UNION OF INDIA versus K. P. JOSEPH AND ORS.

Citation: [1973] 2 S.C.R. 752 · Decided: 27-10-1972 · Supreme Court of India · Bench: A.N. GROVER · Disposal: Dismissed

Cited by 4 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

752 
UNION OF INDIA 
v. 
K. P. JOSEPH AND ORS. 
October 27, 1972 
[A. N. GROVER, K. K. MATHEW AND 
A. K. MUKHEREJA, JJ.J 
Military Service-General Order of Government of India Ministry of 
Defence dated 15th July 1960 conferring certain benefits on retired 1nilitary 
per;onnel-Exception in paragraph (3) cl. (3) of Order, applicability of-
Cla.inz under Order whether justiciable--Ofier r.ot retrospective-Pay 
whether could be re-fixed for period before date of Order. 
The appellant was discharged from the post of combatant Clerk in 
the Indian Army on 9th June, 1953 and was re-<!mployed shortly there-
after. 
His pay was re-fixed in the scale applicable. 
On 15th July 1960 
the Government of India issued :; general Order relating to re-employed 
ex-military personnel. Under the Order those entitled to its benefits would 
get Exed in the scale applicable to them by adding to the bottom of 
their scales increments equal to the total number of completed years of 
military >ervice. 
The first respondent having exercised the option pro-
vided for in the Order, claimed that he was entitled to the benefit of the 
Order. 
The claim was rejected by the Government. The first respon-
dent filed "' writ petition in the High Court. 
The writ petition was 
allowed and the High Court directed that the pay of the respondent be 
refixed from 2-3-1953. 
In appeals to this Court it was contended by 
Union of India: (i) that the order was not applicable to the first res-
pondent as he was re-employed before 25-11-1958; (ii) that the order 
being an administrative ·direction was not justiciable <ind no writ l21y; 
(iii) that the order not being retrospective in character, the rcspo:idcnt's 
pay should not have been fixed with retrospective effect from 2-7-53. 
HELD :-(i} The general rule under the Order was that past cases 
of persons re-employed prior to 25-11-1958 would not be reopened. But 
the effect of clause (3) of pare.graph (3) is to create an exception to the 
general ;rule in the case of persons re-employed before 25-11-1958 for an 
unspecified period or for a period which extends to the da,te of order and 
who have exercised their option in writing to be brought under the Order. 
The respondent having exercised his option was therefore entitled to the 
benefit of the Order. 
(ii) Generally speaking an administrative order confers no justiciable 
right but this rule like all other general rules is subject to exceptions. To 
say· that an administr&tive order can never confer any right would be too 
wide a proposition. There are administrative rights which confer rights 
and impose duties. It is because an administrative order can abridge or 
take away rights that this Court imported the principle of natural justice of 
audi alteram partem into this area .. The order in question conferred upon 
the first respondent the right to have his pay fixed in the manner specified 
in the Order and that was part of the conditions of his service. There was 
no reason 'why this Court should not enforce that right. [7550] 
Sant Ram Sharma v. Stale of Rajasthan and another, [1968] 1 S.C.R. 
111; and Union of India and Others v. M/s. lndo Afghan Agencfrs Ltd., 
Ti968] 2 S_C.R .. 366, 377, applied to. 
(3) The order woo not retrospective in character. 'fhe High Court was 
th;orefore wrong in fixing the pay with retrospective effect from 2-7-1953. 
A 
B 
.. 
c 
D 
E 
F 
G 
II 
A 
n 
c 
0 
E 
F 
G 
H 
UNION v. K. P. JOSEPH (Mathew, J.) 
753 
The direction could only be to fix the pay with effect from the date of the 
Order. 
CIVIL APPE"LLATE JURISDICTION : 
Civil Appeal No. 1204 
of 1967. 
\ 
Appeal by special leave from the judgment and order dated 
September 9, 1966 of the Mysore High Court in Writ Petition 
No. 885 of 1964. 
P. P. Rao and S. N. Prasad and B. D. Sharma, for the appel-
lant. 
B. P. Maheshwari ·and C. L. Joseph, for the re;pondent. 
The Judgment of the Court was delivered by 
MATHEW, J.-This is an appeal oy Special Leave from the 
order dated the 9'th of September, 1966 passed by 
the High 
Court of Mysore in a Writ Petition filed by the first respondent. 
The firs•t respondent was a combatant Clerk in the Indian 
Army fo~ a period of more than 14 years. 
He was discharged 
from that post on 9th June, 1953. On 2nd July 1953, he was 
re-employed as an ordinary clerk on the pay scale of Rs. 55-85-
EB-4-125-5-130. 
His pay was re-fixed in the above scale at 
Rs. 70/- plus a personal pay of Rs. 2.50 qy an Order dated 28th 
October, 1958

Excerpt shown. Read the full judgment & AI analysis in Lexace.