*

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