# UNION OF INDIA v. K. P. JOSEPH AND ORS

- **Citation:** [1973] 2 S.C.R. 752
- **Court:** Supreme Court of India
- **Decided:** 1972-10-27
- **Bench:** A. N. Grover, K. K. Mathew, A. K. Mukhereja
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-k-p-joseph-and-ors-5896
- **Pages:** 5

## Headnote

Military Service-General Order of Government of India Ministry of
Defence dated 15th July 1960 conferring certain benefits on retired 1nilitary
per;onnel-Exception in paragraph (3) cl. (3) of Order, applicability ofCla.inz under Order whether justiciable--Ofier r.ot retrospective-Pay
whether could be re-fixed for period before date of Order.
The appellant was discharged from the post of combatant Clerk in
the Indian Army on 9th June, 1953 and was re-<!mployed shortly thereafter.
His pay was re-fixed in the scale applicable.
On 15th July 1960
the Government of India issued :; general Order relating to re-employed
ex-military personnel. Under the Order those entitled to its benefits would
get Exed in the scale applicable to them by adding to the bottom of
their scales increments equal to the total number of completed years of
military >ervice.
The first respondent having exercised the option provided for in the Order, claimed that he was entitled to the benefit of the
Order.
The claim was rejected by the Government. The first respondent filed "' writ petition in the High Court.
The writ petition was
allowed and the High Court directed that the pay of the respondent be
refixed from 2-3-1953.
In appeals to this Court it was contended by
Union of India: (i) that the order was not applicable to the first respondent as he was re-employed before 25-11-1958; (ii) that the order
being an administrative ·direction was not justiciable <ind no writ l21y;
(iii) that the order not being retrospective in character, the rcspo:idcnt's
pay should not have been fixed with retrospective effect from 2-7-53.
HELD :-(i} The general rule under the Order was that past cases
of persons re-employed prior to 25-11-1958 would not be reopened. But
the effect of clause (3) of pare.graph (3) is to create an exception to the
general ;rule in the case of persons re-employed before 25-11-1958 for an
unspecified period or for a period which extends to the da,te of order and
who have exercised their option in writing to be brought under the Order.
The respondent having exercised his option was therefore entitled to the
benefit of the Order.
(ii) Generally speaking an administrative order confers no justiciable
right but this rule like all other general rules is subject to exceptions. To
say· that an administr&tive order can never confer any right would be too
wide a proposition. There are administrative rights which confer rights
and impose duties. It is because an administrative order can abridge or
take away rights that this Court imported the principle of natural justice of
audi alteram partem into this area .. The order in question conferred upon
the first respondent the right to have his pay fixed in the manner specified
in the Order and that was part of the conditions of his service. There was
no reason 'why this Court should not enforce that right. [7550]
Sant Ram Sharma v. Stale of Rajasthan and another, [1968] 1 S.C.R.
111; and Union of India and Others v. M/s. lndo Afghan Agencfrs Ltd.,
Ti968] 2 S_C.R .. 366, 377, applied to.
(3) The order woo not retrospective in character. 'fhe High Court was
th;orefore wrong in fixing the pay with retrospective effect from 2-7-1953.
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UNION v. K. P. JOSEPH (Mathew, J.)
753
The direction could only be to fix the pay with effect from the date of the
Order.
CIVIL APPE"LLATE JURISDICTION :
Civil Appeal No. 1204
of 1967.
\
Appeal by special leave from the judgment and order dated
September 9, 1966 of the Mysore High Court in Writ Petition
No. 885 of 1964.
P. P. Rao and S. N. Prasad and B. D. Sharma, for the appellant.
B. P. Maheshwari ·and C. L. Joseph, for the re;pondent.

