JUDGMENT R.K. Agrawal, J.
1. These special appeals have been filed against a common judgment and order dated 8th January, 2002, passed by the learned single Judge of this Court in Civil Misc. Writ Petition No. 22874 of 2001, Krishan Kant Tiwari and Anr. v. State of U. P. and Ors., and other connected writ petitions whereby the learned single Judge had held that the Government order dated 6th June, 2001 is a decision of the State Government and employees who were transferred by the Government order dated 1st July, 2001, are not absorbed in any new service but are on deputation to Gram Panchayat and they can always be repatriated to their parent department. The learned single Judge further held that there is no illegality in transferring Sinchpal (Canal Department), Male Health Workers (Medical Department) and Sinchpal (Bhumi Vikas Evam Jal Sansthan) and the provisions of the Government orders dated 6th June, 2001, and 19th November, 2001 repatriating them to their parent department are valid. However, the learned single Judge held that paragraphs 3, 4 and 5 of the Government order dated 6th June, 2001, as amended by the Government order dated 21st September, 2001 by which Tube-well Operators and Cane Supervisors have been divided into two classes and the persons having qualification upto High School have been re-designated as Gram Panchayat Evam Vikas Adhikarl (Karyakram) are discriminatory and are quashed. Feeling aggrieved by the aforesaid decision, these special appeals have been filed.
2. Briefly stated the facts giving rise to the present special appeals are as follows :
"The State Government issued a Government order on 12th April, 1999 which was partly modified on 29th April, 1999 under which at least one multipurpose worker was to be appointed in every Gram Panchayat from amongst the employees of eight departments of the Government who were to be transferred and kept under the control and supervision of Gram Panchayats. When the aforesaid Government order was issued, there was no statutory provision in the Panchayat Raj Act empowering the State Government to transfer the employees. This Government order was cancelled on 30th June, 1999 and a fresh Government order was issued on 1st July, 1999, after necessary amendment in Panchayat Raj Act was made by U.P. Act No. 27 of 1999 empowering the State Government to make such transfers. The Government order dated 1st July, 1999 was partly modified on 12th July, 2001. The contents of the earlier Government order was more or less incorporated in the Government order dated 1st July, 1999. According to it, one multipurpose worker, known as Gram Panchayat Evam Vikas Adhikari was to be appointed in every Gram Panchayat. He is to be from the employees of stated posts of the eight departments of Government who were transferred to Gram Panchayats and he was to be the Secretary of the Gram Panchayat.
The multi-purpose workers were to perform all functions of the eight departments except some of which were to be performed by Lekhpals of the Revenue Department. The transferred employees were to work under the control and supervision of the Gram Panchayats. The employees of four other departments were also placed under the control and supervision of the Gram panchayats and they were not treated as multipurpose workers but were required to do work of their departments. This arrangement continued for some time. When difficulties were faced in the implementation and working of the aforesaid Government orders, the State Government on some representations moved by Sinchai Sangh, Uttar Pradesh and Uttar Pradesh Basic Health Workers Association, appointed a Committee to look into the matter. The Committee examined the working of the Gram Panchayats, vis-a-vis, employees transferred from other Government departments and made a recommendation which was accepted by the Cabinet and thereafter the Government order was issued on 6th June, 2001 which was subsequently modified on 6th July, 2001, and 21st September, 2001. By virtue of the aforesaid Government orders, Sinchpal (Canal Division) and Male Health Workers were sent back to their parent departments. The Tube-well Operators and Cane Supervisors, having qualification up to High School, were re-designated as Gram Panchayat Evam Vikas Adhikari (Karyakram) and they were to look after the work of their department only. The Tube-well Operators and Cane Supervisors having higher qualification were continued to work as multipurpose workers and were required to perform the work of other departments also. By another Government order dated 19th November, 2001, Sinchpal belonging to Bhumi Vikas and Jal Sansadhan Department were also reverted back to their parent departments. Thus, the employees of three departments were repatriated and employees of two departments were re-designated and confined to perform their duties on the basis of their educational qualification. The validity of the Government orders dated 6th June, 2001, 6th July, 2001 and 21st September, 2001 was challenged by the petitioners-appellants before the learned single Judge on the ground that the Government order dated 6th July, 2001, has not been issued in the name of the Governor of the State and thus no decision has been taken by the State Government and, therefore, they pleaded that the same is violative of Article 166 of the Constitution of India. It was further urged before the learned single Judge that the cadre of the transferred employees is a dead cadre and they having been absorbed in the new cadre cannot be sent back to their parent department. Apart from it, it was also urged that these employees cannot be sent back to their parent department and the power of transfer can be exercised only once and, therefore, the impugned action is arbitrary and discriminatory. The learned single Judge as already mentioned hereinbefore had held the Government order dated 6th June, 2001, to be the decision of the State Government and not violative of Article 166 of the Constitution of India. However, the learned single Judge had struck down paragraphs 3, 4 and 5 of the said Government order being discriminatory. It has been further held that the employees, who have been transferred, have not been absorbed and they can always be transferred back to their parent department and there is no illegality in such re-transfer. The Judgment and order dated 8th January, 2002, are under challenge in these special appeals."
