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Judgment
N.G. Das, J.—The question involved in this writ petition is whether and executive order passed in exercise of the powers conferred under Article 162 of the Constitution of India can be revoked by a Rule subsequently framed in exercise of the powers under Article 309 of the Constitution of India.
I have heard Mr. Th. Ibobi, the learned senior counsel appearing on behalf of the Petitioners and Mr. L Shyamkishore the learned Government Advocate appearing on behalf of the Respondents.
To appreciate the contentions advanced by the learned Counsel for the parties, the facts relevant for the purpose may be stated as under:
The Petitioner No. 1 is a Society, namely, All Manipur Civil Pensioners Society (hereinafter referred to as the Society) and Petitioner No. 2 is the Secretary of the aforesaid Society. They have challenged the constitutional validity of the rules. Viz. Manipur Civil Services (Pension) Rules, 1977 (hereinafter referred to as the Rules) (Annexure-A/3) particularly the provisions laid down under Rule 4 of the Rules.
The case of the Petitioners is that the Central Pension Rules 1972 was adopted by the State of Manipur and re-condified as the Manipur Civil Services(Pension) Rules, 1977 as amended from time to time. But the Government of Manipur did not give effect to the recommendations made by the 4th Central Pay Commission. On the other hand, the Manipur Government entrusted the pension matters of its employees to the 3rd Pay Commission constituted by it and accepted the recommendations of the 3rd Pay Commission by its Memo dated 6th October, 1989 contained in Annxure-A/1 with certain modifications in respect of payment of gratuity and payment of family pension. Subsequent to the acceptance of the recommendations of the 3rd Pay Commission relating to pensionary benefits etc. the Government of Manipur issued a memorandum dated 6th October, 1989 in respect of rationalisation of pension structure for pre-1.7.1988 pensioners-implementation of the Government decision on the recommendation of the Manipur State 3rd Pay Commission. On the basis of this Memo contained in Annexure-A/2, family pensions were also paid to the family pensioners and that the Government of Manipur also adopted the orders issued by the Central Government from time to time sanctioning grant of Dearness Relief to the Central Government pensioners by extending the same facilities to the pensioners of the Respondent-Government by issuing memoranda contained in Annexure-A/6 to A/12. It is stated that in accordance with the basis principle and intention expressed in the aforesaid Orders viz. Annexure-A/6 to A/12 the pensioners are entitled to get consolidated pension plus 210% of Dearness Relief every month. But unfortunately, the Government of Manipur by its latest instalment allowed upto 43% of D.R. only. Not only this, suddenly the Respondent-Government enacted the Manipur Civil Services Pension (Amendment) Rules, 1991 whereby office Memo. No. 5/8/87-PIC, dated 6.10.1989(Annexure-A/1) relating to the provisions regulating pension etc. and rationalisation of pension structure for pre-1.7.1988 was withdrawn by the Rules called the Manipur Civil Services Pension (Amendment) Rules, 1991. The Petitioners have therefore, challenged the constitutional validity of this amended Rules, 1991 as it was passed behind their back and without affording any opportunity of hearing them.
The Respondent Nos. 1,2 and 3 resisted the writ petition by filing a joint written statement wherein it was contended, inter alia, that this petition is not maintainable as the Petitioners have not disclosed in the writ petition as to whether Petitioner No. 1 is a registered Society or not. It has also been contended that the Petitioners were never granted any interim relief by 4th Pay Commission. They were simply given 3 instalments during the period from 1981-&6. Moreover, the assertion of the Petitioners that the Memo contained in Annexure-A/2 was implemented by Payment of family pension to some family pensioners is not a fact. It was only implemented to the extent of mitigating financial difficulties of those who were drawing less than Rs. 375/-a month. The further contention of the answering Respondents is that after consultation with the Accountant General it was found that Memo contained in Annexure-A/2 was not implementable for some technical defects and hence the Government reconsidered the matter and having found discrepancies and anomalies arising out of the provisions of Memo contained in Annexure-A/2 and also having regard to the views of the Accountant General, the Government of Manipur came to the conclusion that the provisions contained in Annexure-A/2, if implemented, would cause gross injustice to certain categories of pensioners who will receive pension at a lower rate than that of their departmental subordinates. That apart, if the Scheme is implemented then it will be arbitrary in view of the decision of the Supreme Court passed in D.S. Nakara and Others Vs. Union of India (UOI), Therefore, after considering all aspects the Government amended the Rules withdrawing the Memo Annexure-A/2.
It has been further contended that the Petitioners misconceived that 210% D.R. was granted as the order granting 43% was passed in suspension of all the earlier orders. The Respondents have; therefore, stated that the amended Rules were made in the interest of the pensioners.
