Supreme Court of India
STATE OF U.P. AND ORS.versusZ.U. ANSARI
- Citation
- 2016 INSC 934
- Decided
- 30 September 2016
- Disposal
- Matter referred to larger bench
- Bench
- T S THAKUR
Holding
A sanction for initiating disciplinary proceedings against a retired government servant under Regulation 351‑A may be validly given by the Minister-in-charge under the Uttar Pradesh Rules of Business, and such order is deemed to be an order of the Governor.
Summary
Z.U. Ansari, a retired Junior Engineer of the Uttar Pradesh Rural Engineering Department, was subjected to disciplinary proceedings for alleged financial irregularities. The proceedings were initiated after the Minister-in-charge of the department sanctioned the enquiry, invoking Regulation 351‑A of the Civil Services Regulations, 1975, which requires the Governor's sanction. The High Court quashed the proceedings, holding that only the Governor could sanction under the regulation. The Supreme Court, by a majority, held that the power to direct disciplinary enquiries is an executive function that can be allocated to the Minister under the Uttar Pradesh Rules of Business, and an order issued by the Minister is deemed an order of the Governor for the purpose of Regulation 351‑A. Consequently, the appeal was allowed and the High Court's order set aside. A dissenting opinion argued that the Governor’s sanction could not be delegated and the appeal should be dismissed.
Issues considered
- The validity of a sanction for initiating disciplinary proceedings against a retired government servant when the sanction is given by the Minister rather than the Governor under Regulation 351‑A of the Civil Services Regulations, 1975.
- Whether the power to sanction disciplinary enquiries can be delegated to a Minister under the Uttar Pradesh Rules of Business, 1975.
- The interplay between Article 166(3) and Article 309 of the Constitution in the context of executive and legislative functions of the Governor.
Legislation cited
- Civil Services Regulations, 1975s. 351-A
- Constitution of Indias. Art.154, s. Art.163, s. Art.166, s. Art.309
- Uttar Pradesh Rules of Business, 1975s. Rule 3
Subjects
disciplinary proceedingssanctionCivil Services RegulationsGovernorMinisterdelegation of powerBusiness Rulesexecutive functionretired government servant
Judgment
[2016) 6 S.C.R. 956
A STATE OF U.P. AND ORS.
v.
Z.U. ANSARI
(Civil Appeal No. 9886of2016)
B SEPTEMBER 30, 2016
[T.S. THAKUR, CJI AND V. GOPALA GOWDA, J.]
Civil Services Regulations, 1975 - Regn. 351-A - Sanction
under - For initiation of disciplinary proceedings - Granted by the
Minister-in-charge of the concerned Department, and not by the
c Governor himself - Validity of the sanction - Held: Per T.S. Thakur,
CJI: The power to direct disciplinary proceedings against an in-
service or retired employee is an executive function to be discharged
by the State Government - Jn terms of the Business of Uttar Pradesh
(Allocation) Rules and U.P. Rules of Business, I 975, the said
D function stands allocated to the Ministercin-charge of the concerned
department - The sanction so made was in law and in the
constitutional scheme an order passed by the Governor of the State
within the meaning of regn. 35JA and hence valid in law - Per V.
Gopala Gowda, J: 1975 Regulations have been framed by the
E ·Governor in exercise of legislative power u/Art.. 309 of Constitution
· - The same is distinct from his executive power under Art. I 66 of
Constitution whereunder Business Transaction Rules were framed
- The power under Regn. 351-A of 1975 Regulations can be
delegated by the Governor , But such delegation cannot be under
Business Transaction Rules - Jn the absence of any evidence to
F show that the Government had delegated his power to the Minister
concerned, under Regn. 351-A to accord sanction, the sanction
granted by the Minister cannot be said to be a valid sanction and
hence cannot be sustained in law - Per Court: In view of difference
of opinion, matter to be placed before appropriate Bench - Uttar
Pradesh Business Transaction Rules, 1975 - Constitution of India
G
- Arts, 154, 163, 166 and 309.
