REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NO. 516 OF 2013
3 (Arising out of SLP (C) No. 22617 of 2008)
State of Bihar & Anr. .... Appellant (s)
Versus
Sunny Prakash & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the judgment and order dated
07.08.2008 passed by the High Court of Judicature at Patna in CWJC No.
10870 of 2008 whereby the Division Bench of the High Court in a Public
Interest Litigation (PIL) issued mandamus directing the Chief Secretary,
Government of Bihar, Patna to ensure that the commitment given by the State
Government to the Bihar State University and College Employees Federation
(in short “the Federation”) is honoured and implemented within one month
from the date of the judgment.
3) Brief facts:
(a) The Government of Bihar, Education Department, vide G.O. dated
25.02.1987, declared the non-teaching staff of Universities and Constituent
Colleges equivalent to the Government staff.
(b) On 16.07.2003, an Agreement/Compromise was arrived at between the
Federation and the State Government, regarding parity between the employees
of the Constituent Colleges of the University and the State Government. On
21.07.2003, the State Government sent the said Agreement to the Vice
Chancellors of all the Universities of the State of Bihar for necessary
action.
(c) In 2005, because of the non-implementation of the Agreement arrived
at, there was a strike by the Federation in the State of Bihar. Following
the strike of the Federation, on 24.08.2005, an understanding was arrived
at between the Federation and the Government of Bihar and the strike was
recalled later.
(d) Since the Agreement was not implemented, on 01.07.2007, the
Federation again went on strike which led to complete disruption of
educational activities in the Colleges and the Universities of Bihar. On
17.07.2007, a meeting was held between the representatives of the
Federation and the Government of Bihar and an Agreement/Understanding was
again arrived at on 18.07.2007 for consideration of their demands.
Pursuant to the same, on 19.07.2007, a letter was issued by the Government
for implementation of the Agreement and the strike was recalled.
(e) In July, 2008, again, on account of non-implementation of the
Agreement/Understanding, the Federation was again constrained to go on
strike. Due to indefinite strike of teaching and non-teaching staff of the
Universities, on 14.07.2008, a letter was written by Sunny Prakash
(Respondent No. 1 herein), student of Daroga Prasad Roy Degree College,
addressed to the Chief Justice of the High Court requesting to end the
strike, which was treated as a Public Interest Litigation (PIL). On
28.07.2008, an intervention application was filed by the Federation (R-5)
in the PIL before the High Court.
(f) After hearing the parties, the Division Bench of the High Court, vide
order dated 07.08.2008, inter alia, directed the Chief Secretary,
Government of Bihar to ensure that the commitment given by the State
Government to the Federation which have been reduced to writing on
18.07.2007, is honoured and implemented within one month. The High Court
also directed the Federation to withdraw the strike immediately.
(g) On 22.08.2008, an application was filed by the Government of Bihar
for modification of the impugned order, which was also dismissed by the
High Court.
(h) Aggrieved by the order dated 07.08.2008 passed by the High Court, the
State of Bihar preferred the above appeal by way of special leave petition
before this Court.
4) Heard Mr. Rakesh Dwivedi, learned senior counsel for the appellants,
Mr. K.K. Venugopal, learned senior counsel for respondent Nos. 4 and 5, Mr.
Manu Shanker Mishra, learned counsel for respondent Nos. 2 and 3 and Mr.
Ashok Mathur for respondent No.1.
Discussion:
5) The only grievance of the State is that
the Agreement dated
18.07.2007 relied on by the High Court for issuance of impugned direction
was not in accordance with the Rules of Executive Business, State of Bihar
which are statutory rules framed under Article 166 (3) of the Constitution
of India. On the other hand, it is the stand of the Federation that the
Agreement executed on 18.07.2007 was a valid one and pursuant to the same,
the State Government itself issued directions to the authorities concerned
for its implementation.
6) In order to understand the rival claim, it is useful to refer copy of
the proceedings of the understanding held on 17.07.2007 which reads as
under:-
“Proceeding of discussion on 17.7.07 with respect to implementation of
proceeding regarding agreement between the Bihar State University and
College Employees federation on 24.8.05 and withdrawal of strike.
Present :-
1. Hon'ble Prof. Arun Kumar, Chairman, Bihar
Legislative Council.
2. Hon'ble Sri Vrishan Patel, Minister, Human
Resource Department.
