PENSIONS' ACT 1871

THE PENSIONS' ACT, 1871

ACT NO. 23 OF 1871

[8th August, 1871.]

An Act to consolidate and amend the law relating to Pensions and Grants by Government of money or land-revenue. Preamble.-WHEREAS it is expedient to consolidate and amend the law relating to pensions and grants by Government of money or land- revenue; it is hereby enacted as follows:- I.-PRELIMINARY

Short title. 1. Short title.-This Act may be called the 'Pensions' Act, 1871. Extent of Act.-2[In so far as it relates to Union pensions, it extends to the whole of India and in so far as it relates to other pensions, it extends] to 3[the whole of India except 4[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]]. 5* * * * * * 6* * * * * *

[Enactments repealed. Saving of Rules] Rep. 2. [Enactments repealed. Saving of Rules] Rep. by the Repealing Act, 1938(1 of 1938), s. 2 and Sch.

Interpretation-section. 3.Interpretation-section.-In this Act, the expression "grant of money or land-revenue" includes anything payable on the part of Government in respect of any right, privilege, perquisite or office. 7[3A. Definition.-The expression "the appropriate Government" means, in relation to 8[Union] pensions, the Central Government, and in relation to other pensions, the State Government.] II.-RIGHTS TO PENSIONS

Bar of suits relating to pensions. 4. Bar of suits relating to pensions.-Except as hereinafter provided no Civil Court shall entertain any suit relating to any pension or grant of money or land-revenue conferred or made by the

[Government or by] any former Government, whatever may have been the

consideration for any such pension or grant and whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted.

Claims to be made to collector or other authorized officer. 5. Claims to be made to collector or other authorized officer.- Any person having a claim relating to any such pension or grant may prefer such claim to the Collector of the District or Deputy Commissioner or other officer authorized in this behalf by the 10[appropriate Government] and such Collector, Deputy Commissioner or other officer shall dispose of such claim in accordance with such rules as the Chief Revenue authority may, subject to the general control of the 10[appropriate Government], from time to time prescribe in this behalf. --------------------------------------------------------------------- 1.It has been ended in its application to U. P. by U. P. Act 12 of 1922. Rep. in part in West Bengal by West Bengal Act 7 of 1948. The Act has been extended to and brought into force in Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and Sch. 1 (w.e.f. 1-7-1265) and extended to the whole of the Union Territory of Lakshadweep by Reg. 8 of 1965, s.3 and Sch. (w.e.f. 1-10-1967). The Act has been repealed in its application to Bellary District by Mysore Act 14 of 1955. 2.Subs. by Act 20 of 1982, s. 2, for "it extends". 3.subs. by the A.O. 1950. for "all the Provinces of India" which had been subs. by the A.O. 1948, for "the whole of British India". 4. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for "Part B States". 5.The words "And it shall come into force on the date of the passing thereof " rep. by Act 10 of 1914, s. 3. and Sch. 11. 6. The words "but not so as to affect any suit in respect of a pension or grant of money or land-revenue which may have men instituted before such date" rep. by Act 12 of 1891, S. 2 and Sch. 1. 7. Ins. by the A. O. 1937. 8. Sub. by the A.O. 1950. for "federal'. 9. Subs. by the A.O. 1950, as amended by C.O. 29, for "British or". 10. Subs. by the A.O. 1937, for "L.G.". 130 (II.-Rights to Pensions. III. Mode of Payment. IV.-Miscellaneous)

Civil Court empowered to take cognizance of such claims. 6.Civil Court empowered to take cognizance of such claims.-A Civil Court, otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from such Collector, Deputy Commissioner or other officer authorized in that behalf that the case may be so tried, but shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly.

Pensions for lands held under grants in perpetuity. 7. Pensions for lands held under grants in perpetuity.-Nothing in sections 4 and 6 applies to-

(1) any inam of the class referred to in section 1 of Madras Act No. IV of 18621;

(2)pensions heretofore granted by Government in the territories respectively subject to the Lieutenant-Governors of Bengal and the North-Western Provinces, either wholly or in part as an indemnity for loss sustained by the resumption by a Native Government of lands held under sanads purporting to confer a right in perpetuity. Such pensions shall not be liable to resumption on the death of the recipient, but every such pension shall be capable of alienation and descent, and may be sued for and recovered in the same manner as any other property. III.-MODE OF PAYMENT

Payment to be made by Collector or other authorized officer. 8.Payment to be made by Collector or other authorized officer.-All pensions or grants by Government of money or land-revenue shall be paid by the Collector or the Deputy Commissioner or other authorized officer, subject to such rules as may, from time to time, be prescribed by the Chief Controlling Revenue-authority.

Saving of rights of grantees of land-revenue. 9.Saving of rights of grantees of land-revenue.-Nothing in sections 4 and 8 shall affect the right of a grantee of land-revenue, whose claim to such grant is admitted by Government, to recover such revenue from the persons liable to pay the same under any law for the time being in force for the recovery of the rent of land.

