Vikram Singh Yadav vs State Of Chhattisgarh
2022 Latest Caselaw 4072 Chatt

                                     1




                                                                      AFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                            WPS No. 6178 of 2019
 Vikram Singh Yadav S/o Late I.S. Yadav Aged About 33 Years R/o. Flat
 No. 107, Block - 02, Gulmohar, Talpuri, Block-A, Durg (Chhattisgarh)

                                                             ---- Petitioner

                                 Versus

  1. State of Chhattisgarh Through Principal Secretary, Department Of
     Housing And Environment, Mantralaya, Naya Raipur Chhattisgarh

  2. Chhattisgarh Housing Board Through Commissioner, Having Office
     At Paryavas Bhawan, Naya Raipur Chhattisgarh

  3. The Administrative Officer Chhattisgarh Housing Board, Having
     Office At Paryavas Bhawan, Naya Raipur Chhattisgarh

                                                         ---- Respondents

For Petitioner                   :   Mr. Shishir Dixit, Advocate

For Respondent No. 1             :   Mr. Gagan Tiwari, Deputy Government
                                     Advocate

For Respondents No. 2 and 3      :   Mr. Sanjay Patel, Advocate.


                        WPS No. 10875 of 2019

1. Rajesh Kumar Agarwal S/o Late Shri V.N. Agrawal Aged About 46 Years Occupation Senior Assistant , Chhattisgarh Housing Board , Division No . 01, Kabir Nagar , Raipur Chhattisgarh. 492099.

2. Krishna Kumar Singaur S/o Late Shri Genda Ram Singaur Aged About 51 Years Senior Assistant, Paryavas Bhavan , Sector - 19, Nava Raipur , Atal Nagar , Chhattisgarh. 492002.

3. Ganesh Rao Gautam S/o Late Shri Shriram Gautam Aged About 55 Years Senior Assistant , Chhattisgarh Housing Board , Division No. 02, Shankar Nagar , Raipur Chhattisgarh.

4. Ballu Ram Fekar S/o Late Shri Meghnath Fekar Aged About 49 Years Office Of The Executive Engineer, Chhattisgarh Housing Board , Division No. 01, Kabir Nagar , Raipur Chhattisgarh. 492099.

---- Petitioners Versus

1. State of Chhattisgarh Through The Secretary , Chhattisgarh Housing And Environment Department , Mantralaya At Mahanadi Bhawan , Atal Nagar, Nava Raipur , District Raipur Chhattisgarh. 492002

2. Commissioner Chhattisgarh Housing Board, Paryavaas Bhavan , North Block , Sector 19, Atal Nagar , Nava Raipur, District Raipur Chhattisgarh. 492002.

3. Administrative Officer Chhattisgarh Housing Board, Paryavaas Bhavan, North Block , Sector 19, Atal Nagar , Nava Raipur, District Raipur Chhattisgarh. 492002

4. Vijendra Kumar Dewangan S/o Shri Anil Kumar Chhattisgarh Griha Nirman Mandal , Estate Management Field Durg , District Durg Chhattisgarh

5. Sushri Puja Motwani D/o Shri Manoj Kumar Motwani Chhattisgarh Griha Nirman Mandal , Electricity Division No . 03, Bilaspur District Bilaspur Chhattisgarh.

6. Sushri Ragini D/o Shri Fattelal Parate, Chhattisgarh Griha Nirman Mandal, Division Rajnandgaon District Rajnandgaon Chhattisgarh.

7. Vijay Kumar Sahu S/o Shri Raj Kumar Sahu, Chhattisgarh Griha Nirman Mandal , Division Korba District Korba Chhattisgarh.

8. Shambhu Sonkar S/o Shri Sahdev Sonkar, Chhattisgarh Griha Nirman Mandal, Estate Managment Field Dhamtari District Dhamtari Chhattisgarh

9. Nishant Chauhan S/o Shri Dinesh Kumar, Chhattisgarh Griha Nirman Mandal , Head Quarter (Accounts Section), Paryavas Bhavan , Atal Nagar, Raipur District Raipur Chhattisgarh

10. Hiralal Chauhan S/o Shri Suresh Kumar, Chhattisgarh Griha Nirman

Mandal, Division Raigarh District Raigarh Chhattisgarh.

11. Mukesh Thakur S/o Shri Kishun Lal Thakur, Chhattisgarh Griha Nirman Mandal, Division Kabirdham District Kabirdham Chhattisgarh.

---- Respondents (Cause title taken from Case Information System)

For Petitioners : Mr. Tanmay Thomas, Advocate For Respondent No. 1 : Mr. Gagan Tiwari, Deputy Government Advocate For Respondents No. 2 and 3 : Mr. Sanjay Patel, Advocate. For Respondent No. 4, 5, 7 to : Mr. Rupesh Shrivastava, Advocate.

