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Administrative Direction

A state being a humongous entity comprised of various elements and notions, is circumstantially dynamic and it is quite challenging to deal with such changing scenarios and exigencies. India being a politically, socially, linguistically, economically diversified country, reconciling the differences or discrepancies is not that smooth, the legislations or statutes alone can’t do away with it. And such exigencies and contingencies necessitated the formulation and promulgation of Administrative directions. This paper particularly deals with the concept of Administrative Directions, its relevancy and enforceability in contemporary India.

Introduction
Administrative Directions are instructions or regulations issued by the higher authorities to the lower authorities in the absence of a rule or enactment pertaining to a specific issue or to compensate or fill the lacunas in the existing laws and thereby constructing better standards or platforms to tackle issues. Administrative directions is otherwise designated as ‘Administrative quasi-law’ or ‘ Administrative quasi-legislations’. These directions can be specific, that is formulated and applied to a particular purpose, or a particular case ; or it may be general nature, laying down general principles, policies, practices, or procedures to be followed in similar cases. And further, these direction are issued in the form of letters, circulars, orders, public notices, pamphlets, press notes, etc, it is even published in Government Gazette.

In contemporary India, the government enjoys indefinite or boundless administrative powers, and therefore the areas of issuing administrative directions is quite ample. The concept of Administrative directions has its roots in Article 73 and Article 162 of the constitution, they serves as the substratum. These Articles deals with administrative powers of Government and such directions are generally issued under it.According to Article 73, the executive power of the Union extends to the matters with respect to which Parliament has power to make laws. Similarly, according to Article 162, the executive power of the State extends to the matters with respect to which State Legislative has power to make laws. These provisions exclusively deals with the executive power of government and do not confer any kind of legislative power.At times,statutory powers are granted to issue directions. A direction issued under statutory power prevails over a direction issued under general administrative power. In the case of Secretary to the Government of Haryana v Vidya Sagar[1],, where two circulars are issued on the same subject and the former was general and later was specific, it was held that the latter one will prevail.

A direction does not confer any enforceable rights on an individual, or impose an obligation on the Administration or individual. Even if a direction is misapplied or ignored by the Administration, the affected individual can hardly claim a remedy through a court of law.But, this doesn’t mean that, administrative authorities may disregard them with impunity. The authorities are expected to follow the directions and their breach by them may lead to disciplinary or other appropriate actions against them.

At this point, it is essentially relevant to consider the concept of Delegated Legislation, as it is an equally relevant and superior concept that comes under the administrative powers of government. Similar to Administrative directions, delegated legislations or rules are also formulated for the same purpose or under such circumstances, but unlike directions, they are not made under the executive power conferred on government, rather these rules are formulated in accordance with the legislative powers conferred on the administrative bodies via constitutional or statutory provisions. As mentioned above, in legal hierarchy, delegated legislation is superior in authority to a direction. The main point of this disparity in authority can be attributed to the well established enforceability of rules or delegated legislation. That is, delegated legislation is binding on both, the Administration and the individual and is enforceable through a court of law. On the other hand, Administrative directions as discussed in the above paragraph is not so binding and enforceable. Though minor remedies are made available to render the individual secured, the point still remains valid that the remedy available to the individual is intra-departmental or administrative in nature, not through court of law.

Moreover, a rule can override an instruction but an instruction cannot override a rule. This principle was well established in the case of Jagit Singh v State of Punjab[2], in this case, the State government had made a request to the Punjab Public Service Commission to select and endorse six vacancies in the Punjab Civil Services (Executive Branch). The appellant secured third position amongst the Scheduled Caste (SC) candidates in the competitive exam that was consequently conducted. The reserved quota was 20% and appointment letters were issued to the first two candidates.