Commutation of pensions. 10.Commutation of pensions.-The 2[appropriate Government] may, with the consent of the holder, order the whole or any part of his pension or grant of money or land-revenue to be commuted for a lump sum on such terms as may seem fit. IV.-MISCELLANEOUS

Exemption of pension from attachment. 3-11. Exemption of pension from attachment.-No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a decree or order of any such Court. 5[This section applies 4* also to pensions granted or continued", after the separation of Burma from India, by the Government of Burma.]

Assignments, etc., in anticipation of pension, to be void. 12.Assignments, etc., in anticipation of pension, to be void. All assignments, agreements' orders, sales, and securities of every kind made by the person entitled to any pension, Pay or allowance mentioned in section 11, in respect of any money not payable at or before the making thereof, on account of any such pension, Pay or allowance, or for giving or assigning any future interest therein, are null and void. ---------------------------------------------------------------------- 1. I.e., "inams of the classes described in cl. 1, s. 2, [Mad.] Regulation 4 of 1831, which have been, or shall be, enfranchised by the Inam Commissioner and converted into freeholds in perpetuity, or into absolute freeholds in perpetuity". The classes so described are "hereditary or personal grants of money or of land-revenue, however, denominated, conferred by the authority of the Governor in Council [or which, having been made by any Native Govt. have been confirmed or continued by the British Govt.-Act 31 of 1836] in consideration of services rendered to the State or in lieu of resumed offices or privileges, or of zamindars or paleiyams forfeited or held under attachment or management by the officers of Govt., or as a yaumia or charitable allowance, or as a pension". 2. Subs. by the A.O. 1937 for 'L. G." 3. See also s. 60, cl (g) of the Code of Civil Procedure 1908 (Act 5 of 1908). 4.The words "in Part A States and Part C States" omitted by the Adaptation of Laws (No. 2) Order, 1956. The words "Part A States and Part C States" were subs. by the A.O. 1950, for "the Provinces" which had been subs. by the A.O. 1948, for "British India". 5.Ins. by the A.O. 1937. 6.I.e., on or after the 1st April, 1937. ----------------------------------------------------------------------- 131 (IV.-Miscellaneous.) 1-12A. Nomination by Pensioner to receive moneys outstanding on account of pension.-.-. Notwithstanding anything contained in section 12 or in any other law for the time being in force,- (a)any person to whom any pension mentioned in section 11 is payable by the Government of India or out of the Consolidated Fund of India (such person being hereinafter referred to as the pensioner) may nominate any other person (hereinafter referred to as the nominee), in such manner and in such form as may be prescribed by the Central Government by rules, to receive after the death of the pensioner, all moneys payable to the pensioner on account of such pension at, before or after the date of such nomination and which remain unpaid immediately before the death of the pensioner; and (b)the nominee shall be entitled, on the death of the pensioner, to receive, to the exclusion of all other persons, all such moneys which have so remained unpaid: provided that if the nominee predeceases the pensioner, the nomination shall, so far as it relates to the right conferred upon the said nominee, become void and of no effect: provided further that where provision has been duly made in the nomination, in accordance with the rules made by the Central Government, conferring upon some other person the right to receive all such moneys, which have so remained unpaid, in the event of the nominee predeceasing the pensioner, such right shall, upon the decease as aforesaid of the nominee, pass to such other person.]

Reward to informers. 13. Reward to informers.-Whoever proves to the satisfaction of the. 2[appropriate Government] that any pension is fraudulently or unduly received by the person enjoying the benefit thereof shall be entitled to a reward equivalent to the amount of such pension for the period of six months.

Power to make rules.- 14.Power to make rules.-"[In each State] the Chief Controlling Revenue Authority may, with the consent of the [appropriate Government], from time to time make rules consistent with this Act respecting all or any of the following matters :-

(1) the place and times at which, and the person to whom, any pension shall be paid;

(2) inquiries into the identity of claimants;

(3) records to be kept on the subject of pensions;

(4) transmission of such records;

(5) correction of such records;

(6) delivery of certificates to pensioners;

(7) registers of such certificates;

(8) reference to the Civil Court, under section 6, of persons claiming a right of succession to, or participation in, pensions or grants of money or land-revenue payable by Government; and generally for the guidance of officers under this Act. All such rules shall be published in the Official Gazette, and shall thereupon have the force of law.

Power of Central Government to make rules. 5[15. Power of Central Government to make rules.-The Central Government may, by notification in the official Gazette, make rules to provide for all or any of the following matters, namely :- (a)the manner and form in which any nomination may be made under section 12A and the manner and form in which such nomination may be cancelled or varied by another nomination; (b)the manner in which provision may be made, for the purposes of the second proviso to section 12A, in any such nomination for conferring on some person other than the nominee the right to receive moneys payable to the nominee if such nominee predeceases the pensioner, ---------------------------------------------------------------------- 1. Ibs. by Act 20 of 1982, s. 3. 2. Subs, by the A.O. 1937, for "L. G". 3. Ins., ibid. 4. Subs. ibid., for "L. G.". 5. Ins. by Act 20 of 1982, s. 4. ----------------------------------------------------------------------- 132 (IV-Miscellaneos. Schedule) 16.Laying of rules.-Every rule made by the Central Government under this Act and every rule made under section 14 by a Chief Controlling Revenue Authority with the consent of the Central Government, shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

[SCHEDULE.] Rep. by the repealing Act, 1938 (1 of 1938), s. 2 and Sch.

