Supreme Court of India
STATE OF BIHAR & ANR.versusSUNNY PRAKASH & ORS.
- Citation
- 2013 INSC 41
- Decided
- 18 January 2013
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
Decisions of a previous government, even if not formally expressed in the name of the Governor, bind the successor government; Art 166 is directory, and the 2007 agreement is a valid State decision that must be implemented.
Summary
The Government of Bihar had repeatedly declared that non‑teaching staff of universities and constituent colleges were to be treated as equivalent to government staff, but successive agreements (most recently on 18 July 2007) were not implemented, leading to strikes by the Bihar State University and College Employees Federation. A student’s letter to the High Court, treated as a public‑interest litigation, resulted in a directive ordering the State to implement the 2007 agreement and to call off the strike. The State appealed, contending that the agreement was not made in accordance with the Rules of Executive Business under Article 166 of the Constitution and therefore was not binding. The Supreme Court held that decisions of a previous elected government bind its successors, that the provisions of Article 166 are directory rather than mandatory, and that the 2007 agreement was a valid decision of the State Government. Consequently, the State must implement the agreement and the appeal was dismissed.
Issues considered
- Whether an agreement not expressed in the name of the Governor and not complying with the Rules of Executive Business under Art 166 is binding on the State.
- Whether the provisions of Art 166 of the Constitution are directory or mandatory.
- Whether the 18 July 2007 agreement constitutes a decision of the State Government.
- Whether the State can refuse implementation of a prior government decision on procedural grounds.
Legislation cited
- Constitution of Indias. Article 162, s. Article 166
- Rules of Executive Business, State of Bihar
Subjects
Article 166Rules of Executive Businessgovernment decisionbinding on successor governmentpublic interest litigationstrikeimplementation of agreementnon‑teaching staffconstitutional law
Judgment
[2013] 1 S.C.R. 362
A STATE OF BIHAR & ANR.
v.
SUNNY PRAKASH & ORS.
(Civil Appeal No. 516 of 2013)
JANUARY 18, 2013
B
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]
CONSTITUTION OF IND/A, 1950:
c Art. 166 read with Rules of Executive Business, State of
Bihar - Agreement/Understanding dated 18. 7. 2007 enterea
into between University and College Emptoyees Federation
and the State Government declaring non-teaching staff of
Universities and constituent Colleges equivalent to the
0 Government staff, not implemented on the plea that the
agreement was not in accordance with the Rules of Executive
Business - Held: Merely because of change of elected
Government and the decision of the previous government not
expressed in the name of Governor in terms of Art. 166, valid
decision cannot be ignored and it is not open to State to
E contend that those decisions do not bind them - Further, the
provisions of Art. 166 are only directory and not mandatory
in character and if they are not complied with, it can be'
established as a question of fact that the impugned order was
issued in fact by State Government - In the instant case, it
F cannot be said that the decision was not taken by or on behalf
of the Government - High Court has not only directed the-
State Government to implement the Agreement dated
18.07.2007, but also directed the Federation to call off the
strike immediately in the interest of the student community -
G State Government directed to implement the order of the High
Court - Service law - Rules of Executive Business, State of
Bihar - Public interest litigation - Letter petition.
Non-Implementation of the G.O. dated 25.02.1987
H 362
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 363
ORS.
issued by Education Department of Government of Bihar A
declaring the non-teaching staff of Universities and
constituent Colleges equivalent to the Government staff,
led to repeated strikes by the Bihar State University and
College Employees Federation and the agreements/
compromises between the Federation and the State B
·Government and, ultimately, an Agreement/
Understanding was arrived at between the two on
18.07.2007. A letter was issued by the Government on
19.07.2007 for implementation of the Agreement and,
consequently, the strikes were recalled. However, as the c
Agreement/Understanding was again not implemented,
the Federation went on an indefinite strike. Thereupon
respondent no. 1, a student, addressed a letter to the
Chief Justice of the High Court requesting to end the
strike, which was treated as public interest litigation. The
0
Federation also filed an intervention application. The High
Court by order dated 7.8.2008 directed the Chief Secretary
of the State to ensure implementation of the Agreement
dated 18.072007. The Federation was also directed to
withdraw its strike.
.E
In the instant appeal filed by the State Government,
it was contended for the appellants that the Agreement
dated 18.07.2007 was not in accordance with the Rules
of Executive Business, State of Blhar.