## Text

752
UNION OF INDIA
v.
K. P. JOSEPH AND ORS.
October 27, 1972
[A. N. GROVER, K. K. MATHEW AND
A. K. MUKHEREJA, JJ.J
Military Service-General Order of Government of India Ministry of
Defence dated 15th July 1960 conferring certain benefits on retired 1nilitary
per;onnel-Exception in paragraph (3) cl. (3) of Order, applicability ofCla.inz under Order whether justiciable--Ofier r.ot retrospective-Pay
whether could be re-fixed for period before date of Order.
The appellant was discharged from the post of combatant Clerk in
the Indian Army on 9th June, 1953 and was re-<!mployed shortly thereafter.
His pay was re-fixed in the scale applicable.
On 15th July 1960
the Government of India issued :; general Order relating to re-employed
ex-military personnel. Under the Order those entitled to its benefits would
get Exed in the scale applicable to them by adding to the bottom of
their scales increments equal to the total number of completed years of
military >ervice.
The first respondent having exercised the option provided for in the Order, claimed that he was entitled to the benefit of the
Order.
The claim was rejected by the Government. The first respondent filed "' writ petition in the High Court.
The writ petition was
allowed and the High Court directed that the pay of the respondent be
refixed from 2-3-1953.
In appeals to this Court it was contended by
Union of India: (i) that the order was not applicable to the first respondent as he was re-employed before 25-11-1958; (ii) that the order
being an administrative ·direction was not justiciable <ind no writ l21y;
(iii) that the order not being retrospective in character, the rcspo:idcnt's
pay should not have been fixed with retrospective effect from 2-7-53.
HELD :-(i} The general rule under the Order was that past cases
of persons re-employed prior to 25-11-1958 would not be reopened. But
the effect of clause (3) of pare.graph (3) is to create an exception to the
general ;rule in the case of persons re-employed before 25-11-1958 for an
unspecified period or for a period which extends to the da,te of order and
who have exercised their option in writing to be brought under the Order.
The respondent having exercised his option was therefore entitled to the
benefit of the Order.
(ii) Generally speaking an administrative order confers no justiciable
right but this rule like all other general rules is subject to exceptions. To
say· that an administr&tive order can never confer any right would be too
wide a proposition. There are administrative rights which confer rights
and impose duties. It is because an administrative order can abridge or
take away rights that this Court imported the principle of natural justice of
audi alteram partem into this area .. The order in question conferred upon
the first respondent the right to have his pay fixed in the manner specified
in the Order and that was part of the conditions of his service. There was
no reason 'why this Court should not enforce that right. [7550]
Sant Ram Sharma v. Stale of Rajasthan and another, [1968] 1 S.C.R.
111; and Union of India and Others v. M/s. lndo Afghan Agencfrs Ltd.,
Ti968] 2 S_C.R .. 366, 377, applied to.
(3) The order woo not retrospective in character. 'fhe High Court was
th;orefore wrong in fixing the pay with retrospective effect from 2-7-1953.
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UNION v. K. P. JOSEPH (Mathew, J.)
753
The direction could only be to fix the pay with effect from the date of the
Order.
CIVIL APPE"LLATE JURISDICTION :
Civil Appeal No. 1204
of 1967.
\
Appeal by special leave from the judgment and order dated
September 9, 1966 of the Mysore High Court in Writ Petition
No. 885 of 1964.
P. P. Rao and S. N. Prasad and B. D. Sharma, for the appellant.
B. P. Maheshwari ·and C. L. Joseph, for the re;pondent.
The Judgment of the Court was delivered by
MATHEW, J.-This is an appeal oy Special Leave from the
order dated the 9'th of September, 1966 passed by
the High
Court of Mysore in a Writ Petition filed by the first respondent.
The firs•t respondent was a combatant Clerk in the Indian
Army fo~ a period of more than 14 years.
He was discharged
from that post on 9th June, 1953. On 2nd July 1953, he was
re-employed as an ordinary clerk on the pay scale of Rs. 55-85EB-4-125-5-130.
His pay was re-fixed in the above scale at
Rs. 70/- plus a personal pay of Rs. 2.50 qy an Order dated 28th
October, 1958, whh effect from the date of re-employment, i.e ..
2-7-1953.
On 15th July, 1960, the Govcrnmell't of India, Ministry of
Defence, issuP.d a general Order called "Office
Memorandum"
No. 2(54)58/5801/D(Civil)
providing for certain benefits to
ex-military personnel on re-employment on the basis
of their
Ie11gth of actual military service. The general effect of that Order
was that those who are entitled to its benefits, would get fixed in
the scale applicable to them by adding to the bottom of. their
scale~ .incremen.ts equal to the total number of completed years
of m1htary service. The Order so far as it is relevant for the
purpose of this appeal is contained in paragraphs 3 and 4 thereof and they read as follows :-
"3. These orders will apply to all cases of reemployJ?lent occurring on or after 25-11-58 and past
cases w1~ not b~ reopened. In the cases of pensioners
who are m service 011 the date of issue of these orders
and have been re-employed
from a date
prior to
25~11-1958 for an unspecified period or for a period
which extends ~yond the _date <_Jf issue of the present
orders m;ay, sub1ect to their option, be brought under
the prov1s1ons of. •these orders with immediate effect.
754
SUPREME COURT REPORTS
(1973] 2 S.C.R.
( 4). The option should be exercised in writing
within a period of three months from the date of issue
of these orders.
The option once exercised shall be
final."
The first respondent claimed that he was entitled to the benefit
of the Order but the claim was rejected by the Government and
so he filed the Writ Petition contending that as he answered the
description of one to whom the benefit of the Order could properly be extended he should be given its benefit.
The High Court allowed the writ petition ·and issued an order
directing respondent No. 2 to refix the pay of respondent No. 1
in the scale of pay of Rs. 55-3-85-EB-4-125-130 at 89/- as from