Date of Hearing                   :   21.04.2022 and 16.06.2022
Date of Judgment                  :   28.06.2022

                  Hon'ble Mr. Arup Kumar Goswami, Chief Justice

Hon'ble Mr. Rajendra Chandra Singh Samant, Judge

C A V Judgment

Per Arup Kumar Goswami, Chief Justice

Heard Mr. Shishir Dixit, learned counsel, appearing for the petitioner

in WPS No. 6178/2019 and Mr. Tanmay Thomas, learned counsel,

appearing for the petitioners in WPS No. 10875/2019, Mr. Gagan Tiwari,

learned Deputy Government Advocate, appearing for the respondent No.

1/State as well as Mr. Sanjay Patel, learned counsel, appearing for the

respondent No. 2 and 3/Chhattisgarh Housing Board and Mr. Rupesh

Shrivastava, learned counsel, appearing for the respondents No. 4, 5, 7 to

2. The petitioner in WPS No. 6178/2019 was appointed as Assistant on

22.06.2010 in respondent No. 2, Chhattisgarh Housing Board(for short, the

Board), established under the Chhattisgarh Grih Nirman Mandal

Adhiniyam, 1972 (for short, the Act of 1972) and subsequently, he was

promoted to the post of Senior Assistant on 18.09.2019. He is presently

posted at Division Office at Durg and is also discharging duties as in-

charge Divisional Accountant.

3. The petitioner No.1 in WPS No.10875/2019 was also appointed

as Assistant by order dated 23.08.1994 and the petitioners No. 2 to 4 were

appointed as Assistant by order dated 09.08.1995. By order dated

03.12.2014, they were promoted as Senior Assistants.

4. In WPS No. 6178/2019, it is pleaded that in exercise of powers

conferred under Section 17 and Section 103 of the Act of 1972, the Board

framed the Chhattisgarh Grih Nirman Mandal Service (Recruitment)

Regulations, 2011 (for short, the Regulation of 2011) and that the same

had come into force on 16.02.2012. However, in WPS No. 10875/2019, it is

stated that the same was notified on 16.01.2012. In the return filed by the

respondents No. 4, 5, 7 to 11 in WPS No. 10875/2018, it is stated that the

Regulations of 2011 had come into existence with effect from 16.02.2012.

5. Perusal of the notification goes to show that the same was

issued on 16.01.2012 and clause 1(2) of the Regulation of 2011 states that

the regulations shall come into force from the date of publication in the

official gazette. The Regulations of 2011 was published on 08.06.2012,

and therefore, it appears that the Regulation of 2011 had come into force

on 08.06.2012.

6. It is pleaded in both the writ petitions that according to

Regulation of 2011, the post of Accountant (Lekhapal) is to be filled up

100% by way of promotion from the post of Senior Assistant in terms of

Schedule II, Serial No. 26. It is pleaded that on the ground of non-

availability of qualified employees to fill up the posts of Accountant, in a

meeting held on 19.06.2014, the respondent No. 2 resolved to amend the

Regulation of 2011 by proposing to fill up 50% of the posts by way of direct

recruitment, instead of 100% appointment by way of promotion. The

recommendations were forwarded to respondent No. 1 for approval.

Approval was accorded for amendment of the Regulation of 2011 and a

notification incorporating the amendment was published in the gazette on

04.02.2015. The approval was accorded by the Under Secretary to the

Housing & Environment and not by the State Government as required

under Regulation of 2011 as the same was not issued by and in the name

of the Governor in terms of Article 166 of the Constitution of India. It is

pleaded that under Section 2(41) of the Chhattisgarh General Clauses Act,

1957 (for short, the Act of 1957) State Government means Governor of the

State of Chhattisgarh.

7. In WPS No. 6178/2019, prayer is made for quashing the

consent dated 04.02.2015 and the notification dated 04.02.2015.

8. In WPS No. 10875/2019, it is further pleaded that an

advertisement dated 15.02.2018 was issued for direct recruitment for 11

posts of Accountant and that after publication of the aforesaid

advertisement, the petitioners came to learn about the amendment made in

the Regulation of 2011 and accordingly, had submitted various

representations on 19.02.2018, 07.09.2018 and 18.11.2019.

9. In WPS No. 10875/2019, amongst others, a prayer is made to

set aside the amendment notification dated 04.02.2015, the advertisement

dated 15.02.2018 and the order of appointment of the respondents No. 4 to

11, dated 04.10.2018.