3. Hon'ble Vasudev Singh, M.L.C.
4. Hon'ble Kedar Pandey, M.L.C.
5. Hon'ble Mahachandra Prasad Singh, M.L.C.
6. Hon'ble Dilip Kumar Choudhary, M.L.C.
7. Hon'ble Ram Kishore Singh, M.L.C.
8. Hon'ble Srimati Usha Sahni, M.L.C.
9. Principal Secretary, Human Resource
Development Department
10. Commissioner, Finance Department
11. Addl. Commissioner, Human Resource
Development Department
12. Addl. Commissioner, Finance Department
13. Sri Rajendra Mishra, Patron, Mahasangh
(Association)
14. Sri Bimal Prasad Singh, President, Mahasangh
15. Sri Ganga Prasad Jha
16. Sri Ramshankar Mehta, Joint Secretary,
Mahasangh
17. Sri Dhanajay Prasad Singh, Vice President,
Mahasangh
18. Sri Premchand, Joint Secretary, Mahasangh
19. Sri Rohit Kumar, Treasurer, Mahasangh,
20. Sri. M.P. Jaiswal, Executive Member
Regarding the matter of strike by the non-teaching staffs of the
university and colleges of the State, the representatives of the
Federation met with the Hon'ble Chairman of Bihar Legislative Council
in his office on their demands and the following points were considered
for issuance of government order and it was decided that the strike
will be called off by the Federation: -
1. 50% Dearness Allowance may be merged with Basic Pay.
2. Medical Allowance may be increased from Rs. 50/- (Fifty)
to Rs. 100/- (Hundred).
3. Facility of ACP may be given to the employees.
4. Head Assistant and Accountant of the colleges may be
designated as Section Officer at the departmental level.
5. Pay scale of Rs. 5500-9000 may be granted to the
Assistants of colleges and university.
6. Assistant Librarian and PTI who are possessing
qualification fixed by UGC, may be granted UGC pay scale.
7. Library Assistant, Sorter, Routine Clerk, Correspondence
clerk may be granted a pay scale of Rs. 4000-6000 at
Departmental level.
8. Facilities of accumulation of 240 days Earned Leave and
encashment may be granted to the employees at par with the
employees of state government which will be admissible similarly
to the class III and class IV grade employees.
9. Ward servant may be designated as Hostel servant.
10. Anomalies regarding the pay scale of University Engineer,
Assistant Engineer and Junior Engineer and Electrician may be
removed.
11. Store Keeper may be treated as an Assistant and pay scale
may be given accordingly.
The following points were considered with respect to the period of
strike: -
1. No coercive and punishable proceeding will be initiated
against any employee for the reason of strike.
2. For strike period, due and admissible earned leave may be
sanctioned.
3. Even after above action, if the days of absence remains,
the absence that may be sanctioned against earned leave to be
earned in future.
4. If earned leave to be earned in future is not sufficient
for period of absence the extra-ordinary leave may be sanctioned
for remaining period.
After consideration on the above mentioned demands regarding the period
of strike were accepted by the Government to be acted upon within one
and a half month as per rules.
Sd/- Sd/- Sd/-
(Ganga Pd. Jha) (Dr.Vimal Pd. Sinha) (Sanjeev Kr. Sinha)
18.07.2007 18.07.2007 18.07.2007
General Secretary Chairman Addl.Commissioner
cum-Secretary,
HRD Patna”
7) The above details show that apart from the Chairman, Bihar
Legislative Council, Minister concerned, viz., Human Resource Department
(HRD) as well as Principal Secretary, HRD and Commissioner, Finance
Department as well as various other higher level officers of the State
Government participated, deliberated and ultimately accepted the demands of
the Federation. It is also to be noted that at the end of the discussion
and after recording of the terms and conditions, General Secretary of the
Federation, Chairman and Addl. Commissioner-cum-Secretary, HRD, Patna
signed the same on the very next day i.e., 18.07.2007. In such
circumstances, it cannot be contended that decision was not taken by or on
behalf of the Government.
8) In addition to the same, Mr. Venugopal, learned senior counsel for
the contesting respondents has also brought to the notice of this Court the
letter dated 21.07.2003 addressed to the Vice Chancellors of all the
Universities of the State of Bihar which reads as under:-
"Letter No.2/D01-04/2003 H.E.