Referring the matter to larger Bench, the Court
Per T.S. Thakur, CJI.
HELD: 1. The power to direct a disciplinary enquiry against
H
956
STATE OF U.P. AND ORS. v. Z.U. ANSARI 957
an in-service or retired employee like the respondent is an A
executive function to be discharged by the State Government in
exercise of the executive power of the State. [Para 16](973-D)
2. 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 B
constitutional or statutory provisions which there are none in
the present case. Thus, 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
c
disciplinary enquiry against a Government servant by himself
instead of being left to the Minister under the rules that the
Governor can frame. [Para 9](967-C-E]
3. The Governor has, framed Business of Uttar Pradesh
(Allocation) Rules, 1975. Uttar Pradesh Rules of Business, 1975, D
also have been 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 department under U.P. (Allocation) Rules, 1975
except in cases where the rules provide otherwise. Schedules 1 E
and 2 to the Rules, set out the subjects on which the matter must
under the Business 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 F
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 niatter
left to be dealt with by the Minister in charge of the Department
concerned. [Paras 9, 10 and 12](967-E-F; 968-D-E; 969-C-D] G
4. Neither the Constitution nor the rules framed by the
Governor under Article 166(3) of the Constitution 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 H
958 SUPREME COURT REPORTS (2016] 6 S.C.R.
A 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. (Para 12)(969-E-F]
B 5. In the present case, the Minister not only had the power
to sanction the initiation of the disciplinary proceedings, but, he
had in fact exercised that power. 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
c postulated under Article 166(2) of the Constitution. 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
Regulations 351-A of the Regulations and was, therefore, valid
in the eye of law. [Para 16][973-F; 974-A-B]
D PU My/lai Hlychho and Ors. v. State of Mizoram and
Ors. (2005) 2 SCC 92 : 2005 (1) SCR279 - followed.
Shamsher Singh v. State of Punjab and Am: (1974) 2
SCC 831 : 1975 (1) SCR 814; State of MP. v. Dr.
Yashwant Trimbak (1996) 2 SCC 305 : 1995 (6) Suppl.
E SCR 128 - relied on.
State of Bihar v. Rani Sonabati Kumar 1961 (1) SCR
728; Municipal Corpn. of Delhi v. Bir/a Cotton Spinning
and Weaving Mills 1968 (3) SCR 251 - referred to.
F Per V. Gopala Gowda, J. _(Dissenting)
HELD: 1. Article 309 of the Constitution provides for the
regulation of recruitment and conditions of service of persons
serving the Union or a State. Regulation 351-A of the Civil
Services Regulations, 1975 has been framed in exercise of power
G 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. [Paras 10 and 11][976-G; 977-D-E)
B.S Yadav 'v. State of Haryana (1980) Supp. SCC 524 :
H 1981 SCR 102 - relied on.
STATE OF U.P. AND ORS. v. Z.U. ANSARI 959
2. Article 154 of the Constitution provides for the executive A
power of the State to be vested in the Governor. It is also a well
settled principle of law that the Governor exercises executive
power under. Article 166 of the Constitution. Article 166 of the
Constitution thus, confers the power on the Governor to make
rules for the convenient transaction of business of the Government
B
of the State and for the allocation among its Ministers of the said
business. [Paras 7, 8 and 9][975-B-C, G-H; 976-A]
State of Gujarat v. R.A. Mehta (2013) 3 SCC 1 : 2005
(1) SCR 279 - relied on.
3. The powers under Articles 166(3) and 309 of the c
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. D
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. [Para
13] [979-C-D]
Sampat Prakash v. State of Jammu and Kashmir AIR E
1970 SC 1118 : 1970 SCR 365 - followed.
4. 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 F
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. [Para 14][980-F-G]
State of U.P. v. Harihar Bho/e Nath (2006) 13 SCC G
460 : 2006 (8) Suppl. SCR 241; State of U.P. •: Krishna
Pandey (1996) 9 SCC 395 : 1996 (3) SCR 183 -
referred to.
