Paragraph numbers below are the court’s original numbering, recovered from the source text.
46. Article 77 relates to conduct of business of the, Government of India and is similar to Article 166 of the Constitution which relates to conduct of business of the Government of a State. It was contended that there was non- compliance with Clause (1) of Article 77 inasmuch as the c executive action of granting sanction was not expressed to have been taken in the name of the President. The sanction was, therefore, void.
47. The Court noted that Article 77 was corresponding to Article 166 which was subject to judicial scrutiny by the Court in D various cases. Then referring to those cases and rejecting the contention, the Court said; "The foregoing decisions authoritatively settled the true interpretation of the provisions of Art. 166 of the Constitution. Shortly stated, the legal position is this : E Art. 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Art. 166(1 ), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in Cl.(2) of the said Article, there is an irrebuttable presumption that the order or instrument is made or executed by the Governor. Any non-compliance with the provisions of the said rule does not invalidate the order, but it precludes the drawing G of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority. Art. 77 which relates to conduct of business of the Government of India is couched in terms similar H to those in Art. 166 and the same principles must govern the interpretation of that provision". (emphasis supplied)
48. In R. Chitralekha & Anr v. State of Mysore & Ors., B (1964) 6 SCR 368, a Constitution Bench of this Court again had an occasion to consider a letter signed by the Under Secretary to the Government, Education Department of the State of Mysore to a Selection Board communicating the decision of the Government to prescribe interviews for admission into c colleges. Validity of the said letter was challenged on the ground that it did not conform to the requirements of Article 166 of the Constitution as it was not expressed in the name of the Governor.
49. The letter sent by the Education Department to the Selection Committee reads thus; "Sir, Sub : Award of marks for the "interview" of the candidates seeking admission to Engineering Colleges and Technical 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 decided that 25 per cent of the maximum marks ……. . Yours faithfully, Sd/- S. NARASAPPA, Under Secretary to Government, Education Department." (emphasis supplied)
50. Referring to earlier cases and holding the letter valid and the decision of the State Government, the majority observed that though the letter did not conforni to the provisions of Article 166 of the Constitution, it ex facie stated that an order to the H effect mentioned therein was issued by the Government and there was substantial compliance with the provisions of Article 166 of the Constitution.
51. In State of Uttar Pradesh v. Om Prakash Gupta, (1969) · 3 SCC 775, this Court observed that it had been repeatedly held that provisions of Article 166 (1) and (2) were 'directory' and 'substantial' compliance with those provisions was sufficient. In that case, the order impugned was made in the name of the State Government but was signed by the Chief Secretary. The order was held valid.
52. In Gulabrao Keshavrao Patil & Ors. v. State of Gujarat c & Ors., (1996) 2 SCC 26, the question of interpretation of Article 166 of the Constitution came up for consideration in a matter under the Land Acquisition Act, 1894. The Court considered previous cases and said: " …… Article 166(1) and (2) expressly envisage D authentication of all the executive actions and shall be t expressed to be taken in the name of the Governor and shall be authenticated in such manner specified in the rules made by the Governor. Under Article 166(3), the Governor is authorised to make the 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 insofar as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. In other words, except in cases F when the Government in his individual discretion exercises his constitutional functions, the other business of. the Government is required to be conveniently transacted as per the Business Rules made by Article 166(3) of the Constitution. If the action of the Government and the order G is duly authenticated as per Article 166(2) and the Business Rule 12, it is conclusive and irrebuttable presumption arises that decision was duly taken according to Rules. The letter of the Section Officer is not in conformity with Rule 12 and Article 166(1) and (2), though under Rule 13 c he is one ofthe authorised officers to communicate the decision of the Government. In Major E. G Barsay v. State o( Bombay this Court held that if an order is issued in the name of the President and is duly authenticated in the manner prescribed in Article 77(2), there is an irrebuttable presumption that the order is made by the President. Whereby the order does not comply with the provisions of Article 77(2), it is open to the party to question the validity of the order on the ground that it was not an order made by the President and to prove that it was not made by the Central Government. Where the evidence establishes that the Dy. Secretary on behalf of the Central Government made the order a delegate, the order cannot be questioned. Therefore, it is necessary to show whether decision of the Government is according to Business Rules".
53. In J.P Bansal v. State of Rajasthan & Anr., (2003) 5 SCC 134, this Court held that no particular formula of words were required by Clause (1) of Article 166 of the Constitution. It is enough if the requirement is substantially complied with.