Govt. of Bihar
Higher Education Department
From:
Sh. Aditya Narayan Singh
Deputy Secretary to the Govt.
To:
The Vice Chancellors
All the Universities of the
State of Bihar
Patna, dated: 21st July, 2003
Sub: The Proceedings of the agreement dated 16.07.2003 between Bihar
State Universities and Colleges Staff Federation and Govt. of
Bihar
Sir,
Copy of the proceedings of the agreement dated 16.07.2003
between Bihar State Universities and Colleges Staff Federation and
State Govt. is being sent having annexed for necessary action.
Faithfully
Sd/-
21.07.2003
Aditya Narayan Singh
Deputy Secretary to the Govt.
Rajendra/19.07.2003
Memorandum No.2/D01-04/2003
Dated 21.07.2003"
9) In addition to the same, it is also brought to our notice that even
after the discussion on 17.07.2007, on 19.07.2007 itself, Human Resources
Development Department of the Government of Bihar sent another
communication to the Registrars of all the Universities of the State to
implement the decision arrived in the negotiation held on 17.07.2007. The
said letter reads as under:-
"Letter No.2/D 1-04/2003-1107
Government of Bihar
Human Resources Development Department
From:
Gopal Ji
Deputy Director,
Human Resources Development Department
Patna, Dated
19.07.2007
To
The Registrar
All the Universities of the State
Bihar
Subject: For the implementation of the agreement
reached with the Bihar State University and College
Employees Federation on 24.08.2005 and the proceedings of
the negotiation held on 17.07.2007 for recalling the
strike.
Sir,
As directed for the implementation of the agreement reached with the
Bihar State University and College Employees Federation on 24.08.2005
and a copy of the proceedings of the negotiation held on 17.07.2007
for recalling the strike are being sent for information and necessary
action.
Yours faithfully,
Sd/-
(Gopal Ji)
Deputy Director (Higher Education)"
In order to appreciate the stand of both sides, it is useful to refer the
earliest decision of the Government of Bihar, Education Department dated
25.02.1987 informing the General Secretary of the Federation, that
facilities which have been provided for Government staff shall also be
sanctioned to the non-teaching staff of the Universities and subordinate
affiliated colleges. The said communication reads as under:-
“No. 123/C
Govt. of Bihar
Education Department
From:
Sh. Bhaskar Banerjee
Secretary to the Govt.
Education Department,
Bihar
To:
General Secretary
Bihar State Universities
and Colleges Non-teaching
Staff Federation,
Patna
Dated: 25th February, 1987
Sir,
This is to inform as per direction that the compromise which has
taken place by the Govt. with Govt. staff in regard to the recent
strike and the facilities which have been provided, the same shall
also be sanctioned to the non-teaching staff of universities and
subordinate affiliated colleges. The Govt. has already taken the
decision to declare the same as equivalent to Govt. staff.
The copy of this letter is being sent to the Vice Chancellors of
all Universities for kind information and necessary action.
Yours faithfully,
Sd/-
Bhaskar Banerjee
25.02.1987
Secretary to the Govt.,
Education Department
Bihar, Patna”
10) Mr. Rakesh Dwivedi, learned senior counsel for the State contended
that in the absence of any decision by the Cabinet in terms of the Rules of
Executive Business, any other agreement or decision is not binding on them.
However, in the light of the various directions of the very same
Government, particularly, by the HRD/Education Department, requesting all
the Vice Chancellors and Registrars of all the Universities to implement
"Government's" decision, the said contention is liable to be rejected.
11) In support of his claim, Mr. Dwivedi, learned senior counsel for the
State relied on a decision of this Court in Haridwar Singh vs. Bagun
Sumbrui and Others, (1973) 3 SCC 889 wherein while relying on Rule 10 of
the Rules of Executive Business and finding that as per Rule 10 (2), prior
consultation with the Finance Department is required for a proposal and
Cabinet alone would be competent to take a decision, this Court allowed the
appeal and set aside the contrary direction issued by the High Court.
According to us, the above decision is not applicable to the case on hand
since we have already noted that the Commissioner, Finance Department as
well as various other higher level officers of the State Government
participated in the discussion. Further, in the said decision, when the
Finance Department was consulted, the Department did not agree for the said
proposal whereas this was not the situation in the case on hand.