However, one of the selected candidates resigned. The appellant being next in merit on the selection list, made an application for the vacancy. He based his claim on the instructions given by the State Government through a circular. The government came to reject this claim and a petition was filed in the High Court. On dismissal, it went on appeal to the Supreme Court; it was decided that the general practice was that if SC/ST candidate is terminated an eligible candidate belonging to the same community must be appointed on ad hoc basis. Instructions contrary to such a practice were held to be invalid. The court’s opinion made it clear that instructions cannot contravene or supersede statutory rules but rather augment the rule or regulation. Further, the Mahadeo Bhau Khilare v. State of Maharashtra[3], it was deicide that a scheme framed by an administrative instruction in violation of statutory rules cannot be sustained. 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 and this principle was upheld in the case of Sant Ram Sharma v State of Rajasthan[4]

Need For Administrative Direction
Though not very comprehensive and authoritative, Administrative directions has become an integral part of Indian Administrative system. These directions often serves as the best means to inform the people regarding the dynamic policy decisions of government. Directions are issued in order to fill the lacunas in administrative arena and to meet the exigencies. Supreme Court in Union of India v Rakesh Sharma[5] observed that, if the rules are silent on any point the Government can fill up the gaps and supplement the rules by issuing instructions not inconsistent with the rules. It is often used to lay down procedure for various purposes to be followed by the Administration or the public. Directions are a part of the internal administrative procedure of government procedure of a Government department. When a number of officials are engaged in executing in a law and taking decisions there under, directions may serve the purpose of providing some criteria which may be followed by these officials in discharging their functions so that there will be a uniformity of approach in disposing similar cases[6].

Here arises a question as to why Administrative Direction, when there is are provisions to make rules or delegated legislation which is more powerful? This trend of resorting to administrative directions can be attributed to the flexibility or easiness in formulating and implementing administrative directions. On the other hand, certain formalities or procedures such as laying before parliament, consultation of affected interest, republication, publication in gazette etc are to be met for formulating or promulgating a rule, issuing a direction is devoid of all kind burdening procedural catenae and therefore administrative directions are proffered over rules. Further, Government may change a direction at any time without much formality, a direction can be amended by issuing another direction. While, amending a rule is not that smooth and it involves a catenae of procedures.

V.T Khanzode v Reserve Bank of India[7], depicts instances where directions were preferred over rules because of the flexibility in issuing directions. According to section 58 of Reserve Bank of India Act, 1934, RBI was entitled to issue regulations, however to be made with the previous sanction of the Central Government, and they are required to be laid before each houses of Parliament. But, Bank opted to make direction in accordance with section 7(2) of the Act.

Further, Government often resort to administrative direction in formulating a general norm in administrative arena if it lacks required legislative power to do so. There are several other situations where the Administration may prefer directions rather than rules such as, when the principle is not ripe for precise articulation, when the department wishes to confer benefits on public without making it a legal right, when the benefits to be conferred exceeds the statutory provision, as any such rule which confers excess benefits will be categorised as ultra vires[8].

Moreover, there are situation where Rules are treated as Directions. When rules made under statutory power are not given effect due to the lacuna in rule making process, the courts can treat them as directions. Instances of such judicial approach are;
1. When the rule are made without adhering to the procedural safeguards imposed under relevant statutory provisions, then it can be treated as a direction. Thus, if the statute under which rules are made contains a condition that the rules should be subjected to previous publication and if the authority makes rules without observing such a procedure, then the court can treat the rules as directions.

2. Similarly, where the statutory provision has conferred power to make rules ‘ to carry out the purpose of the Act’ and if the rules so made are not related to the purpose of the Act, then such a rule can be treated as direction.

Unenforceability In Detail
The principle of non-enforceability of administrative directions is illustrated in the case of J R Raghupathy v State of Andhra Pradesh[9], here the state government had the statutory power to decide locations of mandal headquarters. Subsequently, the government asked the Collectors to send proposals for this purpose for consideration of the Government. The Government issued certain guidelines to the Collectors to keep in view while making proposals. Subsequently, there arose a question as to the nature and enforceability of the guidelines issued by Government. Supreme Court held that, guidelines were not enforceable as these are merely departmental instructions meant for the Collectors to regulate the manner in which they should formulate their proposal and had no statutory force[10].

Similiarly, in the case of Prabhakar Reddy v State of Karnataka[11], it was laid down that, a direction is unenforceable in the Court against either a person or the Administration. A direction neither confers any enforceable right on a person, nor imposes an obligation or duty on the Administration. Misconstruction or Misapplication of a direction by the Administration does not amount to an error of law.

