Administrative Directions MODULE 3

Provisions – Art 73(Union) and 162(State)

Extent of executive power of the Union:

(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the government of India by
virtue of any treaty on agreement: Provided that the executive power referred to in sub clause (a) shall not,
save as expressly provided in this constitution or in any law made by Parliament, extend in any State to
matters with respect in which the Legislature of the State has also power to make laws

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may,
notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has
power to make laws for that State such executive power or functions as the State or officer or authority
thereof could exercise immediately before the commencement of this Constitution Council of Ministers
Administrative Directions
State in exercise of its executive power  carries out the general administration of the
State  as long as the Govt does not go against the provisions of the Constitution 
the width and amplitude of executive power cannot be circumscribed.

If the executive has not been granted legislative powers  government can carry out
administrative responsibilities by issuing administrative directions  Purely executive
in Nature.

They arise for the smooth and effective functioning  these directions are given by a
superior authority to a subordinate authority for proper implementation of the law/rules.
Contd.
Social Welfare State  Growth of the administrative process has been accompanied by
the conferment of more and more discretionary powers on administrative authorities.

Issued by a higher authority to subordinate authorities and do not have statutory force.

Applied to a particular case or general laying down general principles of polity.

Examples: Letter, circular, oral, pamphlets, press notes, or public notices.

“Administrative quasi-law or administrative quasi-legislation.”

Enforceability
Direction – is not so binding and enforceable  does not confer any enforceable rights on
the individual or impose an obligation on the Administration or Individual.

Even in instances when the direction is misapplied or ignored by the Administration 

affected individual can rarely claim remedy in a court of law against the Administration.

A direction cannot jeopardize a right of an individual  breach of the same may lead to
disciplinary or other appropriate action against them.

What is the remedy then?  if an administrative direction is not complied with  intra-
departmental or administrative in nature and not through a court of law.
Instances of Administrative Directions
A. When power is conferred on a specified authority by the statute and directions
come from a superior authority.

B. When legislative power is conferred on a specified authority by the statute, but

that authority sub delegates the power and directions are issued by this authority to
the delegate  Inoperative form of Delegated Legislation.

C. When the power is conferred by a particular statute on the President, or the

governor and such authority gives directions to civil servants. (Art. 309) {Superior
authority  Subordinate Authority}
How do you identify a direction?
Government is continuously engaged in the process of “legislation” in the sense of
laying down a general norm of public behavior or administrative behavior.

May at times prove complicated  no definitive distinction has been laid down.

Expressions like “code”, “rules”, ”regulation”  are used haphazardly and

indiscriminately for directions.

Usual distinction – Rule made by the Administration in pursuance of the statutory rule-
making power conferred on it by a statutory or constitutional provision. Directions are
issued by the Administration in exercise of general administrative powers conferred
under Art. 73 and 162.
Regina vs St. Aloysius Higher Elementary
School and Anr. (1971 AIR 1920)
10th April 1949 – Appellant was appointed as Headmistress.

1st June 1955 – The manager of the School demoted her to an Assistant Teacher  appealed this to the
District Educational Officer  against the action of the management  rejected.

Second Appeal  Divisional Inspector of Schools  order dated July 5, 1956  directed the District
Educational Officer to issue instructions to the Management of the School to reinstate the appellant as Head
Mistress  management didn’t act on it.

Having no way out  Appellant filed a suit  claiming a, mandatory injunction directing the Management
of the School to reinstate her to the post of Head Mistress and damages for loss resulting from the wrongful
action of the Management.
Appellant’s Arguments
The school was receiving grant- aid from the Government of Madras and was subject to the
supervision and control of the Education Department, Government of Madras.

Conducted according to the rules and regulations framed by the Government and embodied in
the rules relating to the elementary schools framed under the Madras Elementary Education
Act, 1920.

The order passed by the Manager removing her from the post of Head Mistress stood vacated,
and refusal of the Manager to reinstate her was illegal, because the Manager was bound by rr.
13 & 14 framed under the Madras Elementary Education Act to obey the order passed by the
Divisional Inspector of Schools on an appeal preferred by her.
Respondent’s Arguments
They contended that they were not bound by the Madras Elementary Education
Act or the rules framed thereunder;

That the Manager alone was responsible for the "efficiency, strength and
progress" of the school and for the internal discipline, which were all matters left
to his discretion and the Management could not be compelled to reinstate the
appellant as Head Mistress when she did not command their confidence
Issue
Whether the rules framed under the Madras Elementary Education Act, 1920, which conferred
authority upon the educational authorities of the State, were statutory and enforceable at the
instance of a person prejudicially affected by breach thereof?