F
Dismissing the appeal, the Court
HELD: 1.1. Merely because of change of elected
Government and the decision of the previous government
not expressed In the name of Governor In terms of Art.
166 of the Constitution, valld decision cannot be Ignored G
and It Is not open to the Stile to contend that those
decisions do not bind them. [Para 15] [380·0]
State of Bihar and Others vs. Bihar Rajya M.S.E.S.K.K.
Mahasangh and Others, 2004 (5) Suppl. SCR 376 = (2005) H
364 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 9 sec 129 - relied on.
1.2. Further, the provisions of Art. 166 of the
Constitution are only directory and not mandatory in
character and if they are not complied with, it can be
established as a question of fact that the impugned order
8
was issued in fact by the State Government. In the case
on hand, these are various communications issued by the
Government for implementation of the earlier decision. In
such circumstance, there is no reason to reject those
communications sent by the higher level officers of the
C State Government. [Para 16] [383-D-E]
R. Chitralekha and Anr. vs. State of Mysore and Others,
1964 SCR 368 =AIR 1964 SC 1823- relied on.
0 1.3. In the instant case, the proceedings of the
understanding held on 17.07.2007, show that apart from
the Chairman, Bihar Legislative Council, Minister
concerned, viz., Human Resource Department (HRD) as
well as Principal Secretary, HRD and Commissioner,
E Finance Department as well as various other higher level
officers of the State Government participated, deliberated
and ultimately accepted the demands of the Federation.
It is also to be noted that at the end of the discussion and
after recording of the terms and conditions, General
Secretary of the Federation, Chairman and Addi.
F Commissioner-cum-Secretary, HRD signed the same on
the very next day I.e., 18.07.2007. Further, even after the
discussion on 17.07.2007, on 19.07.2007 Itself, Human
Resources Development Department of the Government
of Bihar sent another communication to the Registrars of
G all the Universities of the State to Implement the decision
arrived In the negotiation held on 17 .07 .2007. In such
circumstances, It cannot be said that decision was not
taken by or on behalf of the Government. [Para 6, 7 and
9) [369-E; 372-G-H; 373-A-B; 374-D·E]
H
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 365
ORS.
Haridwar Singh vs. Bagun Sumbrui and Others, 1972 (3) A
SCR 629 =(1973) 3 SCC 889; Punit Rai vs. Dinesh
Chaudhary, 2003 (2) Suppl. SCR 743 = (2003) 8 SCC 204
- held inapplicable.
State of U.P. f's. Neeraj Awasthi and Others, (2006) 1 . 8
SCC 667 =2005 (5) Suppl. SCR 906 - referred to.
1.4. Even by the earliest decision dated 25.02.1987 of
the Government of Bihar, Education Department, the
General Secretary of the Federation was infomed that
facilities which have been provided for Government staff C
shall also be sanctioned to the non-teaching staff of the
Universities and subordinate affiliated colleges. In the light
of the various directions of the very same Government,
particularly, by the HRD/Education Department,
requesting all the Vice Chancellors and Registrars· of all D
the Universities to implement "Government's" decision,
it cannot be said that in the absence of any decision by
the Cabinet in terms of the Rules of Executive Business,
any other agreement or decision is not binding on the
Government. There is the commitment made by the State E
Government as early as in 1987, as also the subsequent
demands made by the Federation on various occasions
and the final decision by the Minister concerned, various
officers including HRD and Finance Departments,
representatives of the Federation and all other persons F
connected with the issue in question. Added to it,
directions were also issued to the Vice Chancellors and
Registrars of all the Universities for implementing the said
"Government's" decision. In such circumstances, it
cannot be open to the State to contend that it is not a G
Government's decision in terms of Art. 162 read with Art.