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FRESH WRIT PETITION FILED BY ME

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(special original jurisdiction)

W.P. No. 10442 of 2008

M.Venkatesan

Son of Late K.Muthukrishnan,

No.16, Raja Apartments,

5-A, Balakrishna Naicken St.,

West Mambalam,

Chennai – 600 033. ….Petitioner

Vs

1. Union of India,

represented by the Secretary,

Ministry of Commerce & Industry

Department of Commerce

Udyog Bhawan,

New Delhi.

2. The Director,

Export Inspection Council,

(Ministry of Commerce),

No.26, Pragati Towers,

11^th Floor, Rajendra Place,

New Delhi 110 008.

3. The Additional Director,

Export Inspection Agency (Chennai),

(Ministry of Commerce),

No.213, Royapettah High Road,

Chennai – 600 014. ….Respondents

AFFIDAVIT OF M.VENKATESAN

I, M. Venkatesan, Son of Late K. Muthukrishnan, Hindu, aged about 63 years, residing at Flat No.16, Raja Apartments, 5-A, Balakrishna Naicken Street, West Mambalam, Chennai – 600 033, do hereby solemnly affirm and sincerely state as follows:-

1. I am the Petitioner herein and I am as such well acquainted with the facts and circumstances of the case.

2. I respectfully submit that I entered into service in the year 1973 by joining the Export Inspection Agency (Bombay), Ministry of Commerce, Government of India as a Technical Officer, with effect from 08-03-1973. In the year 1978, I was promoted to the next higher post of Assistant Director in the pre-revised scale of pay of Rs.700-1,300. When revised scale of pay was introduced to the Employees of the Central Government based on the recommendation of the IVth Pay Commission with effect from 01.01.1986, the revised scale of Pay of Rs.2,200-4,000 was prescribed by the Government for the post of Assistant Director, Export Inspection Agency, Ministry of Commerce, Government of India, in which I was working.

3. I respectfully submit that the Export (Quality Control and Inspection) Act, 1963 empowers the Government of India to prescribe systems for quality control and inspection of commodities being exported from India, so as to prevent export of sub-standard goods and to satisfy the needs of the foreign buyers in terms of quality requirements demanded by them. The Export Inspection Council (EIC) was established under the provisions of the above said Act, to advise the Government about the measures to be taken for quality control and pre-shipment inspection of various commodities being exported from India. In order to enforce the quality control and to ensure proper pre-shipment inspection of various commodities being exported from India, the Export Inspection Agencies, (EIA’S) have been established by the Government of India at Mumbai, Calcutta, Delhi, Cochin, and Chennai with many Sub-Offices spread all over the country. These Agencies are the arms of the Export Inspection Council (EIC). Which play a vital role through quality assurance programs in boosting the country’s exports.

4. I respectfully submit that the various rules and regulations of service applicable to the employees of the central government service from time to time are also applicable to the employees of the export inspection council/export inspection agency. This is as per the export inspection council Pension and General Provident Fund Rules 1981which stipulate that the Central Civil Services (Pension Rules) and General Provident Fund (Central Services) Rules as amended from time to time are applicable to the employees of the council.

5. BY the year 1984 I had completed twenty one years and four months of service and at that point in time I was working as Assistant Director in Export Inspection Agency, Chennai in the revised scale of pay of Rs.2,200-4,000.

6. The then Additional Director, holding charge of Director (I & QC) Export Inspection Council, (Ministry of Commerce, Government of India) vide its communication No. EIC/D(Q/C)/VRS/121/94/548 dated 21.05.1994 addressed to the Additional Director, Export Inspection Agency, Calcutta/Mumbai/Cochin/Delhi/Chennai informed that the Government of India had approved Voluntary Retirement Scheme (VRS) applicable to the Employees of Export Inspection Council (EIC)/Export Inspection Agencies (EIA’s) as a special one time offer on the following terms:-

(i) Half a month’s gratuity per year of service subject to a ceiling

of Rs.1,00,000/ as admissible under the gratuity Rules of EIC/EIA;

(ii) Ex-gratia payment equivalent to 1 ½ months emoluments (Pay + DA) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before normal date of retirement, which ever is less;

(iii) One or 3 month’s pay in lieu of notice, where admissible, in terms of the conditions of service/appointment of the employees;

(iv) Encashment of earned leave at the credit of employees as per Ministry of Commerce O.M. No. 15/5/93 – MDA, dated January 3, 1994 up to a maximum of 240 days

(v) Full matching CPF contribution from the Export Inspection Council/Agency side irrespective of whether such employees have completed 5 years of service.

