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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   9886    OF 2016 [Arising out of Special Leave Petition (C) No.20985 of 2014]  

STATE OF U.P. AND ORS.        …APPELLANTS

VERSUS

Z.U. ANSARI            …RESPONDENT

J U D G M E N T

T.S. THAKUR, CJI.

1. Leave granted.

2. This appeal arises out of a judgment and order dated

3rd February, 2014 passed by the High Court of Judicature at

Allahabad whereby Writ Petition  No.19485 of 2012 filed by

the  respondent  has  been  allowed  and  disciplinary

proceedings based on charge-sheet dated 26th June, 2011

issued to the respondent quashed with the direction that the

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writ  petitioner-respondent  herein  shall  be  entitled  to  all

consequential benefits.

3. The respondent-writ  petitioner  before  the High Court

joined  the  Saharanpur  Division  of  Rural  Engineering

Department  of  the  State  of  Uttar  Pradesh  as  a  Junior

Engineer on 26th February, 1973. He was promoted to the

post  of  Assistant  Engineer  on  25th April,  1981  and

transferred to Pratapgarh Division, and thereafter to several

other  places  till  he  superannuated  from  service  on  30th

September, 2008.  

4. Financial  irregularities  allegedly  causing  a  pecuniary

loss to the tune of Rs.13,23,964/- to the State exchequer,

having  been  noticed,  a  proposal  for  initiating  disciplinary

proceedings  was  mooted  by  the  Rural  Engineering

Department  and  sanctioned  by  the  Minister  in-charge  of

Rural Engineering Department, Government of Uttar Pradesh

on 7th January, 2011. A charge-sheet dated 27th June, 2011

was accordingly issued to the respondent and Chief Engineer

(WB)  was  nominated  as  Enquiry  Officer  to  conduct  an

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enquiry  into  the  charges.  Aggrieved,  the  respondent  filed

Civil Miscellaneous Writ Petition No.19485 of 2012 before the

High  Court  of  Judicature  at  Allahabad.  The  principal

contention urged in support of that Writ Petition was that in

the absence of  a  valid  sanction from the Governor  under

351-A of the Civil Services Regulations, 1975 framed under

Article  309  of  the  Constitution  of  India,  the  disciplinary

action  proposed  against  the  respondent  was  legally

impermissible. That contention found favour with a Division

Bench  of  the  High  Court  of  Allahabad,  who,  as  noticed

earlier,  has  allowed  the  Writ  Petition  and  quashed  the

disciplinary  proceedings  including  the charge-sheet  served

upon the respondent.  The High Court has taken the view

that Article 166 of the Constitution of India relied upon by

the State in support of the sanction issued by the Minister

in-charge of Department of Rural Engineering, Government

of Uttar Pradesh, and Article 309 of the Constitution of India

operate in distinctly different fields. The High Court declared

that if Service Regulations framed under Article 309 of the

Constitution of India require sanction of the Governor before

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initiating  the  departmental  proceedings  against  a  retired

employee  any  such  sanction  must  be  granted  by  the

Governor himself and not by the Minister in-charge of the

department  concerned.   The  High Court  observed  that  in

terms of U.P. Rules of Business, 1975 only such business can

be dealt with by the Minister as is allocated to him under the

said Rules. There was, according to the High Court, nothing

to  suggest  that  the  power  to  sanction  disciplinary

proceedings against a retired government servant had been

allocated  to  the  Minister  to  be  disposed  of  by  general  or

special  directions of the Minister. The sanction granted by

the Minister for initiating departmental proceedings against

the respondent was, in that view, held to be insufficient to

maintain such proceedings. The sum total of the reasoning

given by the High Court is contained in the following passage

extracted from the impugned judgment:

“We are of the considered opinion that the provisions of Article 309 of the Constitution of India operate in a separate field vis-a-vis the conduct of government business  under  Article  166  of  the  Constitution  of India.  They are not overlapping.  Therefore, if under the  service  rules  framed  under  Article  309  of  the Constitution  of  India  namely  the  Civil  Services Regulations,  1975,  it  has  been  provided  that sanction of the Governor would be necessary before initiation of the departmental  proceedings with the

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service  of  the  charge-sheet  upon  the  retired employee then such sanction has to be that of the Governor and not of the minister with reference to the UP Secretariat Instructions 1982 framed under the Rules of Business, 1975.  We may also record that the UP Secretariat  Instructions 1982,  Chapter VII  only  provide  that  all  business  allocated  to  a department under the Rules of Business, 1975 is to be disposed of by or under the General  or special directions  of  the  minister  in-charge  (Reference Business Regulations 3).  It is, therefore, clear that only such business as allocated to the department under the Rules of Business, 1975 can be disposed of  under  the  general  or  special  directions  of  the minister in-charge.

Nothing has been demonstrated before us to lead us to  accept  that  the  power  to  sanction  the departmental  proceedings  in  respect  of  a  retired government  servant  has  been  allocated  as  a business  to  be  disposed  of  under  the  general  or special  directions  of  the  minister  concerned  under the Business Regulations.

We have, therefore, no hesitation to hold that the sanction  of  the  minister  referable  to  the  Business Regulations in the facts of the case will not amount to the sanction of the Governor as contemplated by Regulation 351-A of the Civil  Services Regulations, 1975.”