2-7-1953 and to make consequential adjustments and payments.
The appellant contended before us that the Order was not
applicable to the first respondent, as he was re-employed before
25-11-1958 and his pay had already been fixed after re-employment and therefore according to the terms of the Order the case
of the !st respondent, being a past one, could not have been re,
opened.
To resolve this question, it is necessary to understand
the provisions of th~ Order. The first sentence in para 3 of the
Order makes it clear that it is applicable only to persons reemployed on or after 25-11-1958. Respondent No. 1 clearly
does not come within this category. The Order then goes on to
say that past cases will not be re-opened. That means that cases
of persons re-employed prior to that date will not be re-opened.
But the contention of the first respondent is that although he was
re-employed prior to 25-11-1958, he is governed by clause (3) of
paragraph 3, and as he has exercised the option pursuant to
clause ( 4) of the Order he is entitled to the benefit of the Order.
In other words, the contention was that an exception to the general
rule that past cases will not be re-opened has been created by
clause ( 3) of paragraph 3 of the Order in favour of persons who
were re-employed from a date priorto 25-11-1958 for an unspecified period or for a period which extended beyond the date of the
issue of the Order and who exercised the option to be brought
under the provisions of the Order with immediate effect ruid as
his case fell within the exception, he was entitled to the benefit of
the Order. We think that the contention of the first respondent
is well founded. It is no doubt true that past cases, namely, cases
of persons re-employed prior to 25-11-1958 will
not be reopened. That is the general rule. But the effect of clause (3)
of paragraph ( 3) is to create an exception to the general rule
in the case of persons re-employed before 25-11-1958 for an unspecified period or for a period which extends beyond the date of
the Order and who have exercised their option in writing to be
brought under the Order.
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UNION v. K. P. JOSEPH (Mathew, I.)
755
There is no· dispute that the first respondent has
exercised
the option to bie brought under the provisions of the Order. We,
therefore, think that the High Court was right in its view that the
first respondent was entitled to the bjenefit of the Order.
The appellant, however, contended that the Order being an
administrative direction conferred no justiciable right upon the
first respondent which could be en.forced in a Court by a writ or
order in the nature of marniamus. The appellant submitted that
the very foundation for the issue of a writ or an order in
the nature of mandamus is the existence of a legal right and as
un administrative order could confer no justiciable right,
the
High Court was wrong in issuing the order directing the second
respondent to fix the pay of the first respondent in accordance
with the Order.
Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to
exceptions. This Court has held in Sant Ram Sharma v. State
of Rajasthan and Another(') that although Government cannot
supersede statutory rules by administrative instructions, yet, if
the rules framed under Art. 309 of the Constitution are silent on
any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the
rules already framed and these instructions will govern the conditions of service.
In Union of India and Others v. Mis. lndo Afghan Agencies
Ltd.('), this Court, in considering the nature oi the Import
Trade Policy said :
"Granting that it is executive in character, this Court
has held that Courts have the power in appropriate
cases to compel performance of the obligations ii;nposed
by the Schemes upon the departmental authorities."
To say that an administrative order can never confer any right
would be too wide a proposition.
There are. administrative
orders which confer rights and impose duties. It is because an
administrative order can abridge or take away rights that
we
have imported the principle of natural justice of audi a/teran1
partem ill'to this area.
A very perceptive writer has written :
"Let us take one of Mr. Harrison's instances -a
regull!'tion from the British War Office that no ~ruit
shall be enlisted. yiho is not five feet six inches higr..
Suppose a recru1!Jng officer musters in a man who is
fi~e ~eet ~v~ inches only in height, and pays him the
Kmg s sh1llmg; afterwards the officer is sued by
the
(I) [19681 I S.C. R. ll !.
(2) [1968) 2 S.C.R. 366, 317.
756
SUPREME COURT REPORTS
[1973] 2 s.c.R.
Government for being short in his ·accounts; • among
other items he claims to be allowed the shilling paid to
the undersized recruit. The Court has to consider and
apply this regulation and, whatever its effect may be,
that effect will be given to it. by the Court ex:actly as
effect will be given to a statute providing that murderers
shall be hanged, or that last wills must have two witnesses." (John Chipman Gray on· "The Nature and
Sources of the Law").
We should not be understood as laying down any general
proposition on this question.
But we think that the Order in
question conferred upon the first respondent the righot to have
his pay fixed in the manner specified in the Order and that was
part of the conditions of his service.
We see no reason why the
Court should not enforce that right.
It was contended on behalf of the appellant that the Order
not being retrospective in character, 1he respondent's pay should
not have been fixed with retrospective effec·t
from
2-7-1953.
The Order is not retrospective in character.
The High Court
was therefore wrong in fixing the pay with retrospective effect
from 2-7-1953.
The direction could only be to fix the pay with
effect from the date of the Order and the first respondent did
not contend otherwise in this
Court.
The second respondent
will, therefore, fix the pay of the 1st respondent in accordance
· with the provisions of the Order with effect from the date of the
Order.
The appeal is dismissed with this modification, but, in the
circumstances, we make no order as to costs.
G.C.
Appeal dismissd.
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