Government Orders Cannot Override Statutory Rules: HC

Government Orders Cannot Override Statutory Rules: HC

Published: 20th October 2014 06:03 AM 

By Express News Service

THE Hyderabad High Court has ruled that executive instructions or government orders cannot override or contradict the statutory rules.

“Where the rules are silent, administrative instructions can be relied upon. The administrative instructions operate when there are gaps in the rules and they are meant for supplementing the rules or legislation,” the court said.

A division bench of the High Court headed by justice KC Bhanu made these observations on a batch of writ petitions challenging an order passed by the Andhra Pradesh Administrative Tribunal in 2010.

As for the case details, the tribal welfare department of the erstwhile AP government issued a GO (Ms No.3 dated January 10, 2000) providing for 100 per cent reservation in appointments to the posts of teachers in schools situated in the Scheduled Areas. The powers vested in the governor under V Schedule of the Constitution were invoked. The said GO was challenged before the tribunal which allowed the petition. Aggrieved over this, some of the tribal teachers filed petitions in the High Court.

Meanwhile, the government issued a memo dated December 19, 2009, saying that the GO would cover the appointment of teachers not only by direct recruitment but also through promotion. The said memo was challenged by the non-tribal teachers working in the tribal welfare institutions, who were expecting promotions to the post of headmaster. The tribunal allowed the application and held that the said GO did not cover the promotion to the post of headmaster.

The petitioners contended that it is the responsibility of the state to see uplift of the tribal people within the Scheduled Areas and that the said GO specifically provides for appointment of teachers in the schools in the above areas by 100 per cent reservation in favour of Scheduled Tribes (STs). Though the post of headmaster is promotional, ‘teacher’ includes headmaster and unless one becomes a teacher, he could not be appointed as headmaster. The notification in the said GO has a overriding effect over the service rules.

On the other hand, the government contended that the appointment of teachers would be made in the vacant posts in the schools of the scheduled areas by way of direct recruitment or promotion as provided under Rule 4 of the AP state and subordinate services rules, 1996. The government said it is competent to issue administrative orders in the field where the same is not covered by statute or statutory rules. The tribunal has not appreciated the relevant material in a right perspective and quashed the memos issued by the government. It urged the court to set aside the impugned order

Afte hearing the case, the division bench said that as per the rules the headmaster can be a teacher, but a teacher cannot be a headmaster.

“Executive instructions can supplement a statutory rule or cover areas to which the rule does not extend but cannot run contrary to statutory provisions or whittle down their effect. Executive instructions may supplement but not supplant statutory rules,” it ruled.

While allowing the petitions, the bench said, “We have no hesitation to hold that the government is well within its competence to issue the impugned memo and the same is perfectly valid and legal. The memo issued by the commissioner of tribal welfare is only consequential proceedings. Though it is stated that GO 3 is prospective, which is contrary to the said GO, which reads that the government considered to re-issue the said orders retrospectively from November 5, 1996 keeping in view the provisions of the V Schedule of the Constitution. Therefore, the impugned order is liable to be set aside”.

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