5. The  present  appeal,  as  noticed  earlier,  assails  the

correctness of the view taken by the High Court. The legal

position on the subject is, in my opinion, fairly settled by the

decisions of this Court to which I shall presently refer, but,

before I do so I may gainfully extract Regulation 351A of the

Civil Service Regulations, 1975 which reads as under:

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“351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and  the  right  of  ordering  the  recovery  from  the pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental  or  judicial  proceedings to  have been guilty  of  grave  misconduct,  or  to  have  caused. Pecuniary  loss  to  government  by  misconduct  or Negligence,  during  his  service,  including  service rendered on re-employment after retirement:

Provided that-

(a) such  departmental  proceedings,  if  not instituted while the officer was on duty either before retirement or during re-employment-

(i) shall not be instituted save with the sanction of the Governor,

(ii) shall  be  in  respect  of  an  event which  took  place  not  more  than four years before the institution of such proceedings, and

(iii) shall  be  conducted  by  such authority  and  in  such  place  or places as the Governor may direct and  in  accordance  with  the procedure applicable to proceedings on which an order of dismissal from service may be made… … …”

6. I  may  at  this  stage  also  refer  to  Article  163  of  the

Constitution of India, which,  inter alia, postulates that the

Governor is bound to act on the aid and advise of Council of

Ministers  except  in  so  far  as  he  is  by  or  under  the

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Constitution  required  to  exercise  his  functions  or  any  of

them in his discretion:

“163.  Council  of  Ministers  to  aid  and  advise Governor

(1) 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 in so far as he is by or under this constitution required to  exercise  his  functions  or  any  of  them  in  his discretion

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under  this  Constitution  required  to  act  in  his discretion,  the  decision  of  the  Governor  in  his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court”

7. Reference  may  also  be  made  to  Article  166  of  the

Constitution  of  India  which  deals  with  conduct  of

Government  business  and  inter  alia provides  that  all

executive action of the State shall be expressed to be taken

in the name of Governor.  It reads:

“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

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intention  is  clearly  discernible  from  any  constitutional  or

statutory provision.  This Court observed:

“48. The  President  as  well  as  the  Governor  is  the constitutional or formal head. The President as well as the  Governor  exercises  his  powers  and  functions conferred on him by or under the Constitution on the aid  and  advice  of  his  Council  of  Ministers,  save  in spheres where the Governor is required by or under the  Constitution  to  exercise  his  functions  in  his discretion.  Wherever  the  Constitution  requires  the satisfaction of  the President  or the Governor  for  the exercise by the President or the Governor of any power or  function,  the  satisfaction  required  by  the Constitution  is  not  the  personal  satisfaction  of  the President  or  Governor  but  the  satisfaction  of  the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President  or the Governor  generally  exercises all  his powers and functions. The decision of any Minister or officer  under  Rules  of  Business  made  under  any  of these two Articles 77(3) and 166(3) is the decision of the  President  or  the  Governor  respectively. These articles did not provide for any delegation. Therefore, the decision of a Minister or officer under the Rules of Business  is  the  decision  of  the  President  or  the Governor.”

xxx xxx xxx

57. For  the  foregoing  reasons  we  hold  that  the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the Executive whether those functions are executive or  legislative  in  character.  Neither  the President  nor the  Governor  is  to  exercise  the  executive  functions personally. … … …”

(emphasis supplied)

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9. The  question  then  is  whether  the  power  to  initiate

disciplinary  proceedings  against  a  Government  servant

whether in service or retired is an executive function for the

Government to exercise.  My answer is in the affirmative.

The  power  to  direct  an  enquiry  into  any  misconduct  is

doubtless an executive function which can be exercised by

the Government unless there are any limitations imposed by

any constitutional  or  statutory  provisions  which  there  are

none in the case at hand. If that be so as it indeed is, the

Governor is competent in terms of Article 166(3) to allocate

such  functions  to  be  discharged  and  such  powers  being

exercised by Ministers by framing rules of business.  That is

so  especially  when  the  Constitution  does  not  require  the

Governor  to  exercise  the  function  of  sanctioning  a

disciplinary  enquiry  against  a  Government  servant  by

himself instead of being left to the Minister under the rules

that the Governor can frame. The Governor has, in the case

at  hand,  framed  Business  of  Uttar  Pradesh  (Allocation)

Rules, 1975. Rule 2 of the said Rules reads:

“2(1)  The  business  of  the  Government  shall  be transacted  in  the  sections  or  departments  of  the Uttar  Pradesh  Secretariat  as  may  be  specified  by

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general  or special orders of Governor, issued from time to time, in that behalf.  

Provided that until further orders, the orders relating to  allocation  in  force  immediately  before  the commencement  of  these  rules;  shall  continue  in force.

(2) In addition to the subjects specifically allocated or deemed to be allocated to them under sub-rule (1), all Sections or departments of the Uttar Pradesh Secretariat shall have powers to issue orders under any of the following laws, in so far as the subject is allocated to them and subject to general directions of the Chief Secretary.

(a) The defence of India Act and rules for the time being in force;

(b) Any  law for  the  time being  in  force  for  the maintenance of essential services or essential supplies.

(c) The  Essential  Commodities  Act  for  the  time being in force;

(d) Any  law  relating  to  land  acquisition  for  the time being in force;

(e) Sanction  for  prosecution  for  any  offence relating to the subject allocated to the Section or department.”

