Madras High Court
V. Sasitharan And Ors. vs The Government Of Tamil Nadu And Ors. on 7 December, 1995
Equivalent citations: (1996)ILLJ647MAD
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER Ar. Lakshmanan, J.
1. The petitioner in W.P. No. 19967 of 1994 is a practising advocate in this Court. According to him, the writ petition has been filed by him without any motive against the respondents and the same has been filed in good faith in order to safeguard the constitutional provisions, judicial principles and public justice. The prayer in this writ petition is to issue a writ of quo-warranto to the 4th respondent Thiru N. Haribaskar as to in what capacity he is holding the office of Chief Secretaryship and discharging its functions, after November 30, 1994.
2. W.P. No. 20297 of 1994 is filed by Mr. K. Rajaram, former Speaker of the Tamil, Nadu Legislative Assembly, former Member of Parliament and a former Minister of the Government of Tamil Nadu challenging the extension of service given to Thiru N. Haribaskar, Chief Secretary to the Government of Tamil Nadu. According to him, the Chief Minister of Tamil Nadu overlooking the constitutional provisions and the Tamil Nadu Government Business Rules and the Secretariat Instructions, 1978, has extended the service of Thiru N. Haribaskar for six months from November 30, 1994. Likewise, under (G.O. Rt. No. 1876, Public (Special A) Department, dated May, 29, 1995, his services were extended for a further period of seven months i.e., upto December 31, 1995. The prayer in the writ petition, as amended by order dated November 10, 1995 in W.M.P. No. 24518 of 1995 is as follows To issue a writ of quo-warranto calling upon the 1st respondent Thiru N.Haribaskar to show cause as to under what authority he holds the office as Chief Secretary of the Tamil Nadu Government purporting to act under G.O. Rt. NO. 4297, Public (Special A) Department, dated November 25, 1994 extending his tenure of service by six months and the subsequent order granting further extension of seven months to the 1st respondent Thiru N. Haribaskar.
3. The petitioner in W.P. Nos 20454 and 20455 of 1994 is a law graduate and a social worker connected with various political and social organisations in the State of Tamil Nadu. He states that he is essentially interested in seeing that the administration in the State of Tamil Nadu is being run in strict conformity with the Constitution of India. Therefore, he is entitled to file the writ petitions questioning the act of extension of service to the Chief Secretary Thiru N. Haribaskar. The amended prayer in W.P. No. 20454 of 1994 is to issue a writ of quo warranto calling upon the 1st respondent Thiru N. Haribaskar to show cause as to under what authority he holds the office of Chief Secretary of Tamil Nadu purporting to act under G.O. Rt. No. 4297, Public (Special A) Department dated November 25, 1994 extending his tenure of service by six months and the subsequent order granting further extension of seven months to the 1st respondent. The prayer in W.P. No. 20455 of 1994 is to issue a writ of certiorari calling for the records of the 4th respondent in G.O. Rt.No.4297, Public (Special A) Department, dated November 25, 1994 and the further extension of seven months and quash the same.
4. W.P. No. 21153 of 1994 has been filed by one Thanga Maruthamuthu, practising advocate and President of Grama Munnetra Kazhagam, Tiruchirapalli, for the same relief as in the other writ petitions. He has also raised similar contentions as in the other writ petitions. According to him, the Governor of Tamil Nadu is the competent authority to sanction extension of service and therefore the extension of service of the 4th respondent Thiru N. Haribaskar in G.O. Rt. No. 4297, Public (Special A) Department, dated November 25, 1994, signed by the 3rd respondent/Chief Minister of Tamil Nadu and issued 'By order of the Governor' without the sanction of the 1st respondent/Governor of Tamil Nadu is not valid and not in accordance with law. For the same reason, the further extension made in G.O. Rt. No. 1876, Public (Special A) Department, dated May 29, 1995 extending the services of Thiru N. Haribaskar for a further period of seven months i.e., upto December 31, 1995, is also illegal and void.
