Judgment:
K. Balakrishnan Nair, J.
1. The point that arises for decision in this case is whether a Specialist Teacher (Drawing) can claim stepping up of his salary as equal to that of a P.D. Teacher, who, admittedly entered service after the entry of the Specialist Teacher. Incidentally, the point whether an executive order issued by the Government could be modified by a Government letter or circular, also arises for consideration in this appeal.
2. The brief facts of the case are the following:
The appellant/writ petitioner joined the Department of General Education, as Drawing Teacher, on 10.01.1984. He was given the first higher grade promotion on 10.01.1994. While he was working in that grade, pay revision was introduced with effect from 01.01.1998 as per G.O.(P) No. 3000/98/Fin. dated 25.11.1998. When the pay revision was implemented, the appellant found that a P.D. Teacher, who entered service on 04.12.1985, was drawing higher pay than him. Therefore, he submitted Ext.P1 claim in the prescribed format, for senior-junior fixation, provided in paragraph 6 of Annexure-III of GO(P) No. 3000/98/Fin. dated 25.11.1998. The Principal of the School allowed his claim and he drew the revised salary for a period of ten months. While so, audit objection was raised and the Deputy Director, by Ext.P2 proceedings, set aside the decision of the Principal in his favour and ordered to refund the excess salary received by him. The reasons stated in Ext.P2 for cancelling the fixation granted to the appellant were that as per paragraph 6(1) of the aforementioned G.O., the senior-junior fixation can be allowed only to those Officers, belonging to the same category and they should be promotees to that category also. Challenging Ext.P2, the appellant filed Ext.P6 appeal before the Government. But, the said appeal was rejected by the Government by Ext.P7 communication dated 21.07.2006. It was stated in the said communication that as per GO(P) No. 3000/98/Fin. dated 25.11.1998 and Circular No. 59151/J2/ 2000/G.Edn. dated 17.05.2002, the claim of the appellant cannot be allowed. The circular dated 17.05.2002, mentioned in Ext.P7 is Ext.P3. The appellant would point out that as per Ext.P4 Judgment, this Court has held that Ext.P3 circular does not have any efficacy to take away the rights of the incumbent, who is otherwise eligible for senior-junior fixation. Ext.P5 is another Judgment of this Court, which was rendered, following Ext.P4 Judgment. The appellant's representation, praying, at least not to recover the excess salary paid, was also rejected by the Government by Ext.P8 order dated 18.10.2006. So, the Writ Petition was filed, seeking a declaration that the pay of the appellant, fixed as per Ext.P1, cannot be revised by Ext.P2. Other incidental reliefs were also sought. The 2nd respondent filed a counter affidavit, resisting the prayers in the Writ Petition. It was stated in the said counter affidavit that paragraph 6 of the pay revision order does not cover the case of the appellant. The 2nd respondent also relied on Ext.P3 circular. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. Hence this appeal.
3. We heard the learned Counsel for the appellant. The learned Counsel submitted that the benefit flowing from a Government Order, cannot be modified or withdrawn by a circular, in the nature of Ext.P3. The said submission is supported by Exts.P4 and P5 Judgments. In any view of the matter, the payment already made, may not be recovered, it was submitted. The learned Government Pleader, on the other hand, supported the decision of the learned Single Judge, relying on the stand taken by the 2nd respondent in his counter affidavit.
4. Whether a Government Order, issued in the name of the Governor could be modified by a letter, issued by a Secretary to Government, is a frequently mooted point before this Court. The point that a Government order can be clarified by a Government letter, is covered by the decision of this Court in Haridasan v. State of Kerala 2008 (1) KLT 407. As per the Rules of Business of Kerala, the Secretary, the Additional Secretary, the Joint Secretary, the Deputy Secretary and the Under Secretary can take decisions on behalf of the Government. Their decisions will be that of the Government, in view of the authoritative pronouncement of the Constitution Bench of the Apex Court in A. Sanjeevi Naidu v. State of Madras : AIR 1970 SC 1102. In the said decision, the Constitution Bench had observed as follows:
10. It was urged on behalf of the appellants that the Parliament has conferred powers under Section 68(C) of the Act to a designated authority. That power can be exercised only by that Authority and by no one else. The authority concerned in the present case is the State Government. The Government could not have delegated its statutory functions to any one else. The Government means the Governor, aided and advised by his Ministers. Therefore, the required opinion should have been formed by the Minister, to whom the business had been allocated by 'the Rules'. It was further urged that if the functions of the Government can be discharged by any one else, then the doctrine of ministerial responsibility, which is the very essence of the cabinet form of government disappears, such a situation is impermissible under our Constitution.
11. We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution. Under our Constitution, the Governor is essentially a constitutional head, the administration of State is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government. In order to obviate that difficulty the Constitution has authorised the Governor under sub-Article (3) of Article 166 to make rules for the more convenient transaction of business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the advice of the Council of Ministers.
12. The cabinet is responsible to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard-working minister cannot attend to every business in his department. It he attempts to do it, he is bound to make a mess of his department. In every well-planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as delegate of his Minister. He does it on behalf of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the Rules or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates.