The main contention of Mr.Th. Ibobi, the learned senior counsel appearing on behalf of the Petitioners is that even though the Annexure-A/2 Memo was passed in exercise of the powers conferred under Article 162 of the Constitution this executive order has the force of law and hence such administrative Rules cannot be made inoperative by making subsequent Rules under Article 309 of the Constitution of India.
The contention of Mr. L. Shyamkishore, the learned Government Advocate on the other hand, is that even though the executive powers of the State Executive is coextensive with that of State Legislature the Administrative Rule becomes inoperative when the Rule is framed by the competent Legislature in exercise of its powers under Article 309 of the Constitution of India.
It is virtually not in dispute that by virtue of proviso to Article 162 of the Constitution the State Executive may make Rules regulating any matter within the legislative competence of the State Legislature without prior legislative authority. But what Mr. L. Syamkishore, the learned Government Advocate has urged is that Memo Annexure-A/2 was only meant for family pensioners. Mr. Ibobi, the learned Counsel for the Petitioners has on the other hand contended that it was not only applicable to the family pensioners but the pensioners in general and that on the basis of this Annexure-A/2 Memo some retired employees also drew their pension. It may, therefore, be advantageous at this stage to look into the provisions laid down under Memo Annexure-A/2 which reads as under:
Government of Manipur Finance Department (Pay Implementation Cell) OFFICE MEMORANDUM Imphal, the 6th October, 1989
Sub-Rationalisation of pension structure for pre 1.7.1988 pensioners-Implementation of the Government''s Decisions on the recommendations of the Manipur State 3rd Pay Commission.
No.5/8/87_PIC : The undersigned is directed to say that in pursuance of Government''s decision on the recommendations of the Manipur State Third Pay Commission announced in this Department Resolution No. 5/8/87-PIC dated the 6th October, 1989, Sanction of the Government of Manipur is hereby accorded to the regulation, with effect from 1.7.1988, of pension/family pension of existing pensioners/family pensioners in the manner indicated in succeeding paragraphs.
These orders shall apply to all pensioners/family pensioners who are drawing pension/family pension under the Manipur Civil Services (Pension) Rules, 1977 as amended from time to time.
In these orders:
(a) Existing pension or ''Existing family pensioner'' means a pensioner who was drawing/entitled to pension/family pension on 30.6.1988. For purposes of updating family pension it also covers members of family of employees returned upto 1.7.1988 and in whose case family pension has not commenced as the Petitioner is/was alive on 30.6.88.
4.1. The existing basic pension shall be updated as basis pension with effect from 1.7. 1988 under the following formula.
------------------------------------------------------------------------------- Period of retirement/ Pension/family Multiplication factor death pension of pension/family pension family Rs.300 and less of above Rs. 300/- ------------------------------------------------------------------------------- i) Before 30.9.77 5.5 3.5 subject to a minimum of Rs. 1600/-
ii) On or after 30.9.77 4.0 3.0 subject to a minimum of Rs. 1200/- but before 31.1.78
iii) On or after 31.3.78 4.0 3.0 subject to a minimum of Rs. 1200/- but before 31.3.79
iv) On or after 31.3.79 3.0 3.0 subject to a minimum of Rs. 900/- but before 31.1.82
v) On or after 31.1.82 3.0 2.0 subject to a minimum of Rs. 900/-
vi) On or after 31.3.82 1.20 1.1 subject to a minimum of Rs. 375/- but before 31.1.85
vii) On or after 31.1.85 1.25 1.1 subject to a minimum of Rs. 375/- upto 31.12.85
viii) From 1.1.86 to 30.6.88 1.1 1.1 -------------------------------------------------------------------------------
4.2. Pensioners/Family pensioners retiring between the period from 1.1.1986 to 30.6.1988 will'' have their pension/family pension nationally revised under the Central rules prevailing during this period before multiplication by the appropriate multiplicator.
4.3. The amount so arrived will be regarded as basic pension/basic family pension with effect from 1.7.1988 and the minimum basic pension/basic family pension shall be Rs. 375/- and the maximum basic pension and maximum basic family pension shall be Rs. 3400/-and Rs 1020/-p.m. respectively.
4.4. Since the consolidated pension will be inclusive of commuted portion of pension, if any, the commuted portion will be deducted from the said amount while making monthly disbursement.
The existing pensioners/family pensioners will not be eligible to any interim relief from 1.7.88, but will be eligible for the same when it is sanctioned from pensioners retiring after 1.7.88 at the same rate.