166 of the Constitution. [Para 9, 10 and 14] [375-E; 376-H;
377-A-B; 378-G-l:i; 379-A-B]
1.5. Inasmuch as all the persons who were
competent to represent were the parties to the said H
366 SUPREME COURT REPORTS (2013) 1 S.C.R.
A Agreement and after making such commitment by the
State Government, as rightly observed by the High Court,
the same has to be honored without any exception. By
the impugned order, the High Court has not only directed
the State Government to implement the commitment given
s by it having been reduced into writing on 18.07.2007,
honoured by the State Government itself in subsequent
letters/correspondences, but also directed the Federation
to call off the strike immediately in the interest of the
student community. It is also made clear that though the
c High Court termed the impugned order as interim in
nature, considering the fact that the writ petition came to
be filed by a student in the interest of the student
community by writing a letter which was treated as a PIL,
no further order need be passed in the said writ petition,
and it stands closed. The State Government is directed
0
to implement the order dated 07.08.2008 passed by the
High Court. [Para 17-18) [383-F-H; 384-A-C]
Case Law Reference:
1972 (3) SCR 629 held inapplicable para 11
E
2003 (2) Suppl. SCR 743 held inapplicable para 12
2005 (5) Suppl. SCR 906 referred to para 13
2004 (5) Suppl. SCR 376 relied on para 15
F
1964 SCR 368 relied on para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 516
of 2013.
G From the Judgment & Order dated 07.08.2008 of the High
Court of Patna in C.W.J.C. No. 10870 of 2008.
Rakesh Divedi, K.K. Venugopal, Gopal Singh, Samir Ali
Khan, S. Pathak Chandan Kumar, Prem Prakash, Anshul
H Narayan, Pooja Dhar, Manu Shanker Mishra, Anshuman
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 367
· ORS.
Upadhyay, D.K. Pandey, Bijan Kumar Ghosh, Ashok Mathur, A
Sarla Chandra for the appearing parties.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. Leave granted. ·
B
2. This appeal is directed against the judgment and order
dated 07.08.2008 passed by the High Court of Judicature at
Patna in CWJC No. 10870 of 2008 whereby the Division Bench
of the High Court in a Public Interest Litigation (PIL) issued
mandamus directing the Chief Secretary, Government of Bihar, c
Patna to ensure that the commitment given by the State
Government to the Bihar State University and College
Employees Federation (in short "the Federation") is honoured
and implemented within one month from the date of the
judgment. D
3. Brief facts:
(a) The Government of Bihar, Education Department, vide
G.O. dated 25.02.1987, declared the non-teaching staff of
Universities and Constituent Colleges equivalent to the E
Government staff.
(b) On 16.07.2003, an Agreement/Compromise was
arrived at between the Federation and the State Government,
regarding parity between the employees of the Constituent F
Colleges of the University and the State Government. On
21.07.2003, the State Government sent the said Agreement to
the Vice Chancellors of all the Universities of the State of Bihar
for necessary action.
(c) In 2005, because of the non-implementation of the G
Agreement arrived at, there was a strike by the Federation in
the State of Bihar. Following the strike of the Federation, on
24:08.2005, an understanding was arrived at between the
Federation and the Government of Bihar and the strike was
H
368 SUPREME COURT REPORTS [2013) 1 S.C.R.
A recalled later.
(d) Since the Agreement was not implemented, on
01.07.2007, the Federation again went on strike which led to
complete disruption of educational activities in the Colleges and
the Universities of Bihar. On 17.07.2007, a meeting was held
8
between the representatives of the Federation and the
Government of Bihar and an Agreement/Understanding was
again arrived at on 18.07.2007 for consideration of their
demands. Pursuant to the same, on 19.07.2007, a letter was
C issued by the Government for implementation of the Agreement
and the strike was recalled.
(e) In July, 2008, again, on account of non-implementation
of the Agreement/Understanding, the Federation was again
constrained to go on strike. Due to indefinite strike of teaching
D and non-teaching staff of the Universities, on 14.07.2008, a
letter was written by Sunny Prakash (Respondent No. 1 herein),
student of Daroga Prasad Roy Degree College, addressed to
the Chief Justice of the High Court requesting to end the strike,
which was treated as a Public Interest Litigation (PIL). On
E 28.07.2008, an intervention application was filed by the
Federation (R-5) in the PIL before the High Court.
(f) After hearing the parties, the Division Bench of the High
Court, vide order dated 07.08.2008, inter alia, directed the
Chief Secretary, Government of Bihar to ensure that the
F commitment given by the State Government to the Federation
which have been reduced to writing on 18.07.2007, is honoured
and implemented within one month. The High Court also
directed the Federation to withdraw the strike immediately.
G (g) On 22.08.2008, an application was filed by the
Government of Bihar for modification of the impugned order,
which was also dismissed by the High Court.