10. Reference  may  also  be  made  now  to  Uttar  Pradesh

Rules  of  Business,  1975,  framed  by  the  Governor  under

Article 166(3) of the Constitution. Rule 3 of the said rules

empowers  the  Minister  in-charge  of  the  department

concerned  to  dispose  of  the  business  allotted  to  a

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department  under  U.P. (Allocation)  Rules,  1975  except  in

cases where the rules provide otherwise.  Rule 3 reads:

“Disposal of Business: Subject to the provisions of these  rules  in  regard  to  consultation  with  other departments  and submission of  cases of  the Chief Minister,  cabinet  and  the  Governor,  all  business allotted, to a department under the business of U.P. (Allocation) Rules, 1975, shall be disposed of by or under  the  general  or  special  direction  of  the Minister-in-charge”.

11. Rules 7 and 8 of the Business Rules which provide for

submission of cases to the Cabinet or the Chief Minister or

the Governor  or  the Chief  Minister  and the Governor  are

relevant for the purpose and may be extracted:

“7. Submission of cases to the Cabinet –All cases specified in the First Schedule to these rules shall be brought before the Cabinet:

Provided that no case which concerns more than one department  shall,  save  in  cases  of  urgency  be brought before the Cabinet until all the departments concerned have been consulted.

8. Submission of cases of the Chief Minister and  the  Governor –  All  cases  of  the  nature specified in the Second Schedule to these rules shall, before the issue of orders thereon, be submitted to the Chief Minister or to the Governor or the Chief Minister and the Governor as indicated therein.”

12. Schedules 1 and 2 referred to in the above rules set out

the subjects on which the matter must under the Business

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Rules go either to the Cabinet or to the Chief Minister or to

Chief Minister and the Governor.  There is, however, nothing

in the said two schedules that would require the grant of

sanction to initiate a disciplinary enquiry against a serving or

retired Government servant to be brought up either before

the Cabinet, the Chief Minister or the Governor.  This would

mean  that  sanction  for  the  initiation  of  disciplinary

proceedings  against  a  retired  Government  servant  is  a

matter left to be dealt with by the Minister in charge of the

Department concerned.  Suffice it  to say that  neither the

Constitution  nor  the  rules  framed by  the  Governor  under

Article 166(3) require matters touching grant of sanction in

cases like the present to be dealt with by the Governor and

the Governor  alone.  The power to  sanction stands validly

conferred on the Minister  concerned and once he takes a

decision on the subject, it is in law and in the constitutional

scheme deemed to  be  a  decision  or  action  taken  by  the

Governor for all intended purposes including for the purpose

of Regulation 351(A) of the Civil Service Regulations, 1975.

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13. In State of M.P. v. Dr. Yashwant Trimbak  (1996)

2  SCC  305,  this  Court  was  dealing  with  a  case  where

disciplinary  proceedings  were  started  against  a  retired

Director  of  Institute  of  Animal  Health  and  Veterinary

Biological  Products,  before  initiating  the  proceedings  the

sanction of the Council of Ministers was obtained under the

M.P. Civil Service Pensions Rules, 1976.  The sanction order

purported  to  be  in  the  name of  the  Governor  which  was

conveyed  under  the  signature  of  the  Under  Secretary  to

Government  of  Madhya Pradesh.  The State  Administrative

Tribunal,  however, quashed  the  departmental  enquiry  for

want of  a  valid  sanction under  the Rules  aforementioned.

Relying upon the decisions of this Court in State of Bihar v.

Rani Sonabati Kumar 1961 (1) SCR 728, and Municipal

Corpn. of Delhi v. Birla Cotton Spinning and Weaving

Mills  1968 (3) SCR 251, this  Court  allowed the State’s

appeal in the following words:

“14. The Rule  in  question no doubt  provides  that departmental proceedings if not instituted while the government servant was in service whether before his  retirement  or  during  his  re-employment,  shall not  be  instituted  save  with  the  sanction  of  the Governor. The question that arises for consideration is whether it requires the sanction of the Governor

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himself or the Council of Ministers in whose favour the  Governor  under  the  Rules  of  Business  has allocated  the  matter,  can  also  sanction.  It  is undisputed  that  under  Article  166(3)  of  the Constitution  the  Governor  has  made  rule  for convenient  transaction  of  the  business  of  the Government  and  the  question  of  sanction  to prosecute in the case in hand was dealt with by the Council of Ministers in accordance with the Rules of Business. Under Article 154 of the Constitution, the executive power of the State vests in the Governor and is  exercised by him either  directly  or  through officers subordinate to him in accordance with the Constitution.  The  expression  “executive  power”  is wide  enough  to  connote  the  residue  of  the governmental  function  that  remains  after  the legislative and judicial functions are taken away.

xxxx   xxxx xxxx

17. The order of sanction for prosecution of a retired government  servant  is  undoubtedly  an  executive action of the Government. A Governor in exercise of his powers under Article 166(3) of the Constitution may allocate all  his functions to different Ministers by framing rules of business except those in which the  Governor  is  required  by  the  Constitution  to exercise  his  own  discretion.  The  expression “business of the Government of the State” in Article 166(3)  of  the  Constitution,  comprises  functions which the Governor is to exercise with the aid and advice  of  the  Council  of  Ministers  including  those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. The Court has held in Godavari Shamrao  Parulekar v.  State  of  Maharashtra (AIR  1964  SC  1128) that  even  the  functions  and duties which are vested in a State Government by a statute may be allocated to Ministers by the Rules of Business  framed  under  Article  166(3)  of  the Constitution. In  State of Bihar v.  Rani Sonabati Kumari (AIR 1961 SC 221), where power of issuing notification  under  Section  3(1)  of  the  Bihar  Land Reforms  Act,  1950  have  been  conferred  on  the Governor of Bihar, this Court held:

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“Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by  the  rules  of  business  framed  by  the Governor  under  Article  166(3)  of  the Constitution.”