5. As stated earlier, all the writ petitions have been filed questioning the orders of the Government of Tamil Nadu extending the services of Thiru N. Haribaskar, Chief Secretary, as per G.O.Rt. No. 4297, Public (Special A) Department, dated November 25, 1994. W.M.P.Nos. 19063, 19064, 24349 and 24518 of 1995 in W.P. Nos. 20455, 20454, 21153 and 20297 of 1994 were filed to substitute the original prayer viz., to call for the records in G.O.Rt. No. 4297 Public (Special A) Department, dated November 25, 1994, and the further extension of seven months and quash the same. All the writ Miscellaneous Petitions were ordered as prayed for, by order dated November 10, 1995. Under the amendment, the petitioners have also sought to question the further order of the Government made in G.O. Rt. No. 1876, Public (Special A) Department, dated May 29, 1995, extending the services of Thiru N. Haribaskar for a further period of seven months i.e., upto December31,1995.
6. Except the petitioner in W.P.No. 19967 of 1994, all the other petitioners have filed Writ Miscellaneous Petitions to amend and substitute the original prayer made in the Writ petitions, which were also ordered as mentioned earlier. Since the petitioner in W.P.No. 19967 of 1994 has not filed any application for amendment or substitution of the original prayer, questioning the second extension order made in G.O.Rt. No. 1876, Public (Special A) Department, dated May 29, 1995, the said writ petition has become infructuous, since the first extension of six months, which is the subject matter of challenge in the said writ petition, has already expired and the Chief Secretary Thiru N. Haribaskar is now continuing in office pursuant to the second extension granted. Further, learned counsel for the petitioner in W.P.No. 19967 of 1994 also did not appear at the time of final hearing and advanced any argument. Therefore, W.P.No. 19967 of 1994 is dismissed as infructuous.
7. When the writ petitions came up for hearing, learned Advocate General raised a preliminary objection contending that the subject matter in question in the writ petitions relate to "service matters" within the meaning of the Administrative Tribunals Act and therefore, this Court would have no jurisdiction to deal with the said question and the matter would have to be decided only by the Administrative Tribunal. In the light of the aforesaid submission, I directed the learned counsel for the petitioners to first argue on the question of maintainability of the writ petitions in this Court. Mr. G. Subrama-niam, learned Senior Counsel led the petitioners' team and advanced arguments, ably assisted by Mr. B.S. Gnanadesigan, Mr. D. Rajagopal and Mr. K. Manivasagam. The party in person Thanga Maruthamuthu has also made his submissions on this issue and point and also on merits.
8. According to Mr. G. Subramaniam, the writ petitions questioning the orders of the Government extending the services of Thiru N. Haribaskar, Chief Secretary, are maintainable under Article 226 of the Constitution of India on the ground that
a) the question in issue relating to extension of service is not a matter falling within the definition of "service matters" within the meaning of Section 3(q) of the Administrative Tribunals Act; and
(b) In any event, since the writ petitions in question are for the issue of a quo warranto, it is the High Court alone which can exercise jurisdiction and grant such relief and therefore, the matter is within the jurisdiction of this Court.
9. On merits, Mr. G. Subramaniam, learned Senior Counsel, contended that the impugned Govt. Orders are illegal since the Governor, who is the authority to take decision in the matter, has refused to approve the decision and had returned the files, and therefore, the order of the Government, which is issued in the name of the Governor, cannot be sustained as the Governor had refused to approve the decision. It is also contended that the Government Order in question has not been validly and properly authenticated as required by the rules. The learned Senior Counsel further contended that the impugned decision extending the services of Thiru N. Haribaskar, was arbitrary and liable to be set aside. A point was also made that the order of the Government dated November 25, 1994 appears to be ante dated in order to overcome the order of refusal passed by the Governor.
10. The following dates and events bear testimony to the whole case:
November 30, 1994 - The Chief Secretary Thiru N. Haribaskar attained the age of 58 years.
October 26, 1994 - Thiru N. Haribaskar put up a note to the Chief Minister intimating that the Chief Secretary is to superannuate on November 30, 1994.
October 26, 1994 - The Chief Minister proposes to extend the term of the Chief Secretary by six months and papers were forwarded to the Governor.
November 10, 1994 - Under Rule 35 of the Tamil Nadu Government Business Rules, the Chief Minister issued a direction that the cases relating to appointment, posting and promotion of certain categories will be disposed of by the ChiefMinister.