10. In WPS No. 6178/2019, the respondent No. 1 as well as

respondents No. 2 and 3 have filed their respective affidavits. In the

affidavit of respondent No. 1, it is stated that there are 22 sanctioned posts

of Accountant. However, it is noticed by the Court that Schedule I of the

Regulation of 2011, as placed on record by the petitioner, shows that there

are 16 posts of Accountant (Lekhapal). May be, by subsequent

amendment of Schedule I, number of posts had been increased from 16 to

22. It is further stated that the State Government permitted the respondent

No. 3 to fill up 50% of the posts i.e. 11 posts of Accountant by direct

recruitment with a condition that no grant would be given by the State

Government for these posts. Accordingly, advertisement dated 15.02.2018

was issued and in that recruitment process, 10 candidates were selected

and they are working as Accountants. However, 01 post of Accountant was

not filled up in compliance of an order dated 03.08.2018 passed by this

Court in WPS No. 4987/2018. Out of 10 direct recruit Accountants, 02 left

the job and resultantly, 08 employees are working in the post of

Accountant. It is also stated that out of 11 posts to be filled up by promotion

from Senior Assistants, 8 posts had been filled up but in absence of

suitable candidates in reserved category, 3 posts are lying vacant. It is also

stated that one promotee Accountant had in the meantime superannuated.

11. The respondents No. 2 and 3 adopted the reply filed by the

respondent No. 1.

12. A common rejoinder-affidavit to the returns of the State as well

as the Board is filed by the petitioner in WPS No. 6178/2019.

13. In WPS No. 10875/2019, a return is filed by the State to which

a rejoinder-affidavit has been filed by the petitioners. A return has been

filed by the Executive Engineer of the Board, purportedly on behalf of

respondent No. 4. The respondent No. 4 to 11 in WPS No. 10875/2019 are

the candidates selected pursuant to the advertisement dated 15.02.2018,

and evidently, the same cannot be an affidavit of respondent No. 4. It

appears that the said return is filed on behalf of respondents No. 2 and 3

i.e. the Commissioner and the Administrative Officer of the Board. In the

said return, it is stated that during pendency of the writ petition, petitioner

No. 1 was promoted to the post of Accountant on 28.12.2019, and

petitioners No. 2 to 4 were promoted on the post of Accountant on

01.02.2020.

14. The respondents No. 4, 5, 7 to 11 had filed reply. A rejoinder

had also been filed by the petitioners, however, without mentioning the

rejoinder is in response to which reply.

15. Mr. Shishir Dixit, learned counsel for the petitioner in WPS No.

6178/2019 submits that the impugned order of consent and approval dated

04.02.2015 having not been issued by and in the name of the Governor as

required under Article 166 of the Constitution of India, and the same having

been issued by the Under Secretary to the Government of Chhattisgarh,

such an order cannot be considered to be a confirmation, consent or

approval of the State Government, which is required for modification of any

Regulation in terms of Section 17 or Section 103(3) of the Act of 1972, and

as such, the amendment effected, which is under challenge in the writ

petition, is not an amendment in the eye of law and therefore, the

consent/approval/confirmation dated 04.02.2015 and the amendment to

Schedule II at serial No. 26 amending the existing provision of appointment

to the post of Accountant by 100% promotion to one of 50% by direct

recruitment and 50% by promotion, is liable to be set aside and quashed.

Mr. Dixit places reliance on the decision of the Hon'ble Supreme Court in

State of Bihar & Others v. Kripalu Shankar & Others , reported in (1987)

3 SCC 34 and Jaipur Development Authority & Others v. Vijay Kumar

Data & Another, reported in (2011) 12 SCC 94.

16. Mr. Tanmay Thomas, learned counsel for the petitioners in

WPS No. 10875/2019, while adopting the submissions of Mr. Dixit, further

submits that as the amendment had been effected without due approval

and confirmation from the State Government, the advertisement dated

15.02.2018 and the orders of appointment of respondents No. 4 to 11 are

liable to be interfered with. He places reliance in Jaipur Development

Authority & Others (supra), and State of Uttaranchal & Another v. Sunil

Kumar Vaish & Others, reported in (2011) 8 SCC 670, MRF Ltd. v.

Manohar Parrikar & Others, reported in (2010) 11 SCC 374, and a

decision of this Court in Rungta College of Engineering & Technology,

Bhilai & Others v. State of Chhattisgarh & Others, reported in

MANU/CG/0139/2012 : (2012) 5 MPHT 59.

17. Mr. Gagan Tiwari, learned Deputy Government Advocate

submits that the resolution of the 44th Board Meeting dated 12.08.2014 was

approved by the State Government and a letter to that effect was issued on

04.02.2015. Based on the approval/confirmation given, the Regulation of

2011 had been amended by the Board by way of publication in the gazette

dated 04.02.2015. Approval for filling up of 10 posts of Estate

Manager/Branch Officer and 11 posts of Accountant by way of direct

recruitment was also granted by order dated 30.12.2015 providing that no

grant would be given by the State Government and accordingly, the

advertisement dated 15.02.2018 was issued. He has submitted that

recommendation for amendment submitted by the Board was approved by

the Minister of the Department and he has also produced before the Court

the note sheet relating to confirmation/approval of the recommendation.

