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Saturday, January 19, 2013

Whether 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. -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.


                                                                  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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