(Applicable to such employees if any who have not opted for the pension Scheme)

(vi) Full commutation of pension

(vii) Travel expense for the employee’s and family for proceeding to home town or to the place where he/she intends to settle in India as per his/her entitlement under the TA Rules of Council/Agency;

(viii) This offer will remain valid for a period of 60 days only from the date of issue of this letter, and

(ix) The EIC would, however, have the right to refuse, the request for voluntary retirement in case of any employee without assigning any reason”.

7. I had raised many queries with regard to the scheme, the benefits flowing from it. Instead of clarifying the queries raised, I was informed by letter dated 31.5.1994 that in the absence of any option for Voluntary retirement form service and its acceptance by the competent authority, it may not be possible to take any action as desired by me. In other words, I was told to accept the VRS and only thereafter my queries would be answered. Assuming that the scheme introduced by the Respondents was a valid one, I had submitted my formal application in the prescribed pro-forma opting for voluntary retirement service under the above said V.R.S.Scheme on 08.07.1994. But to my shock and surprise, I along with other optees were immediately relieved from service. It was clear that the respondents were waiting for an opportunity to relieve me and other employees.

8. While calculating the retirement benefits payable under the above scale, the competent authority decided on 16.07.1994 to grant weightage of five years of service to those optees who has put in 20 years of Government service for determining the quantum of commutation pension, gratuity, dearness allowance and other retirement benefits. This benefit was denied to me virtually for which I filed W.P. No. 16155 of 1997 for a direction to the Respondents for disbursement of the retirement benefits by taking into account the five years weightage for the purpose of calculating retirement benefits. The above Writ Petition is pending as on date.

9. In the meanwhile I came to understand that the scheme dated 21.5.1994 had not been approved by the competent authority and in fact was in violation of the relevant rules. In those circumstances I made repeated representations to the Respondents seeking clarification on the above but there was no reply. However upon coming into force of the Right Information Act 2005, I reiterated my earlier request for information as to the status of the scheme. By a letter dated 06.12.2005, the public information officer under the said act furnished a copy of the letter dated 21.05.1994 issued by the Ministry of Commerce conveying the approval of the Government for V.R.S.1994, the perusal of this letter showed that though the Government was not obliged to formulate for approval in such scheme, the same has been done as a special gesture to the EIC/EIA. It is relevant to point out that as per the allocation of business rules 1961 read with Article 77(3) of the Constitution of India, the Ministry of Commerce is not empowered to frame schemes but it is the duty of the Department of Personnel and Training. In these circumstances I sought information from the Ministry of Personnel, Public grievances and pensions as to where they had approved the V.R.S. of 1994 extended to the EIC/EIA. The department replied by a letter dated 17.08.2005 that they had not issued any special voluntary retirement scheme to central government employees besides the special voluntary retirement scheme introduced for surplus central government employees on. 28.2.2002.

10. It is also pertinent to state that the EIC being as statutory body created under the Export (quality control and inspection) Act 1963, its functions, powers, duties and responsibilities are laid down by the said Act. As per Rule 17 of the said Act, the central government is empowered by notification in the official gazette to make rules to carry out the purposes of the Act. As regards the conditions of the service more specifically pension and retirement benefits for employees of the council the central government had issued the Export inspection council (pension and general provident fund) rules 1981. These rules clearly adopt the Central Civil Services Pension Rules, 1972. As per the CCS Pension Rules the retirement benefits of a person going on voluntary retirement has to be determined with respect to Rule 48, 48A & 54 of said rules. Therefore I should have been permitted to avail the provision of Rule 48A of the above said rule which is applicable and should not have been forced to go under V.R.S. 1994 issued by the Ministry of Commerce which is without jurisdiction.

11. In these circumstances I made detailed representations on 6^th May 2006, 16^th May 2006 & 23^rd Nov.2006 to the Respondents including the 1^st respondent calling upon them to grant me normal voluntary retirement pension as admissible under the CCS pension rules 1972. I undertook to refund all the amounts received under the illegal V.R.S. 1994 dated 21.05.1994 with interest provided my request for grant of retirement benefits as admissible under Rule 48A of the CCS pension rules is accepted. The Ministry of Commerce has till date not replied to the representations made but instead forwarded a reply dated 1.12.2006 issued by the 2^nd respondent Council. I have also made subsequent representations but to no avail. Thereafter, the petitioner has made representations to the second respondent to consider his request but to no avail.

12. In the aforesaid circumstances, the Petitioner is aggrieved by the letter dated 1.12.2006 issued by the 3^rd respondent and is constrained to approach this Hon’ble Court under Article 226 of the Constitution of India for issue of WRIT OF CERTIORARIFIED MANDAMUS on the following among other

GROUNDS

A) It is submitted that the impugned order is arbitrary, irrational, unreasonable thus illegal and therefore liable to be setaside.