3. We have heard Dr. R, G. Padia, learned senior advocate assisted by Sri Prakash Padia, learned counsel appearing on behalf of appellants-writ petitioners and Sri Sabhajeet Yadav, learned standing counsel on behalf of the respondents.
4. Dr. R.G. Padia, learned senior advocate submitted that the original Government order dated 1st July, 1999, was issued in the name of the Governor of Uttar Pradesh which was, in accordance with the provisions of U. P. Panchayat Raj Act as amended by U. P. Act No. 27 of 1999, and also in conformity with Article 166 of the Constitution of India. However, the subsequent Government order dated 6.6.2001 does not even mention that It has been issued by the Governor and it has been signed by the Chief Secretary in his individual capacity. Thus, it does not satisfy the requirement of Article 166 of the Constitution. It is pure and simple order signed and executed by the Chief Secretary who cannot amend the earlier order passed on behalf of the Governor. So far as the corrigendum dated 6th July, 2001, containing the clause that the 'Governor has been pleased to grant permission to issue the said order', is concerned, mere issuance of corrigendum will not validate an illegal and non-est order. He relied upon the following decisions in support of his submission :
(1) Kedar Nath Bahl v. State of Punjab and Ors., AIR 1979 SC 220.
(2) State of Kerala v. A. Lakshmikutty and Ors., AIR 1987 SC 331.
(3) Gulabrao Keshavrao Patil and Ors. v. State of Gujarat and Ors., (1996) 2 SCC 26.
5. It may be mentioned here that Dr. R.G. Padia had confined his challenge to the judgment and order passed by the learned single Judge only on the question of non-compliance of the provisions of Article 166 of the Constitution of India and not on any other point decided by the learned single Judge.
6. Sri Sabhajeet Yadav, learned standing counsel, on the other hand, submitted that even though in the Government order, dated 6th June, 2001, recital to the fact that the Governor has been pleased to grant permission to Issue the following orders, has not been mentioned but the said Government order was issued pursuant to the decision taken by the State Government. However, subsequently, by issuing Corrigendum Order dated 6th July, 2001, the error/mistake in Government order dated 6th June, 2001 was rectified. Thus, the Government order dated 6th June, 2001 when read with corrigendum issued on 6th July, 2001 leaves no room of doubt that the said Government order was issued by and on behalf of the Governor. He further submitted that for more convenient transaction of business of the State, the Governor of Uttar Pradesh had framed rules and the matter, in question, had been allocated to the Minister of the concerned department. The Government order dated 6th June, 2001, had been issued with the approval of the Minister of the concerned department. Obviously, the Government orders, dated 6th June, 2001 and 6th July, 2001, had been issued by the State Government under the authority of the Governor of Uttar Pradesh with the approval of the Minister of the concerned department. Thus, it cannot be said that the provisions of Article 166 of the Constitution have not been complied with. He submitted that in any event the provisions of Article 166 of the Constitution are directory in nature and not mandatory. In support thereof, he relied upon the following decisions :
(1) Dattatraya Moreshwar v. State of Bombay and Ors., AIR 1952 SC 181.
