Government has issued a Government order in the form of Office Memorandum. It is not in line with a law on the same subject, which was made by the Parliament of India. This Govt order was issued subsequently to the law of Parliament.
Which will prevail? Can the Govt order override the Parliament’s Act? Can such Govt order be superior to the rules or regulations? What is the difference between them?
A Government Order cannot override the specific provisions of a law enacted by the Parliament. So, if an order of the Government (including an Office Memorandum) is contrary to certain specific provisions of a duly enacted law / Act of a competent legislature, then it would be invalid to the extent of the inconsistency or the repugnancy.
Likewise, a Government order cannot override a specific rule or regulation which has been made under the authority of a law.
However, if the Government order does not run contrary to a law or rule but merely fills up the gaps in respect of which the law (or rule) is silent, then such Government order will not be held to be invalid.
So, if there is a conflict between the two, the law will prevail over the Government Order. However, if the Government Order does not contravene the provisions of law, but merely fills up the gaps in respect of which the law (or rule) is silent, then such Government Order may be enforced by the courts and is valid.
In this regard, please see the following judgments.
In the case of Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : AIR 1967 SC 1910, the Supreme Court held as under:
“It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.”
In the case of Union of India v. K.P. Joseph, (1973) 1 SCC 194 : AIR 1973 SC 303, the Supreme Court held that:
“Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910] that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.”
“To say that an administrative order can never confer any right would be too wide a proposition. 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.”
It may also be relevant to point out that Rules are generally framed by a Government under the authority given to it by a law / Act made by the Parliament / State legislature. It is generally called rule-making power, and the rules are called subordinate legislation or delegated legislation. Regulations are generally framed by an authority (such as, e.g., SEBI) other than the Government exercising the powers given to such authority under a law made by the Parliament / legislature. However, this nomenclature, though generally followed, may sometimes be interchanged.
An Office Memorandum or a Government Order are the executive orders issued by the Government in exercise of its executive powers, and these may not be directly under any rule-making power given under a law.
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