18. He has submitted that the plea taken by the petitioners that the

impugned approval/confirmation order and the consequent amendment

dated 04.02.2015 was passed in violation of Article 166 of the Constitution

of India, is without any merit. It is submitted that under the Rules of

Business framed under Article 166(3) of the Constitution and the Work

Allotment Rules, issued by the General Administration Department, the

Under Secretary is empowered to communicate an order. He places

reliance on decisions rendered by the Hon'ble Supreme Court in

Dattatraya Moreshwar Pangarkar v. State of Bombay & Others,

reported in AIR 1952 SC 181, State of Punjab & Another v. Mohammed

Iqbal Bhatti, reported in (2009) 17 SCC 92, and Narmada Bachao

Andolan v. State of Madhya Pradesh, reported in (2011) 12 SCC 333).

19. Mr. Sanjay Patel, learned counsel for the Board and Mr.

Rupesh Shrivastava, learned counsel, appearing for the respondents No.

4, 5, 7 to 11 in WPS No. 10875/2019, have adopted the submissions of Mr.

Gagan Tiwari, learned Deputy Government Advocate. It is also submitted

by Mr. Shrivastava that the writ petitions challenging the advertisement

having been filed after completion of the recruitment process, in any event,

no case is made out for setting aside the advertisement and the

appointments made pursuant thereto.

20. We have considered the submissions made by learned counsel

for the parties and have perused the materials available on record.

21. Schedule I of the Regulation of 2011 shows that there are 16

posts of Accountant (Serial No. 28), which is a Class III post, 3 posts of

Branch Officer (Shakha Adhikari) (Serial No. 21) and 10 posts of Estate

Manager (Serial No. 22), which are Class II posts. Serial No. 26 of

Schedule II indicates that 16 posts of Accountant are to be filled up 100%

by promotion. As per Schedule IV of the Regulation of 2011, the post of

Estate Manager/Branch Officer at Serial No. 14 is to be filled up from the

post of Accountant having 5 years of service, whereas, the post of

Accountant/Auditor, which finds place at serial No. 18, is to be filled up

from the Senior Assistant/Assistant Estate Manager, having 5 years of

service and having passed the Departmental Accounts Examination (DAE).

Schedule II, at serial No. 20 provides that 13 posts of Estate

Manager/Branch Officer is to be filled up 100% by promotion.

22. It will be relevant to note that Section 2(41) of the Act of 1957

states that "State of Chhattisgarh" or "the State" means the State of

Chhattisgarh specified in the First Schedule to the Constitution. Section

2(42) states that "State Government" or "Government" means the

Government of the State of Chhattisgarh. Therefore, the contention of the

petitioners that State Government means the Governor is palpably wrong.

23. The Act of 1972 was enacted by the legislature of the State of

Madhya Pradesh and the same has been adopted by the State of

Chhattisgarh.

24. Section 17 of the Act of 1972 reads as under:

"17. Regulations. -Subject to the provisions of this Act, the

Board shall, with the previous approval of the State

Government, make regulations -

(a) fixing the salary and allowances of the officers and

servants of the Board;

(b) fixing the amount and nature of security to be furnished by

any officer or servant from whom it may be deemed expedient

to require security;

(c) for regulating the grant of leave of absence, leave,

allowances, and acting allowances to the officers and servants

of the Board;

Provided that a servant of the Central or State Government

employed as an officer or servant of the Board shall not be

entitled to leave or leave allowances, otherwise than as laid

down in the conditions of his service under the Central or State

Government, as the case may be, relating to transfer to foreign

service;

(d) for regulating the subscriptions to the provident fund

established under section 18 and other matters relating

thereto;

(e) for determining the conditions under which the officers and

servants or any of them shall on retirement receive gratuities

or compassionate allowances and the amount of such

gratuities and compassionate allowance.

25. It is seen that under Section 17 of the Act of 1972, previous

approval of the State Government is required to make regulations with

regard to the subject matters as specified therein.

26. Section 103 of the Act of 1972 reads as under:

"103. Power to make regulations - (1) The Board may, by

notification, make regulations not inconsistent with this Act and

the rules made thereunder for the purpose of giving effect to

the provisions of this Act.