In Suresh Chandra Singh v Fertilizers Corporation of India, it was held that administrative instructions are only advisory and no writ can be issued to enforce them. The principle was upheld in the case of Abdulla Rowther v STA Tribunal [12], it was held that the validity of an administrative action taken in breach of an administrative direction is not challengeable and the court will refuse to issue any writ even when there is a patent breach of an administrative direction.

The legal or enforceability status remains the same for a direction issued under statutory provision also, it remains unenforceable. The Supreme Court in the case of Raman and Raman v State of Madras, held that the directions issued under Section 43-A( authorises state government to issue orders and directions) of Motor Vehicles Act, 1939 do not have the sttaus of rule or law and therefore are unenforceable at the instance of affected party[13].

Thus it is clear that an individual cannot thrust upon the administration to enforce any direction, similarly, an individual can neither ask the authorities to refrain from enforcing direction, this principle was well settled in the case of State of Assam v Ajit Kumar Sharma[14]. In this case it was held that, a teacher cannot ask the college to refrain from giving effect to the provisions of the grant-in-aid Code which effects him prejudicially.

Exceptions To The Rule Of Unenforceability
However, the rule of non – enforceability of administrative directions is not an absolute principle, there lies certain exception, but there isn’t any fixed standard or criteria as to what renders a direction binding or enforceable, it is primarily based on facts and circumstances of a case. The judicial approach on the question is pragmatic and ad hoc in nature. A direction may be held liable on the Administration to the extend it confers a benefit on individual. In the case of Khet Singh v Union of India[15], the Narcotic Control Bureau issued certain instructions for carrying out search and seizure under the Act, Supreme Court held those instruction to be binding or enforceable. Again in the case of B S Minhas v Indian Statistical Institute[16], the Supreme Court held that instructions issued by the authority for procedural fairness are binding even if they do not have statutory force. Further, in certain circumstances, in the absence of rules, directions are regarded as. In state of Uttar Pradesh v Chandra Mohan[17], a rule in the All India Services Rules, authorised the government to compulsorily retire a members of the service in public interest on reaching the age of 50. This rule contained no guidelines as to premature retirement, and whereby government issued certain directions for this purpose. Supreme Court ruled that these directions are binding and retirement orders which are not in congruity with the said directions were held void. In Baleshwar Dass v State of Uttar Pradesh[18], an office memorandum was held binding as the Government had been following the same for nearly two decades. In some situations, a direction may be held binding on the Administration on the principle of Promissory Estoppel.

Circumstances That Render Administrative Directions Invalid

This so called privilege granted to administrative bodies to formulate quintessential or circumstantially relevant notions or instructions is not absolute. It is a well channelled privilege to be used in the right way at circumstances for a right cause, should be compatible and in accord with the said limitations. Let us now consider the situations under which a direction can be rendered invalid or void. Like any other rule or law or principle, an administrative direction will be held void if it is against this principle of Natural Justice, the said principle being the heart and soul or bedrock of administrative law, no direction can survive it tries override the principle of natural justice. That is a direction should be in accordance with accordance with the established principles and laws, and should be reasonable and relevant, a direction should not be the fruit of unreasonable, ulterior discretion of concerned authorities, if so, such a direction will be held invalid.

As discussed previously, a direction should not be inconsistent with other existing rules or laws. In legal hierarchy, directions occupy a place subordinate to other statues, or rules, and it is settled in the case of State of Sikkim v Dorjee Tshering Bhutia[19], that any order, instruction, direction, or notification issued in exercise of the executive power of the state which is contrary to any statutory provisions, is without jurisdiction and is a nullity.

A direction should not encroach into or adversely affect individual rights. Any restriction prejudicial to individual interest can be placed only by law, cannot be done through administrative directions. In the case of District Collector, Chittoor v Chittoor Groundnut Traders Association[20], the State Government issued a circular to its officer not to permit transport of groundnut seeds and oil outside the state by millers and traders unless they agreed to supply certain quantities of these products to the state at the price fixed by it. The circular thus placed restrictions on the right of traders. Supreme Court quashed the circular as illegal and void as the state government had no power to impose such restriction.