November 15, 1994 - The Governor passes an order under Rule 35(2) Clause 16 of the Business Rules that the cases relating to appointment, posting and promotion of certain cate- gories of officers, which include the Chief Secretary, be submitted to the Governor after clearance by the Chief Minister and before issue of orders.
November 15, 1994 - The Governor also passes an order that the Chief Minister cannot interpret Rule 35(4) as to confer a power to override constitutional provisions.
November 17, 1994 - Cabinet decision that: the order of the Governor is invalid.
November 24, 1994 - The Chief Minister issues a direction under Rule 35(4) relating to disposal of certain matters by the Chief Minister.
November 25, 1994 - Governor passes an order reiterating his earlier view dated Novem ber 15, 1994.
November 25, 1994 - The Governor also passes an order dis-apprpving the proposal to extend the services of Thiru N. Haribaskar. The allegation in the affidavit is that the Governor's dis-approval was communicated to the Government on November 25, 1994 morning itself.
November 25, 1994 - Impugned G.O. Rt. No. 4297, Public (Special A) Department, was issued by the Government. It is the contention of the petitioners that the order dated November 25, 1994 is ante-dated and it was not even sent to the Government Press for publication.
November 9, 1994 - Fax message issued by the P.T.I, saying that the extension was done on that date.
11. The respondent Thiru N. Haribaskar filed a counter affidavit raising the plea that the matter should go before the Central Administrative Tribunal by virtue of the provisions of the Administrative Tribunals Act, 1985 issued under Article 323(A) of the Constitution of India, The Government filed a counter affidavit stating mat the tiles were circulated to the Governor on October 27, 1994 and the order itself was passed under the Tamil Nadu Government Business Rules, and Rule 35(1)(a)(xx) of the Business Rules relates to the appointment of Chief Secretary and that the file need not at all go to the Governor. Further, as per Standing Order No. 4 dated November 10, 1994, the files need be sent only to the Chief Minister. The need for extending the services of the Chief Secretary Thiru N. Haribaskar was because of the two mega events, viz., South Asian Games and the World Tamil Conference. Though the Chief Minister of Tamil Nadu has been added in her individual capacity, and allegations and mala fides are raised, she has not chosen to file any counter affidavit independently.
12. The learned Advocate General contended that the matter in issue does fall within the definition of "service matter". The word "Service matter" has been defined in Section 3(q) of the Administrative Tribunals Act. The said definition runs thus:
"3(q) - Service matters, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any Local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, any Corporation or Society owned or controlled by the Government, as respects -
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;
13. According to the learned Advocate General, the above definition includes matters relating to tenure which in turn includes the subject matter of superannuation. The order in question relates to extension of service passed under the All India Service (Death-cum-Retirement Benefits) Rules, 1988, which deals with superannuation benefits arising out of superannuation, extension of service, etc. Undoubtedly, therefore, the Subject matter would fall within the sub-clause relating to tenure occurring in Section 3(q) of the Administrative Tribunals Act. Even otherwise, the last sub-clause in Section 3(q) makes it clear that all other matters whatsoever in relation to service conditions is included within the definition of service matters. Therefore, it is contended by the learned Advocate General that the contention of the petitioners in this regard deserves to be rejected.
14. The Administrative Tribunals Act has been enacted under Article 323(A) of the Constitution. As per the said provision, the law made by the Parliament can exclude the jurisdiction of all Courts excepting the Supreme Court in respect of service matters. Accordingly the Administrative Tribunals Act has been enacted conferring upon the Administrative Tribunals exclusive jurisdiction to deal with service matters and excluding the jurisdiction of all Courts excepting the Supreme Court in respect of service matters. The learned Advocate General relied on the decision reported in S.P. Sampath Kumar v. Union of India (1987-I-LLJ-128) (SC) and invited my attention to the argument which was put forward on the ground that the Administrative Tribunals Act is bad as it wholly excludes service matters of all kinds from the purview of the High Courts. The Supreme Court, after taking note of the said fact, held that the Administrative Tribunal is a valid substitute for the High Court and therefore, notwithstanding the exclusion of the jurisdiction of the High Courts, the Act is valid. Therefore, the learned Advocate General contended that the definition of the word "service matters" is all inclusive, which will include the subject matter in question. The relevant passage in the said decision runs thus:
"As the Tribunal constituted under the Act is the substitute of the High Court and is entitled to exercise the powers thereof it is of paramount importance that the substitute institution - the Tribunal - must be a worthy successor of the High Court in all respects."