(h) Aggrieved by the order dated 07.08.2008 passed by
H the High Court, the State of Bihar preferred the above appeal
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 369
ORS. [P. SATHASIVAM, J.]
by way of special leave petition before this Court. A
4. Heard Mr. Rakesh Dwivedi, learned senior counsel for
the appellants, Mr. K.K. Venugopal, learned senior counsel for
respondent Nos. 4 and 5, Mr. Manu Shanker Mishra, learned
counsel for respondent Nos. 2 and 3 and Mr. Ashok Mathur for
B
respondent No.1.
Discussion:
5. The only grievance of the State is that the Agreement
dated 18.07.2007 relied on by the High Court for issuance of c
impugned direction was not in accordance with the Rules of
Executive Business, State of Bihar which are statutory rules
framed under Article 166 (3) of the Constitution of India. On the
other hand, it is the stand of the Federation that the Agreement ·
executed on 18.07.2007 was a valid one and pursuant to the 0
same, the State Government itself issued directions to the
authorities concerned for its implementation.
6. In order to understand the rival claim, it is useful to refer
copy of the proceedings of the understanding held on
17.07.2007 which reads as under:- E
"Proceeding of discussion on 17.7.07 with respect to
implementation of proceeding regarding agreement
between the Bihar State University and College
Employees federation on 2~.8.05 and withdrawal of strike. F
Present:-
1. Hon'ble Prof. Arun Kumar, Chairman, Bihar
Legislative Council.
G
2. Hon'ble Sri Vrishan Patel, Minister, Human
Resource Department.
3. Hon'ble Vasudev Singh, M.L.C.
H
370 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 4. Hon'ble Kedar Pandey, M.L.C.
5. Hon'ble Mahachandra Prasad Singh, M.L.C.
6. Hon'ble Dilip Kumar Choudhary, M.L.C.
B 7. Hon'ble Ram Kishore Singh, M.L.C.
8. Hon'ble Srimati Usha Sahni, M.L.C.
9. Principal Secretary, Human Resource
Development Department
c
1O. Commissioner, Finance Department
11. Addi. Commissioner, Human Resource
Development Department
D 12. Addi. Commissioner, Finance Department
13. Sri Rajendra Mishra, Patron, Mahasangh
(Association)
14. Sri Bimal Prasad Singh, President, Mahasangh
E
15. Sri Ganga Prasad Jha
16. Sri Ramshankar Mehta, Joint Secretary,
Mahasangh
F
17. Sri Dhanajay Prasad Singh, Vice President,
Mahasangh
18. Sri Premchand, Joint Secretary, Mahasangh
G 19. Sri Rohit Kumar, Treasurer, Mahasangh,
20. Sri. M.P. Jaiswal, Executive Member
Regarding the matter of strike by the non-teaching
staffs of the university and colleges of the State, the
H representatives of the Federation met with the
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 371
ORS. [P. SATHASIVAM, J.]
Hon'ble Chairman of Bihar Legislative Council in A
his office on their demands and the following points
were considered for issuance of government order
and it was decided that the strike will be called off
by the Federation: -
B
1. 50% Dearness Allowance may be merged with
Basic Pay.
2. Medical Allowance may be increased from Rs. 50/
- (Fifty) to Rs. 100/- (Hundred).
c
3. Facility of ACP may be given to the employees.
4. Head Assistant and Accountant of the colleges may
be designated as Section Officer at the
departmental level.
D
5. Pay scale of Rs. 5500-9000 may be granted to the
Assistants of colleges and university.
6. Assistant Librarian and PTI who are possessing
qualification fixed by UGC, may be granted UGC E
pay scale.
7. Library Assistant, Sorter, Routine Clerk,
Correspondence clerk may be granted a pay scale
of Rs. 4000-6000 at Departmental level.
F
8. Facilities of accumulation of 240 days Earned
Leave and encashment may be granted to the
employees at par with the employees of state
government which will be admissible similarly to the
class Ill and class IV grade employees. G
9. Ward servant may be designated as Hostel servant.
10. Anomalies regarding the pay scale of University
Engineer, Assistant Engineer and Junlor Engineer
H
372 SUPREME COURT REPORTS [2013] 1 S.C.R.
A and Electrician may be removed.
11. Store Keeper may be treated as an Assistant and
pay scale may be given accordingly.
