1. Since common questions of law and fact are involved in these writ appeals they are heard together and disposed off by this common order.
2. The appellants are ex-servicemen. They were appointed as security staff in the Karnataka Power Corporation Limited (hereinafter referred to as the 'Corporation'). The appellants are aggrieved by the order of the learned Single Judge passed on 3-7-1997 in the batch of writ petitions in W.P. No. 8749 of 1994 and connected writ petitions.
3. As stated earlier the appellants are ex-servicemen and were recruited as security staff in the Corporation. The appellants were given certain benefits as per Annexure-C. As per Annexure-C the appellants being ex-servants were given the benefit of last drawn salary in the military service which is equal to the stage in the timescale of the post to which he is appointed. This order at Annexure-C was applicable to officers of the rank of Junior Commissioned Officers or below discharged from military service before superannuation and appointed to a post in the State Civil Service. The Annexure-C was issued by the Corporation on 14-2-1990.
4. The Corporation passed the order at Annexure-C on the basis of the Government Order (Annexure-R1). It is necessary to refer to the Government Order, Annexure-R1, dated 3-11-1978. This order at Annexure-R1 was passed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India by the Governor of Karnataka. By Annexure-R1, dated 3-11-1978, the Karnataka Civil Services Rules were amended. Since the Karnataka Civil Services Rules were amended under Article 309 it was adopted by the Corporation as per Annexure-C.
5. In other words Annexure-C which gave certain benefits with respect to last drawn salary in military service was nothing but a repetition of the order passed by the State Government while exercising powers under Article 309 of the Constitution as per Annexure-R1. Therefore, Annexure-R1 was the basis for passing Annexure-C which gave certain tangible benefits to the appellants. It must not be forgotten that Annexure-R1 was issued under Article 309 of the Constitution and accordingly the Karnataka Civil Services Rules, 1978 was amended to give benefits to the ex-servicemen of the rank of Junior Commissioned Officer or below who was discharged from military service before superannuation. It is not in dispute that both the appellants were entitled to the benefit under Annexure-R1 read with Annexure-C.
6. Annexure-R1 was notified on 9-11-1978 and adopted by the Corporation on 14-2-1990.
7. Suddenly, on 15-12-1979 Annexure-R2 was issued by the Finance Secretariat. Annexure-R2 reads as follows.--
'Finance Secretariat
Fixation of pay under Rule 41-C of the Karnataka Civil Services Rules -- Clarification regarding
No. FD 75 SRS 79, Bangalore, dated 15th December, 1979
Rule 41-C of the Karnataka Civil Services Rules, as introduced by Government Notification No. FD 119 SRS 78, dated 3rd November, 1978, regulates initial fixation of pay where a military officer of the rank of Junior Commissioned Officer or below discharged from military service before superannuation is appointed to a post in the State Civil Services in accordance with the rules regulating appointment thereto.
According to the Army Rules, a person in military service may be discharged,
(1) on fulfilment of the conditions of his enrolment or having reached the stage at which discharge may be enforced, or
(2) on completion of the period of Army Service, there being no vacancy in the reserve, or
(3) on being found medically unfit for further service, or
(4) on request before fulfilling the conditions of enrolment
(5) as a measure of disciplinary penalty.
It is hereby clarified that the provisions of the aforesaid rule are applicable only if a military officer of the rank of Junior Commissioned Officer or below discharged from, military service with military pension I reservist fee/war injury pay, before superannuation, is appointed to a post in accordance with the rules regulating recruitment thereto. The benefit of the rule is not applicable to other cases of discharge from military service.
Sd/-
G.N. Honavar,
Under Secretary to Government,
Finance Department (Expenditure-IV)'.
(emphasis supplied)
8. Departure was made in Annexure-R2 by which it was stated that the benefit given under Annexure-R1 was only applicable to a military officer of a rank of Junior Commissioned Officer or below discharged from military service with military pension/reservist fee/war injury pay, before superannuation is appointed to the post in accordance with the rules regarding recruitment thereto. It is further stated in Annexure-R2 that the benefit of the rule does not apply to other cases of discharge from military service.
9. It appears that Annexure-R2 was not passed under Article 309 of the Constitution of India. It was more in the nature of a clarification by the Under Secretary to the Government.
10. On the basis of Annexure-R2, Annexure-F was issued by which the Corporation took the stand that the appellants not having been discharged from military service with military pension were not entitled to the benefit. Pursuant to passing of Annexure-F the Corporation sought to deduct from the salary of the appellants which was paid under Annexure-C. The salary was sought to be refixed with retrospective effect from 1-1-1978 although Annexure-F was issued on 14-10-1992.
11. When this was challenged before the learned Single Judge and the learned Single Judge took the view that refixation was not bad in law but can be only prospective and not retrospective.
12. Aggrieved by this the appellants have preferred these writ appeals.
13. The only question that arises for consideration in these writ appeals is:
Whether the Government and the Corporation can amend or alter conditions of service prescribed by rules framed under Article 309?
14. It is settled law that the Government cannot amend or supersede the statutory rules by administrative instructions. If the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. However, the Government cannot in the guise of issuing instructions amend or alter the conditions of service prescribed by the rules framed under Article 309.
15. The Supreme Court in C.L. Verma v. State of Madhya Pradesh and Anr., : AIR1990SC463 , has pronounced that an administrative instruction cannot compete with a statutory rule and if there be contrary provisions in the rule the administrative instructions must give way and the rule shall prevail.