18. Therefore, excepting the matters with respect to which  the  Governor  is  required  by  or  under  the Constitution  to  act  in  his  discretion,  the  personal satisfaction of the Governor is not required and any function may be allocated to Ministers.”

(emphasis supplied)

14. The sanction order, in the case at hand, was no doubt

issued under the signature of the Under Secretary and does

not purport to be in the name of the Governor but that does

not make any material difference as the immunity in Article

166(2) of the Constitution will be available even to such an

order, no sooner it is found on the basis of the material on

record  that  an  order  had  indeed  been  made  by  the

competent  authority  under  the  Business  Rules.  In

Trimbak’s case  (supra)  this  Court  had  relying  upon  the

decision in M.C.D. v.  Birla Cotton Spinning & Weaving

Mills (supra) held:

“12. Even where an order is issued by Secretary of the Government without indicating that it is by order of  the  Central  Government  or  by  order  of  the President, this Court came to the conclusion that the

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immunity in Article 166(2) would be available if  it appears from other material that in fact the decision had  been  taken  by  the  Government.  In  Municipal Corpn. of Delhi v.  Birla Cotton, Spg. and Wvg. Mills (AIR  1968  SC  1232) this  Court  came  to  the conclusion that in fact sanction had been given by the Central  Government as required under the Act though the order did not indicate to be so.”

15. The  constitutional  scheme  and  the  ethos  of

Parliamentary/Cabinet System of Government was explained

by a Constitution Bench of this Court in PU Myllai Hlychho

and Ors. v. State of Mizoram and Ors.  (2005) 2 SCC

92) in  relation  to  the  role  of  the  Governor  and  matters

relating to the exercise of powers by him upon satisfaction in

the following words:

“14. Our Constitution envisages the Parliamentary or Cabinet system of Government of the British model both for the Union and the States. Under the Cabinet system  of  Government  as  embodied  in  our Constitution  the  Governor  is  the  constitutional  or formal  head  of  the  State  and he exercises  all  his powers and functions conferred on him by or under the Constitution on the aid and advice of the Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

15. The executive power also partakes the legislative or certain judicial actions. Wherever the Constitution requires  the  satisfaction  of  the  Governor  for  the exercise of  any power or function,  the satisfaction required  by  the  Constitution  is  not  personal satisfaction of the Governor but the satisfaction in the constitutional sense under the Cabinet system of Government.  The  Governor  exercises  functions conferred on him by or under the Constitution with the aid and advice of the Council of Ministers and he

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concerned  like  the   Department  of  Rural

Engineering in the case at hand;

(iii)     The  Minister  not  only  had  the  power  to

sanction  the  initiation  of  the  disciplinary

proceedings, but, he had in fact exercised that

power when he said:

“Hon’ble Minister for  Rural  Engineering Services, Lucknow.

Let  the  disciplinary  inquiry conducted  and  inquiry  report  be submitted.

Dr. Jaiveer Singh Department of Rural Engineering Services, Overseas

Agro Trade and Export”

(iv)    The  order  so  issued  was  conveyed  by  the

Secretary to the Government  of  Uttar  Pradesh

but even when the communication/order was not

expressed in the name of the Governor the same

was entitled to the immunity postulated under

Article 166(2) of the Constitution.

(v)    The order  so made was in  law and in  the

constitutional  scheme  an  order  passed  by  the

Governor  of  the  State  within  the  meaning  of

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Regulations 351-A of the Regulations and was,

therefore, valid in the eye of law.

17. In  the  result,  this  appeal  succeeds  and  is  hereby

allowed. The order passed by the High Court is set aside and

Writ  Petition  No.19485  of  2012  filed  by  the  respondent

dismissed with costs assessed at Rs.10,000/- (Rupees Ten

Thousand Only).

............................CJI.        (T.S. THAKUR)

New Delhi September 30, 2016

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                                       REPORTABLE

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               IN THE SUPREME COURT OF INDIA                      

              CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO.  9886    OF 2016

            (Arising Out of SLP (C) No.20985 of 2014)

STATE OF U.P & ORS.    …………APPELLANTS

Vs.

Z.U ANSARI      ……RESPONDENT

                         J U D G M E N T

V. GOPALA GOWDA, J.

    I have gone through the judgment written by the learned

Chief Justice of India in the present appeal. I am however, in

respectful  disagreement  with  the  opinion  of  the  learned

Chief Justice and record my reasons for the same.

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2. Since the relevant facts of the case have been stated by

the learned Chief Justice in his opinion, the same are not

stated again for the sake of brevity.