The above decision was quoted with approval and followed by a Seven Judges' Bench of the Apex Court in Samsher Singh v. State of Punjab : (1974) 2 SCC 831. The relevant portion of the said Judgment reads as follows:
30. ...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 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 Government under Article 166(3) shall make rules for the more convenient transaction of the business of the Government and the allocation of business among the Ministers of the said business. The Rules of Business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or Officer under the Rules of Business made under these two articles, viz., Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively.
31. Further, the Rules of Business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the Rules of Business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's department, there is in law, no delegation because constitutionally, the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister....
34. The functions of the Governor under the Rules of Business of Madras Government in regard to a scheme for nationalisation of certain bus routes were considered by this Court in Sanjeevi Naidu's case (supra). The validity of the scheme was challenged on the ground that it was not formed by the State Government but by the Secretary to the Government pursuant to powers conferred on him under Rule 23-A of the Madras Government Business Rules.
35. The scheme was upheld for these reasons. The Governor makes rules under Article 166(3) for the more convenient transaction of business of the Government of the State. The Governor can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But, that could be done on the advice of the Council of Ministers. The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for every action taken or omitted to be taken by the civil servants. The Minister lays down the policies. The Council of Ministers settle the major policies. When a civil servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Minister's department, there is in law, no delegation because constitutionally, the act or decision of the official is that of the Minister.
5. Rule 12 of the Rules of Business, framed by the Governor under Article 166(3) of the Constitution of India, permits every order or instrument of the Government of the State to be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other officer as may be specially empowered in that behalf. Rule 12 of the Rules of Business reads as follows:
12. Every order or instrument of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.
6. Ext.P3 is issued by Smt. K. Nalini, Additional Secretary to Government. Going by the aforementioned authoritative pronouncements of the Constitution Bench of the Apex Court in Sanjeevi Naidu v. State of Madras (supra) and that of the seven Judges' Bench of the Apex Court in Samsher Singh v. State of Punjab (supra) and also in the light of the Rules of Business, an Additional Secretary to Government can take a decision on behalf of the Government.
7. Though Ext.P3 is issued as a clarificatory order, the appellant submits, it modifies the pay revision order. So, the next point to be considered is whether Ext.P3 could have the efficacy to modify an order issued in the name of the Governor. Article 166 of the Constitution of India reads as follows:
166. Conduct of business of the Government of a State.- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
If an order is expressed to be passed in the name of the Governor, the same shall not be called in question on the ground that it is not an order or an instrument executed by the Government. But, if an order is issued by the Government Secretary, which is not expressed in the name of the Governor, still, it will be valid and equally binding, as the decision of the Secretary is the decision of the Government, in view of the decisions in Sanjeevi Naidu's and Samsher Singh's cases (supra). Of course, the party to the litigation can raise a plea that there was no such decision of the Government, as the one contained in the order/letter. In that event, the respondent State will have to produce the files and show that there was a decision by the Government, though it is expressed only in the form of a letter. If it is expressed in the name of the Governor, it enjoys an immunity and no one can challenge it, saying that there was no such decision by the Government. This principle is supported by the decisions of the Apex Court in Chithralekha v. State of Mysore : AIR 1964 SC 1823, Dattatraya Moreshwar Pangurkar v. State of Bombay : AIR 1952 SC 181, State of Bombay v. Purushottam Jog Naik : AIR1952 SC 317 and Ghaio Mall & Sons v. State of Delhi : AIR 1959 SC 65. In Chithralekha v. State of Mysore (supra), the Apex Court held that even if an order is not authenticated, as provided under Article 166(2) of the Constitution of India, still that order will be valid, if there is a decision of the Government, supporting that order. If the order is not authenticated in the manner indicated in Article 166(2) of the Constitution, the only effect is that the party challenging that order, can contend that the order was not executed by the Government. In that event, the files will have to be produced and the respondents will have to satisfy the court that in fact, there was a decision of the Government in the matter. In Chithralekha v. State of Mysore (supra), the Apex Court held as follows:
The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of Article 166 of the Constitution. As the argument turns upon the form of the said Annexure, it will be convenient to read the material part thereof.
Sir,
Sub. Award of marks for the interview of the candidates seeking admission to Engineering Colleges and Technical Institution. With reference to your letter No. AAS.4.ADW/63/2491 dated 25th June 1963, on the subject mentioned above, I am directed to state that Government have decided that 25% of the maximum marks....
Yours faithfully,
Sd/-S. Narasappa
Under Secretary to Government
Education Department.
Ex facie, this letter shows that it was a communication of the order issued by the Government under the signature of the Under Secretary to the Government, Education Department. Under Article 166 of the Constitution, all executive action of the Government of a State shall be expressed to be taken in the name of the Governor and that orders made in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order, which is so authenticated, shall not be called in question on the ground that it is not an order made by the Governor.