5. Thus, while the fact that the powers may be delegated is
H
960 SUPREME COURT REPORTS [2016) 6 S.C.R.
A not in dispute, what is essential to establish is that the delegation
has infact taken place. Further, it is also essential 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. The question in the present case is the statutory
B
exercise of power under Regulation 351-A of the Civil Services
Regulations, framed under Article 309 of the Constitution. [Paras
16 and 17][9S3-G-H; 9S4-A; 9S5-C-D]
State of MP. v. Yashwant Trimbak (1996) 2 SCC 305
: 1995 (6) Suppl. SCR 12S;Shamsher Singh v. State of
c Punjab (1974) 2 SCC S31 : 1975 (1) SCR S14; State
of Bihar v. Rani Sonabati Kumar AIR 1961 SC 221 :
1961 SCR 72S; Godavari Shamrao Parulekar v. State
of Maharashtra AIR 1964 SC 112S : 1964 SCR 446
- distinguished.
D 6. 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 cannot be sustained in
E law. (Para 1S][9S5-D-E]
Case Law Reference
In the Judgment of T.S. Thakur, CJI.:
1975 (1) SCR S14 relied on Paras
F 1995 (6) Suppl. SCR 12S relied on Para 13
1961 (1) SCR 72S referred to Para 13
196S (3) SCR 251 referred to Para 13
2005 (1) SCR279 followed Para 15
G
In the Judgment of V. Gopala Gowda, J.
2005 (1) SCR 279 relied on Paras
19Sl SCR 102 relied on Para 11
H
STATE OF U.P. AND ORS. v. Z.U. ANSARI 961
1970 SCR 365 followed Para 12 A
2006 (8) Suppl. SCR 241 referred to Para 14
1996 (3) SCR 183 referred to Para 14
1995 (6) Suppl. SCR 128 distinguished Para 14
1975 (1) SCR 814 distinguished Para 15 B
1961 SCR 728 distin~uished Para 16
1964 SCR 446 distin~uished Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9886 C
of2016.
From the Judgment and Order dated 03.02.2014 of the High Court
of Judicature at Allahabad in Civil Misc. Writ Petition No. 19485 of
2012:
Gaurav Bhatia, AAG., Pawanshree Agrawal, Abhishek Chaudhary, D
Ad vs., with him for the Appellants.
Subramonium Prasad, Sr. Adv., Abhishekh Swaroop, Utkarsh
Srivastava, Ms. Ruchi Kohli, Advs., with him for the Respondents.
The Judgment of the Court was delivered by E
T.S. THAKUR, CJI. I. 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 F
26'h June, 2011 issued to the respondent quashed with the direction that
the 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 G
ofUttar Pradesh as a Junior Engineer on 26•h February, 1973. He was
promoted to the post of Assistant Engineer on 25'h April, 1981 and
transferred to Pratapgarh Division, and thereafter to several other places
till he superannuated from service on 30'h September, 2008.
H
962 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 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 71h
January, 2011. A charge-sheet dated 27'h June, 2011 was accordingly
B
issued to the respondent and Chief Engineer (WB) was nominated as
Enquiry Officer to conduct an 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
c sanction from the Governor under35 I-A of the Civil Services Regulations,
1975 fran1ed under Article 309 of the Constitution oflndia, 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
D
upon the respondent. The High Court has taken the view that Article
166 of the Constitution oflndia 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 oflndia operate in distinctly different fields. The High Court
E declared that if Service Regulations framed under Article 309 of the
Constitution oflndia require sanction of the Governor before 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
F
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
G 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
H
STATE OF U.P. AND ORS. v. Z.U. ANSARI 963
[T. S. THAKUR, CJI]
of Article 309 of the Constitution of India operate in a 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 be.en provided that sanction
of the Governor would be necessary before initiation
of the departmental proceedings with the 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 c
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
a/located to a department under the Rules of Business,
1975 is to be disposed of by or under the General or
D
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 defl!Onstrated before us to lead us to E
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. F
We have, therefore, no hesitation to hold that the
sanction of the minister referable to the Bus-iness
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, G
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
H
964 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 351 A of the Civil Service Regulations, 1975 which reads as under:
"351-A. The Governor reserves to himself the right of
withholding or withdrawing a pension or any part ofit.