3.  The  short  point  which  arises  for  consideration  in  the

instant  case  is  whether  the  sanction  accorded  by  the

Minister  of  the  concerned department  in  the  instant  case

amounts to a valid sanction for the purpose of Regulation

351-A of the Civil Services Regulations, 1975.

4. The Civil  Services Regulations, 1975 have been framed

under Article 309 of the Constitution of India. According to

Regulation  351-A  of  the  same,  prior  sanction  of  the

Governor  is  required  to  be  obtained  before  initiation  of

departmental  proceedings  against  an  officer  of  the

government who has retired.

5.  The Uttar  Pradesh Rules  of  Business,  1975 have been

framed under Article 166 of the Constitution of India by the

Governor of the State of Uttar Pradesh. Rule 3 of the said

Rules reads as under:

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Page 24

“3. Disposal of Business- Subject to the provisions of these

Rules in regard to consultation with other departments and

submission of cases to the Chief Minister the cabinet and the

Governor, all  business allotted to a department under  the

Business of U.P. (Allocation) Rules, 1975, shall be disposed

of  by  or  under  the  general  or  special  directions  of  the

Minister in charge.”

6. Before I examine the validity of the sanction accorded by

the  Minister  in  charge,  it  is  important  to  examine  the

relevant constitutional provisions at play in the instant case.

7. Article 154 of the Constitution of India provides for the

executive power of the State to be vested in the Governor

and reads as under:

“154. Executive power of State.—(1) The executive power of

the  State  shall  be  vested  in  the  Governor  and  shall  be

exercised  by  him  either  directly  or  through  officers

subordinate to him in accordance with this Constitution.”

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Page 25

Article 166 of the Constitution reads as under:

“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.”

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Page 26

            (emphasis laid by this Court)

8. Article 166 of the Constitution thus, confers the power on

the Governor to make rules for the convenient transaction of

business  of  the  Government  of  the  State  and  for  the

allocation  among  its  Ministers  of  the  said  business.  All

matters except those on which the Governor is required to

act  in  exercise  of  his  individual  discretion  have  to  be

allocated  to  some  Minister  on  the  advice  of  the  Chief

Minister. Apart from allocating business amongst Ministers,

the  Governor  can  also  make  rules  on  the  advice  of  the

Council  of  Ministers  for  convenient  transaction  of  the

business.  Thus,  it  becomes clear  from a perusal  of  these

provisions that the Rules of Business under Article 166 of the

Constitution  are  framed  essentially  for  the  ease  or

convenience of the working of the departments of the State

Government.

9. It is also a well settled principle of law that the Governor

exercises  executive  power  under  Article  166  of  the

Constitution. In the case of State of Gujarat v. R.A. Mehta1,

this Court held as under:

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Page 27

“……Under  Article  154  of  the  Constitution,  the  executive

powers of the State are vested in the Governor, which may

be  exercised  by  him  either  directly,  or  through  officers

subordinate to him, in accordance with the provisions of the

Constitution. Article 161 confers upon the Governor, a large

number of powers including the grant of pardon, reprieves,

respites  or  remissions  of  punishment  etc.  Such  executive

power can be exercised by him, only in accordance with the

aid and advice of the Council of Ministers. Article 162 states

that the executive power of  the State,  shall  extend to all

such matters, with respect to which, the legislature of the

State  has  the  power  to  make  laws.  Therefore,  the  said

provision, widens the powers of the Governor. Article 166(3)

of the Constitution, further bestows upon the Governor the

power  to  make rules  for  more  convenient  transactions  of

business, of the Government of the State, and also for the

purpose  of  allocating  among the  Ministers  of  State,  such

business.”

                         (emphasis laid by this Court)

10. Article  309 of the Constitution which provides  for  the

regulation  of  recruitment  and  conditions  of  service  of

persons serving the Union or a state is quoted hereunder :-  

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“309.  Recruitment  and  conditions  of  service  of  persons

serving the Union or a State.—Subject to the provisions of

this  Constitution,  Acts  of  the  appropriate  Legislature  may

regulate  the  recruitment,  and  conditions  of  service  of

persons  appointed,  to  public  services  and  posts  in

connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such

person as he may direct in the case of services and posts in

connection  with  the  affairs  of  the  Union,  and  for  the

Governor of a State or such person as he may direct in the

case of services and posts in connection with the affairs of

the State, to make rules regulating the recruitment, and the

conditions of service of persons appointed, to such services

and posts until provision in that behalf is made by or under

an Act of the appropriate Legislature under this article, and

any rules so made shall have effect subject to the provisions

of any such Act.”

          (emphasis laid by this Court)

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Page 29

11. In the instant case, there is no dispute regarding the

fact that Regulation 351-A of the Civil Services Regulations,

1975 has been framed in exercise of power under Article 309

of the Constitution of India. It is a settled position of law

that  while  exercising  power  under  Article  309  of  the

Constitution; the Governor acts in a legislative capacity and

not executive capacity. In B.S Yadav v. State of Haryana2, a

Constitution Bench of this Court held as under :

“44.....The  proviso  to  Article  309  provides,  in  so  far  as

material, that until the State legislature passes a law on the

particular subject, it shall be competent to the Governor of

the State to make rules regulating the recruitment and the

conditions of service of the judicial officers of the State. The

Governor thus steps in when the legislature does not act.