The following points were considered with respect to the period
B of strike: -
1. No coercive and punishable proceeding will be
initiated against any employee for the reason of.
strike.
c 2. For strike period, due and admissible earned leave
may be sanctioned.
3. Even after above action, if the days of absence
remains, the absence that may be sanctioned
D against earned leave to be earned in future.
4. If earned leave to be earned in future is not sufficient
for period of absence the extra~ordinary leave may
be sanctioned for remaining period.
E After consideration on the above mentioned demands
regarding the period of strike were accepted by the
Government to be acted upon within one and a half month
as per rules.
F Sd/- Sd/- Sd/-
(Ganga Pd. Jha) (Dr.Vimal Pd. Sinha) (Sanjeev Kr. Sinha)
18.07.2007 18.07.2007. 18.07.2007
General Secretary Chairman Addi.Commi-
ssioner cum-
G
Secretary, HRD
Patna"
7. The above details show that apart from the Chairman,
Bihar Legislative Council, Minister concerned, viz., Human
H Resource Department (HRD) as well as Principal Secretary,
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 373
ORS. [P. SATHASIVAM, J.]
HRD and Commissioner, Finance Department as well as A
various other higher level officers of the State Government
participated, deliberated and ultimately accepted the demands
of the Federation. It is also to be noted that at the end of the
discussion and after recording of the terms and conditions,
General Secretary of the Federation, Chairman and Addi. B·
Commissioner-cum-Secretary, HRD, Patna signed the same
on the very next day i.e., 18.07.2007. In such circumstances, it
cannot be contended that decision was not taken by or on
behalf of the Government.
8. In addition to the same, Mr. Venugopal, learned senior
c
counsel for the contesting respondents has also brought to the
notice of this Court the letter dated 21.07.2003 addressed to
the Vice Chancellors of all the Universities of the State of Bihar
which reads as under:-
D
"Letter No.2/D01-04/2003 H.E.
Govt. of Bihar
Higller Education Department
From:
Sh. Aditya Narayan- Singh E
Deputy Secretary to the Govt.
To:
The Vice Chancellors
All the Universities of the F
State of Bihar
Patna, dated: 21st July, 2003
Sub: The Proceedings of the agreement dated 16.07.2003 G
between Bihar State Universities and Colleges Staff
Federation and Govt. of Bihar
Sir,
Copy of the proceedings of the agreement dated H
374 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 16.07.2003 between Bihar State Universities and Colleges
Staff Federation and State Govt. is being sent having
annexed for necessary action.
Faithfully
B S~
21.07.2003
Aditya Narayan Singh
Deputy Secretary to the Govt.
Rajendra/19.07.2003
C Memorandum No.2/D01-04/2003
Dated 21.07.2003"
9. In addition to the same, it is also brought to our notice
that even after the discussion on 17.07.2007, on 19.07.2007
O itself, Human Resources Development Department of the
Government of Bihar sent another communication to the
Registrars of all the Universities of the State to implement the
decision arrived in the negotiation held on 17.07.2007. The said
letter reads as under:-
E
"Letter No.2/D 1-04/2003-1107
Government of Bihar
Human Resources Development Department
From:
Gopal Ji
F
Deputy Director,
Human Resources Development Department
Patna, Dated 19.07.2007
To
G The Registrar
All the Universities of the State
Bihar
Subject: For the implementation of the agreement
reached with the Bihar State University and
H
STATE OF BIHAR & ANR. ·v. SUNNY PRAKASH & 375
OR~ [P. SATHASIVAM, J.]
College Employees Federation on 24.08.2005 and A
the proceedings of the negotiation held on
17.07.2007 for recalling the strike.
Sir,
As directed for the implementation of the agreement . B
reached with the Bihar State University and College
Employees Federation on 24.08.2005 and a copy of the
proceedings of the negotiation held on 17 .07 .2007 for
recalling the strike are being sent for information and
necessary action. C
Yours faithfully,
Sd/-
(Gopal Ji)
Deputy Director (Higher Education)"
D
In order to appreciate the stand of both sides, it is useful
to refer the earliest decision of the Government of Bihar,
Education Department dated 25.02.1987 informing the
General Secretary of the Federation, that facilities which
have been provided for Government staff shall also be E
sanctioned to the non-teaching staff of the Universities and
subordinate affiliated colleges. The said communication
reads as under:-
"No. 123/C
Govt. of Bihar F
Education Department
From:
Sh. Bhaskar Banerjee
Secretary to the Govt.