whether permanently or for a specified period and the
right of ordering the recovery (rom the pension of the
B 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
c after retirement:
Provided that-
(a) such departmental proceedings, if not instituted
while the officer was on duty either before retirement
D 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
E of such proceedings, and
(iii)shal/ be conducted by such authority an'd in
such place or places as the Governor may
direct and in accordance with the procedure
applicable to proceedings on which an order
F of dismissal from service may be made... ...
"
6. I may at this stage also refer to Article 163 of the Constitution
oflndia, which, i11ter 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
G or under the 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
H
STATE OF U.P. AND ORS. v. Z.U. ANSARI 965
[T. S. THAKUR, CJI]
the exercise of his .functions, except in so far as he is by A
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, B
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 c
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 D
be taken in the name of Governor. It reads:
"166. Conduct of business oftile 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
~~& E
(2) Orders and otb_er 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 on instruction
which is so authenticated shall not be called in question F
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 a/location among Cl
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"
8. One of the earliest decisions of this Court that interpreted Article
H
966 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 163(1) was delivered in Sltamslter Singlt v. State of Punjab and Anr.
(1974) 2 SCC 831. This Court in that case recognised two broad
principles while interpreting Article 163 (supra). Firstly, this Court declared
that except functions required by the Constitution to be exercised by the
Governor in his discretion the Governor acts on the aid and advice of
Council of Ministers. Secondly, this Court declared that the functions
B
vested in the Governor whether executive, legislative or quasi-judicial in
nature and whether vested by the Constitution or by statute can be
delegated under the Rules of Business unless a contrary intention is
clearly discernible from any constitutional or statutory provision. This
Court observed:
c "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 (unctions
conferred on him by or under the Constitution on the
aid and advice of his Council of Ministers. save in
D 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
E personal satisfaction Q( the President or Governor but
the satisfaction of the President or Governor in the
constitutional sense in the Cabinet system of
Governnient. that is. satisfaction of his Council of
Ministers on whose aid and advice the President or the
F 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
G 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
H or the Governor acts on the aid and advice of the
STATE OF U.P. AND ORS. v. Z.U. ANSARI 967
[T. S. THAKUR, CJI]
Council of Ministers with the Prime Minister at the head A
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
B
personally. ... ... ... "
(emphasis supplied)
9. The question then is whether the power to initiate disciplinary
proceedings against a Government servant whether in service or retired c
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) D
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 E
Governor can frame. The Governor has, in the case at hand, framed
Business ofUttar 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
F
Pradesh Secretariat as may be specified by 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
G
commencement of these rules; shall continue in force.
(2) In addition to the subjects specifically a/located or
deemed to be allocated to them under sub-rule (1), all
Sections or departments ofthe Uttar Pradesh Secretariat
H
968 SUPREME COURT REPORTS [2016) 6 S.C.R.
A shall have powers to issue orders under any of the
following lmvs, 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
B ' inforce;
(b) Any law for the time being in force for the
maintenance of essential services or essential
supplies.
(c) The Essei1tial Commodities Act for the time being in
c force;
(d) Any lmv relating to land acquisition for the time being
in force;
(e) Sanction for prosecution for any offence relating to
D the subject allocated to the Section or department. "
I 0. 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
E 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
an_d the Governor, all business allotted, to a department
F
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".
1I. Rules 7 and 8 of the Business Rules which provide for
submission of cases to the Cabinet or the Chief Minister or the Governor
G
or the Chief Minister and the Governor are relevant for the purpose and
may be extracted:
"7. Submission of cases to tlie Cabi11et -All cases
specified in the First Schedule to these rules shall be
brought before the Cabinet:
H
\,
STATE OF U.P. AND ORS. v. Z.U. ANSARI 969
[T. S. THAKUR, CJI]
Provided that no case which concerns more than one A
department shall, save in cases of urgency be brought
before the Cabinet umil all the departments concerned
have been consulted.