B) It is also submitted that the VRS of 1994 introduced by the 1^st respondent was not framed by the competent authority. Under the Government of India (Allocation of Business Rules), 1961 which are framed under Article 77(3) of the Constitution of India. The Department of Personnel and Training is the competent authority to regulate the service matters as can be seen from the first schedule to the rules read with rule 2. Therefore, introduction of a Voluntary retirement scheme comes under the purview of the DOPT. However, in the instant case, the VRS of 1994 was introduced by the Ministry of Commerce which is not competent to do so. As a result, the petitioner is entitled for payment of his retirement benefits under rule 48 A of the CCS (Pension) Rules, 1972.

(C) It is also submitted that had the entire order dated 21.5.1994 passed by the Ministry of Commerce been made available to the petitioner and other similarly situated employees, the decision to opt for that scheme would not have arisen as in para 2 of the said order, it was made clear that the Government was not obliged to formulate or approve any such scheme but the same was done only as a special gesture to the EIC/EIAs. Had the lack of competency been known at that point in time, the petitioner would not have been forced to opt to that scheme.

D) It is also submitted that the option submitted by the petitioner to the VRS 1994 was not voluntary as can be seen from the letter dated 31.5.1994. This letter clearly shows that the petitioner was first told to accept the scheme and only then the queries which he had raised regarding the scheme can be answered. Once the option was exercised the respondents chose not to entertain correspondence in that regard and that option is now put against the petitioner.

13. For all the aforesaid reasons it is prayed that this Honourable Court may be pleased to issue a WRIT OF CERTIORARIFIED MANDAMUS or any other appropriate Writ, order or direction, calling for the records of the 3rd respondent’s letter VRS/121/2006/5958 dated 1.12.2006, quash the same and consequently direct the respondents to pay the petitioner the retirement benefits payable to him upon his deemed voluntary retirement under rule 48A of the CCS (Pension) Rules, 1972 and pass such further order or other orders as may be deemed fit and proper in the facts and circumstances of the case and thus render justice.

Solemnly affirmed at Chennai , this

the day of April 2008 and

signed his name in my presence.

BEFORE ME

KARTHIK RAJAN

ADVOCATE, CHENNAI

*

The clandestine action of the Export Inspection Council( in consultation with Department of Commerce) on the 21^st.May 1994 circular- a blemish of “ignoring or overlooking” (willfully) is in violation of Article 144 of Constitution.

Ref: AIR 1989 SC 1133

“EMPLOYEES should NOT be made to suffer ADVERSLY for the DEFAULT OR LAPSE on the part of Government, as it would be ARBITRARY, UNJUST AND UNREASONABLE”

**

Allocation of Business Rules & the Transaction of Business Rules made by His Excellency The President of India under Article 77 (3) of Constitution of India-cited below:

1.“ Formation of policies” in relation to “pension and other Retirement benefits and other aspects of Personnel Administration” and the “Framing Rules” thereupon, under the “Proviso” to article 309 of the Constitution, are exclusively within the “domain” of the NODAL department of Pension and Pensioners’ Welfare (especially in cases INVOLVING significant recurring financial implications, under the Department of Expenditure as well); and

2.the exercise of SUPERORDINATE powers in relation to INTERPRETATION/RELAXATION of “any” of the provisions of the aforementioned Rules, inter alia the CCS (commutation of pension) Rules, 1981 is per se exclusively “reserved” to the NODAL Department of Pension and Pensioners’ Welfare and NONE in the “administrative” Ministries/Departments like the Department of Commerce.

Copy to: Hon’ble Minister of Commerce Shri. Shri Kamal Nath with a special request to expedite my appeal.

To avoid the arbitrary & misuse of powers by officials the constitution rightly segregated the rules framing powers to certain nodal departments and others to execute & administer the same rules protected by the constitution. But Commerce ministry violated the constitution & hurriedly implemented the illegal scheme in a ham handed manner.

The executive instructions may supplement but not suppliant the rules-State of Maharashtra Vs. Jagannath Achyut Karandikar, AIR 1989, 1133 (SC).

STATE OF MAHARASHTRA Vs.JAGANNATH ACHYUT KARANDIKAR

DATE OF JUDGMENT08/03/1989

BENCH:SHETTY, K.J. (J),SINGH, K.N. (J)

CITATION:

1989 AIR 1133 1989 SCR (1) 947

1989 SCC Supl. (1) 393 JT 1989 (1) 520

1989 SCALE (1)566

Act: Circular dated Jan. 15,1962--Effect of--Vis-a-Vis--Statutory Rules.

The Circular dated January 15, 1962 is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to Art. 309 of the Constitution. The Government could not have restricted the operation of the Statutory Rules by issuing the executive instruction.

The executive instruction may supplement but cannot supplant

the statutory rules.

It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Government. The Court need not have to reflect upon the Rules of interpretation since they are well settled. They are now like the habits of driving which have become ingrained. They come for assistance by instinct. The different rules have to

be used meticulously to give effect to the scheme as the clutch, brake and accelerator are used for smooth driving.

These rules are to be harmoniously construed.

