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SHRI AJUG NATH SHUKLA versus THE STATE OF U.P. & ORS.

High Court of Judicature at Allahabad

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Shri Ajug Nath Shukla v. The State of U.P. & ors. - WRIT - C No. 29474 of 1992 [2004] RD-AH 14 (8 January 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 29474 OF 1992

Shri Ajug Nath Shukla ----- Petitioner

Vs.

The State of U.P. & ors. -----        Respondents    

    --------------

Hon'ble Dr.B.S.Chauhan,J.

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.

8.1.2004

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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