(2) In particular and without prejudice to the generality of the

foregoing power, such regulations may provide for -

(a) all matters expressly required or allowed by this Act, to be

prescribed by regulations;

(b) the appointment of persons to be members of committees

under section 23;

(c) the procedure to be followed by a committee at its

meeting;

(d) the creation of posts and delegation of powers and duties

of the Board to the Chairman, the Housing Commissioner,

any other officer or Committee of the Board;

(e) the duties and conduct of officers and servants of the

Board and of other persons employed by the Board under this

Act for carrying out any of the purposes of this Act;

(f) the welfare and recreation of the staff of the Board and the

contributions to be made therefor;

(g) the fees payable for the copies of documents, estimates

and plans furnished by any of its officers and servants under

this Act;

(h) the management, use and regulation of dwellings

constructed under any housing scheme;

(i) the efficient conduct of the affairs of the Board.

(3) No regulation or its cancellation or modification shall have

effect until the same shall have been approved and confirmed

by the State Government."

27. Section 103 of the Act of 1972 empowers the Board to make by

notification, regulations not inconsistent with this Act and the rules made

thereunder for the purpose of giving effect to the provisions of this Act

including the regulations that are specified under Section 103(2) of the Act

of 1972. Sub-section 3 of Section 103 of the Act of 1972 provides that no

regulation or its cancellation or modification shall have effect unless the

same have been approved and confirmed by the State Government.

28. The relevant translated version of the order dated 04.02.2015

(wrongly hand written at Annexure P/3 as 04.02.2018) reads as follows:

"To,

The Commissioner,

Chhattisgarh Housing Board,

Raipur.

Subject: With reference to direct recruitment on the post of Estate

Manager/Branch Officer and Accountant in the Chhattisgarh

Housing Board.

Reference: Your memo No. 5601/A.A./Mukhya./FA.6001/14, dated

07.10.2015.

--00--

Kindly peruse the above referred memo on the subject.

As per the proposal of the Chhattisgarh Housing Board,

approval is granted for amendment in the Chhattisgarh Grih

Nirman Mandal Service (Recruitment) Regulations, 2011.

Sd/- Illegible

(G.L.Sankla)

Under Secretary"

29. In the aforesaid letter, date "07.10.2015" against the reference

is wrongly written and it should have been 07.10.2014, as would be amply

demonstrated by Annexure R/3 of the reply of the respondent No. 1 in

WPS No. 6178/2019.

30. The sole question for consideration is whether the aforesaid

letter can be construed to be an approval/confirmation/consent of the State

Government for amendment of the Regulation of 2011 on the ground that

the same has not been expressed in name of the Governor.

31. Article 166 of the Constitution provides for the conduct of

Government business. It is useful to quote this Article:

"166. Conduct of business of the Government of a State.- (1)

All executive action of the Government of a State shall be

expressed to be taken in the name of the Governor.

(2) Orders and other instruments made and executed in the

name of the Governor shall be authenticated in such manner

as may be specified in rules to be made by the Governor, and

the validity of an order or instrument which is so

authenticated shall not be called in question on the ground

that it is not an order or instrument made or executed by the

Governor.

(3) The Governor shall make rules for the more convenient

transaction of the business of the Government of the State

and for the allocation among Ministers of the said business in

so far as it is not business with respect to which the Governor

is by or under this Constitution required to act in his

discretion."

32. It will be appropriate now to take note of the decisions cited at

the bar.

