Allahabad High Court
State Of ... vs Laxmi Kant Dixit And Ors. on 1 October, 2019
Bench: Pankaj Kumar Jaiswal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 450 of 2019 Appellant :- State Of U.P.Throu.Prin.Secy.Industries Lucknow And Ors. Respondent :- Laxmi Kant Dixit And Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- L.K.Pathak Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Irshad Ali,J.
This Special appeal is beyond time by 228 days.
Heard Sri Nagendra Kumar Dwivedi, learned counsel for the State-appellant and Sri L.K.Pathak, learned counsel for the respondents on the C.M.A. No.116897 of 2019 application for condoning the delay as well as on the question of admission of appeal.
By the impugned Judgement and order dated 11.01.2019, the learned writ Court relying upon the Judgement and order dated 12.06.1998 passed in matter of Machine Assistant Offset, which was upheld by the Division Bench vide Judgement and order dated 05.05.2008 in Special Appeal No. 942 of 2006 as well as by Hon'ble Apex Court in Special Leave to Appeal (Civil) No. 18167 of 2008 vide Judgement and order dated 08.08.2008, has passed the impugned order holding that the issue in the petition as well as earlier round of litigations with respect to the post of Machine Assistant Offset is same, thus relying upon the settled principle of law that the Government Order would not prevail over the statutory provisions including the Rules and therefore quashed the Government Order dated 31.07.1996 so far as relates to the post of "Binder" as well as order dated 24.04.2000 and order dated 30.08.2000 .
The respondents were appointed on the post of Assistant Binder thereafter, they were promoted on the post of Binder on different dates in the pay scale of Rs. 950-1400 and were entitled to the corresponding pay scales provided vide Government Order dated 31.07.1996 in the pay scale of Rs. 1200-1800 and therefore the arguments before the learned Writ Court that the said pay scale cannot be reduced nor they can be reverted/redesignated as "Assistant Binder" in the pay scale of Rs. 950-1500 by means of the Government Order dated 31.07.1996 and office order dated 24.04.2000 and order dated 30.08.2000.
The learned Writ Court considering the settled law laid down by the Fell Bench of this Court in the case of Vijay Singh and others Vs. State of U.P. and others reported in 2005 (23 )LC 1696 gave the following findings:-
"Para 6. It is settled legal proposition that executive instructions cannot override the statutory provisions. (Vide B.N. Nargajan Vs. State of Mysore, AIR 1966 SC 1942; Sant Ram Sharma Vs. State of Rajasthan & ors., AIR 1967 SC 1910; Union of India & ors. Vs. Majji Jangammyya & ors., AIR 1977 SC 757; B.N. Nagarajan & ors. Vs. State of Karnataka & ors., AIR 1979 SC 1676; P.D. Agrawal & ors. Vs. State of U.P. & ors., (1987) 3 SCC 622; M/s. Beopar Sahayak (P) Ltd. & ors. Vs. Vishwa Nath & ors., AIR 1987 SC 2111; State of Maharastra Vs. Jagannath Achyut Karandikar, AIR 1989 SC 1133; Paluru Ramkrishananiah & ors. Vs. Union of India & ors., AIR 1990 SC 166; Comptroller & Auditor General of India & ors. Vs. Mohan Lal Mehrotra & ors., AIR 1991 SC 2288; State of Madhya Pradesh Vs. G.S. Dall & Flour Mills, AIR 1991 SC 772; Naga People's Movement of Human Rights Vs. Union of India & ors., AIR 1998 SC 431; C. Rangaswamaeah & ors. Vs. Karnataka Lokayukta & ors., AIR 1998 SC 96.) Para 7. Executive instructions cannot amend or supersede the statutory Rules or add something therein, nor the orders 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 provided the same are not in conflict with the provisions of the Act. (Vide State of U.P. & ors. Vs. Babu Ram Upadhyaya, AIR 1961 SC 751; and State of Tamil Nadu Vs. M/s. Hind Stone etc., AIR 1981 SC 711).
Para 8. In Union of India Vs. Sri Somasundaram Vishwanath, AIR 1988 SC 2255, the Hon'ble Apex Court 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.
Para 9. Similar view has been reiterated in Union of India Vs. Rakesh Kumar, AIR 2001 SC 1877; Swapan Kumar Pal & ors. Vs. Samitabhar Chakraborty & ors., AIR 2001 SC 2353; Khet Singh Vs. Union of India, (2002) 4 SCC 380; Laxminarayan R. Bhattad & ors. Vs. State of Maharashtra & anr., (2003) 5 SCC 413; and Delhi Development Authority Vs. Joginder S. Monga, (2004) 2 SCC 297, observing that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions.
Para 10. In Ram Ganesh Tripathi Vs. State of U.P., 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 as having no force of law. The Hon'ble Supreme Court observed as under:-
"They (respondents) relied upon the order passed by the State. This order also deserves to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents and similarly situated ad hoc appointees."
Para 11. Thus, in view of the above, it is evident that executive instructions cannot be issued in contravention of the Rules framed under the proviso to Article 309 of the Constitution and statutory Rules cannot be set at naught by the executive fiat."
On due consideration of the aforesaid, we are of the view, that the learned Writ Court has rightly quashed the Government Order issued from time to time.
No case is made out for condoning the delay in filing the appeal.
Accordingly, the C.M.A. No.116897 of 2019 as well as special appeal lacks merit and is dismissed.
[Irshad Ali,J.] [Pankaj Kumar Jaiswal,J.] Order Date :- 1.10.2019 S.Ali