Education Department, G
Bihar
To:
General Secretary H
376 SUPREME COURT REPORTS [2013) 1 S.C.R.
A Bihar State Universities
and Colleges Non-teaching
Staff Federation,
Patna
. Dated: 25th February, 1987
B
Sir,
This is to inform as per direction that the
compromise which has taken place by the Govt. with Govt.
staff in regard to the recent strike and the facilities which
c have been provided, the same shall also be sanctioned
to the non-teaching staff of universities and subordinate
affiliated colleges. The Govt. has already taken the
decision to declare the same as equivalent to Govt. staff.
D The copy of this letter is being sent to the Vice
Chancellors of all Universities for kind information and
necessary action.
Yours faithfully,
Sd/-
E Bhaskar Banerjee
25.02.1987
_Secretary to the Govt.,
Education Department
Bihar, Patna·
F 10. Mr. Rakesh·Dwivedi, learned senior counsel for the
State contended that in the absence of any decision by the
Cabinet in terms of the Rules of Executive Business, any other
agreement or decision is not binding on them. However, in the
light of the various directions of the very same Government,
G particularly, by the HRD/Education Department, requesting all
the Vice Chancellors and Registrars of all the Universities to
implement "Government's" decision, the said contention is liable
to be rejected.
H
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 377
ORS. [P. SATHASIVAM, J.]
11. In support of his claim, Mr. Dwivedi, learned senior A
counsel for the State relied on a decision of this Court in
Haridwar Singh vs. Bagun Sumbrui and Others, (1973) 3 SCC
889 wherein while relying on Rule 10 of the Rules of Executive
Business and finding that as per Rule 10 (2), prior consultation
with the Finance Department is required for a proposal and 8
Cabinet alone would be competent to take a decision, this
Court allowed the appeal and set aside the contrary direction
issued by the High Court. According to us, the above decision
is not applicable to the case on hand since we have already
noted that the Commissioner, Finance Department as well as C
various other higher level officers of the State Government
participated in the discussion. Further, in the said decision,
when the Finance Department was consulted, the Department
did not agree for the said proposal whereas this was not the
situation in the case on hand.
D
12. The next decision relied on by learned senior counsel
for the State is Punit Rai vs. Dinesh Chaudhary, (2003) 8 SCC
204. He pressed into service the following observations made
by this Court:
E·
"42. The said circular letter has not been issued by the
State in exercise of its power under Article 162 of the
Constitution of India. It is not stated therein that the
decision has been taken by the Cabinet or any authority
authorized in this behalf in terms of Article 166(3) of the F
Constitution of India. It is trite that a circular letter oeing an
administrative instruction is not a law within the meaning
of Article 13 of the Constitution of India. (See Dwarka Nath
Tewari v. State of Bihar, AIR 1959 SC 249.)
G
First of all, the said decision relates to a question, namely,
whether the respondent therein belonged to Sch!=!duled Caste
community or not? On going through the same, we are of the
view that the same is not applicable to the case on hand.
H
378 SUPREME COURT REPORTS [2013] 1 S.C.R.
A 13. Finally, learned senior counsel for the State relied on
a decision of this Court reported in State of U.P. vs. Neeraj
Awasthi and Others, (2006) 1 sec 667. This case relates to
the jurisdiction of the High Court to issue a direction for framing
a scheme for regularization of the employees of the U.P.
B Agricultural Produce Market Board. Learned senior counsel
relied on the statement made in para 41 which reads thus:-
"41. Such a decision on the part of the State Government
must be taken in terms of the constitutional scheme i.e.
upon compliance with the requirement of Article 162 read
c with Article 166 of the Constitution. In the instant case, the
directions were purported to have been issued by an officer
of the State. Such directions were not shown to have been
issued pursuant to any decision taken by a competent
authority in terms of the Rules of Executive Business of the
D State framed under Article 166 of the Constitution."
This decision makes it clear that a decision of the State
Government must be in compliance with the requirement of
Article 162 read with Article 166 of the Constitution and a
E direction issued by an officer of the State without following such
procedure is not binding on the Government. We are in
respectful agreement with the same.