12) The next decision relied on by learned senior counsel for the State
is Punit Rai vs. Dinesh Chaudhary, (2003) 8 SCC 204. He pressed into
service the following observations made by this Court:
“42. The said circular letter has not been issued by the State in
exercise of its power under Article 162 of the Constitution of India.
It is not stated therein that the decision has been taken by the
Cabinet or any authority authorized in this behalf in terms of Article
166(3) of the Constitution of India. It is trite that a circular
letter being an administrative instruction is not a law within the
meaning of Article 13 of the Constitution of India. (See Dwarka Nath
Tewari v. State of Bihar, AIR 1959 SC 249.)
First of all, the said decision relates to a question, namely, whether the
respondent therein belonged to Scheduled Caste community or not? On going
through the same, we are of the view that the same is not applicable to the
case on hand.
13) Finally, learned senior counsel for the State relied on a decision of
this Court reported in State of U.P. vs. Neeraj Awasthi and Others, (2006)
1 SCC 667. This case relates to the jurisdiction of the High Court to
issue a direction for framing a scheme for regularization of the employees
of the U.P. Agricultural Produce Market Board. Learned senior counsel
relied on the statement made in para 41 which reads thus:-
“41. Such a decision on the part of the State Government must be taken
in terms of the constitutional scheme i.e. upon compliance with the
requirement of Article 162 read with Article 166 of the Constitution.
In the instant case, the directions were purported to have been issued
by an officer of the State. Such directions were not shown to have
been issued pursuant to any decision taken by a competent authority in
terms of the Rules of Executive Business of the State framed under
Article 166 of the Constitution.”
This decision makes it clear that a decision of the State Government must
be in compliance with the requirement of Article 162 read with Article 166
of the Constitution and a direction issued by an officer of the State
without following such procedure is not binding on the Government. We are
in respectful agreement with the same.
14) In the case on hand, we have already extracted the commitment made by
the State Government as early as in 1987, subsequent demands made by the
Federation on various occasions and the final decision by the Minister
concerned, various officers including HRD and Finance Departments,
representatives of the Federation and all other persons connected with the
issue in question. Added to it, directions were also issued to the Vice
Chancellors and Registrars of all the Universities for implementing the
said "Government's" decision. In such circumstances, as observed earlier,
it cannot be open to the State to contend that it is not a Government's
decision in terms of Article 162 read with Article 166 of the Constitution.
15) Mr. Venugopal, learned senior counsel for the contesting respondents
heavily relied on the principles laid down in State of Bihar and Others vs.
Bihar Rajya M.S.E.S.K.K. Mahasangh and Others, (2005) 9 SCC 129. The said
decision also arose from a dispute concerning the absorption of about 4000
employees working in teaching and non-teaching posts in 40 colleges
affiliated to various Universities which were taken over as Constituent
Colleges in accordance with the provisions of the Bihar State Universities
Act, 1976. It was contended on behalf of the State of Bihar that power to
sanction additional posts and appointments against the same in the
affiliated colleges is within the exclusive jurisdiction and power of the
State under Section 35 of the Act. It was also contended that certain
decisions of the Government that were taken after the change of elected
Government had no prior approval of the Council of Ministers. The decision
by the Cabinet, approval by the Chief Minister on behalf of the Cabinet is
sine qua non for treating any resolution as a valid decision of the
Government. It was also stated that in the absence of Cabinet approval, the
order dated 01.02.1988 which was issued by the Deputy Secretary to the
Government of Bihar has no legal efficacy. It was further argued by the
State that any valid order of the Government has to be formally expressed
in the name of the Governor in accordance with Article 166 of the
Constitution. In para 64, this Court has held thus:
64. So far as the order dated 18-12-1989 is concerned, the State being
the author of that decision, merely because it is formally not
expressed in the name of the Governor in terms of Article 166 of the
Constitution, the State itself cannot be allowed to resile or go back
on that decision. Mere change of the elected Government does not
justify dishonouring the decisions of previous elected Government. If
at all the two decisions contained in the orders dated 1-2-1988 and 18-
12-1989 were not acceptable to the newly elected Government, it was
open to it to withdraw or rescind the same formally. In the absence of
such withdrawal or rescission of the two orders dated 1-2-1988 and 18-
12-1989, it is not open to the State of Bihar and State of Jharkhand
(which has been created after reorganisation of the State of Bihar) to
contend that those decisions do not bind them.