54. Referring to several earlier decisions, this Court stated; "Clause (1) requires that all executive action of the State Government shall have to be taken in the name of the Governor. Further, there is no particular formula of words required for compliance with Article 166(1). What the Court has to see is whether the substance of its requirement has been complied with. A Constitution Bench in R. Chitralekha v. State of Mysore held that the provisions of the article were only directory and not mandatory in character and if they were not complied with, it could still be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. Clause (1) does not prescribe how an executive action of the Government is to be performed; it only prescribes the mode under which such act is to be expressed. While clause (1) (sic) in relation to the mode of expression, clause (2) lays down the ways j in which the order is to be authenticated. Whether there is any government order in terms of Article 166, has to be adjudicated from the factual background of each case. Strong reliance was placed by learned counsel for the appellant on L. G. Chaudhari to contend that for all s practicable purposes the decision of the Cabinet has to be construed as a government order, because three of the decisions taken by the Cabinet have been implemented. As noted above, learned counsel for the State took the stand that neither in the writ petition nor c before the High Court, the Cabinet decision itself was produced. In fact, the Cabinet memorandum and the order of the Cabinet show that no decision was taken to pay any compensation. In this connection reference is made to the Cabinet memorandum dated 18-3-1993 and Decision 57 of 1999. It was further submitted that even if it is conceded for the sake of argument that such decision was taken, the same cannot be enforced by a writ petition. We need not delve into the disputed question as to whether there was any Cabinet decision, as it has not E been established that there was any government order in terms of Article 166 of the Constitution. The Constitution requires that action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the Council of Ministers are advisers and as the Head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor, views of the Council of Ministers do not get G crystallised into action of the State. (See: State of Punjab v. Sodhi Sukhdev Singh and Bachhittar Singh v. State of Punjab.) That being so, the first plea of the appellant is rejected". (emphasis supplied)
55. We must, however, closely refer to two decisions of this Court on which strong reliance was placed by the learned counsel for the appellant.
56. In Bachhittar Singh v. State of Punjab, (1962) 3 SCR 713, the Constitution Bench of this Court held that before Article B 166 of the Constitution is invoked, essential ingredients laid down therein must be complied with.
57. In Bachhittar Singh, the appellant, who was seNing as Assistant Consolidation Officer in the State of Pepsu was c dismissed from seNice after a departmental inquiry wherein it was proved that he was not 'above board'. Against the said order, he preferred an appeal to the State Government. He, however, submitted an advance copy to the Revenue Minister of Pepsu. The Minister called for the record of the case immediately and wrote on the file that instead of dismissal, he should be reverted to his original post of Qanungo. On the next day, the State of Pepsu merged in the State of Punjab. It was the case of the appellant that the remarks amounted to an order which was orally communicated to him by the Revenue Minister.
58. After the merger, the file was put up before the Revenue Minister of Punjab who remarked that the charges were serious and put up a note: "C.M. may kindly advise". The Chief Minister opined that the order of dismissal should be maintained. The said order·was then communicated to the appellant who F challenged it by filing a petition in the High Court which was dismissed. The appellant approached this Court.
59. It was', inter alia, contended by the appellant that the order passed by"the Revenue Minister of Pepsu reducing punishment from· dismissal to reversion could not have been G reviewed by the successor Government. The record revealed that there was noting by the Revenue Minister of Pepsu. Whether the noting could be said to be 'remarks' or 'order' but it was not in dispute that it was ·never formally communicated to the appellant apart from .the fact that it•was not expressed in the H name of Governor. The case of the appellant himself was that the 'order' was 'orally' communicated to him by the Revenue Minister.
60. The question before the Court was whether the 'noting' made by the Revenue Minister could be said to be an 'order', and whether the provisions of Article 166 of the Constitution could be said to have been complied with.
61. Dismissing the appeal and drawing distinction between the noting, remarks or opinion expressed by a Minster on file and an order made by the Government, the Constitution Bench stated; c "What we have now to consider is the effect of the note recorded by the Revenue Minister of PEPSU upon the file. We will assume for the purpose of this case that it is an order. Even so the question is whether it can be regarded as the order of the State Government which alone, D as admitted by the appellant, was competent to hear and decide an appeal from the order of the Revenue Secretary. Art. 166(1) of the Constitution requires that all executive action of the Government of a State shall be expressed in the name of the Governor. Clause (2) of Art. 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor. Clause (3) of that Article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of F the said business. What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the Governor. But with that point we shall deal later. What we must first ascertain is whether the order of the Revenue Minister is an order of the State Government G i.e., of the Governor. In this connection we may refer tor. 25 of the Rules of Business of the Government of PEP SU which reads thus : "Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the H authority of the Minister incharge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department.
Copies of such standing orders shall be sent to the Rajpramukh and the Chief Minister." According to learned counsel for the appellant his appeal pertains to the department which was in charge of the Revenue Minister and, therefore, he could deal with it. His decision and order would according to him, be the decision and order of the State Government. On behalf of the State c reliance was, however, placed on r. 34 which required certain classes of cases to be submitted to the Rajpramukh and the Chief Minister before the issue of orders. But it was conceded during the course of the argument that a case of the kind before us does not fall within that rule. No other provision bearing on the point having been brought to our notice we would, therefore, hold that the Revenue Minister could make an order on behalf of the State Government".