(2) Major E.G. Barsey v. State of Bombay and Ors., AIR 1961 SC 1762.
(3) R. Chitralekha and Anr. v. State of Mysore and Ors., AIR 1964 SC 1823.
(4) State of Madhya Pradesh and Ors. v. Dr. Yashwant Trimbak. AIR 1996 SC 765.
(5) State Government Houseless Harijan Employees Association v. State of Karnataka and Ors., 2001 (1) AWC 476 (SC) : AIR 2001 SC 437.
7. In Dattatraya Moreshwar (supra), the Apex Court has held that Article 166 directs all executive action to be expressed and authenticated in the manner laid down therein 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. If such a decision has, in fact, been taken by the appropriate Government, then there is no breach of the procedure established by law. In Major E. G. Barsey (supra), the Apex Court has held as follows :
"The foregoing decisions authoritatively settled in the true interpretation of the provisions of Article 166 of the Constitution. Shortly stated, the legal position is this : Article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 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 Clause (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 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. Article 77 which relates to conduct of business of the Government of India is couched in terms similar to those in Article 166 and the same principles must govern the interpretation of the provision."
8. In R. Chitralekha (supra), the Apex Court has held that it is a settled law that 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 Issued in fact by the State Government or the Governor.
9. In Dr. Yashwant Trimbak's case (supra) the Apex Court has held as follows :
"Even where an order is issued by the Secretary of the Government without indicating that it is by order of the Central Government or by order of the President, this Court came to the conclusion that the immunity in Article 166(2) would be available if it appears from other material that in fact the decision had been taken by the Government. In Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills, Delhi, (1968) 9 SCR 251 : AIR 1968 SC 1232, this Court came to the conclusion that in fact sanction had been given by the Central Government as required under the Act though the order did not indicate to be so."
10. In State Government Houseless Harijan Employees Association (supra), the Apex Court has taken a similar view.
11. Sri Sabhajeet Yadav, learned standing counsel had also placed before us the entire file relating to the decision taken by the State Government and the issuance of the Government order. From perusal of the said file, we find that the recommendation of the Committee was placed before the Cabinet on 11th May, 2001 wherein the Cabinet authorized the Chief Minister of the State to take a decision. The Chief Minister took the decision on 23rd May, 2001. Thereafter the matter was placed before the State Minister (Independent Charge) Panchayat Raj, Uttar Pradesh for issuance of the Government order who approved the same on 6th June, 2001. The corrigendum was also approved by the State Minister (Independent Charge) Panchayat Raj, Uttar Pradesh on 5th July, 2001. It is not in dispute that the Government order dated 6th June, 2001, did not contain any recital that it had been Issued in the name of the Governor. However, by the corrigendum issued on 6th July, 2001, the following sentence was added in the 13th line of the preamble to the Government order issued on 6th June, 2001 :
"Shri Rajyapal Mahodaya nimnlikhit adesh nirgat karney ki saharsh anumati pradan karte ham."
The corrigendum was singed for and on behalf of the Governor by the Chief Secretary which is clear from the record produced before us.
12. Applying the principle laid down by the Supreme Court in the aforesaid cases to the facts of the present case we have in no manner, any doubt that the Government order dated 6th June, 2001, had been issued by the State Government. Thus, the Government order cannot be said to be non-est on the basis of non-compliance of the provisions of Article 166 of the Constitution in so far as it did not mention to have been issued in the name of the Governor or signed only by the Chief Secretary.
13. In Kedar Nath Bahl (supra), the facts of the case are that the Minister recommended that the adverse entry made against Kedar Nath Bahl should be expunged and he should be confirmed on completion of his period of probation. The Chief Minister passed an order dated 13th February, 1958, agreeing with the Minister. However, no order was issued to him. Subsequently, the matter was sent for reconsideration to the Chief Minister, who vide order dated 29th October, 1958, agreed for reversion of Sri Bahl to his parent department with immediate effect. On these facts, the Hon'ble Supreme Court held that the earlier order of the Chief Minister dated 13th, February, 1958, could not give any right in favour of Kedar Nath Bahl as it was not expressed in the name of the Governor as required by Article 166 of the Constitution as was not communicated to him. It was a provisional order, which was open for reconsideration by the Chief Minister and did not bind any one. The aforesaid decision would be of no help to the appellants-writ petitioners inasmuch, as from the records produced before us, we have found that the order dated 6th June, 2001, had been Issued pursuant to the decision taken by the Cabinet which has not yet been rescinded, which fulfils the requirement of Article 166 of the Constitution of India.