PALURU RAMKRISHNAIAH & ORS. ETC .Vs. UNION OF INDIA & ANR.

DATE OF JUDGMENT28/03/1989

Act: Administrative Law: Executive instructions cannot override any provision of the Statutory Rules.

Civil Services: Indian Ordnance Factories(Recruitment and Conditions of Service of Class III Personnel) Rules,

HELD: (1) An executive instruction could make a provision only with regard to a matter which was not covered by the Rules and such executive instruction could not override any provision of the Rule.

While a circular of the Board will be binding upon an Assessing Officer in matters relating to the general interpretation of any provisions of the statute, the circulars cannot override judicial decisions rendered on the statute. Gee Industrial Syndicate Ltd., vs. CBDT, 166 ITR 88(Del).

Certiorari also lies against judicial and quasi-judicial authorities - courts and tribunals

and means 'to be informed'. When, for example, a tribunal acts without jurisdiction or in excess of it and issues an illegal order, that order can be quashed by a writ of certiorari.

Such a writ may lie even against an administrative body affecting individual rights.

(Union of India v. Nambudri (1991) 2 VJSC 302).

The exercise of constitutional powers by the High Court and the Supreme Court under Article 226 or 32 has been categorised as power of "judicial review". Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or Is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other Articles dealing with Fundamental Rights, every executive action of the Govt. or other public bodies, including Instrumentalities of the Govt., or those which can be legally treated as "Authority" within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates.

IN THE SUPREME COURT OF INDIA

C.A. No. 639, of 2000 ( SLP(C) No. 16439 of 1998) Decided On: 28.01.2000

DOPT,DARPG, DP&PW

THE FIRST SCHEDULE

(Rule 2)

MINISTRIES, DEPARTMENTS, SECRETARIATS AND OFFICES

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

(KARMIK, LOK SHIKAYAT TATHA PENSION MANTRALAYA)

A. DEPARTMENT OF PERSONNEL AND TRAINING

(KARMIK AUR PRASHIKSHAN VIBHAG)

I. RECRUITMENT, PROMOTION AND MORALE OF SERVICES

1. Reservation of posts in Services for certain classes of citizens.

2. General questions relating to recruitment, promotion and seniority pertaining to Central Services except Railways Services and services under the control of the Department of Atomic Energy, the erstwhile Department of Electronics, the Department of Space and the Scientific and Technical Services under the Department of Defence Research and Development.

3. General policy regarding age limits, medical standards, educational qualifications and recognition of non-technical degrees diplomas for appointment to Government service.

4. General policy matters regarding classification of posts and grant of gazetted status in relation to Services other than Railway Services.

5. Recruitment of ministerial staff for the Government of India Secretariat and its attached offices except that for the Department of Railways, the Department of Atomic Energy, the erstwhile Department of Electronics, and the Department of Space.

6. Appointment of non-Indians to Civil posts under the Government of India except posts under the Department of Railways, the Department of Atomic Energy, the erstwhile Department of Electronics and the Department of Space.

7. **

8. Concessions to War Service candidates in respect of appointments to Civil Posts and services.

9. General policy regarding resettlement of displaced Government servants from areas now in Pakistan and retrenched temporary employees.

10. Concessions to political sufferers in the matters of first appointment or reappointment to the public services.

11. General policy regarding grant of extension to or re-employment of superannuated officers.

12. Issue of certificates of eligibility for appointment to Civil Services and posts under the Union in respect of persons other than Indian citizens.

13. (a) Deputation of Indian experts abroad under the Indian Technical and Economic Cooperation Programme of the Ministry of External Affairs and on bilateral basis of the developing countries of Asia, Africa and Latin America.

(b) Deputation of officers or placements with the United Nations and its allied agencies as also with other international agencies like ILO, FAO, etc.

14. General policy regarding verification of character and antecedents, suitability of candidates for appointment to Government service.

15. Policy matters relating to issue of No Objection certificate to serving personnel for registration with the Employment Exchange for higher posts.

16. Matters relating to Personal Staff of Ministers.

17. Re-deployment of staff rendered surplus in Central Government offices as a result of-

(a) administrative reforms;

(b) studies made by the SIU;

(c) winding up of long term but temporary organisations.

18. Advising Ministries on proper management of various cadres under their control.

II. TRAINING

19. (a) Formation and coordination of training policies for the All India and Central Services;

(b) Lal Bahadur Shastri National Academy of Administration and Institute of Secretariat Training and Management;

(c) Training programmes for the Indian Administrative Service and the Central Secretariat Service;

(d) Preparation and publication of training material and of the information of training techniques, facilities and programmes;

(e) Liaison with training institutions within the States and abroad;

(f) Refresher and special courses of Middle and Senior Management levels.

III. VIGILANCE AND DISCIPLINE

20. (a) Central Vigilance Commission ;

(b) All policy matters pertaining to vigilance and discipline among public servants;

(c) Relationship between Members of Parliament and the Administration.