14. In the case on hand, we have already extracted the
F commitment made by the State Government as early as in
1987, subsequent demands made by the Federation on
various occasions and the final decision by the Minister
concerned, various officers including HRD and Finance
Departments, representatives of the Federation and all other
G persons connected with the issue in question. Added to it,
directions were also issued to the Vice Chancellors and
Registrars of all the Universities for implementing the said
"Government's" decision. In such circumstances, as observed
earlier, it cannot be open to the State to contend that it is not a
Government's decision in terms of Article 162 read with Article
H
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 379
ORS. [P. SATHASIVAM, J.]
166 of the Constitution. A
15. Mr. Venugopal, learned senior counsel for the
contesting respondents heavily relied on the principles laid
down in State of Bihar and Others vs. Bihar Rajya
M.S.E.S.K.K. Mahasangh and Others, (2005) 9 SCC 129. The B
said decision also arose from a dispute concerning the
. absorption of about 4000 employees working in teaching and
non-teaching posts in 40 colleges affiliated to various
Universities which were taken over as Constituent Colleges in
accordance with the provisions of the Bihar State Universities c
Act, 1976. It was contended on behalf of the State of Bihar that
power to sanction additional posts and appointments against
the same in the affiliated colleges is within the exclusive
jurisdiction and power of the State under Section 35 of the Act.
It was also contended that certain decisions of the Government
0
that were taken after the change of elected Government had
no prior approval of the Council of Ministers. The decision by
the Cabinet, approval by the Chief Minister on behalf of the
Cabinet is sine qua non for treating any resolution as a valid
decision of the Government. It was also stated that in the
absence of Cabinet approval, the order dated 01.02.1988 E
which was issued by the Deputy Secretary to the Government
of Bihar has no legal efficacy. It was further argued by the State
that any valid order of the Government has to be formally
expressed in the name of the Governor in accordance with
Article 166 of the Constitution. In para 64, this Court has held F
thus:
64. So far as the order dated 18-12-1989 is concerned,
the State being the author of that decision, merely because
it is formally not expressed in the name of the Governor in G
terms of Article 166 of the Constitution, the State itself
cannot be allowed to resile or go back on that decision.
Mere change of the elected Government does not justify
dishonouring the decisions of previous elected
Government. If at all the two decisions contained in the H
380 SUPREME COURT REPORTS [2013) 1 S.C.R.
A orders dated 1-2-1988 and 18-12-1989 were not
acceptable to the newly elected Government, it was open
to it to withdraw or rescind the same formally. In the
absence of such withdrawal or rescission of the two orders
dated 1-2-1988 and 18-12-1989, it is not open to the State
B of Bihar and State of Jharkhand (which has been created
after reorganisation of the State of Bihar) to contend that
those decisions do not bind them.
From the above conclusion, it is clear that merely because
of change of elected Government and the decision of the
c previous government not expressed in the name of
Governor in terms of Article 166 of the Constitution, valid
decision cannot be ignored and it is not open to the State
to contend that those decisions do not bind them.
D 16. It is also useful to refer a Constitution Bench decision
of this Court in R. Chitralekha and Anr. vs. State of Mysore
and Others, AIR 1964 SC 1823. In order to understand the
principles laid down by the Constitution Bench, it is useful to
quote paras 4 and 5 which read thus:
E
"(4). The next contention advanced is that Annexure IV was
invalid as it did not conform to the requirements of Art. 166
of the Constitution. As the argument turns upon the form
of the said annexure it will be convenient to read the
F material part thereof.
"Sir
'
Sub : Award of marks for the "interview" of the candidates
seeking admission to Engineering Colleges and Technical
G Institutions.
With reference to your letter No. AAS.4.ADW/63/2491,
dated the 25th June, 1963, on the subject mentioned
above, I am directed to state that Government have
H decided that 25 per cent of the maximum marks ....... .
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 381
ORS. [P. SATHASIVAM, J.]
Yours faithfully, A
Sd/- S. NARASAPPA,
Under Secretary to Government, Education
Department."
B
Ex facie this letter shows that it was a communication of
the order issued by the Government under the signature
of the Under Secretary to the Government, Education
Department. Under Art. 166 of the Constitution all
executive action of the Government of a State shall be C
expressed to be taken in the name of the Governor, and
that orders made 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
which is so authenticated shall not be called in question D
on the ground that it is not an order made by the Governor.