The power, exercised by the Governor under the proviso is

thus a power which the legislature is competent to exercise

but  has  in  fact  not  yet  exercised.  It  partakes  of  the

characteristics of the legislative, not executive, power. It is

legislative power.

45. That the Governor possesses legislative power under our

Constitution  is  incontrovertible  and,  therefore,  there  is

nothing  unique  about  the  Governor's  power  under  the

proviso to Article  309 being in the nature of  a legislative

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power. By Article 158, the Governor of a State is a part of

the legislature of the State. And the most obvious exercise

of legislative power by the Governor is the power given to

him  by  Article  213  to  promulgate  Ordinances  when  the

legislature is not in session. Under that Article, he exercises

a  power  of  the  same kind  which  the  legislature  normally

exercises, the power to make laws. The heading of Chapter

IV of Part VI of the Constitution, in which Article 213 occurs,

is significant: 'Legislative Power of the Governor". The power

of the Governor under the proviso to Article 309 to make

appropriate rules is of the same kind. It is legislative power.

Under Article 213, he substitutes for the legislature because

the legislature is in recess. Under the proviso to Article 309,

he substitutes for the legislature because the legislature has

not yet exercised its power to pass an appropriate law on

the subject.”

             (emphasis laid by this Court)

12.   The distinction  between  the  powers  conferred  under

Articles  166(3)  and  309  was  discussed  by  a  Constitution

Bench of this Court in the case of Sampat Prakash v. State

of Jammu and Kashmir3, as under:

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Page 31

“11. ……As an example, under Article 77(3), the President,

and,  under  Article  166(3)  the  Governor  of  a  State  are

empowered  to  make  rules  for  the  more  convenient

transaction of the business of the Government of India or

the Government of the State, as the case may be, and for

the allocation among Ministers of the said business. If, for

the  interpretation  of  these  provisions,  Section  21  of  the

General Clauses Act is not applied, the result would be that

the rules once made by the President or a Governor would

become inflexible and the allocation of the business among

the Ministers would forever remain as laid down in the first

rules. Clearly, the power of amending these rules from time

to time to suit changing situations must be held to exist and

that power can only be found in these articles by applying

Section  21  of  the  General  Clauses  Act.  There  are  other

similar  rule-making powers, such as the power of  making

service  rules  under  Article  309  of  the  Constitution.  That

power must also be exercisable from time to time and must

include within it the power to add to, amend, vary or rescind

any of those rules……”

                        (emphasis laid by this Court)

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13.  It  becomes clear  from a perusal  of  the constitutional

provisions and case law referred to supra that the powers

under Articles 166(3) and 309 of the Constitution operate in

completely different fields. It would thus, be absurd if the

Rules made in exercise of power under Article 166 of the

Constitution,  are  used  as  a  benchmark  while  exercising

power under Article 309 of the Constitution. In the instant

case, the Uttar Pradesh Business Transaction Rules,  1975,

confer power on a minister in charge to exercise power in

the name of Governor. The same however, cannot be used to

justify the action of the minister when the exercise of power

under  the  regulations  framed  under  Article  309  of  the

Constitution is under scrutiny, as is sought to be done in the

instant case.

14. Specifically on the issue of Regulation 351-A of the Civil

Services Regulations, in the case of State of U.P. v. Harihar

Bhole  Nath4,  where  the  order  of  sanction  against  the

respondent  therein  who  was  a  clerk  in  a  Government

department had been ordered by the Secretary in the name

of the Governor, it was held by this Court as under:

“…The  proceedings  for  recovery  of  the  amount  from  a

Government servant can be passed in the event he is held to

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be guilty of grave misconduct or caused pecuniary loss to

Government  by  his  misconduct  or  negligence  during  his

service.  Some procedural  safeguards,  however, have been

laid down in terms of proviso appended thereto, including

the  requirement  to  obtain  an  order  of  sanction  of  the

Governor. Such order  of  sanction,  however, would  not  be

necessary  if  the  departmental  proceedings  have  been

initiated while the delinquent was on duty. Proviso appended

to Regulation 351-A merely controls the main proceedings.

The  same would  apply  in  the  exigencies  of  the  situation

envisaged  therein,  namely,  even  the  proceedings  were

initiated after retirement and nor prior thereto.”

               (emphasis laid by this Court)

Further, in State of U.P. v. Krishna Pandey5, after referring

to Regulation 351-A, this Court held as under:

“A  reading  thereof  clearly  indicates  that  the  Governor

reserves  to  himself  the  power  and  right  to  withhold  or

withdraw pension or a part thereof, whether permanently or

for a specified period. Equally, he has right to order recovery

from pension  of  the  whole  or  part  of  any pecuniary  loss

caused to Government when it is found in a departmental or

judicial proceedings that the delinquent was guilty of grave

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misconduct or has caused pecuniary loss to the Government

by his misconduct or negligence while he was continuing in

service  including  the  period  of  his  re-  employment  after

retirement.….and the same shall  not be instituted without

the sanction of the Governor. It should be in respect of an

event which may have taken place not more than 4 years

before the institution of such proceedings.”

