Shri. Bhatti, learned counsel for the petitioner assails this order on three counts. Firstly, it is submitted that the impugned order entails civil consequences and such adverse order could not have been passed without following principles of natural justice. Secondly, as per the circular of E-in-C dated 16.8.2012 (Annexure R-3) also, the recovery should have been made from the officer posted in establishment section of the department. Lastly, he submits that M.P. Civil Services (Leave) Rules, 1977 are statutory in nature. With the rules, a statutory schedule is appended which makes it clear that for Class-III employees, the Office Head has full powers to grant the earned leave. The Executive Engineer, being the Office Head has granted earned leave to the petitioner, a Class-III employee. Thus, by way of issuing executive instruction, the power given under the rules cannot be supplanted.
In the considered opinion of this court, petition deserves to succeed on point No. 3 putforth by Shri. M.S. Bhatti. This is trite law that by issuing executive instructions, statutory rules cannot be supplanted although same can be supplemented. Putting it differently, if the statutory rules recognize and approve that the Executive Engineer is the competent authority for grant of earned leave, the said power cannot be taken away by issuing the executive instructions. Since, earned leave in the present case is granted by the competent authority as per the schedule of the said rules, on executive fiat, the said power or benefit cannot be taken away. Resultantly, the impugned order dated 03.08.2016 cannot sustain judicial scrutiny.
In the considered opinion of this court, petition deserves to succeed on point No. 3 putforth by Shri. M.S. Bhatti. This is trite law that by issuing executive instructions, statutory rules cannot be supplanted although same can be supplemented. Putting it differently, if the statutory rules recognize and approve that the Executive Engineer is the competent authority for grant of earned leave, the said power cannot be taken away by issuing the executive instructions. Since, earned leave in the present case is granted by the competent authority as per the schedule of the said rules, on executive fiat, the said power or benefit cannot be taken away. Resultantly, the impugned order dated 03.08.2016 cannot sustain judicial scrutiny.
In the High Court of Madhya Pradesh
(Before Sujoy Paul, J.)
WP-15531-2016
Decided on February 27, 2018
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