Similarly, a direction can stand only if it in congruence with Article 14 of the constitution. Equality is one of the imperative element of a democracy, any kind of divergence from this principle will result in arbitrariness and definitely steer down the essence of democracy. Therefore, administrative directions will be held invalid if it violated Article 14. In the case of S.L Sachdev v Union of India[21], an administrative direction regarding the promotion of the upper division clerks to higher grades was quashed as it was unreasonable, arbitrary, illogical and violative of Article 14.

Conclusion
I personally hold a assorted view on Administrative directions. Of course administrative direction is an imperative administrative tool that contributes to smooth functioning of administrative functions of government. As discussed in this paper, directions augment or enhance the efficiency of statutes and rules by bridging the gaps, it further act as a fundamental tools in the absence of rules pertaining to a particular matter in issue. But, the concept of administrative directions is circumscribed by certain drawbacks.

One of the main defect lies with its nature and the pertaining ambiguity. Generally speaking, directions are mere instruction which are unenforceable, but there are several exceptions to this rule, whereby the court had held the instructions to be binding or enforceable in nature. Such discrepancies has rendered the arena of administrative direction to be highly equivocal, which in turn has made it impossible to determine or construe the ambit and calibre of these instructions. Despite the ambiguities, issuing or resorting to administrative directions has become a indispensible practice in administrative arena and it is due to the catena of procedures to be followed in formulating the rules, by adapting to such an administrative culture, government is basically abasing the efficiency and existing modality of Indian Administration and governance. Therefore to break the existing clutters and preserve the actual spirit of administration and legislation, directions should be adopted only under the required, apt circumstances.

Further, it is explicit that, a direction should not violate any fundamental, constitutional or legal rights of an individual, but still there were numerous cases in which individual rights were abused and curtailed through directions. According to me, direction is still in an evolving stage and it isn’t powerful and sophisticated enough to protect the rights of individuals. Therefore, rules give a better protection to individual rights than directions, as the rule within itself contains a better authority and enforceability, its defiance will give rise to strong legal ramifications. Further, right of directions to interfere with the exercise of discretion conferred on an authority through law is limited. Directions cannot be used to control the discretion of quasi-judicial bodies.

Though there exist a lot of defects in the system of directions, it is quiet an essential administrative tool to feasibly meet the exigencies of modern administration. In order to bring about better results, authorities should focus more on the drawbacks directions. To start with, authorities should break the clutters in this arena, should establish a better line to decide what constitutes a rule and what constitutes a direction, as people often get confused between these two because of the existing ambiguities. And further, directions are not usually published or officially promulgated, they are decided surreptitiously. It will be better if they published as it can bring about better recognition and create awareness among people as to their rights, duties and privileges. It will further steer down the abuse of power by authorities

End-Notes
[1] AIR (2009) 14 SCC 652
[2] AIR (1978 )2 SCC 196
[3]SCC (2007) 5 SCC 437
[4] AIR (1968 ) 1 SCR 111
[5] AIR(2004) 4 SCC 309
[6] Principles of Administrative Law, M P Jain and S N Jain, p 237
[7] AIR 1982 SC 917
[8] Principles of Administrative Law, M P Jain and S N Jain, p 237
[9] AIR 1988 SC 1681
[10] S. N Jain, Legality of Administrative Directions, http://14.139.60.114:8080/jspui/bitstream/123456789/15930/1/010_Legality%20of%20Administartive%20Directions%20%28349-357%29.pdf
[11] AIR 1980 Karnt 207
[12] AIR 1959 SC 896
[13] Susanah Naushad, The Binding Nature of Administrative Instructions: An Overview, Christ University Law Journel 2
[14] AIR 1965 SC 1196
[15] AIR (2002) 4 SCC 380
[16] AIR 1984 SC 363
[17] AIR 1977 SC 2411
[18] AIR 1981 SC 41
[19] AIR 1991 SC 1933
[20] AIR 1989 SC 989
[21] AIR 1981 SC 411

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