20.A The Prevention of Corruption Act, 1947 (2 of 1947); the Central Bureau of Investigation (the Delhi Special Police Establishment including the Legal Division, the Technical Division, the Policy Division, and the Administration Division); the Food Offences Wing; and Economic Offences Wing.

IV. SERVICE CONDITIONS

21. General questions (other than those which have a financial bearing including Conduct Rules relating to All India and Union Public Services except in regard to services under the control of the Department of Railways, the Department of Atomic Energy, the erstwhile Department of Electronics and the Department of Space.

22. Conditions of service of Central Government employees (excluding those under the control of the Department of Railways, the Department of Atomic Energy, the erstwhile Department of Electronics, the Department of Space and the Scientific and Technical personnel under the Department of Defence Research and Development, other than those having a financial bearing and in so far as they raise points of general service interests.

23. (a) The administration of all service rules including F.Rs. SRs. and C.S.Rs. (but excluding those relating to Pension and other retirement benefits) except--

(i) proposals relating to revisions of pay structure of employees;

(ii) proposals for revisions of pay scales of Central Government employees;

(iii) appointment of Pay Commission, processing of the recommendations and

implementation thereof;

(iv) dearness allowance and other compensatory allowances and travelling allowances;

(v) any new facility to Government employees by way of service conditions or fringe benefits which involve significant recurring financial implications; and

(vi) matters relating to amendments to service rules having a predominantly financial character;

(b) Initiation of proposals for new facility to Government employees by way of service conditions and fringe benefits, involving significant recurring financial implications;

(c) Issue of formal orders of the Government of India in matters relating to amendments to service rules including those having a predominantly financial character referred to in item (vi) of clause (a);

(d) Relaxation and liberalisation of any service rules having long-term financial implications in consultation with the Ministry of Finance.

24. Grants to the Indian Institute of Public Administration.

25. Leave travel concession for civil employees other than Railway employees.

26. The Central Services (Temporary Service) Rules, 1949.

27. General policy regarding retrenchment and revision of temporary Government servants except those under the Department of Railways.

28. Administration of the Central Services (Safeguarding of National Security) Rules.

29. Uniforms for Class IV and other Government servants in the Central Secretariat, and its attached offices.

30. Working Hours and Holidays for Government of India offices.

31. Administration of service rules with financial content under specific delegation made by the Ministry of Finance.

32. Advice on proposals in respect of the Ministry of Finance relating to the number or grade of posts to the strength of a service or to the pay and allowances of Government servants or any other conditions of their service having financial implications.

33. General policy regarding reimbursement of legal expenses incurred by Government Servants.

34. Proposals for grant of ex-officio Secretariat status.

35. Honorary appointments of persons in civil posts.

36. Oath of allegiance to the Constitution.

V. SENIOR AND MIDDLE MANAGEMENT

37. All aspects of Senior Management (i.e., Joint Secretaries and above and their equivalents) including developments of personnel for it.

38. (a) Establishment Officer to the Government of India;

(b) Appointments Committee of the Cabinet;

(c) (c) Central Establishment Board;

(d) Career Development for Middle Management (i.e. Directors, Deputy and Under Secretaries and equivalents).

VI. GOVERNMENT EMPLOYEES RELATIONS, INCLUDING STAFF GRIEVANCES AND WELFARE.

39. (a) Service Associations of the industrial and non-industria employees of the Government of India;

(b) Joint Consultative Machinery; Departmental Council for the Department of Personnel and Training (Karmik aur Prashikshan Vibhag);

(c) machinery for the redress of staff grievances;

(d) staff welfare including sports, cultural activities, Grih Kalyan Kendras, Canteens, Cooperative Stores, etc;

(e) all matters relating to Central Administrative Tribunals and State Administrative Tribunals;

(f) other matters involving Government Employees relations not specifically provided for under any other entry relating to this Ministry.

VII. UNION PUBLIC SERVICE COMMISSION

40. Union Public Service Commission.

VIII. CENTRALISED ASPECTS OF MANAGING IAS, INTER-MINISTRY CADRES INCLUDING A CAREER PLANNING FOR THE MEMBERS THEREOF.

41. (a) Creation of new All India Services;

(b) Rules and regulations under the All-India Services Act, 1951 (61 of 1951);

(c) All matters relating to the Indian Administrative Service including the Indian Civil Service;

(d) All India Civil List and History of Services;

(e) Central Secretariat Service, Central Secretariat Stenographers' Service and Central Secretariat Clerical Service.

IX. CAREER PLANNING AND MANPOWER PLANNING.

42. (a) General Policy questions regarding Career Planning and Manpower Planning for the All India and Central Government Services;

(b) All matters pertaining to Career Planning and Manpower Planning for the Indian Administrative Service and the Central Secretariat Service.

X. PERSONNEL MANAGEMENT AGENCIES

43. Coordination of the work of personnel management agencies within various Ministries and Departments.

XI. ALLOCATION OF PERSONNEL AND INTEGRATION OF SERVICES AS A RESULT OF STATES RE-ORGANISATION.

44. (a) Allocation of service personnel affected by re-organisation of States;

(b) Division and integration of services affected by the re-organisation of States other than the Union Territories;

(c) Protection of service conditions of personnel affected by re-organisation of States;

(d) Other matters relating to State Services affected by the re-organisation of States.

