that the daily wage
workers of CPWD are entitled to the wages equal to regular and
permanent employees as they are discharging identical duties. In the
case of Randhir Singh vs. Union of India and Ors. reported in
(1982) SCC 618, the Court held that the grant of lower scale pay to
the Delhi Police Force then those in Delhi administration is
unreasonable classification and not in consonance with the principle
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of "Equal Pay for Equal Work". The similar view was reiterated by
the Apex Court in the case of State of Punjab & Ors. vs. Jagjit
Singh and Ors. reported in (2017) 1 SCC 148 that the principle of
"Equal Pay for Equal Work" applies to the temporary employees and
they cannot be discriminated in respect of the entitlement to minimum
regular pay as they are discharging the same duties as discharged by
regular employees against sanctioned post.
35. In view of the aforesaid, the decision of the respondent granting
the said benefit w.e.f. 01.01.2016 (different date from which the State
Government employee has been granted, i.e., 01.01.2006) is arbitrary
and violative of Article 14 of the Constitution of India.
36. Consequently, Clause 4 of the order dated 07.06.2018
(Annexure P-2) is hereby set aside and respondents are directed to
give the benefit of the Rules, 2009 to the petitioner w.e.f. 01.01.2006
including grant of revised Grade Pay of Rs.5400/- and all
consequential benefits, including revision of pension and payment of
arrears within a period of three months from the date of receipt of
certified copy of this order. If the benefit has not been extended to the
petitioner within the aforesaid period of three months, then the
petitioner is entitled for interest @ 6% per annum from the date of
entitlement till actual payment.
37. With aforesaid, petition is allowed and disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
Abhi