15. The learned Advocate General has also made a reference to the decision of the Supreme Court , which has referred to the observations of the Hon'ble Minister while piloting the Bill. The Supreme Court held that the scope of the definition is to be construed in a very wide manner. Therefore, the learned Advocate General contended that the contention of the Petitioners that the matter in issue is not a service matter is untenable and deserves to be rejected.
16. The second limb of argument on maintainability raised by the petitioners also, according to the learned Advocate General, has no substance. According to him, the exclusion contemplated by the Act is with reference to the subject matter which does not depend upon the nature of the relief. Even a writ of mandamus or certiorari are writs of prerogative nature issued by the High Court, which also stand excluded in respect of service matters by the Administrative Tribunals Act. Therefore, it is contended by the learned Advocate General, that a writ of quo-warranto filed in the High Court will not be a ground to by-pass the jurisdiction of the Tribunal. He further contended that notwithstanding the form of prayer, the point to be considered is the lis and that since the petitioners have challenged the extension of service of the Chief Secretary, the matter has to go only before the Administrative Tribunal since the order in question relates to extension of service under the All India Service (Death-cum-Retirement Benefit) Rules, 1958, which deals with superannuation benefits arising out of superannuation, extension of service, etc.
17. In the above context, the learned Advocate General referred to the decision of a Division Bench of the Karnataka High Court reported in Dr. H. T. Venkata Setty v. Shiva Sailam 1991.L.I.C., 694, which, according to the learned Advocate General, has clearly ruled that even a writ of quo-warranto is not maintainable before the High Court in respect of service matter of a Government servant. Therefore, the present writ petitions are not maintainable and deserve to be rejected. In the above case, the question before the Division Bench was, whether a petition under Article 226 of the Constitution seeking the issue of a writ ofquo-war-ranto against a person appointed to a Civil post in the service of the State of Karnataka, on the ground that he does not possess the qualification prescribed for the post is maintainable before the High Court or it rails within the jurisdiction of the Karnataka Administrative Tribunal. Paragraph 5 of the above judgment can be noticed in order to appreciate the contention of the learned Advocate General. It reads as follows:
"The question as to what is the extent of exclusion of the jurisdiction of the High Courts under Article 226 of the Constitution consequent on the setting up of the Administrative Tribunals under that Act came up for consideration before this Court in S.M. Pat-tanaik v. Secretary to Government of India (1987-II-LLJ- 113) (Kant). In the said decision on interpretation of Article 323-A of the Constitution as also the provisions of the Administrative Tribunals Act, 1985, this Court held that all disputes and complaints relating to service matters,i.e. either with respect to recruitment or condition of service falls within the jurisdiction of the Administrative Tribunals and further by virtue of Section 28 of the said Act, the jurisdiction of the High Courts in respect of these matters stands totally excluded. This Court further held that only questions relating to constitutional validity of any service law regulating recruitment and conditions of service whether enacted by an appropriate Legislature or by rules made by the President or the Governor, as the case may be under proviso to Article 309 of the Constitution or by any executive order, were outside the scope of Article 323-A and the jurisdiction of the Administrative 1 nbunals and to that extent the jurisdiction under Article 226 of the Constitution has not been excluded and cannot be excluded."
18. In reply to the above argument of the learned Advocate General, Mr. G. Subrama-niam, learned Senior Counsel contended that this Court alone has jurisdiction to entertain the writ petition, particularly a writ of quo-war-ranto. He invited my attention to the following passage in the decision reported in The University of Mysore v. G.D.GovindaRao .
"... the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo \varranto gives the Judiciary a weapon to control the Executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not."