33. In Dattatreya Moreshwar Pangarkar (supra), Hon'ble Justice

Sudhi Ranjan Das observed that the decision of the appropriate

Government to confirm the detention order was communicated to the

District Magistrate by a confidential letter signed by the Assistant

Secretary to the Government of Bombay, Home Department. It was noted

that under Rule 12 of the Rules of Business made by the Government of

Bombay under Article 166 the Constitution, the Assistant Secretary was

authorized to sign orders and instrument of the Government of Bombay. An

argument was advanced that no valid order of confirmation was made in

proper legal form at all and that a confidential communication from

the Home Department to the District Magistrate cannot be regarded as an

order under section 11(1)of the Preventive Detention Act, 1950 (for short,

the Act of 1950). It was observed that Section 11 (1) of the Act of 1950

required an executive decision as to whether the detention order should or

should not be confirmed. But the Act is silent as to the form in which the

executive decision, whether it is described as an order or an executive

action, is to be taken. No particular form is prescribed by the Act at all and

the requirements of the Act will be fully satisfied if it can be shown that the

executive decision has in fact been taken. It was held that every executive

decision need not be formally expressed and this is particularly so when

one superior officer directs his subordinate to act or forbear from acting in a

particular way, but when the executive decision affects an outsider or is

required to be officially notified or to be communicated it should normally

be expressed in the form mentioned in Article 166(1) of the Constitution of

India i.e., in the name of the Governor. It was held that generally speaking

the provisions of a statute creating public duties are directory and those

conferring private rights are imperative. When the provisions of a statute

relate to the performance of a public duty and the case is such that to hold

null and void acts done in neglect of this duty would work serious general

inconvenience or injustice to persons who have no control over those

entrusted with the duty and at the same time would not promote the main

object of the legislature, it has been the practice of the Courts to hold such

provisions to be directory only, the neglect of them not affecting the validity

of the acts done. Strict compliance with the requirements of Article 166 of

the Constitution gives an immunity to the order and that it cannot be

challenged on the ground that it is not an order made by the Governor. If,

therefore, the requirements of that article are not complied with, the

resulting immunity cannot be claimed by the State. This, however, does not

vitiate the order itself. Observing so, it was held that while the Act of 1950

requires an executive decision, whether it is called an order or an executive

action, for the confirmation of an order of detention under section 11 (1) the

Act of 1950, does not itself prescribe any particular form of expression of

that executive decision but omission to comply with the provision of Article

166 of the Constitution does not render the executive action a nullity. It was

laid down that all that the procedure established by law requires is that the

appropriate Government must take a decision as to whether the detention

order should be confirmed or not under section 11 (1) of the Act of 1950. It

having been established from the materials on record that such a decision

was taken by the appropriate Government, the writ petition was dismissed.

Hon'ble Mr. Justice M. Patanjali Sastri, Chief Justice, agreed with the

judgment of Hon'ble Mr. Justice Sudhi Ranjan Das.

34. By the judgment rendered by Hon'ble Justice B.K.Mukherjea

also, the writ petition was dismissed. Hon'ble Justice N. Chandrasekhara

Aiyar concurred with the view taken.

35. Dealing with the question relating to the order of confirmation

not being expressed to be made in the name of the Governor, it was

observed by Hon'ble Justice Mukherjea that Article 166(1) of the

Constitution is confined to the cases where the executive action requires to

be expressed in the shape of a formal order or notification or any other

instrument. It was observed that Article 166(1) does not lay down how an

executive action of the Government of a State is to be performed; it only

prescribes the mode in which such act is to be expressed. The manner of

expression is ordinarily a matter of form, but whether a rigid compliance

with a form is essential to the validity of an act or not depends upon the

intention of the legislature. It was held that clauses (1) and (2) of Article

166 of the Constitution are to be read together. While clause (1) relates to

the mode of expression of an executive order or instrument, clause (2) lays

down the way in which such order is to be authenticated; and when both

these forms are complied with, an order or instrument would be immune

from challenge in a court of law on the ground that it has not been made or

executed by the Governor of the State. Non-compliance with the

provisions of either of the clauses would lead to the result that the order in

question would lose the protection which it would otherwise enjoy, had the

proper mode for expression and authentication been adopted. It was held

that the order is not a nullity even though it has not been expressed to be

made in the name of the Governor.

36. It needs to be mentioned at this juncture that there is a minority

opinion expressed by Hon'ble Justice Mehr Chand Mahajan.

37. In Kripalu Shankar & Others (supra), the Hon'ble Supreme

Court observed in the context of Article 166 of the Constitution that the

functioning of the Government in a State is governed by Article 166 of the

Constitution which lays down that there shall be a council of ministers with

the Chief Minister at the head, to aid and advise the Governor in the

exercise of his functions except where he is required to exercise his

functions under the Constitution, in his discretion. Article 166 provides for

the conduct of Government business.

38. In Kripalu Shankar & Others (supra), the Hon'ble Supreme

Court further observed that Article 166(1) requires that all executive action

of the State Government shall be expressed to be taken in the name of the

Governor. This clause relates to cases where the executive action has to

be expressed in the shape of a formal order or notification. It prescribes the

mode in which an executive action has to be expressed. Noting by an

official in the departmental file will not, therefore, come within this Article

nor even noting by a Minister. Every executive decision need not be as laid

down under Article 166(1) but when it takes the form of an order it has to

comply with Article 166(1). Article 166(2) states that orders and other

instruments made and executed under Article 166(1), shall be

authenticated in the manner prescribed. While clause (1) relates to the

mode of expression, clause (2) lays down the manner in which the order is

to be authenticated and clause (3) relates to the making of the rules by the

Governor for the more convenient transaction of the business of the

Government. It was also observed that notings in a notes file do not have

behind them the sanction of law as an effective order.

39. In Mohammed Iqbal Bhatti (supra), the Hon'ble Supreme

Court observed that in the event it appears from the order and the records

produced before the court, if any occasion arises therefor that even if a

valid order is not authenticated in terms of clause (2) of Article 166 of the

Constitution of India, the same would not be vitiated in law. Failure to

authenticate an executive order is not fatal. The said provision is directory

in nature and not mandatory.

