Case Note & Summary
The respondent, Dr. Girish Bihari, a member of the Indian Police Service, was due to retire on 31 March 1996. On 20 March 1996, the Governor of Uttar Pradesh passed an order under Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, extending his service for six months from the date of retirement. On 23 March 1996, the Governor, exercising powers under Section 21 of the General Clauses Act, cancelled the extension order. This cancellation followed directions from the Election Commission, which found the extension order violated the Model Code of Conduct during announced elections. The respondent challenged the cancellation before the Central Administrative Tribunal, arguing that the extension order created a right to continue for six months and that cancellation without hearing violated natural justice, and that the Governor acted under the Election Commission's peremptory direction. The State defended the cancellation, contending that the Governor used his own judgment after obtaining constitutional advice under Article 156(2), that the order was not yet operative and created no vested right, and that Article 311(2) protection did not apply because the cancellation was not disciplinary. The Tribunal upheld the cancellation on all substantial questions, finding no vested right, no jurisdiction error, and no arbitrariness, but held that principles of natural justice were violated because the respondent was not given a hearing before the withdrawal. The Tribunal relied on Shrawan Kumar Jha v. State of Bihar and Scheduled Caste and Weaker Section Welfare Association v. State of Karnataka. On appeal, the Supreme Court held that the Tribunal's own finding that no vested right had accrued was decisive. Since the extension order had not become operative and the respondent had not accepted it or changed his position, the cancellation could not withdraw any right, and therefore the question of right to hearing did not arise. The Court distinguished the precedent cases, noting that those involved cancellation of appointments or notifications affecting existing rights, whereas here no right was created. The Court also rejected the plea of estoppel, as the respondent did not assert any alteration of position due to the extension order. The Supreme Court allowed the appeal, set aside the Tribunal's judgment, and upheld the cancellation order dated 23 March 1996, making no order as to costs.
Headnote
A) Service Law - Extension of Service - All India Services (Death-cum-Retirement Benefits) Rules, 1958, Rule 16 - Extension order creates no vested right until it becomes operative; cancellation before effective date does not require prior hearing - Held that the order dated 20.3.1996 granting extension for six months from 1.4.1996 created no right in the respondent, and its cancellation on 23.3.1996 did not attract audi alteram partem (Paras 1-4). B) Constitutional Law - Principles of Natural Justice - Audi Alteram Partem - Cancellation of a pre-effective administrative order does not cause adverse civil consequences where no right has accrued - Held that the Central Administrative Tribunal erred in holding that natural justice required a hearing, because the extension order was revoked before it came into force and the respondent had not accepted it or altered his position (Paras 1-4). C) Constitutional Law - Estoppel - Promissory or Statutory Estoppel - No estoppel arises where the affected person has not changed his position in reliance on the order - Held that the respondent did not claim any alteration of position on account of the extension order, so the principle of estoppel was not applicable (Paras 1-4). D) Administrative Law - Governor's Power - Section 21 of General Clauses Act, 1897 - Power to issue an order includes power to rescind it before the order becomes effective, especially when directed by the Election Commission for violation of Model Code of Conduct - Held that the cancellation order was valid and not based on extraneous considerations (Paras 1-4).
Issue of Consideration
Whether the order granting extension of service created a vested right before its effective date, whether cancellation of such extension without hearing violated natural justice, and whether the principle of estoppel applied
Final Decision
Appeal allowed; judgment of the Central Administrative Tribunal set aside; order dated 23rd March, 1996 upheld; no order as to costs.
Law Points
- No vested right arises from an order of extension of service before it becomes operative
- cancellation of such order before effective date does not attract principles of natural justice
- no estoppel without alteration of position
- Governor can revoke an administrative order under Section 21 of the General Clauses Act
- 1897