16. The same view was taken by the Supreme Court in Sant Ram Sharma v. State of Rajasthan and Ors., : (1968)IILLJ830SC . A five Judges Bench of the Supreme Court held that the Government cannot amend or supersede statutory rules by administrative instructions. However, if rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
17. On the very question before us the Supreme Court in State of Haryana v. Shamsher Jang Shukla, : (1972)IILLJ186SC held that the Government is not competent to alter the rules framed under Section 309 by means of administrative instructions unless it is meant to merely fill up a gap in the rules. If the Court sees no gap in the rules, then the rules shall prevail.
18. The first appellant was a 'Naik' in the military service having served in MEG Centre, Bangalore for a period of 7 years from the year 1968 to 1975. He was discharged from service in the year 1975 and at the time of discharge from service his last drawn basic pay was Rs. 247/-.
19. The 2nd appellant had served in the Indian Air Force as a Corporal for nine years with sis years of reserve service. On completion of nine years of regular service because of the war his services were extended for a further period of one year 45 days, thus making the total service of 10 years 45 days and the 2nd appellant discharged from service on fulfilling the conditions of his enrolment on completion of 9 years of service and not being required to serve in the reserve. It was also a condition of discharge that he was liable to be inducted into regular service anytime after 14th October, 1978. Both the appellants were recruited in the Corporation through the Employment Exchange. Both the appellants had their salary fixed by the Corporation on the basis of Annexure-C not below the last drawn salary in military service.
20. It is not disputed by Mr. Somashekar, the learned Counsel for the respondent-Corporation that the appellants were entitled to the benefit under Annexure-C. It was submitted by the learned Counsel for the Corporation that any Government Order can be adopted by the respondent-Corporation in their own right as per the regulations. It was further submitted that the Government Order under Article 309 at Annexure-C, dated 14-2-1990 was adopted as per Annexure-D, dated 14-10-1992. The subsequent order denying benefit although was based on the Government Order was independently adopted by the Corporation. It was further submitted that since the subsequent order by way of clarification stated that only military personnel who are discharged from military service with military pension/reservist fee/war injury pay before attaining superannuation are entitled to protection of their last drawn salary and the appellants do not fulfill the above conditions. In these circumstances, according to the Corporation the impugned orders are valid and the clarification made by the Government and later by the Corporation cannot be faulted.
21. As laid down by the Supreme Court the clarification cannot amend the rules and can only fill in the gaps. If there is a conflict between the rules and the clarification, then, the rules shall prevail.
22. It also cannot be said that the Corporation independently adopted the rules. The Corporation only adopted the rules on the basis of the clarification issued by the State Government.
23. Let us now examine whether Annexure-C gives certain benefits to the appellants. Annexure-C is issued by the Corporation on 14-2-1990. Annexure-C is based on Annexure-R1 issued by the State Government dated 3rd of November, 1978.
24. As stated earlier Annexure-R1 which gave pay protection to the appellants was issued in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Those ex-servicemen who were entitled to pay protection were military officer of the rank of Junior Commission Officer or below who were discharged from military service 'before superannuation'. This rule under Article 309 was adopted by the Corporation as per Annexure-C. The words in Annexure-C are the same as is contained in the rules. In other words the Corporation gave pay protection to ex-servicemen who are discharged from military service before superannuation. It is not in dispute that both the appellants before this Court were entitled to pay protection since both were discharged from military service before superannuation and were appointed as ex-servicemen in the Corporation through the Employment Exchange.
25. This right of pay protection was now by a clarification confined to only those persons discharged from military service with military pension and did not include other categories of persons discharged from military service before superannuation.
26. It cannot be said that excluding the appellants from the protection of last drawn salary can by any stretch of imagination be called as 'merely filling in the gaps'. The refixation and deduction of pay already paid with retrospective effect cannot be termed as a clarification of the existing rules adopted under Article 309 of the Constitution. It has adversely affected the service conditions of the appellants since the clarificatory order of the Government dated 15-12-1979 was adopted by the Corporation on 14-10-1992. The Corporation sought to deduct the so-called excess salary with effect from 1979.
27. The learned Single Judge took the view that the Corporation cannot retrospectively amend the service conditions but the larger question was whether the Government could have amended the service conditions of the ex-servicemen under Article 309 of the Constitution by narrowing down the category of ex-servicemen by a clarification inconsistent with Rules.
27-A. The answer is, the clarification cannot change the service conditions in the teeth of the rules framed under Article 309 of the Constitution.
28. What is sauce to the goose is the sauce to the gander. If such a thing cannot be done by the Government, the Corporation also cannot make rules inconsistent with its earlier order since the Corporation claims to be adopting only the Government Order. It cannot be said that the Corporation acted independently in amending the regulations. After all it is stated in the objections that the Corporation only followed the order of the Government in amending the service conditions.
29. In that view of the matter, the order of the Corporation cannot be sustained since the order on which it is based is neither clarificatory nor has it sought to fill in the gaps.
30. When there is a conflict between the rules prescribed under Article 309 and the subsequent order, the rules shall prevail.
31. Before we part with the case the Supreme Court in recent judgment of Sansar Chand Atri v. State of Punjab and Anr., : [2002]2SCR881 has held that the provision for reservation and service rules is meant for the benefit of ex-servicemen and the purpose is to provide them with suitable jobs in the civil services so that they may not face difficulty in adjusting themselves in civil society after leaving the defence service.
32. Consequently, the impugned orders are set aside insofar as it relates to the appellants. Accordingly, the writ appeals are allowed and the portion of the order dated 4th June, 1998 made in W.P. Nos. 8857 and 8858 of 1993 read with the order dated 3rd July, 1997 insofar as it seeks to reserve liberty to the respondents to refix the pay of the appellants with effect from 14-10-1991 is set aside. No costs.