Whether an. order made by the Educational authorities in exercise of the powers conferred upon
them by rules is liable to be enforced by action in a civil court at the instance of a person affected
by the action of the school authorities falls to be determined?
Madras Education Act, 1920
The Madras Education Act, 1920  has been amended and modified multiple times  a large number of
the provisions of the Madras Elementary Education Act, 1920, have been modified or repealed.

S. 41 which provided for the recognition of elementary schools and S. 42 which provided for admission of
elementary schools to grant-in- aid, stood repealed by Act 2 of 1939.

S. 56 – Rule making powers - the State Government was authorized to make rules not inconsistent with the
Act to carry out all or any of the purposes of the Act, and by sub-s. (2) of s. 56 it was provided : "In
particular and without prejudice to the generality of the foregoing provisions they may make rules-

(f) laying down the registers, statements, reports, returns, budgets and other information to be maintained or
furnished by local authorities, by panchayats, and by managers of elementary schools under private
management and the time within which any statement, report, return, budget or other information shall be
furnished;(h) declaring the conditions subject to which schools may be admitted to recognition or aid."
 Rules under the Madras Education Act, 1920
Act 2 of 1939 which repealed Ch. IV was enacted  rules relating to the power of the Educational authorities were republished
on August 29, 1949. Part II of the Rules dealt with matters relating to recognition of schools and grant-in-aid  Part II Rules
were published in the gazette of August 28, 1939, they were not claimed to have been made under the power reserved to the
Government under S. 56. If they were claimed to have been so made, they would, firstly, have been pre-published as required
by S. 56(1), and secondly, the Government would not have made the distinction between Part I and Part II Rules,

Ch. I in Part II Rules deals with recognition. The power to grant or withdraw such a recognition is conferred on the officers of the
Education Department.

Under r. 5, applications for recognition of schools or additional standards in such schools are to be made to the District
Educational Officer. An appeal is provided against his decision before the Divisional Officer. The rules then lay down certain
requirements on the basis of which recognition would be given or withheld.

Other stipulations in the rules – notice period/permanent position/probationary period/grounds for termination.
Rules
"When, on a teacher's appeal, the District Educational Officer orders reinstatement, the
management shall forthwith reinstate him within 10 days of the receipt of the orders,
notwithstanding a further appeal submitted or proposed to be submitted by the management to
the Divisional Inspector and shall inform in writing the Deputy Inspector of Schools and the
District Educational Officer of the fact of having done so. Failure to comply with such orders of
the District Educational Officer may entail action against the management under rule 14 below."
Holding
The new Rules were divided into two parts. The first part contained rules dealing with matters provided for
in specific sections. Part II Rules did not set out or refer to any of the sections in the Act as Part I Rules did.

The reason was that rules in Part II dealt with recognition and aid in respect of which there were, after the
1939 amendment, no corresponding provisions in the Act. It is also of some significance that when published
in 1939 the rules in Part I were headed "Rules framed under the Madras Elementary Education Act, 1920",
while the rules contained separately in Part II were not given any such heading or title.

When Part II Rules were published in August 1939 there was no previous publication of them as required
by S. 56(1) of the Act.
Holding
Part II Rules cannot be said to be statutory rules framed under S. 56.

The mere fact that such a school has obtained recognition and aid from the education department would not
mean that the relationship between its management and its employees has ceased to be governed by the
contracts of employment under which the employees are recruited and by the law of master and servant
unless there is some provision in the Act overriding that law as one finds in statutes dealing with industrial
disputes and similar other matters.

In the absence of 'statutory provision having the effect of controlling or superseding the contract of
employment agreed to between the parties, the termination would in law be valid.
Holding
The rules thus govern the terms on which the Government would grant recognition and aid and the
Government can enforce those rules upon the management.

But the enforcement of such rules is a matter between the Government and the management, and a third
party, such as a, teacher aggrieved by some order of the management, cannot derive from the rules any
enforceable right against the management oh the ground of a breach or noncompliance of any of the rules.

The appellant could not have a cause of action for enforcing the directions given by the Divisional
Inspector to restore her as the Head Mistress in the appeal filed by her.
Held
Court Held: The ‘rules’ made thereunder were merely administrative instructions for the following reasons:

The rules made under the statute could be made for carrying out the purposes of the Act. That was a
condition precedent. But the rules in question could be related to no purpose or provision of the
concerned statute  doesn’t have to be consistent with the Parent Act.

The Government did not claim to make them under their statutory power.

Under the Act, prepublication of the rules was necessary, but the rules in question were not published.

Could not be related to the statutory authority as these are ultra-vires the Act. The rules were treated as
having been issued under the general administrative power and so characterized as directions
 Guidelines
When it mentions statutory provisions under which it has been issued  Rule.

When the Govt issues some norms under its rule-making powers and all procedural requirements have
been complied with  Rule.