From the above conclusion, it is clear that merely because of change of
elected Government and the decision of the previous government not
expressed in the name of Governor in terms of Article 166 of the
Constitution, valid decision cannot be ignored and it is not open to the
State to contend that those decisions do not bind them.
16) It is also useful to refer a Constitution Bench decision of this
Court in R. Chitralekha and Anr. vs. State of Mysore and Others, AIR 1964
SC 1823. In order to understand the principles laid down by the
Constitution Bench, it is useful to quote paras 4 and 5 which read thus:
“(4). The next contention advanced is that Annexure IV was invalid as
it did not conform to the requirements of Art. 166 of the
Constitution. As the argument turns upon the form of the said annexure
it will be convenient to read the material part thereof.
"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."
Ex facie this letter shows that it was a communication of the order
issued by the Government under the signature of the Under Secretary to
the Government, Education Department. Under Art. 166 of the
Constitution all executive action of the Government of a State shall
be 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 Dattatreya Moreshwar Pangarkar v. The
State of Bombay 1952 SCR 612 at p.625: (AIR 1952 SC 181 at pp. 185-
186). Das J., as he then was, observed :
"Strict compliance with the requirements of article 166 gives an
immunity to the order in that it cannot be challenged on the ground
that it is not an order made by 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 The State of
Bombay v. Purshottam Jog Naik, 1952 SCR 674: (AIR 1952 SC 317), where
it was pointed out that though the order in question then was
defective in form it was open to the State Government to prove by
other means that such an order had been validly made. This view has
been reaffirmed by this Court in subsequent decisions :
see Ghaio Mall
and Sons v. The State of Delhi ((1959) S.C.R. 1424), and it is,
therefore, settled law that provisions of Art. 166 of the Constitution
are only directory and not mandatory in character and, if they are not
complied with, it can be established as a question of fact that the
impugned order was issued in fact by the State Government or the
Governor. The judgment of this Court in Bachhittar Singh v. The State
of Punjab ((1962) Supp. 3 S.C.R. 713) does not help the appellants,
for in that case the order signed by the Revenue Minister was not
communicated to the party and, therefore, it was held that there was
no effective order.
(5) In the light of the aforesaid decisions, let us look at the
facts of this case. Though Annexure IV does not conform to the
provisions of Art. 166 of the Constitution, it ex facie says that an
order to the effect mentioned therein was issued by the Government and
it is not denied that it was communicated to the selection committee.
In neither of the affidavits filed by the appellants there was any
specific averment that no such order was issued by the Government. In
the counter-affidavit filed by B. R. Varma, Deputy Secretary to the
Government of Mysore, Education 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 admissions to
Medical Colleges and this averment was not denied by the appellants by
filing any affidavit. In the circumstances when there are no
allegation at all in the 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.”
From this decision, it is clear that the provisions of Article 166 of the
Constitution are only directory and not mandatory in character and if they
are not complied with, it can be established as a question of fact that the
impugned order was issued in fact by the State Government. In the case on
hand, we have already demonstrated various communications issued by the
Government for implementation of the earlier decision. In such
circumstance, we have no reason to reject those communications sent by the
higher level officers of the State Government.
17) Inasmuch as all the persons who were competent to represent were the
parties to the said Agreement referred to above and after making such
commitment by the State Government, as rightly observed by the High Court,
we are also of the view that the same has to be honored without any
exception. By the impugned order, the High Court has not only directed the
State Government to implement the commitment given by it having been
reduced into writing on 18.07.2007, honoured by the State Government itself
in subsequent letters/correspondences but also directed the Federation to
call off the strike immediately in the interest of the student community.
We also make it clear that though the High Court termed the impugned order
as interim in nature, considering the fact that the writ petition came to
be filed by a student in the interest of the student community by writing a
letter which was treated as a PIL, no further order need be passed in the
said writ petition, namely, CWJC No. 10870 of 2008 pending on the file of
the High Court at Patna and it stands closed.
18) In view of our conclusion, we direct the State of Bihar to implement
the impugned order of the High Court dated 07.08.2008 within a period of
three months from the date of receipt of copy of this judgment. The appeal
filed by the State of Bihar is dismissed with the above direction. There
will be no order as to costs.
...…………….…………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
JANUARY 18, 2013.
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