40. In MRF Ltd. (supra), referring to Chitralekha and Others v.

State of Mysore, reported in AIR 1964 SC 1823, the Hon'ble Supreme

Court held that the provisions of Article 166(1) and (2) of the Constitution

of India are only directory and not mandatory in character. It was also held

that the Rules of Business framed under Article 166(3) of the Constitution

which are framed for convenient transaction of the Government, has to be

transacted in a just and fit manner in keeping with the said Business Rules

and as per the requirement of Article 154 of the Constitution. It was further

held that the Rules of Business framed under the Provisions of Article 166

(3) of the Constitution are mandatory and must be strictly adhered. Any

decision by the Government in breach of these Rules will be a nullity in the

eyes of law.

41. In Sunil Kumar Vaish & Others (supra), amongst others, the

Hon'ble Supreme Court observed that unless an order is expressed in the

name of the Governor and it is authenticated in the manner prescribed by

the rules, the same cannot be treated as an order on behalf of the

Governor.

42. In Jaipur Development Authority & Others (supra),

reiterating the decision in Kripalu Shankar & Others (supra), it is stated

that unless an order is expressed in the name of the President or the

Governor and is authenticated in the manner prescribed by the rules, the

same cannot be treated as an order made on behalf of the Government.

The aforesaid observations were made in the context of a letter dated

06.12.2021 which was neither expressed in the name of the Governor nor

was it authenticated in the manner prescribed by the rules and that the

letter merely indicated the discussion made by the Committee and the

decision taken by the Committee. The Hon'ble Supreme Court held that by

no stretch of imagination, the same can be treated as a policy decision of

the Government within the meaning of Article 166 of the Constitution.

43. In Narmada Bachao Andolan (supra), it was observed by the

Hon'ble Supreme Court that the decision of any Minister or officer under

the Rules of Business made under Articles 77(3) and 166(3) of the

Constitution is the decision of the President or the Governor, respectively,

and these articles do not provide for 'delegation'. That is to say, that

decisions made and actions taken by the Minister or officer under the

Rules of Business cannot be treated as exercise of delegated power in real

sense, but are deemed to be the actions of the President or Governor, as

the case may be, that are taken or done by them on the aid and advice of

the Council of Ministers. It was further held that the requirements of the

Rules of Business must be complied with in order to give validity to the

action or decision taken.

44. While noticing that a Two-Judge Bench in MRF Ltd. (supra)

had taken a view that provisions of Article 166(3) is mandatory whereas

another Two-Judge Bench in Crawford Bayley & Co. v. Union of India,

reported in (2006) 6 SCC 25, had accepted that the Rules of Business

framed under Article 77 of the Constitution are directory and not

mandatory, the Hon'ble Supreme Court had taken note of the judgment in

R.Chitralekha (supra) and observed that MRF Ltd. (supra) was

distinguishable on facts as that case dealt with rules pertaining to financial

implications for which there were no provisions in the Appropriation Act,

and so the rules required mandatory compliance.

45. This Court, in Rungta College of Engineering & Technology,

Bhilai & Others (supra), while dealing with the Chhattisgarh Engineering

Snatak Pravesh Niyam, 2012 (for short, the Rules of 2012), observed that

the Rules of 2012 was signed by the Deputy Secretary, Department of

Technical Education and the same being not duly authenticated in the

name of the Governor as mandated under Article 166(2) of the

Constitution, the same cannot be held to be a valid statutory rule.

46. Perusal of the judgments noted above would go to show that

every executive decision need not be formally expressed, but when an

executive decision affects an outsider or is required to be officially notified

or communicated, it should be expressed in the name of the Governor.

When there is compliance of the requirements of Article 166 of the

Constitution, the same gives an immunity to the order to the extent that it

cannot be challenged on the ground that it is not an order made by the

Governor. Omission to comply with the provisions of Article 166 of the

Constitution does not render an executive action a nullity.

47. The Act of 1972 is silent as to the form in which the executive

decision of approval/confirmation is to be accorded.

48. Grant of approval/confirmation under Section 17 and/or under

Section 103(3) of the Act of 1972 is to be communicated to the Board for

enabling it to take further action in the matter of amendment of the

Regulation. Such communication does not affect any outsider. At any rate,

even if it is assumed that the communication dated 04.02.2015 granting

approval/confirmation of the proposal of the Board for amendment of the

Regulation of 2011 was required to be issued by and in the name of the

Governor, failure to do so would not be fatal if materials on record

demonstrate that, indeed, a decision was taken in that regard by the State

Government.

49. It would be relevant, in that context, to examine the note sheet

leading to grant of approval/confirmation.

50. The note-sheet put up by the Under Secretary on 20.01.2015 is

in Hindi. The translated version would be as follows:

"The Chhattisgarh Housing Board has sent a proposal for

amendment in the Service (Recruitment) Regulations for filling

up 50 posts of Estate Manager/Branch Officer by direct

recruitment on 07.10.2014. The Chief Accounts Officer,

Chhattisgarh Housing Board was directed to remain present for

discussion on the above proposal on 28.10.2014. Mr. Sonwani,

Chief Accounts Officer was present on 19.01.2015 for

discussion.