62. The Court proceeded to consider; "The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause ( 1) of Art. 166 and then it has ~o be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As along as the matter rested with him the Revenue Minister could well scqre out his remarks or minutes on the file ·and write fresh ones". (emphasis supplied)
63. The Court concluded; "The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEP SU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that C the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action D of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a E different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the "order" of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person· concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493. Mr Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had G decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the responden~ that would not prevent the Council from reconsidering the matter and coming to a contrary conclusioh later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent. Thus it is of the essence that the order has to be .J communicated to the person who would be affected by that orper before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character". (emphasis supplied) [See also State of Bihar & Ors. V Kripalu Shankar & Ors., (1987) 3 sec 34]
64. In our considered opinion, Bachhittar Singh has no E application to the facts of the present case. As is clear, in Bachhittar Singh, there was merely a 'noting' made by the Minister on the file. Thjs Court held that m~rely writing something on file does not amount to an 'order. No formal order reducing the punishment was ever made. Until such an order is drawn up by the State Government, it could not take the character of Order since the Minister could change his mind and delete the remarks. Moreover, the decision must also be communicated to the person concerned which was absent in the case. To us, therefore, ratio laid down in Bachhittar Singh does not help the appellant. 65, It is also interesting to note at this stage that in subsequent cases, Bachhittar Singh was relied upon for the proposition that in that case, the Constitution Bench of this Court held the provisions of Article 166 of the Constitution mandatory.
H This Court, however, did not uphold the argument (:!nd distinguished it on facts. For instance, in Chitralekha, the A Constitution Bench held Article 166 'directory'. As to Bachhittar Singh, the majority observed that in that case, the order signed by the Revenue Minister was never communicated to the party and, therefore, it was held that there was no effective order. (See also State of Bihar v. Kripalu Shankar, Gulabrao Keshavrao Patil v. State of Gujarat; J.P Bansal v. State of Rajasthanf 66. Another decision heavily relied upon by the appellant is a recent case in C.8.1. v. Ravi Shankar Srivastava, (2006) 7 SCC 188. In that case, CBI instituted criminal proceedings against the accused. The accused challenged the First C Information Report (FIR) in the High Court by invoking Section 482 of the Code of Criminal Procedure, 1973 inter alia contending that the consent given by the State Government under Section 6 of the Delhi Act for investigation of offences by Delhi Special Police Establishment and for operation of the Delhi Act D to the State was withdrawn by the State and CBI had no power to initiate criminal proceedings. The High Court upheld the contention.CBI approached this Court.
67. Allowing the appeal and setting aside the order of the High Court, this Court held that there was no notification revoking the earlier one granting the consent. The letter on which great emphasis had been laid by the accused did not indicate as to under what authority such letter had been written. It was also not established that the person was authorized to take such decision. It did not 1meet with the requirements of Article 166 of- F the Constitution and could not, even conceptually be said to be a notification.
68. To us, Ravi Shankar has no application to the case on hand. In a particular 'fact situation', this Court held that there G was no withdrawal of consent by the State Government. For coming to such conclusion, the Court referred to several factors, such as, it was merely a letter; it did not indicate the authority; there was nothing to show' that the person was authorized to take such decision, and as such, it did not meet with the [2008) 4 S.C.R. requirement of Article 166 of the constitution.
69. In the present case, the decision produced by the respondent along with the counter-affidavit filed by the Superintendent of Police, CBI, Bhopal clearly sets out all the particulars required by Section 6. of the Delhi Act. It refers to the B file/reference number, name of the department, the authority from whom it was issued and communicated to the concerned department of the Central Government. It, therefore, cannot be said that the State Government had not granted consent under c Section 6 of the Delhi Act.
70. In Ravi Shankar, consent was granted by a notification. This Court, therefore, held that it could not have been revoked by a letter, authenticity of which was not established and was in cloud. In our judgment, it would be an impermissible leap of D logic to deduce to formulate a rule of law that consent can never be accorded except by issuing a ~otification ..
71. A closer scrutiny of the relevant provl~ions of the Delhi Act also add credence to the view which we are. inclined to take. Section 3 refers to 'notification' and requires the Central E Government to issue notification specifying offences or class of offences to be investigated by Special Police Establishment. Section 5 uses the term 'order' and enables the Central Government to extend powers and jurisdiction of Special Police Establishment to other areas not covered by the Act. Section 6 which speaks of consent of State Government for the exercise of powers and jurisdiction of the Special Establishment neither refers to' notification' nor 'order'. It merely requires consent of the State Government for the application of the Delhi Act. Parliament, in our considered opinion, advisedly and deliberately G did not specify the mode, method or manner for granting consent though in two preceding sections such mode was provided. If it intended that such consent should be in a particular form, it would certainly have provided the form as it was aware of different forms of exercise of power. It, therefore, depends on the facts H of each case whether the consent required by Section 6 of the Delhi Act has or has not been given by the State Government A and no rule of universal application can be laid down.
72. On the facts stated hereinabove, there is no doubt that the State of Madhya Pradesh has given consent as envisaged by Section 6 of the Delhi Act and prosecution instituted by CBI against the appellant cannot be said to be without jurisdiction. B We see no infirmity in the order passed by the trial Court and confirmed by the High Court. The appeal, hence, deserves to be dismissed and we accordingly do so.
73. The appeal is dismissed accordingly. c N.J. Appeal dismissed.