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Whether executive orders can supplant statutory rules?

In the High Court of Madhya Pradesh
(Before Sujoy Paul, J.)

Piyush Verma
The State of Madhya Pradesh

Decided on February 27, 2018
Citation:2018 SCC OnLine MP 116

The Judgment of the Court was delivered by Sujoy Paul, J.:— With the consent, finally heard.

2. This petition assails the order dated 3.8.2016 (Annexure P/7) whereby the Executive Engineer decided to cancel the earlier decision (Annexure P/6) dated 3.5.2016 whereby earned leave was sanctioned to the petitioner for 79 days i.e. between 23.10.2015 to 9.1.2016. The impugned order dated 3.8.2016 is passed on the singular ground that while granting earned leave to the petitioner on 3.5.2016, the administrative instructions issued by Engineer-in-Chief (E-in-C) dated 16.8.2012 has escaped notice of the Executive Engineer. As per the said instructions of E-in-C, the leave can be sanctioned by E-in-C only. Thus, this error is sought to be rectified by issuing the order dated 3.8.2016. Consequential recovery is also ordered against the petitioner.

3. Shri. Bhatti, learned counsel for the petitioner assails this order on three counts. Firstly, it is submitted that the impugned order entails civil consequences and such adverse order could not have been passed without following principles of natural justice. Secondly, as per the circular of E-in-C dated 16.8.2012 (Annexure R-3) also, the recovery should have been made from the officer posted in establishment section of the department. Lastly, he submits that M.P. Civil Services (Leave) Rules, 1977 are statutory in nature. With the rules, a statutory schedule is appended which makes it clear that for Class-III employees, the Office Head has full powers to grant the earned leave. The Executive Engineer, being the Office Head has granted earned leave to the petitioner, a Class-III employee. Thus, by way of issuing executive instruction, the power given under the rules cannot be supplanted.

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4. Per contra, Shri. G.P. Singh, learned G.A. Supported the order. He submits that even if opportunity is given to the petitioner, the fate will be the same because the department is bound by the order of E-in-C dated 16.8.2012 whereby permission of earned leave can be granted only by E-in-C. In addition, he tried to justify the impugned order on the basis of certain other reasons mentioned in the reply and such reasons do not find part of the impugned order.

5. I am afraid that such additional reasons which are not spelled-out in the impugned order can be gone into in these proceedings. The constitution bench in Mohinder Singh Gill and v. The Chief Election Commissioner, New Delhi-(1978) 1 SCC 405 : AIR 1978 SC-851 opined that the ‘Orders are not like old wine becoming better as they grow older’ which will gather more force by efflux of time. Validity of an order is to be seen on the grounds mentioned therein and the same cannot be supplemented by filing return/counter affidavit. Thus, additional reasons shown by Shri. G.P. Singh, GA cannot cut any ice.

6. In the considered opinion of this court, petition deserves to succeed on point No. 3 putforth by Shri. M.S. Bhatti. This is trite law that by issuing executive instructions, statutory rules cannot be supplanted although same can be supplemented. Putting it differently, if the statutory rules recognize and approve that the Executive Engineer is the competent authority for grant of earned leave, the said power cannot be taken away by issuing the executive instructions. Since, earned leave in the present case is granted by the competent authority as per the schedule of the said rules, on executive fiat, the said power or benefit cannot be taken away. Resultantly, the impugned order dated 03.08.2016 cannot sustain judicial scrutiny.

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7. The said order is set aside. Petition is allowed.

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