2. According to Chhattisgarh Grih Nirman Mandal Service

(Recruitment) Regulations, 2011, there is a provision to fill up

100% posts of Estate Manager/Branch Officer by promotion

and in the same manner, there is a provision to fill 100% posts of

Accountant by promotion. According to the proposal of the

Board, out of the said posts, if 50% of the posts are filled by

direct recruitment, then the chances of the employees/officers of

the Board will be affected and there may be dissatisfaction

amongst the employees.

3. Therefore, the Board may be advised that if eligible

employees/officers are not available for filling up the posts by

promotion, then these posts may be considered for filling up on

contract/deputation.

For orders.

Sd/- Illegible 20.01.2015 (G.L.Sankla) Under Secretary Joint Secretary

Sd/- Illegible 21.01.2015

Secretary

The proposal of the Housing Board is approvable.

Sd/- Illegible 22.01.2015

A.C.S.

                                               Sd/- Illegible
                                               22.01.2015


                   Approved



          Hon'ble Minister                     Sd/- Illegible
          Housing/Environment                  22.1.2015


          A.C.S.(H&E)

          Sec (H&E)

                                               Sd/- Illegible
                                               28.01.2015"

51. A perusal of the above goes to show that the signatory of the

letter dated 04.02.2015 had expressed an opinion not to accept the

proposal of the Board. The Secretary of the Board, however, approved the

proposal, which was endorsed by the Additional Chief Secretary and

finally approved by the Minister, Housing/Environment.

52. Part V of the Rules of Business of the Chhattisgarh reads as

under:

"A-PROCEDURE OF SECRETARIES

2. Subject to the Rules of Business, and the practice of the

Department and any general or special order of the Chief

Minister or the Minister-in-charge a Secretary may dispose of

cases of routine nature and those in which either no question of

policy is involved or the question of policy has been settled.

Explanation. - For the purpose of this instruction "Secretary"

includes :-

(i) The Chief Secretary, an Additional Chief Secretary, a

Principal Secretary, a Secretary or an Additional Secretary,

and;

(ii) Director Budget Co-ordination and Resources Analysis or

a Deputy Secretary or an Under Secretary who may be

assigned these powers by any of the Secretaries mentioned

in (i) above.

2A. Notwithstanding anything contained in instruction No.2 but

subject to the Rules of Business, any particular item of

business allocated to a department may be disposed of -

(i) By the Secretary of the Department concerned if the Chief

Minister or the Minister-in-charge so directs;

OR

(ii) By the Chief Secretary or Additional Chief Secretary or

Special Secretary or any other Secretary, if the Chief Minister

so directs;

and the disposal by such Secretary shall be deemed to be

disposal by Government."

53. Perusal of the above goes to show that a Secretary may

dispose of cases of routine nature and those in which either no question of

policy is involved or the question of policy is settled, disposal by such

Secretary shall be deemed to be the disposal by the Government. In the

instant case, the decision to grant approval/confirmation was made by the

Departmental Minister and therefore, it cannot be argued that no decision

was taken by the State Government in the matter of grant of

approval/confirmation of the proposal of the Board for amendment of

Regulation of 2011. Such a matter is also not a matter under Rule 7 of the

Business Rules which is to be placed before the Council of Ministers.

54. The English translation of clause 7 of the Karya (Abantan)

Niyam of the Government of Chhattisgarh, General Administration

Department, (Annexure R/8 in WPS No. 6178/2019) reads as under:

"Except those cases where an officer has been

empowered to sign any order or instrument of the

Government of Madhya Pradesh, then each such order or

instrument shall be signed either by the Chief Secretary,

Additional Chief Secretary, Principal Secretary, all

Secretaries, Joint Secretary, Deputy Secretary or Under

Secretary and on such signing it should be understood

that the order or instrument is authenticated in a proper

way."

55. The above Clause 7 goes to show that an Under Secretary is

competent to sign an instrument or order and on such signing, it is to be

understood that the order or document is authenticated in a proper way.

56. In view of the above discussion, we find no merit in the

contention that the proposal of the Board for amendment of Regulation of

2011 was not approved/confirmed by the State Government. In view of the

above determination, there is no illegality in advertisement dated

15.02.2018 assailed in WPS No. 10875/2019 after appointment orders

were issued to respondents No. 4 to 11, as the advertisement was assailed

on the ground that there was no approval of the State Government for

amending the Regulation of 2011 on the basis of which the impugned

advertisement was issued.

57. In that view of the matter, the writ petitions are dismissed. No

costs.

                   Sd/-                                    Sd/-

         (Arup Kumar Goswami)              (Rajendra Chandra Singh Samant)
            CHIEF JUSTICE                              JUDGE




Amit