If the statutory rules framed by the Governor or any law enacted by the State Legislature under Article 309, is silent on any particular point, the State Government can fill up that gap and supplement the rule by issuing administrative instructions nor inconsistent with the statutory provisions already framed or enacted.
Executive instruction cannot override the rules under the proviso to Article 309 of the Constitution as they are equated with the act of a legislature. Thus an administrative instruction under the proviso to Article 309 cannot supplement them.
Bhagat Singh Vs. Union of India 1981 Lab.I.C 1309 : (1983) 1 SCR 686.
The executive instructions in order to be valid must run subservient to the statutory provisions.
District Registrar Vs. M.B.Koyakutty MANU/SC/0043/1966 : (1967) I LLJ 698 SC ; Bishun Deo Mahto Vs. State of Bihar 1982 Lab.I.C. 1446; Sant Ram Vs. State of Rajasthan MANU/SC/0330/1967 : (1968) II LLJ 830 SC ; Union of India Vs. N.R.Sunderam 1982 Lab.I.C. 1185 and Gurdial Singh Fiji Vs. State of Punjab 1979 SCC (L & S) 179.
No power to issue executive instructions in the sphere occupied by the statutory rules. In the sphere occupied by a statutory rule, there is no scope for executive or administrative instructions.
Chacko Vs. State of Kerala 1974 KLT 215; D.P.Pathak Vs. State of Punjab 1980 Lab.and I.C. 676, P.K.Nambiar Vs. K.P.Gopal Nair 1978 Lab.and I.C. 409.
Where no statutory rules are made regulating recruitment or conditions of service, the State Government can, in exercise of its executive power, issue administrative instructions providing for recruitment and conditions of service.
B.N. Nagarajan Vs. State of Mysore AIR 1967 SC 1941; Sant Ram Sharma Vs. State of Rajasthan MANU/SC/0330/1967 : AIR 1967 SC 1910; Mallinath Jain Vs. Municipal Corporation 1973 (1) SLR 413; S.B. Pantnayak Vs. State of Orissa 1974 (1) SLR 171; Amerjeet Singh Vs. State of Punjab, 1975 (1) SLR 171; Lalit Mohan Deo Vs. Union of India AIR 1972 SC 1995 : 1989 SLJ (SC) 149 .
Administration instruction can be modified by other administrative instructions.- The State Government is competent to amend, alter or modify the service conditions based on administrative instruction, but cannot amend, alter, or modify the service conditions incorporated under statutory rules. Instrument or change should be of the same type as the original instrument governing conditions of service.
Dubey Singh Vs. Municipal Council 1977 (2) SLR 677 and D.K. Gupta Vs. Municipal Corporation 1979 (3) SLR 4160.
In case of conflict between the rules and the executive order rules would prevail.- Where there is conflict between the provisions of a rules made under proviso to Article 309 and the Government order made in exercise of the executive power under Article 162 of the Constitution, the former would prevail over the latter.
N.M.Kutty Vs. High Court of Kerala (FB) (1978) I LLJ 333 Ker (FB).
Executive order cannot override rules framed under Article 309 - When rules framed under Article 309 are enforced no regularisation of an appointee is permissible in exercise of the executive power of the State under Article 162 in contravention of the rules. Any act done in exercise of the executive power cannot overdue the rules framed under Article 309 of the Constitution.
Nagrajan Vs. State of Karnataka (1979) II LLJ 209 SC .
However, where new posts are created and the same are not covered by the rules, the qualifications etc., in respect of such posts can be laid down through executive instructions
Ajit Kumar Vs. State of Punjab and Haryana 1979 (3) SLR 161
A rule framed under the proviso to Article 309 of the Constitution cannot be modified by an executive order or instruction.
State of Maharashtra Vs. Chandra Kant AIR 1981 SC 990
All Rules and Regulations made under the Act are required to be published in the official gazette and on such publication shall have the effect as if enacted in the Act. No power is conferred upon the Central Government of issuing Notes or issuing orders which could have the effect of the Rules made under the Act.
However, no material has been placed on record to show that the Notes appended to the Rules were duly approved by the Government. Per contra the respondent No.1 in his affidavit has submitted that the Notes under Sections and Rules as are found under various provisions of law compiled by the Army authorities in the Manual of Military Law do not form part of the Army Act, 1950 and Army Rules, 1954. The Rules of 1954 are stated to have been borrowed from the Indian Army Act, 1911 and the Rules framed thereunder. It is contended that the Notes are not law passed by Parliament and have not been vetted even by the Ministry of Law & Justice or by the Law Commission. It is not disputed that Section 191 of the Army Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and Section 192 to make regulations for all or any of the provisions of the Act other than those specified in Section 191. All Rules and Regulations made under the Act are required to be published in the official gazette and on such publication shall have the effect as if enacted in the Act. No power is conferred upon the Central Government of issuing Notes or issuing orders which could have the effect of the Rules made under the Act. Rules and Regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the Rules and Regulations framed thereunder. The administrative instructions issued or the Notes attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the Rules are silent on the subject provided the instructions issued are not inconsistent with the Rules already framed. Accepting the contention of holding Note 2 as supplementing Rules 39 and 40 would amount to amending and superseding statutory rules by administrative instructions. When Rule 39 read with Rule 40 imposes a restriction upon the Government and a right in favour of the person tried by a court-martial to the effect that a person lower in rank shall not be a member of the court martial or be a judge-advocate, the insertion of Note 2 to Rule 102 cannot be held to have the effect of a Rule or Regulation.
An executive or administrative instructions can neither supplement nor override the statutory provision or Rules or Regulations
It is trite to note that an executive or administrative instructions can neither supplement nor override the statutory provision or Rules or Regulations. It is seen from the impugned order passed by the first respondent that reliance was placed on Circular No.18 dated 02.07.2009 and Instruction No.65 dated 27.10.2010 to negate the claim of the petitioner for exemption of stamp duty. When Section 3(3) of the Indian Stamp Act provides that no duty shall be chargeable in respect of an instrument executed by a Developer or Co-developer in connection with any land or building situated within the SEZ, it cannot be nullified by placing reliance on the Circular issued by the administrators. The respondents ought not to have placed reliance on such Circulars, which have no statutory force.
W.P.No.211 of 2016, dated 20.07.2016 (Madras High Court) (Deepti Ahuja Vs. The Chief Controlling Revenue Authority-cum-Inspector General of Registration
Improvement in qualifying marks : Improvement of the score relates back to the date on which the qualification was acquired and the argument
Constitution of India, Article 226, 309, 310 - Recruitment - Qualifying marks - Recruitment for Graduate Teacher (PGT) - Petitioner applied for the post of Graduate Teacher and one of the essential qualifications for the post was at least 50% marks in M. Com. - She submitted her application on 18.06.2012, much prior to the cut-off date, and appeared for improvement chance in the M.Com. Degree scoring 57.6% as per result dated 28.09.2012 - Earlier, she had secured 55.52% marks - Since the number of candidates who applied for the post of Graduate Teacher was large, the bar for selection was raised to 57% from 50% and the petitioner was declared unsuccessful - Held that improvement of the score relates back to the date on which the qualification was acquired and the argument of the State that eligibility has to be seen as on the last date for submission of application was rejected because the eligibility of the candidate was not in dispute.