Difficulty arises when the lines get blurred in the following instance:

• Does the instrument impose an obligation on individuals?

• It is informational or procedural in content or deals with only matters of administration?

• Does it impose obligations on the Administration?

• Does it confer rights and privileges on the individual?

When can they be binding?
While rules made under statutory powers are binding, a non statutory direction is not enforceable in a court
of law against either an individual or the Administration  well established principle.

It does not fall under the category of a direct or subordinate legislation.

A direction is unenforceable in a Court against either a person or the Administration. A direction neither
confers any enforceable right on person nor imposes an obligation or duty on the Administration 
misconstruction nor misapplication of a direction by the administration does not amount to an error of law.

Even if they are couched in mandatory terms and prima facie seeks to impose an obligation on either the
individual or the Administration  non-compliance  cannot lead to an issue of mandamus on the court.
When can they be binding?
Two circumstances:

A. authority conferred on the Central Government by some statute or,

B. Through some provision of the Constitution.

What does that make it?

No legal principle is immutable, and every principle has certain exceptions.

K. M. Shanmugam vs The S. R. V. S. (P)
Ltd. & Ors (1963 AIR 1626)
The Regional Transport Authority, Tanjore, called for applications in respect of the issuing of a stage
carriage permit for the route Tanjore-Mannargudi via Vaduvoor  11 persons applied for the permit.

Under s. 47 of the Motor Vehicles Act, 1939  a regional authority while considering an application for a
stage carriage permit, is enjoined to have regard to the “interest of public generally”

The State government issued a direction under S. 43A prescribing “place of business” on the route for
which a permit was applied for as one of the considerations for issuing the permit.
Provisions
Under s. 47, a Regional Transport Authority in considering an application for a stage carriage permit is
enjoined to have regard, inter alia, to the interests of the public generally.

Section 43-A, introduced by the Madras Legislature by the Motor Vehicles (Madras Amendment) Act,
1948, says that the State Government may issue such orders and directions of a general character as it may
consider necessary in respect of any matter relevant to road transport to the State Transport Authority or to
a Regional Transport Authority and such Transport Authority shall give effect to all such orders and
directions.
Holding
The disobedience of the instructions which are administrative in nature may not afford a cause of
action to an aggrieved party, but the transgression of the statutory law certainly does –
inconsistent with the Parent Act.

“The Government issued G. O. No. 1298 dated April 28, 1956, introducing a marking system for
assessing the merits of applicants for stage carriage permits. Column 3 reads thus "Location of
residence or place of business of the applicant on the route or at the terminal :

This qualification not only is in favour of local enterprise but also secures that the owner will pay
prompt and frequent attention to the service entrusted to him. One mark may be assigned to this
qualification.”
Holding
Under this instruction the location of the residence or the place of business is considered to be in the interests of the
public, for whose benefit the service is entrusted to a permit-holder.

The directions could not add to or subtract from the conditions prescribed under sec. 47 but could only afford
reasonable guidance for exercising the jurisdiction by the authority.

The Court ruled that – the existence of a branch office (place of business) in the case of an applicant was, a
relevant fact under s. 47 for deciding the issue of “interest of public generally”.

Tribunal had on an obviously wrong view of law refused to decide or wrongly decided on a consideration relevant
under s. 47.

The High Court, therefore, was right in quashing the order of the Appellate Tribunal and giving an opportunity to
the Tribunal to decide that question on merits.
Holding – Rationale
Was seeking to enforce not the direction itself but the law itself.

But the directions did have a significant effect in conditioning the judicial thinking. The so-called “relevant
fact”, that of having a branch office in route in question, was derived by the court (and thus made a part
of the law) from nowhere else but the directions in question.

Would the court have reached the same conclusion or “relevant fact” under s. 47 without the same having
been laid down in the direction in question.
Union Of India vs K. P. Joseph And Ors,
1973 AIR 303
Respondent was a combatant Clerk in the Indian Army for 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. His pay was re-fixed in the above
scale at Rs. 70/- plus a personal pay of Rs. 2.50 by an Order dated 28th October, 1958, with
effect from the date of re- employment, i.e., 2-7-1953 (retrospectively).

On 15th July, 1960, the Government of India, Ministry of Defence, issued a general Order called
"Office Memorandum" providing for certain benefits to ex-military personnel on re-
employment on the basis of their length of actual military service.
Office Memorandum
(3). These orders will apply to all cases of reemployment occurring on or after 25-11-58 and
past cases will not be reopened. In the cases of pensioners who are in service on the date of
issue of these orders and have been re-employed from a date prior to 25-11-1958 for an
unspecified period or for a period which extends beyond the date of issue of the present orders
may, subject to their option, be brought under the provisions of these orders with immediate
effect.