Sd/-(B.S. Lamba) Commissioner-cum-Secretary(Finance) to the Government of Manipur.
On going through the above quoted Memo which has admittedly been passed in exercise of the powers under Article 162 of the Constitution of India I find that it not only related to the family pensioners but the pensioners in general. The Petitioners have not however, produced any document to show that any pensioner drew his pension on the basis of this Annexure-A/2 Memo. But Annexures-A/17, A/18 and A/19 clearly indicate that some family pensioners drew the sum of Rs 375/- a month on the basis of this Annexure-A/2 Memo dated 6.10.89.
The real controversy is whether such an executive order which is as good as a Rule can be revoked/nulified by subsequent Rules formulated under Article 309 of the Constitution. Annexure -A/3 whereby Memo contained in Annexure-A/2 was withdrawn may be quoted as under:
Government of Manipur Finance Department (Pay Implementation Cell) NOTIFICATION Imphal, the 24th January, 1991
No. 5/8/87-PIC(III) : In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Government of Manipur is pleased to make the following rules to further amend the Manipur Civil Service (Pension) Rules, 1977, namely :-1. (1.)-These Rules shall be called the Manipur Civil Services (Pension) (Amendment) Rules, 1991
(2.) They shall come into force on the date of their publication in the official Gazette, save in the case of amendments to the Central Civil Services (Pension) Rules, 1972 or Government of India decision where such amendment or decision come into force, from specified date. These rules shall, the extent of such amendment or decision, be deemed to have come into force from such date as specified to the said amendment or the decision.
These rules shall be applicable to all State Government of employees who retire on superannuation oh attaining the age of 60 years in the case of Grade-IV and Workman, and 58 years for other categories of employees and also those on premature retirement under F.R.56(1) or any analogous rules in force, or on compulsory retirement under the CCS(CCA) Rules, 1965 as applicable in the State of Manipur or any analogous rules in force.
Amendment to Rule 3:
The following shall be substituted for Rule 3 of the Manipur Civil Services (Pension) Rules, 1977.
The Central Civil Services(Pension) Rules, 1972 as amended upto date(including Government of India''s decisions in regard to matters relating to pension and retirement benefits) are hereby adopted with the condition that wherever the word/words "Union" "President" "Government" "Ministry" "Head of Department" and Union Public Service Commission" has have been referred to in the Central Civil Services (Pension) Rules, 1972, the same shall be construed as referring to the ''State of Manipur'', Governor of Manipur,'' Government of Manipur, Department declared as such by the Governor of Manipur, and Manipur Public Service Commission respectively except the words ''Central Government'' referred to in Sub-rule 13 of Rule 54 which will continue to mean the Central Government.
With the notification of these Rules, Government office Memorandum No. 5/8/87-PIC dated 6.10.1989 relating to provisions regulating pension etc., rationalisation of pension structure for pre-1.7.1988 pensioners, in pursuance to the recommendations of the Manipur State Third Pay Commission, is hereby withdrawn and shall be deemed not to have been issued.
Sd/-(Naved Masood) Secretary (Finance) to the Govt. of Manipur
Clause 4 of this amended Rules clearly shows that memo dated 6.10.89 contained in Annexure-A/2 was not only withdrawn but it was ordered that it should be deemed not to have been issued. The contention of Mr. Ibobi is that by virtue of Annexure-A/2 Memo a right accrued to the pensioners and as such withdrawal of this right by means of Annexure-A/3 Rules is violative of the principles of natural justice as the pensioners were not afforded any opportunity of hearing before enactment of this Rules.
Referring to the Chapter under the heading, " the Doctrine of Ultra Vires " in the Seventh Edition of Administrative Law by H.W.R. Wade and C.F. Forsyth, it is submitted by Mr. Ibobi that it will be found under this chapter that one of the law''s notable achievements has been the development of the principles of natural justice, one of which is the right to be given a fair hearing before being penalised in any way. It is true that the right to a fair hearing has been used by the courts as a base on which to build a kind of code of fair administrative procedure, comparable to ''due process of law'' under the Constitution of the United States. It is fundamental to fair procedure that both sides should be heard: "audi alteram partem," hear the other side.''
In view of the above proposition of law Mr. Ibobi, the learned Counsel for the Petitioners has contended that by framing Annexure-A/3 Rules the State Government has violated the principles of natural justice and as such this act of the Government is ultra vires and hence it should be declared void. In this context it has also been submitted by Mr. Ibobi that powers under Article 309 of the Constitution have also legal limits and if it is found that the public authority acted outside its powers then that act can be very well declared as ultra vires, It is contended that a careful persual of the Rules framed under Memo contained in Annxure-A/3 will also show that the language used in this Rules were not the statutory language.