8. Submission of cases of tile Cllief Minister and tile
Governor - All cases of the nature specified in the B
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 I and 2 referred to in the above rules set out the C
subjects on which the matter must under the Business 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 D
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 E
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, 197 5. F
13. In State of M.P. v. Dr. Yllsl1want Trimbllk (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 G
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 ofa valid sanction under the Rules aforementioned. Relying upon H
970 SUPREME COURT REPORTS [2016] 6 S.C.R.
A the decisions of this Court in State of Biliar v. Rani Sonahati Kumar
1961 (1) SCR 728, and Municipal Corpn. of Delhi v. Birl<t 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
B 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 himself or the
c Council of Ministers in whose favour the Governor
under the Rules of Business Jias 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
D 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
E to him in accordance with the Constitution. The
expression "executive power" is wide enough td connote
the residue of the governmental function that remains
after the legislative and judicial functions are taken
away.
F xxxx xxxx x.xxx
17. The order of sanction (or prosecution of a retired
government servant is undoubtedly an executive action
ofthe Government. A Governor in exercise o(his powers
under Article 166(3) of the Constitution may allocate
G all his (unctions 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 o(the Government
of the State" in Article 166(3) of the Constitution.
H comprises (unctions which the Governor is to exercise
STATE OF U.P. AND ORS. v. Z.U. ANSARI 971
[T. S. THAKUR, CJI]
with the aid and advice of the Council of Ministers A
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 Goclavari Shamrao Parulekar v. State ofMaharashtra
(AIR 1964 SC 1128) that even the functions and duties
B
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. Jn State
of Bihar v. Rani Sonabati Kumari (AIR 1961 SC 221),
where power of issuing notificatio!1 under Section 3(1)
of the Bihar Land Reforms Act, 1950 have been c
conferred on the Governor of Bihar, this Court held:
"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 D
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 E
function mqy 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 F
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. Bir/a Cotton Spinning & G
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 C(Jme to the conclusion that the immunity in Article
H
972 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 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. Bir/a
Cotton, Spg. and Wvg. Mills (AIR 1968 SC 1232) this
Court came lo the conclusion that in fact sanction had
been given by the Central Government as required under
B
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 Myl/ai Hlyc/1/10 lmd Ors. v. State ofMizoram and
Ors. (2005) 2 SCC 92) in relation to the role of the Governor and
c 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
D 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
E 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
F of any power or function, the satisfaction required by
the Constitution is not personal satisfaction of the
Governor bu/ the satisfaction in the constitutional sense
under the Cabinet system of Government. The Governor
exercises functions conferred on him by or under the
C<;mstitution with the aid and advice of the Council of
G Ministers and he is competent to make rules for
convenient transaction of the business of the
Government of the State, by allocation of business
amohg the Ministers, under Article 166(3) of the
Constitution. It is a fundamental principle of English
H Constitutional Law that Ministers must accept
STATE OF U.P. AND ORS. v. Z.U. ANSARI 973
[T. S. THAKUR, CJI]
responsibility for every executive act. It may also be A
noticed that in regard to the executive action taken in
the name of the Governor. he cannot be sued for any
executive action of the State and Article 300 specifically
states that Government of a State may sue or be sued in
the name of the State subject to the restriction placed
B
therein. This Court has consistently taken the view that
the powers of the President and the powers of the
Governor are similar to the powers of the Crown under
the British Parliamentary system. We followed this
principle in Ram Jawaya Kapur vs. State of Punjab AIR
1955 SC 549, A. Sanjeevi Naidu vs. State of Madras c
(1970) I SCC 443, and U.N.R. Rao vs. Indira Gandhi
(197IJ 2 sec 63 ...