14. In A. Lakshmikutty's case (supra), Hon'ble the Supreme Court has held that merely because the Chief Minister briefed the press on January 31, 1985, as regards the decision taken at the meeting of the Council of Ministers held on the previous day and the news of the press conference was published in the newspapers to the effect that the Government had decided to fill up four posts of the District Judges, it could not be said that there was an order of the State Government in the manner required by Article 166(1) of the Constitution. What the news item conveyed was that the Council of Ministers had taken a decision to advise the Governor to appoint respondents 3 to 6 as District Judges. Whatever the Council of Ministers may say in regard to a particular matter, does not become the action of the State Government till the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the Government and unless the decision taken by the Council of Ministers on January 30, 1985, was translated into action by the issue of a notification expressed in the name of the Governor as required by Article 166(1) of the Constitution. It could not be said to be an order of the State Government and till then, the earlier decision of the Council of Ministers was only a tentative one. In the present case, the decision taken by the Cabinet has fructified in the issuance of the Government order and we have already found that the said Government order was issued by the State Government. In A Lakshmikutty's case (supra), the order had not been issued and only a decision has been taken by the Council of Ministers. Thus, the principle laid down in the aforesaid case would not be applicable in the present case.
15. In Gulabrao Keshavrao Patil (supra), the Apex Court has held that an order or action can bind the Government ; it must be drawn in the name of the Governor as envisaged in Article 166(1) and (2) read with the Business Rules and must be communicated to the affected person. Until then, the operation of the decision is not final and the Chief Minister has the power to call for any file to re-examine and to take a fresh decision. The aforesaid decision came up for consideration before the Apex Court in State Government Houseless Harijan Employees Association (supra), wherein the Apex Court reaffirming its view in Gulabrao (supra), held that there was a conflict between the Revenue Department and Urban Development and Urban Housing Department whether proceedings under Section 4(1) of the Act were to be dropped or not. The matter was to be submitted to the Chief Minister for placing before the Cabinet. However, before the decision could be taken by the Cabinet, the owners wanted to enforce the decision taken by the Revenue Minister. The Apex Court in paragraph 55 of the report while dealing with the case of Gulabrao (supra), held as follows :
"55. No doubt, in Gulabrao v. State of Gujarat, (1996) 2 SCC 26, it was held that a decision of Revenue Minister was not an order of the Government because of non-compliance with Article 166. But in that case there was a conflict between the Revenue Department and the Urban Development and Urban Housing Department whether proceedings under Section 4 (1) of the Act were to be dropped or not. The Revenue Minister was of the view that it could be dropped. The Urban Development Department disputed this. The Rules of Business framed by the State under Article 166(3) specifically provided that in such a controversy, the matter was to be submitted to the Chief Minister for placing before the Cabinet. This was not done nor was the order of the Revenue Minister communicated to the appropriate authority. The Revenue Minister's decision which was noted on the file was sought to be enforced by the owners. This was negatived by the Court. The decision is factually distinguishable and cannot be construed as upsetting the settled law as noted in Chitralekha's case, AIR 1964 SC 1823."
16. Thus, the reliance placed on the decisions of the Apex Court by Dr. Padia is not applicable in the present case in view of the conclusion arrived at by us. In the present case, the decision taken by the Cabinet has been given effect to by Issuing Government order dated 6th June, 2001, therefore, it cannot be said that the said Government order is not in conformity with Article 166 of the Constitution.
17. No other point has been raised before us by the learned counsel for the appellants.
18. In view of the aforesaid discussions, we do not find any merit in these special appeals and they are accordingly dismissed. However, there shall be no order as to costs.