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Shri Ajug Nath Shukla v. The State of U.P. & ors. - WRIT - C No. 29474 of 1992  RD-AH 14 (8 January 2004)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 29474 OF 1992
Shri Ajug Nath Shukla ----- Petitioner
The State of U.P. & ors. ----- Respondents
Hon'ble Arun Tandon, J.
(By Hon'ble Dr. B.S.Chauhan, J.)
This writ petition has been filed for quashing the Government Orders dated 24.6.1975 and 12.2.1991, by which the Government has prescribed the rates of fee of Government Advocates appearing in the land acquisition cases and also for quashing the order dated 3rd August, 1992 (Annex. 11), by which bills of the petitioner for the payment of fees have been rejected.
The facts are not in dispute. Petitioner had been appointed as a Government Advocate and worked from 1974 to 1992. It is submitted that fees etc. are governed by the statutory provisions contained in General Civil Rules (Annex. 1), particularly, Rule 585, which provides for a per-centage depending upon the quantum of compensation claimed by the claimants. The said rules stood amended in 1989 (Annex. 2), wherein detailed procedure has been prescribed for making payment of fee to the Government Advocate in land acquisition cases. It also takes care of the bunch cases where similar matters have been decided following an earlier judgment and order of the Reference Court. It also empowers the authority concerned to examine as to whether the claim filed by the claimant is unduly inflated.
Shri V.B.Upadhyay, learned Senior Counsel appearing for the petitioner has submitted that the said Government Orders provide the mode of payment of fee which cannot be enforced in view of the existence of statutory rules holding the field, being contrary to the said Rules. The same have to be declared illegal and unenforceable.
Shri Huda, learned Standing Counsel has unsuccessfully tried to satisfy us that the said Government Orders deals with a situation which are not covered by statutory provisions. However, he could not show which is the particular situation which was not covered by the statutory rules. The amended Rules 1989 cover every situation giving a very wide power even to the Reference Court to determine the quantum of fee of a counsel in certain situation, particularly, where bunch matters are decided.
It is settled legal proposition that executive instructions cannot be issued contrary to law. This issue has been considered by the Hon'ble Apex Court time and again and a Constitution Bench of the Hon'ble Supreme Court, in B.N. Nargajan Vs. State of Mysore, AIR 1966 SC 1942, 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 that 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."
Similarly, another Constitution Bench of the Hon'ble Supreme Court in Sant Ram Sharma Vs. State of Rajasthan & ors., AIR 1967 SC 1910, 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).
The law laid down 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 Commissioner of Income Tax Vs. A. Raman & Co., AIR 1968 SC 49; Union of India & ors. Vs. Majji Jangammya & ors., AIR 1977 SC 757; Ramendra Singh & ors. Vs. Jagdish Prasad & ors., AIR 1984 SC 885; P.D. Agrawal & ors. Vs. State of U.P. & ors., (1987) 3 SCC 622; Beopar Sahayak (P) Ltd. Vs. Vishwa Nath, (1987) 3 SCCF 693; Paluru Ramkrishananiah & ors. Vs. Union of India & ors., AIR 1990 SC 166; and Comptroller & Auditor General of India & ors. Vs. Mohan Lal Mehrotra & ors., AIR 1991 SC 2288).
The Constitution Bench of the Hon'ble Supreme Court, in Noga People's Movement of Human Rights Vs. Union of India & ors., (1998) 2 SCC 109, held that the executive instructions are binding provided the same have been issued to fill up the gap between the statutory provisions and are inconsistent with the said provisions.
In C. Rangaswamaiah & ors. Vs. Karnataka Lokayukta & ors., (1998) 6 SCC 66, 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.
Thus, it is settled law that executive instructions cannot amend or supersede the statutory rules or add something therein. The orders cannot be issued in contravention of the staturory 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. & ors. Vs. Babu Ram Upadhyaya, AIR 1961 SC 751; and State of Tamil Nadu Vs. M/s. Hind Stone etc., AIR 1981 SC 711.
In Union of India Vs. Sri Somesundram Vishwanath, 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.
Similar view has been reiterated in Union of India Vs. Rakesh Kumar, (2001) 4 SCC 309 ; Swapan Kumar Pal & ors. Vs. Samitabhar Chakraborty & ors., (2001) 5 SCC 581; Khet Singh Vs. Union of India, (2002) 4 SCC 380; and Laxminarayan R. Bhattad & ors. Vs. State of Maharashtra & anr., (2003) 5 SCC 413, observing that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions.
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 inconsistent with the statutory rules cannot be enforced, rather deserves to be quashed as having no force. 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."
Thus, in view of the above, we are of the considered opinion that the said impugned Government Orders being not in consonance with the statutory rules cannot be enforced. The same are liable to be declared illegal or in terms of the judgment of the Hon'ble Apex Court as referred to above, the same may also be ignored.
The writ petition succeeds and is allowed. The impugned government orders are hereby quashed. We direct the respondents to re-calculate the amount of fee payable to the petitioner strictly in accordance with General Rules (Civil) as amended from time to time. The payment shall be made as per the rules existing on the date of disposal of the cases, i.e., cases disposed of subsequent to the 1989 Amendment came into force shall be dealt with as per the amended Rules. The payment shall be made within a period of four months by the respondents to the petitioner, if any, from the date of filing a certified copy of this order before them.
No order as to costs.
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