If the conditions laid down in this Article are complied with, the order cannot be called in question on the ground that it is not an order made by the Governor. It is contended that as the order in question was not issued in the name of the Governor, the order was void and no interviews could be held pursuant to that order. The law on the subject is well settled. In Dattatraya Moreshwar Pangurkar v. State of Bombay : 1952 SCR 12 at p.625 : AIR 1952 SC 181 at pp.185-1861 Das, J., as he than was, observed:
Strict compliance with the requirements of Article 166 gives an immunity to the order that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself....Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under Section 11(1).The same view was reiterated by this Court in State of Bombay v. Purushottam Jog Naik : (1952) SCR 674 : AIR 1952 SC 317, where it was pointed out that though the order in question was defective in form, it was open to the State Government to prove by other means that such an order had been validly made. This view has been reaffirmed by this Court in subsequent decisions : See Ghaio Mall & Sons v. State of Delhi : 1959 SCR 1424 : AIR 1959 SC 65 and it is, therefore, 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. The judgment of this Court in Bachhittar Singh v. State of Punjab : (1962) Supp.3 SCR 713 : AIR 1963 SC 395 does not help the appellants, for in that case the order signed by the Revenue Minister was not communicated to the party and, therefore, it was held that there was no effective order.
(5) In the light of the aforesaid decisions, let us look at the facts of this case. Though Annexure IV does not conform to the provisions of Article 166 of the Constitution, it ex facie says that an order to the effect mentioned therein was issued by the Government and it is not denied that it was communicated to the selection committee. In neither of the affidavits filed by the appellants, there was any specific averment that no such order was issued by the Government. In the counter affidavit filed by B.R. Verma, Deputy Secretary to the Government of Mysore, Education Department, there is a clear averment that the Government gave the direction contained in Annexure IV and a similar letter was issued to the Selection Committee for admission to Medical Colleges and this averment was not denied by the appellants by filing any affidavit. In the circumstances, when there are no allegations at all in the affidavit that the order was not made by the Government, we have no reason to reject the averment made by the Deputy Secretary to the Government that the order was issued by the Government. There are no merits in this contention.
In view of the above decision, the claim of the appellant that an executive order, issued in the name of the Governor cannot be modified by a communication issued by the Secretary, cannot be accepted. A decision of the Government stands, until it is modified by a subsequent decision. By a subsequent decision of the Government, any earlier decision can be appropriately clarified or modified. The second order need not necessarily be issued in the name of the Governor. It can be issued in the name of any of the Secretaries of the Government. What is relevant is the substance of the order and not its form. If there is a decision of the Government, which is taken by a Secretary to Government, as per the Rules of Business, the same can modify an earlier Government Order, issued in the name of the Governor, even if the latter decision is issued in the form of a letter of a Government Secretary. A circular is a letter, addressed to several persons simultaneously. So, a circular is also a letter issued by the Government/ Government Secretary, bringing a particular decision to the notice of several persons simultaneously. The appellant does not have a case that no decision was taken by the Government/Secretary, as per the Rules of Business, before issuing Ext.P3. Until the contrary is proved, we must presume that official acts have been regularly performed and the common course of business has been followed in this case also.
8. In view of the above position obtained under our Constitution, the decisions of the learned Judges, taking a contrary view, contained in Exts.P4 and P5 judgments, cannot be upheld. Further, Ext.P4 Judgment does not notice the difference between the rules, relating to seniority in Government Schools and Aided Schools. In Aided Schools, Rule 37 of Chapter XIVA of the Kerala Education Rules governs seniority, whereas in Government service, the same is governed by Rule 27 of the Kerala State & Subordinate Service Rules. Therefore, Ext.P4 and P5 judgments are overruled.
9. Further, we also notice that a plain reading of paragraph 6 of Annexure III of the Pay Revision Order dated 25.11.1998 would show that the case of the appellant is not covered by the same. Paragraph 6 of Annexure III of the above said GO reads as follows:
6. In cases, where a senior Government servant promoted to a higher post before 01.03.1997 draws less pay in the revised scale than his junior promoted to the higher post after 01.03.1997, the pay of the senior employee shall be stepped upto the level of the pay of the junior with effect from the date on which the junior draws more pay, provided that:
(i) the senior and the junior employees should belong to the same category and should have been promoted to the same category of post ;
(ii) the pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical ;
(iii) the senior Government servant at the time of promotion have been drawing equal or more pay than the junior.
(iv) the anomaly should have arisen directly as a result of the introduction of the revised scale of pay.
In this case, the appellant and the P.D. Teacher mentioned in Ext.P1 belong to different categories. Further, they are not promoted to the respective posts. Therefore, the aforementioned paragraph in the G.O., does not, in any way, support the claim of the appellant, made in Ext.P1. In the result, we find no reason to interfere with the Judgment of the learned Single Judge. We affirm the Judgment of the learned Single Judge. The appellant prayed that the salary already paid to him, may not be recovered. In this case, an incompetent Officer has sanctioned the senior-junior fixation. Within ten months, it was detected and remedied. Therefore, the said prayer is also repelled. In the result, the Writ Appeal fails and it is accordingly dismissed.