HC: We won't tolerate inaction of Executive by sitting over Judicial Decisions,

 

The Jammu & Kashmir and Ladakh High Court has observed that in the existing constitutional scheme, the Executive is under an obligation to obey the judicial orders and allowing them to review, revise or sit over the decisions would tantamount to interference with the exercise of judicial functions.

A Division Bench of Justice Sanjeev Kumar and Justice Moksha Kazmi was adjudicating upon a slew of petitions challenging a Government Order prescribing closure of Rehbar-E-Taleem Scheme announced in the year 2000 with aim to engage teachers to improvise elementary education through community participation observed:

 The Legislature, may, in certain situations,nullify a judicial or executive decision by enacting appropriate legislation, however, absent such legislation, neither the Executive nor the Legislature could set aside a judicial order."

The Court referred to Kashinath Sankarappa Wani Vs. New Akot Cotton Ginning & Pressing Co. Ltd., 1958 Latest Caselaw 11 SC wherein the Supreme Court even held the decisions of quasi-judicial Authorities like the Tribunals which are headed by a retired or sitting judge of the High Court are binding on the Executive and cannot be overruled or overturned by the ExecutiveAuthority by issuing Government orders or executive instructions.

It further mentioned Madras Bar Association Vs. Union of India 2021 Latest Caselaw 273 SC wherein position of law has been explained by the Supreme Court in relation to the legislative override.

 

Noting that however, in the present case, confrontation is with regard to executive override which, in any case, is not permissible in law, the Court observed that the Executive is bound to comply with the orders of the Court and has no power, jurisdiction or competence to sit over or overturn such decision by mere executive fiat.

The Court found the challenge to the Government order impugned totally baseless and misconceived.

"The scheme known as ReT was promulgated by way of an executive order and the scheme did not contain any promise much less a categoric and unequivocal promise that the scheme will remain in operation for all times to come, on the basis whereof, a candidate can claim to have entertained a legitimate expectation. As a matter of fact, the ReT Scheme promulgated in the year 2000 was virtually withdrawn in November 2003. The engagements made after November 2003 are only on the pattern of ReT Scheme, that too, against certain identified posts. The Government orders noticed above, whereby the ReT Scheme of 2000 was extended for supplying vacancies of Teachers under SSA and other Schemes too have been issued by the State in the exercise of executive power. We, therefore, see no reason as to why the Government which issued the Scheme cannot withdraw the same," the Court observed.

 

None of the learned counsel appearing for the petitioners could demonstrate that the impugned Government order is in any manner violative of Article 14 and 16 of the Constitution or has the effect of depriving the petitioners of their right to livelihood otherwise than in accordance with law, the Court added.

It clarified that it is a settled position of law that an executive order or instruction can under no circumstances, be retrospective nor can it interfere with or take away the vested or accrued rights of the persons affected by it.

"We are aware that there is presumption in the Legislative and Executive acts against interfering with the vested and accrued rights of the citizens. While the legislative enactment may be made retrospective in operation and can interfere and take away inchoate rights and under some exceptional circumstances like larger public interest or remedy mischief may interfere with even vested and accrued rights of citizens. However, this is not true in a case of an executive order/executive instructions."

 

The Court also elaborated on "vested rights” or “accrued rights".

"The vested or accrued right is a right particular to an individual and it needs to be sufficiently exercised. The threshold for declaring that someone has an accrued right is when an individual claiming such right, is actually capable of exercising it at the moment when it is repealed or is sought to be taken away. For a right to be considered “accrued or vested”, the right holder needs to have actually been able to exercise it at the time of its repeal or taking away. There is subtle distinction between an acquired or vested right and an accruing right. A right would be an acquired or vested right, if its holder can actually exercise or make use of it at the time of legislative change and correspondingly, it would only be considered an accruing right, if the ability to exercise the right will inevitably arise in future."

 It stated that the presumption of legislative intent is only against vested and accrued rights and not the accruing or vesting rights.

"The Union Parliament and the State Legislatures are well within their competence to legislate retrospectively and, by doing so, may take away the accruing or vesting rights i.e, the rights which are capable of being exercised in future, but there is strong presumption against the taking away or interfering with the vested and accrued rights. As is clarified by the Hon’ble Supreme Court in the judgment rendered in the case of BSNL Ltd. (supra), this power is not available to the Executive that would mean that the Executive cannot, by issuing orders or executive instructions with retrospectively effect, take away the vested and accrued rights"

 There is presumption of legislative intent against interference with vested rights and this presumption is founded on a very simple rationale: it is often unfair for new legislation to intrude upon rights that individuals have validly and legally acquired in the past, the Court said citing Upper Canada College v Smith,

"We must understand that this presumption of legislative intent against interference with vested and accrued rights is relevant while interpreting a repealing statute to analyze its effect on the vested or the accrued rights under the repealed legislation. However, insofar asexecutive action is concerned, it is trite law that the administrative/executiveorders, in the absence of any legislative mandate, cannot be made applicable with retrospective effect. It is only the plenary powers of legislation vested in the Union Parliament and the State Legislatures to enact laws prospectively as well as retrospectively. By retrospective legislation, a law can be made by the Legislature to operatefor a limited period prior to the date of its coming into force. This power of Union Parliament and State Legislatures is circumscribed by the restrictions contained in Part III of the Constitution of India, in particular, Articles 14, 16, 19 and 21. Any legislative enactment or statute, which has the effect of taking away or interfering with vested or accrued rights, may be struck down if found to be irrational, arbitrary and violative of Articles 14 and 16 of the Constitution. However, such power is not vested in the Executive."

CASE TITLE: RuksanaJabeen Vs. State of JK and Ors.

CASE DETAILS: SWP No. 3004/2018

CORAM: Justice Sanjeev Kumar and Justice Moksha Kazmi

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(With input from news agency language)

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