               (emphasis laid by this Court)

It is amply clear from a perusal of the abovementioned case

law that sanction of the Governor is required before initiation

of  proceedings  against  a  retired  employee  in  terms  of

Regulation  351-A of  the  Civil  Services  Regulations,  1975.

Undoubtedly, the said power under Regulation 351-A can be

delegated  by  the  Governor.  However,  the  delegation

accorded  under  the  Business  Transaction  Rules,  1975,  in

respect  of  the  power  conferred  under  Article  166  of  the

Constitution cannot be used as a substitute in the present

case.  The case of  State of  M.P. v. Yashwant Trimbak6 on

which  strong  reliance  has  been  placed  on  by  Mr. Gaurav

Bhatia, the learned Additional  Advocate General appearing

on behalf of the appellants, is also misplaced, as in that case

the essential question was authentication of the action of the

Governor  under  Article  166(3)  of  the Constitution.  It  was

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held in that case was that once the Governor delegates his

power under Article 166(3) of the Constitution, then it is no

longer  his  personal  satisfaction  that  is  required  in  those

matters. It was held specifically as under:

“……In  this  view  of  the  matter  when  the  Governor  has

framed  rules  of  business  under  Article  166(3)  of  the

Constitution allocating his functions and it is the Council of

Ministers  which  has  taken  the  decision  to  sanction

prosecution of the respondent, we see no legal  infirmity in

the  same.  The  Tribunal  erred  in  law  in  coming  to  the

conclusion  that  the  sanction  required  under  the  rule  is  a

sanction of the Governor.”

(emphasis laid by this Court)

The said case cannot be used to suggest that once power is

delegated under Article 166(3) by the Governor, then that

automatically takes away his powers under other Articles of

the Constitution as well. The powers under Articles 166(3)

and 309 of the Constitution operate in separate fields, and

one cannot be used to substitute the other in the absence of

express conferment of power by the Governor.

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15.  Further  reliance  has  been  placed  on  a  seven-judge

Bench of this Court in the case of Shamsher Singh v. State

of Punjab7, wherein it was held that the Governor exercises

the  powers  vested  in  him  on  the  aid  and  advice  of  the

council  of  ministers.  But  the  said  judgment  also  has  no

bearing on the facts of the case at hand.  The fact situation

in the Shamsher Singh (supra) case dealt with the executive

power  of  the  Governor,  as  the  case  related  to  the

appointment  of  persons  other  than  district  judges  to  the

Judicial Services of the state which is supposed to be made

by the Governor under Article 234 of the Constitution. It was

held in that case as under:

29.  The  executive  power  is  generally  described  as  the

residue which does not fall within the legislative or judicial

power. But executive power may also partake of legislative

or judicial actions. All powers and functions of the President

except his legislative powers as for example in Article 123,

viz., ordinance making power and all powers and functions

of the Governor except his legislative power as for example

in Article 213 being ordinance making powers are executive

powers of the Union vested in the President under Article

53(1) in one case arid are executive powers of  the State

vested  in  the  Governor  under  Article  154(1)  in  the other

case. Clause (2) or Clause (3) of Article 77 is not limited in

its operation to the executive action of the Government of

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India under Clause (1) of Article 77. Similarly, Clause (2) or

Clause (3) of Article 166 is not limited in its operation to the

executive  action  of  the  Government  of  the  State  under

Clause (1) of Article 166. The expression "Business of the

Government of India" in Clause (3) of Article 77, and the

expression  "Business  of  the  Government  of  the  State"  in

Clause (3) of Article 166 includes all executive business.

30.  In  all  cases  in  which  the  President  or  the  Governor

exercises  his  functions  conferred  on him by or  under  the

Constitution  with  the  aid  and  advice  of  his  Council  of

Ministers  he  does  so  by  making  rules  for  convenient

transaction of the business of the Government of India or

the Government of  the State respectively  or by allocation

among his Ministers of the said business, in accordance with

Article  77(3)  and  166(3)  respectively.  Wherever  the

Constitution  requires  the  satisfaction  of  President  or  the

Governor for the exercise of any power or function by the

President  or  the  Governor,  as  the  case  may  be,  as  for

example  in  Articles  123,  213,  311(2)  proviso  (c),  317,

352(1),  356  and  360  the  satisfaction  required  by  the

Constitution is not the personal satisfaction of the President

or of the Governor but is the satisfaction of the President or

of  the  Governor  in  the  Constitutional  sense  under  the

Cabinet system of Government. The reasons are these. It is

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the satisfaction of the Council of Ministers on whose aid and

advice the President or the Governor generally exercises all

his powers and functions. Neither Article 77(3) nor Article

166(3) provides for any delegation of power. Both Articles

77(3) and 166(3) provide that the President under Article

77(3)  and  the  Governor  under  Article  166(3)  shall  make

rules for the more convenient transactions of the business of

the Government and the allocation of business among the

ministers of the said business. The rules of business and the

allocation  among  the  Ministers  of  the  said  business  all

indicate that the decision of any Minister or officer under the

rules of business make under these two Articles viz., Article

77(3) in the case of the President and Article 166(3) in the

case  of  the  Governor  of  the  State  is  the  decision  of  the

President or the Governor respectively.”