16. In the light of the above pronouncements I have no hesitation
in ho!ding that:
(i) The power to direct a disciplinary enquiry against an in-service D
or retired employee like the respondent is an executive function
to be discharged by the State Government in exercise of the
executive power of the State;
(ii) In terms of the Business ofUttar Pradesh (Allocation) Rules
and the. UP Rules of Business 1975, the said function stands E
allocated to the Ministers in- charge of the department
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 F
that power when he said:
"Hon 'b/e Minister for Rural Engineering
Services. Lucknow.
Let the disciplinary inquiry conducted and
G
inquiry report be submitted.
Dr. Jaiveer Singh
Department of Rural Engineering Services,
Overseas Agro Trade and Export"
H
974 SUPREME COURT REPORTS [2016] 6 S.C.R.
A (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.
B (v) The order so made was in Jaw and in the constitutional scheme
an order passed by the Governor of the State within the meaning
of 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
c 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).
V. GOPALA GOWDA, J. I. I have gone through the judgment
written by the learned Chief Justice oflndia in the present appeal. I am
D however, in respectful disagreement with the opinion of the learned Chief
Justice and record my reasons for the same.
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 brevicy.
E 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
F Article 309 of the Constitution oflndia. According to Regulation 3 51-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
G under Article 166 of the Constitution of India by the Governor of the
State ofUttar Pradesh. Rule 3 of the said Rules reads as under:
"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
H
STATE OF U.P. AND ORS. v. Z.U. ANSARI 975
[V. GOPALA GOWDA, J.]
and the Governor, all business allotted to a department under A
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 B
provisions at play in the instant case.
7. Article 154 of the Constitution oflndia provides for the executive
power of the State to be vested in the Governor and reads as under:
"154. Executive power of State.-( I) The executive
power of the State shall be vested in the Governor and c
shall be exercised by him either directly or through officers
subordinate to him in accordance with this Constitution." •
Article 166 of the Constitution reads as under:
"166. Conduct of business of the Government of a D
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
E
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.
F
(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." G
(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
H
976 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 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
B
the Rules of Business under Article 166 of the Con&titution 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 oflaw that the Governor exercises
executive power under Article 166 of the Constitution. In the case of
c State of Gujarat v. R.A. Meltlfl 1, this Court held as under:
" ...... 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
D 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
E 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
F 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)
G I 0. Article 309 of the Constitution which provides for the regulation
ofrecruitment and conditions of service of persons serving the Un ion or
a state is quoted hereunder :-
"309. Recruitment and conditions of service of
persons serving the Union or a State.-Subject to the
H '(2013) 3 sec 1
STATE OF U.P. AND ORS. v. Z.U. ANSARI 977
[V. GOPALA GOWDA, J.]
provisions of this Constitution, Acts of the appropriate A
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 B
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
c
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)
D
11. In the instant case, there is no dispute regarding the fact that
Regulation 351-A ofthe Civil Services Regulations, 1975 has been framed
in exercise of power under Article 309 of the Constitution oflndia. It is
a settled position oflaw that while exercising power under Article 309 of
the Constitution; the Governor acts in a legislative capacity and not
executive capacity. In B.S Yatlav v. State of Haryana 2 , a Constitution E
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 F
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 G
the characteristics of the legislative. not executive,
power. It is legislative power.
45. That the Governor possesses legislative power under
2 ( I980) Supp. sec 524
H
978 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 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
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
B
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 Jaws. The heading of Chapter
IV of Part VI of the Constitution, in which Article 213
c occurs, is significant: 'Legislative Powerofthe 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 forthe
legislature because the legislature is in recess. Under the
proviso to Article 309, he substitutes for the legislature
D
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
E 166(3) and 309 was discussed by a Constitution Bench of this Court in
the case of Sampat Prakaslt v. State of Jammu am/ Kasltmir1, as
under:
"11. ...... As an example, under Article 77(3), the President,
and, under Article 166(3) the Governor of a State are
F empowered to make rules for the more convenient
transaction of the business of the Government ofrndia 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
G 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
3
AIR 1970 SC 1118
H
STATE OF U.P. AND ORS. v. Z.U. ANSARI 979
[V. GOPALA GOWDA, J.]