But Mr. L. Shymkishore, the learned Government Advocate has in his reply submitted that in the matter of framing rules in exercise of the powers under Article 309 of the Constitution no opportunity needs be given to the employees. In support of his contention Mr. Shymkishore has referred to a decision of the Supreme Court rendered in the case of C. Sankaranarayanan, etc., etc. Vs. The State of Kerala, where under para 7 of the judgment their Lordships held that the powers of the Government under Article 309 of the Constitution to make rules regulating the conditions of services of the Government employees could in no way be fettered by any agreement even if such an agreement was proved.
Reliance has also placed in a decision of the Supreme Court rendered in the case of State of Andhra Pradesh and Another Vs. Lavu Narendranath and Others etc., The central question which posed for consideration in this case was whether the entrance test prescribed under notification of the Government, dated July 23, 1970 for selection of candidates in the four Medical Colleges run by the State of Andhra Pradesh was justified in law .One of the conditions that was advanced on behalf of the Petitioners was that the Government order was not valid for want of publication in the official gazette by reason of which the candidates did not have sufficient time to prepare themselves for the test. Their Lordships under para 17 of the judgment held no complaint can be made that the notice of examination was all too short or that it was never published in the Gazette...publication of the notification in the Gazette was not called for by any law. This two decisions do not however appear to be exactly relevant to the point raised by the learned Counsel for the Petitioners.
But in the case of J. Kumar v. Union of India, AIR 1982 SC 1064 where it was urged by the Appellant that since the impugned rules disturbed the previously fixed seniority, it is quasi-judicial in nature and they ought to have been issued only after giving notice to all the affected persons, the Supreme Court, however, held that promulgation of a statutory rule giving seniority is not a quasi-judicial function. It is the exercise of legislative power and in respect thereof the principles of natural justice have no application at all.
In view of the above decision of the Supreme Court and having regard to the facts of the case, I am of the view that rule making power is a legislative function and hence no hearing is necessary for making or changing the administrative order. It is not the case of the Petitioner that Rules as in Annexure-A/3 are discriminatory. Therefore, the contention of Mr. Ibobi is not acceptable.
In the course of his submission Mr. Shyamkishore learned Govt. Advocate has repeatedly argued that this writ petition is not maintainable simply because the Petitioners'' association is neither registered nor it has been disclosed in the writ petition who are its members. The learned Counsel for the Petitioners has, on the other hand placed reliance upon a decision of the Supreme Court rendered in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association Vs. Union of India (UOI) and Others, In drawing my attention to the observation of the Supreme Court made in para 63 of the judgment it has been submitted by Mr. Ibobi that in view of the observation of the Supreme Court such a petition is maintainable even-though the Association is not registered. The Supreme Court in this regard has made the following observation:
A technical point is taken in the counter-affidavit that the 1st Petitioner is an unrecognised association and that, therefore/the petition to that extent, is not sustainable. It has to be overruled. Whether the Petitioners belong to recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Article 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented and envisions access to justice through ''class actions'' (public interest litigation'' and ''representative proceedings'' Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality, of litigations, is an affirmation of participated justice in our democracy. We have no hesitation in holding that the narrow concept of ''cause of action and ''person aggrieved'' and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned Attorney General has taken no objection to a non-recognised association maintaining the Writ petitions.
In the instant case, it is an admitted fact that this petition has been filed on behalf of the Petitioners'' Association by its Secretary Sri W.G. Singh. There is no dispute about it, So, in view of the dictum of the Supreme Court as quoted above, I am of the view that such a writ petition is maintainable. This finding cannot, however, help the Petitioners much as I have already held above that the Rules Annexure-A/3 are valid.
Mr. Ibobi, the learned Counsel for the Petitioners has, however, contended that even if the Rules Annexure-A/3 are found to be constitutionally valid then also there is no scope to give its effect retrospectively. Mr. Shyamkishore, the learned Government Advocate has also fairly submitted that the rules as framed must be construed to have been given effect from the date of publication. Therefore, it must be held that the administrative rules as made under Annexure-A/2 were operative until the Rules Annexure-A/3 came into force. Therefore, the pensioners will be entitled to get their pensions for the preceding period as per Annexure-A/2 Memo until the date when Annexure-A/3 Rules came into effect.
In the result, the writ petition is dismissed subject to the condition that the State Government will pay pensions to the pensioners and family pensioners as per the formula laid down under Annexure-A/2 Memo until the date when Annexure-A/3 came into force. Under the circumstances, there would be no order as to costs.