Further, in reference to Article 311 of the Constitution, it was

held as under:

“The  theory  that  only  the  President  or  the  Governor  is

personally to exercise pleasure of dismissing or removing a

public  servant is repelled by express words in Article  311

that no person who is a member of the Civil service or holds

a civil post under the Union or a State shall be dismissed or

removed by authority subordinate to that by which he was

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appointed. The words "dismissed or removed by an authority

subordinate to that by which he was appointed" indicate that

the pleasure of the President or the Governor is exercised by

such officers on whom the President or the Governor confers

or delegates power.”

 (emphasis laid by this Court)

16. Similarly, in the case of State of Bihar v. Rani Sonabati

Kumar8, the issue was:  

“whether  it  was  an  order  made  by  the  Governor  or  by

someone duly authorised by him in that behalf within Art.

154(1). Even assuming that the order did not originate from

the Governor personally, it avails the State nothing because

the  Governor  remains  responsible  for  the  action  of  his

subordinates taken in his name.”

Thus, while the fact that the powers may be delegated is not

in  dispute,  what  is  essential  to  establish  is  that  the

delegation has infact taken place. Further, it is also essential

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to establish that what has been delegated is  the relevant

power under the relevant rule for the purpose. Delegation of

power  for  one  purpose  cannot  be  understood  to  mean a

delegation of power for all other purposes as well.

17. In the case of Godavari Shamrao Parulekar v. State of

Maharashtra9,  a  Constitution  Bench  of  this  Court  was

contemplating the power of delegation under the Defence of

India Rules, 1962. While deciding the power of allocation of

the Governor, it was held as under:

“Allocation of business under Art. 166(2) of the Constitution

is not made with reference to particular laws which may be

in force at the time the allocation is made; it is made with

reference to the three lists of the Seventh Schedule to the

Constitution, for the executive power of the center and the

State  together  extends  to  matters  with  respect  to  which

Parliament and the Legislature of a State may make laws.

Therefore, when allocation of business is made it is made

with reference to the three Lists in the Seventh Schedule

and thus the allocation in the Rules of Business provides for

all  contingencies  which  may arise  for  the  exercise  of  the

executive  power.  Such  allocation  may  be  made  even  in

advance of legislation made by Parliament to be available

whenever Parliaments makes legislation conferring power on

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a State Government with respect to matters in List I of the

Seventh  Schedule.  It  was  therefore  in  our  opinion  not

necessary that there should have been an allocation made

by the Governor under Art. 166(3) of the power to detain

under the Defence of India Ordinance, Act and Rules after

they were passed; it will be enough if the allocation of the

subject to which the Defence of India Ordinance, Act and

Rules refer has been made with reference to the three Lists

in the Seven Schedule and if such allocation already exists,

it may be taken advantage of if and when laws are passed.

Preventive detention  is  provided for  in  List  I,  item 9,  for

reasons  connected  with  defence,  foreign  affairs  and  the

security  of  India,  and  in  item  3  of  List  III  for  reasons

connected with the security of a State, the maintenance of

public  order, or  the maintenance of  supplies  and services

essential to the community. The allocation of business made

under Art. 166 is in pursuance of these entries in the three

List in the Seventh Schedule and would be available to be

used whenever any law relating to these entries is made and

power is conferred on the State Government to act under

that  law.  The  contention  of  the  appellants  that  fresh

allocation should have been made under Art. 166(3) by the

Governor  after  the  passing  of  the  Defence  of  India

Ordinance, Act and Rules must therefore fail.”

                        (emphasis laid by this Court)

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From a perusal of the above extract, it becomes clear that

even in the aforesaid case, this Court was concerned only

with the executive exercise of power under Article 166 (3) of

the Constitution. Thus, these cases have no bearing on the

fact  situation  in  the  instant  case,  as  they  dealt  with

executive exercise of power by the Governor. The question in

the case on hand is the statutory exercise of power under

Regulation 351-A of the Civil  Services Regulations, framed

under Article 309 of the Constitution of India.

18. In the absence of any evidence on record to show that

the  Governor  had  delegated  his  power  to  the  concerned

Minister  under  Regulation  351-A  of  the  Civil  Services

Regulations, 1975 to accord sanction, the sanction granted

by  the  Minister  in  charge  cannot  be  said  to  be  a  valid

sanction and sustained in law. The same is liable to be set

aside and accordingly is set aside. The appeal is accordingly,

dismissed.

                            ………………………………………………………J.

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                                [V.GOPALA GOWDA]

New Delhi,

September 30, 2016

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 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

      CIVIL  APPEAL No. 9886  OF 2016  

               (Arising out of SLP(C) No. 20985 of 2014)     

STATE OF U.P. AND ORS. ...   Appellant(s)   

                     Versus

Z.U.ANSARI ...  Respondent(s)

O R D E R

Hon'ble the Chief Justice pronounced the judgment on behalf of himself, allowing the appeal in terms of the signed reportable judgment.

Hon'ble  Mr.  Justice  V.Gopala  Gowda  pronounced separate judgment, disagreeing with the views expressed by Hon'ble the Chief Justice and dismissed the appeal.

In view of the difference of opinion, the Registry is directed to place the matter before Hon'ble the Chief Justice,  so  that  an  appropriate  Bench  could  be constituted for hearing the matter.

                       ................CJI.

                          (T.S.THAKUR)

                    .................J.

                                (V.GOPALA GOWDA)

New Delhi,

Dated: 30th September, 2016.             

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