to time to suit changing situations must be held to exist and A
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
B
include within it the power to add to, amend, vary orrescind
any of those rules ...... "
(emphasis laid by this Court)
13. It becomes clear from a perusal of the constitutional provisions
and case law referred to supra that the powers under Articles 166(3) c
and 309 of the Constitution operate in completely different fields. It would
thus, be absurd ifthe 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. Jn 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 D
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.J>. ,, Harilutr B/10/e E
Natll 4, where the order of sanction against the respondent therein who
was a clerk in a Government department had been ordereg 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 F
Government servant can be passed in the event he is held
to 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 G
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
'(2006) 13 sec 460
H
980 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 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)
B Further, in State of U.P. v. Krishna Pandey-', 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
c 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 misconduct or has caused pecuniary loss to
D 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
E 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
F
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. Yasltwmzt
G Trimbak 6 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
'(1996)9 sec 395
H "(1996) 2 sec 305
STATE OF U.P. AND ORS. v. Z.U. ANSARI 981
[V. GOPALA GOWDA, J.] .
the Constitution. It was held in that case was that once the Governor A
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 B
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."
c .
(emphasis laid by this Court)
.The said case cannot oe 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. D
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.
15. Further reliance has been placed on a seven-judge Bench of
this Court in the case of S/1ams/1er Singll v. State ofPunjab', wherein E
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
Slramsller Singll (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 F
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 oflegislative G
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
1
(1974)2 sec s31 H
982 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 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( I) 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
B
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 acti6n of the Government of the State under
Clause (I) of Article 166. The expression "Business of the
Government of India" in Clause (3) of Article 77, and the
c expression "Business of the Government of the State" in
Clause (3) of Article 166 includes all executive business.
30. Jn 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
D 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
E 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
F 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 th\!se. It is 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
G 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
H
STATE OF U.P. AND ORS. v. Z.U. ANSARI 983
[V. GOPALA GOWDA, J.]
the ministers of the said business. The rules of business A
and the allocation among the Ministers of the said business
all indicate that the decision of any Minister or officer under
the rules of busine,ss 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
B
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 c
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 D
was 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."
E
(emphasis laid by this Court)
16. Similarly, in the case of State ojlJiliar v. Rani Sonabati
Kumar, the issue was:
"whether it was an order made by the Governor or by
someone duly authorised by him in that behalf within Art. F
154( I). 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 G
dispute, what is essential to establish is that the delegation has infact
taken place. Further, it is also essential to establish that what has been
delegated is the relevant power under the relevant rule for the purpose.
8
AIR 1961 SC 221
H
984 SUPREME COURT REPORTS [2016] 6 S.C.R.
A 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 Sliamrao Paru/ekar v. State of
Maharashtra 9, a Constitution Bench of this Court was contemplating
the power of delegation under the Defence oflndia Rules, 1962. While
B 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
c 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
D 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 a State Government with respect to matters in List I of
E 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 W,!!re passed; it will be enough ifthe allocation of the
subject to which the Defence oflndia Ordinance, Act and
F 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
G 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
H . 9 AIR 1964 SC 1128
STATE OF U.P. AND ORS. v. Z.U. ANSARI 985
[V. GOPALA GOWDA, J.].
List in the Seventh Schedule and would be available to be A
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
B
Ordinance, Act and Rules must therefore fail."
(emphasis laid by this Court)
From a perusal of the above extract, it bec.omes 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 c
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-Aofthe Civil Services Regulations, framed under Article 309 of the
Constitution oflndia.
D
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. E
ORDER
1. Hon 'hie the Chief Justice pronounced the judgment on behalf
of himself, allowing the appeal in terms of the signed reportable judgment.
2. Hon 'ble Mr. Justice V. Gopala Gowda pronounced separate F
judgment, disagreeing with the views expressed by Hon'ble the Chief
Justice and dismissed the appeal.
3. 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. G
Kiilpana K. T~ipat)ly Matter referred to larger .bench.
H
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