Case Law Details
Ramji Bharti Vs State of Chhattisgarh (Chhattisgarh High Court)
The constitution Bench of Supreme Court in Sant Ram Sharma v. State of Rajasthan and others AIR 1967 S.C. 1910 held that it is true that the Government cannot amend or supersede the 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. Here in the facts of the case in hand it would show that the tenure appointment has been given by virtue of section 4 and the removal has also been slated in the manner to be made under sub-section (3) of Section 4. Therefore, the removal order of the petitioner by Annexure P-1 which speaks that since the appointment was made until further orders he is being removed, will be against the spirit of Section 4.
The Supreme Court has observed in Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhera, (1999) 8 SCC Pg. 99 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 exists. Thus, it has been settled that the Executive Instruction cannot amend or supersede the statutory Act or rules or add something therein. The orders, therefore, cannot be issued in contravention of the Act for the reason that the Administrative instruction is not a statutory rule or Act nor does it have a force of law while the Act hasa force of law.
Court has observed that if there is a conflict between the executive instructions and the rules framed under the proviso to Article 309 of the Constitution, the rules will prevail meaning thereby supremacy of statute. 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. Likewise, in Ram Ganesh Tripathi v. State of U.P., 1997 1 SCC 621 the Supreme Court considered a similar controversy and held that an executive Instruction/Order which runs counter or is inconsistent with statutory rules cannot be enforced, rather deserves to be quashed being dehors to the rules. In the instant case, since the Executive Order Annexure P-1 is de-horse to Section 4, the same is liable to be quashed.
FULL TEXT OF THE HIGH COURT ORDER / JUDGMENT
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