(4). The option should be exercised in writing within a period of three months from the date of
issue of these orders. The option once exercised shall be final."
Facts
The respondent claimed that he was entitled to the benefit of the Order  but the claim was
rejected by the Government  he filed the Writ Petition contending that as he answered the
description of one to whom the benefit of the Order could properly be extended, he should be
given its benefit.
Holding
An administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to
exceptions.

"Granting that it is executive in character, this Court has held that Courts have the power in appropriate
cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities.
” - Union of India and Others v. M/s. Indo Afghan Agencies Ltd.

There are administrative orders which confer rights and impose duties. It is because an administrative order
can abridge or take away rights that we have imported the principle of natural justice of audi alteram
partem into this area

Not be understood as laying down any general proposition on this question. But the Order in question
conferred upon the 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  See no reason why the Court should not enforce that right.
Holding – Rationale
Since such directions contained assurances on the basis of which third party
acted and such assurances were not outside the executive power, they were
held to be binding.
B.S. Minhas vs. Indian Statistical Institute

The petitioner challenged the appointment of the respondent no. 4 on the grounds that he was much more
highly qualified academically and had accomplishments far superior to the said respondent.

The petitioner has been holding the position of Distinguished Scientist since March 12, 1976 while
Respondent 4 was not a Distinguished Scientist till his appointment as Director  the petitioner was more
qualified than Respondent 4.

The Council approved the recommendation of the Selection Committee and it also approved the terms and
conditions of appointment of Respondent as Director.

In the writ petition it was contended that bye-law requires that the vacancy of the director should be
publicized but it was not many were not aware of the vacancy until the appointment. No bio data or
information of the candidates was given to the council
Petitioner’s Contention
The appointing authority had not observed the rules and regulations and bye-laws of the Institute
as laid down in the memorandum of association and had also violated the provisions of Arts. 14
and 16 of the Constitution.

Petition also pointed out that the vacancy of the post of Director had not been publicized and he
being the senior most researcher working as Distinguished Scientist of the Institute was not given
an opportunity to apply for the same.
Respondent’s Contention
Assuming that there has been a violation of bye-law no writ can lie to correct the same as the
alleged bye-law has no statutory basis in as much as the Institute has been declared as an
Institution of National Importance, the bye-laws not being statutory the respondents are under no
obligation to observe the procedure laid down therein.
Holding
Quashed and has set aside the appointment of director of the Indian Institute of Statistics.

Before respondent 1 tries to select a new director, it has to comply the requirement of byelaw by
publicizing the vacancy of the post.

The central government provides all the money required for the funding for the institute and the
other source of money to the institute has to have the Central Government’s approval  The
control of the Central Government is deep and pervasive and, therefore, it is an instrumentality of
the Central Government  subject to constitutional obligations under art. 14&16.

The vacancy for the post of the director should had been publicized and it would have garnered
wider people for eligibility and the council would have much larger field to choose for the post.
Held
But in the absence of publicity as contemplated by bye-law, it cannot be said that all other qualified persons
like the petitioner were also considered by the selection committee for appointment, in the absence of any
application by them for the post or any recommendation of them by any other authority or individual.

Before respondent No. 1 proceeds to select a new Director, it will comply with the requirement of bye-law
by giving suitable publicity to the vacancy in the office of Director
Need for Administrative Directions
Wide discretion that has to be conferred on the executive by the statute.

Certain formalities, like pre-publication, consultation of affected interests, laying

before Parliament, publication in the gazette, not required for issuance of
administrative directions.

Encourages the trial and error method.

Can be used to deal with a temporary situation

Defects
Law pertaining to administrative directions has been court driven:
 unsatisfactory condition  no stable distinction between a ‘rule’ and ‘direction’

Directions are not enforceable  court has carved out multiple exceptions 
impossible to tell if the court will hold a direction to be binding or not.
Ad hoc judicial approach  dependent on the facts of the given matter.
Guidelines for Administrative Directions
Administrative instructions issued in the absence of any statutory authority has
no force of law, and it cannot supplement any provision of law, rules acts and
regulations.
These directions provides government with the power to fill up gaps which are
there in the present rules and laws
Administrative directions cannot take away rights vested in the persons
governed by the act if they do not have any statutory backing.
 Control Mechanisms  Pre-Natal + Post-Natal Mechanisms.

Prenatal  Procedural Ultravires + Legislative Control.

Postnatal  Substantive Ultra Vires

Procedural Ultra Vires – Publication/Consultation – Mandatory or Directory? – Test.

Substantive Ultra Vires – Grounds – Excessive Power/Unconstitutional 

Constitutionality/Retrospectivity/Unreasonable.
Exception to Delegated Legislation – Administration Directions – Can it be enforced?

Key Take-Aways – Module 3