XII. PUBLIC ENTERPRISES SELECTION BOARD

45. Public Enterprises Selection Board (PESB).

B. DEPARTMENT OF ADMINISTRATIVE REFORMS AND PUBLIC GRIEVANCES (PRASHASANIK SUDHAR AUR LOK SHIKAYAT VIBHAG).

1. Administrative Reforms, including e-governance and dissemination of best practices.

2. Organisation and methods.

3. Policy, coordination and monitoring of issues relating to –

(a) redress of public grievances in general; and

(b) grievances pertaining to Central Government agencies.

4. (a) Research in public management;

(b) liaison with State Governments, professional institutions etc. in public management matters.

5. Administration of Central Secretariat Manual of Office Procedure.

C. DEPARTMENT OF PENSION AND PENSIONERS' WELFARE

(PENSION AUR PENSION BHOGI KALYAN VIBHAG)

1. Formulation of policy and co-ordination of matters relating to retirement benefits to Central Government employees (Civil, Defence and Railway Pensioners).

2. Administration of –

(a) The Central Civil Services (Pension) Rules, 1972; the Central Civil Services (Commutation of Pension) Rules, 1981; the Central Civil Services (Extraordinary Pension) Rules, 1939; the All India Services (Death-cum-retirement benefits) Rules, 1958, and

(b) any other scheme relating to Central Government pensioners, entrusted to the Department.

3. Pension structure and relief to pensioners.

4. New facilities of fringe benefits to the Central Government pensioners.

5. Matters relating to amendment to, or relaxation of, Pension rules or any other rule concerning retirement benefits.

6. Policy and co-ordination relating to welfare of Central Government Pensioners.

Note:- The action in respect of 3 above shall be subject to the concurrence of Ministry of Finance. Action in respect of other matters involving recurring financial implications by way of relaxation or liberalisation of any rule shall be subject, to guidelines, as agreed to between the Department of Pension and Pensioners’ Welfare and the Ministry of Finance, Department of Expenditure.

RASHTRAPATI BHAVAN,NEW DELHI

January 14,1961/Pausa 24, 1882(S)

ORDER

THE GOVERNMENT OF INDIA (ALLOCATION OF BUSINESS) RULES

In exercise of the powers conferred by clause (3) of article 77 of the Constitution and in super session of all previous rules and orders on the subject the President hereby makes the following rules for the allocation of the business of the Government of India.

1. Short Title - These rules may be called the Government of India (Allocation of Business) Rules, 1961.

2. Allocation of Business - The business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to these rules (all which are hereinafter referred to as "departments").

3. Distribution of Subjects –

(1) The distribution of subjects among the departments shall be as specified in the Second Schedule to these rules and shall include all attached and subordinate offices or other organisations including Public Sector Undertakings concerned with its subjects and sub-rules (2), (3) and (4) of this rule.

(2) The compiling of the accounts of each Department shall stand allocated to that Department with effect from the date from which the President relieves, by order made under the first proviso to sub-section (1) of Section 10 of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971; the Comptroller and Auditor General from the responsibility for compiling the accounts of that Department.

(3) Where sanction for the prosecution of any person for any offence is required to be accorded-

a) If he is a Government servant, by the Department which is the Cadre Controlling authority for the service of which he is a member, and in any other case, by the Department in which he was working at the time of commission of the alleged offence;

b) If he is a public servant other than a Government servant, appointed by the Central Government, by the Department administratively concerned with the organisation in which he was working at the time of commission of the alleged offence; and

c) In any other case, by the Department which administers the Act under which the alleged offence is committed;

Provided that where, for offences alleged to have been committed, sanction is required under more than one Act, it shall be competent for the Department which administers any of such Acts to accord sanction under all such Acts.

(4) Notwithstanding anything contained in sub-rule (3), the President may, by general or special order, direct that in any case or class of cases the sanction shall be by the Department of Personnel and Training.

4. Allocation of Departments among Ministers –

(1) The business of the Government of India allocated to Cabinet Secretariat is and, shall always be deemed to have been, allotted to the Prime Minister. ($)

(2) Subject to the provisions of sub-rule (1), the President may, on the advise of the Prime Minister, allocate the business of the Government of India among Ministers by assigning one or more departments to the charge of a Minister.

(3) Notwithstanding anything contained in sub-rule(1) or sub-rule(2), the President may, on the advice of the Prime Minister -

(a) associate in relation to the business allotted to a Minister under either of the said sub-rules, another Minister or Deputy Minister to perform such functions as may be assigned to him; or

(b) entrust the responsibility for specified items of business affecting any one or more than one Department to a Minister who is in charge of any other Department or to a Minister without Portfolio who is not in charge of any Department.

RAJENDRA PRASAD

PRESIDENT