1991 Supreme(Del) 455

High Court Of Delhi
R.K.ANAND - Appellant
Versus
UNION OF INDIA - Respondent
Civil Writ 3997 of 1990
Decided On : 08/14/1991

Headnote:Army Act, 1950 - Sections 191, 192, 193 and 193A — Age of retirement — Two streams concept — "Command and Staff" Stream and "Staff Only" Stream — Retirement age 58 years and 57 years respectively — Policy constitutionally valid and legal — Retirement of petitioner by letter dated 9th September, 1986 upheld — Whether constitutional right of Petitioner violated (No).

       Army Rules - Rule 16A — Army (Amendment) Rules, 1979 — Rates framed by the Central Government under Section 191 of Army Act, 1950 mandatory requirement under Section 193A — Unless procedure prescribed followed, rate will not have authority of law.

       Held

       that it is not for this Court to sit over judgment on the policy of adopting two streams as set out in the letter and give its own opinion as to the validity of the scheme. So long the policy is constitutionally valid and legal it is not for the Court to scrap the same or suggest any other policy. Court cannot interfere in such policy matters. The Court can step in only if the petitioner says he has been differently treated as per the policy. That is not so. He is attacking the policy itself.

       Indeed the fact that policy is not working properly is no ground to hold it is not legal. Post events are relevant only for the authority to see if the policy needs any amendments or withdrawal altogether.

       The argument raised was that the letter dated 9th September, 1986 was merely a policy letter and was not an order as such which could be acted upon and fill the addendum was issued the retirement ages of officers falling under two stream concept could not be acted upon. We are unable to agree to this submission. Firstly, because letter dated 9th September, 1986 is not merely a policy letter but in terms specifies two stream concept and gives the retirement ages of the officers falling under two different streams; secondly, the letter had been acted upon and in fact petitioner himself under this letter gave his willingness certificate which has been reproduced in the earlier part of the judgment; and thirdly, the letter bad been subject matter of various court cases by the officers who were sought to be retired and it was never said that the letter was only a policy letter to come into operation at any subsequent stage. The letter has been issued under authority of the Central Government. To us it also appears issue or non-issue of addendum cannot make any difference. By she addendum the letter dated 9th May, 1985 was sought to be made a comprehensive one inasmuch as letter dated 9th September, 1986 had modified that letter when the concept of two streams was evolved. Both letters, thereforee, can stand together with the letter dated 9th May, 1985 modified to the extent mentioned by the letter dated 9th September, 1986. We are thereforee of the opinion that the letter dated 9th September, 1986 is valid and effect can be given to letter dated 9th May, 1985 as amended or modified by letter dated 9th September, 1986. These contain executive instructions and only supplement Rule 16-A and do not supplant the same. By issuing these instructions the Central Government is not in any way restricting the operation or the Rule 16-A. No constitutional rights of the petitioner has been violated and we agree with views expressed by this Court and that by the Madhya Pradesh High Court in the cases noted above (Paras 20, 21 and 25).

       We have no doubt in our mind that the manner of coming into force the rules in the present case which have the effect of as being enacted in the Act itself is the publication in the Official Gazette. Here rules become part of the Act. This is a legislative power. That Parliament may not be accused of excessive delegation or abrogation of the legislative functions, Section 193A was inserted in the Act. We agree with the respondents that the event of coming info force of the rules is their publication in the Official Gazette. As noted above, when Rule 16-A was published in the Official Gazette it was specifically mentioned that it will come into force on the date of the publication of the gazette notification. As to what respondents have been doing before Rule 16-A came into force, we are not called upon to decide in the present case.

       We are further of the opinion that all procedural requirements laid down for Sections 193 and !93A have to be followed and compled with, otherwise exercise of power will be null and void. Sections 193 and 193A do not talk of the consequences of non-compliance but the language is quite explicit that unless procedure prescribed is followed, rule will not have the authority of law. The importance of these provisions cannot be overlooked when the rules have to form part of the substantive law by subordinate legislation. We do not find any alternative to this though the courts at times do adopt a flexible attitude on the question of consequences of non-compliance of procedural requirement depending upon the seriousness of the departure from the procedure prescribed and again depending upon variety of factors. But here we have no choice, no alternative except to say that laying of the rules framed by the Central Government under Section 191 is a mandatory requirement under Section 193-A even though laying subject to negative resolution. It cannot be said that Parliament has enacted Section 193-A as a mere surplusage when it was specifically inserted by an Act of Parliament.