If the conditions laid down in this Article are
complied with, the order cannot be called in question on
the ground that it is not an order made by the Governor. It E_
is contended that as the order in question was not issued
in the name of the Governor the order was void and no
interviews could be held pursuant to that order. The law on
the subject is well-settled. In Dattatreya Moreshwar
Pangarkar v. The State of Bombay 1952 SCR 612 at F
p.625: (AIR 1952 SC 181 at pp. 185-186). Das J., as he
then was, observed:
"Strict compliance with the requirements of article
166 gives an immunity to the order in that it cannot be
challenged on the ground that it is not an order made by G
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........................................ Article 166 directs all
executive action to be expressed and authenticated in the H
382 SUPREME COURT REPORTS [2013] 1 S.C.R.
A manner therein laid down but an omission to comply with
those provisions does not render the executive action a
nullity. Therefore, 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
B confirmed or not under section 11 (1 )."
The same view was reiterated by this Court in The
State of Bombay v. Purshottam Jog Naik, 1952 SCR 674:
(AIR 1952 SC 317), where it was pointed out that though
the order in question then was defective in form it was open
c to the State Government to prove by other means that
such an order had been validly made. This view has been
reaffirmed by this Court in subsequent decisions : see
Ghaio Mall and Sons v. The State of Delhi ((1959)
S.C.R. 1424), and it is, therefore, settled law that
D provisions of Art. 166 of the Constitution are only directory
and not mandatory in character and, if they are not
complied with, it can be established as a question of fact
that the impugned order was issued in fact by the State
Government or the Governor. The judgment of this Court
E in Bachhittar Singh v. The State of Punjab ((1962) Supp.
3 S.C.R. 713) does not help the appellants, for in that case
the order signed by the Revenue Minister was not
communicated to the party and, therefore, it was held that
there was no effective order.
F
(5) In the light of the aforesaid decisions, let us look at the
facts of this case. Though Annexure IV does not conform
to the provisions of Art. 166 of the Constitution, it ex facie
says that an order to the effect mentioned therein was
G issued by the Government and it is not denied that it was
communicated to the selection committee. In neither of the
affidavits filed by the appellants there was any specific
averment that no such order was issued by the
Government. In the counter-affidavit filed by B R. Varma,
Deputy Secretary to the Government of Mysore, Education
H
STATE OF BIHAR & ANR. v. SUNNY PRAKASH & 383
ORS. [P. SATHASIVAM, J.]
Department, there is a clear averment that the A
Government gave the direction contained in Annexure IV
and a similar letter was issued to the selection committee
for admissions to Medical Colleges and this averment was
not denied by the appellants by filing any affidavit. In the
circumstances when there are no allegation at all in the B
affidavit that the order was not made by the Government,
we have no reason to reject the averment made by the
Deputy Secretary to the Government that the order was
issued by the Government. There are no merits in this
contention." c
From this decision, it is clear that the provisions of Article 166
of the Constitution are only directory and not mandatory in
character and if they are not complied with, it can be
established as a question of fact that the impugned order was D
issued in fact by the State Government. In the case on hand,
we have already demonstrated various communications issued
by the Government for implementation of the earlier decision.
In such circumstance, we have no reason to reject those
communications sent by the higher level officers of the State
Government. E
17. Inasmuch as all the persons who were competent to
represent were the parties to the said Agreement referred to
above and after making such commitment by the State
Government, as rightly observed by the High Court, we are also F
of the· view that the same has to be honored without any
exception. By the impugned order, the High Court has not only
directed the State Government to implement the commitment
given b~ it having been reduced into writing on 18.07.2007,
honoured by the State Government itself in subsequent letters/ G
correspondences but also directed the Federation to call off
the strike immediately in the interest of the student community.
We also make it clear that though the High Court termed the
impugned order as interim in nature, considering the fact that
the writ petition came to be filed by a student in the interest of H
384 SUPREME COURT REPORTS [2013) 1 S.C.R.
A the student community by writing a letter which was treated as
a PIL, no further order need be passed in the said writ petition,
namely, CWJC No. 10870 of 2008 pending on the file of the
High Court at Patna and it stands closed.
B 18. In view of our conclusion, we direct the State of Bihar
to implement the impugned order of the High Court dated
07:08.2008 within a period of three months from the date of
receipt of copy of this judgment. The appeal filed by the State
of Bihar is dismissed with the above direction. There will be
"c no order as to costs.
R.P. Appeal dismissed.
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