19. In the instant case, the writ petition challenges the validity of extension of service to a public office. Therefore, in my opinion, the writ of quo-warranto is maintainable at the instance of any person whether any fundamental or other legal right of such person has been infringed or not, provided he is not. a man of straw set up by someone else. In other words, I am of the view, that in the interest of the public, the legal position with respect to the alleged usurpation of a public office should be judicially declared and this Court can issue a writ of quo warranto at the instance of any member of the public who acts bona fide and is not a mere pawn in the game having been set up by others. The reason is, that in a proceeding for quo warranto, the applicant does not seek to enforce any right of his as such, nor does he complain of non-performance or any duty towards him. Hence, an ordinary citizen can apply for quo warranto to challenge an appointment to a public office even though the applicant himself is not a candidate for that office nor has any other personal interest in such appointment. A proceeding for quo- warranto is thus an exception to the general rule that only a person who has been individually aggrieved can apply under Article 226 of the Constitution. In the case of usurpation of a public office, the person who claims the exercise of the public office is the only proper party to the proceedings. In this case, Thiru N. Haribaskar has been im-pleaded as a party respondent. As in the case of other writs under Article 226 of the Constitution, the jurisdiction to issue quo-warranto cannot be barred by statute.
20. The simple answer to the argument of the learned Advocate General is, this is a public interest litigation. A public interest litigation cannot go before the Tribunal, for, the person entitled to approach the Tribunal is one who is aggrieved as contemplated under Section 19 of the Administrative Tribunals Act. Moreover, the issue of writ of mandamus is the exclusive privilege of the High Court and this cannot be interfered with. With great respect, I am unable to agree with the view expressed by the Division Bench of the Karnataka High Court in 1991, L.I.C., 694 referred to supra, since, in my opinion, the definition 'service matters' in Section 3(q) of the Act has got to be given a special accent. Section 14 ofthe Administrative Tribunals Act bars only all matters, jurisdiction in respect of service. Moreover, under Section 19, a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal can only go and make an application to the Tribunal for the redressal of his grievance. In the instant case, no other officers who are next in the line and are affected by the orders of the Government, have come before the Tribunal. As already seen, the present writ petitions have been filed by advocates and a social worker as public interest litigation. A public interest litigation cannot be construed or equated to a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. Therefore, the public interest litigant can only come before the High Court questioning the legality of the appointment by filing a writ ofquo-warranto. As pointed out by the learned Advocate General, the Administrative Tribunal has all the jurisdiction, power and authority exercisable by all courts including the writ jurisdiction of High Courts under Articles 226 and 227 of the Constitution with regard to service matters. But, however, as pointed out by the Supreme Court in (supra) the procedure of quo-warranto gives the judiciary a weapon to control the executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. Therefore, the High Court alone can entertain an application under Article 226 of the Constitution for quo-warranto, which challenges the validity of an appointment to a public office. As already seen, it is maintainable at the instance of any person whether any fundamental or any other legal right of such person is infringed or not.
21. The learned Advocate General relies on the decision in Sampathkumar's case (supra) in support of his contention. It is true that the Administrative Tribunals are meant to be substituted for High Courts for relieving them of mounting backlog of cases and assuring quick settlement of service disputes in the interest of public servants. The Administrative Tribunals Act is a remedial piece of legislation. In my opinion, the Tribunal cannot be substituted for the High Court of cases arising under Article 226 of the Constitution, particularly, the writ of quo-warranto wh ich is a prerogative writ and that the same can be issued only by the High Court.
22. Mr. G. Subramaniam, learned Senior Counsel, however submitted that the correctness of the view in A.I.R. 1987 S.C., 386 has been referred to a larger Bench in L.Chandra Kumar v. Union of India (]995-\\-LLJ-64Q) paragraphs 3 and 9 of the said judgment can be beneficially noticed in this context, which read as follows:- p.641 "The primary reason, according to us, for having a fresh look at the issues involved in Sampath Kumar's case (supra) is the observations of the Bench therein by which the Tribunals have been equated with the High Courts. A two-Judge Bench of this Court in J.B. Choprav. Union of India (\987-\-LU-255) relying upon Sampath Kumar has held that the Tribunals have the jurisdiction, power and authority even to adjudicate upon questions pertaining to the constitutional validity or otherwise of a rule framed by the President of India under the proviso to Article 309 of the Constitution. They can even adjudicate on the vires of the Acts of Parliament and State Legislatures. Section 5(6) of the Act gives this power, if the Chairman of the Tribunal so desires, even to a single Administrative Member. It is a different matter that no Chairman would like to do so; but that has no relevance while examining the validity of the sub-section which reads as below:
"Notwithstanding anything contained in the foregoing provisions of this Section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify.
Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two members the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit...
The aforesaid post - Sampath Kumar cases do require in our considered view, afresh look by a larger-Bench over all the issues adjudicated by this Court in Sampath Kumar's case (supra) including the question whether the Tribunal can at all have an Administrative Member on its Bench, if it were to have the power of even deciding constitutional validity of a statute or 309 Rule, as conceded in Chopra 's case (supra). Examination of this aspect would be necessary to instil confidence in the minds of people (and litigants) which is the greatest prop of the judiciary."
23. In the decision reported in State ofU.P. v. Pradhan Sangh Kshettra Samiti , the ruling is that in discretionary matters of the Governor, the State Government cannot over-ride. In paragraph 38, the Supreme Court has observed as follows:-
"We have already pointed out that in view of the provisions of Article 154 and of Article 163 read with Article 166 of the Constitution, 'Governor' means the Government of the State and all executive functions which are exercised by the Governor except where he is required under the constitution to exercise the functions in his discretion, are exercised by him on the aid and advice of the council of Ministers. Hence, whether it is a notification issued by the Government or ageneral or special order issued by the State Government, constitutionally both are the acts of the Governor.
24. Therefore, both on the ground of writ of quo-warranto and on public interest litigation, the matter, in my opinion, cannot go before the Administrative Tribunal and Section 28 of the Administrative Tribunals ^ct will not be attracted. In my opinion, the exclusion of jurisdiction is not to be readily inferred and exclusion must have been within the very provision of Section 28 of the said Act. Then again, Section 14 of the Administrative Tribunals Act contemplates determination of service matters, which is I defined in Section 3(q) of the said Act. For all! the aforesaid reasons, I hold that the writ petitions to issue a writ of quo-warranto are maintainable only in this Court.
On Merits
25. Regarding the merits of the case, Mr. O. Subramaniam, learned Senior Counsel, invited my attention to Articles 153, 154, 163, 166 and 167 of the Constitution of India. According to the learned Senior Counsel, Article 167 of the Constitution casts a mandatory duty on the Chief Minister to communicate to the Governor of the State all decisions of the Council of Ministers and furnish information relating to the administration of affairs of the State. He would submit that a cumulative reading of the various provisions would show that there can be a State without a Chief Minister but there cannot be a State without a Governor and that it is in the Governor the entire executive power is vested and the ex-ecutive^iction is also done and to be discharged only in the name of the Governor. In fact, he would submit, that the process of decision making is personal to the Governor and that the executive power discharged in the name of the Governor is not a mere formality.
26. Mr. G. Subramniam would further submit that though under Article 166(2) and 166(3) of the Constitution, the Governor may allot all his functions to the Ministers except those that he requires by or under the Constitution for exercise in his own discretion and in relation to business allotted to perform such functions as may be designed by him. Mr. G. Subramaniam would contend that it is common knowledge and open secret that in Tami 1 Nadu for the past one year or more, there has been want of understanding between the Chief Minister on the one hand and the Governor on the other. The Chief Minister and the Council of Ministers have, to suit their own purposes, chosen to amend the Standing Orders to their own liking and convenience disregarding and throwing into winds all democratic conventions and particularly omitted to respect the high Office of the Governor, and decisions are taken without his approval. The Chief Secretary of the State is an I.A.S officer and he holds the office at the pleasure of the Governor and his office is one to which Article 310 of the Constitution is attracted. The appointing authority of the Chief Secretary is governed by the All India Services (Death- cum-Retirement Benefits) Rules, 1958. Rule 16(1) of the said Rules reads as follows:
"16. Superannuation gratuity or pension. (1) A member of the Service shall be required compulsorily to retire from the service with effect from the afternoon of the last day of the month in which he attains the age of 58 years;
Provided that he may be retained in service after the last day of the month in which he alia ins the age of 58 years on public grounds which shall be recorded in writing.
(a) for an aggregate period not exceeding six months by the State Government; and
(b) for any period beyond six months, with the sanction of the Central Government;
Provided further that a member of the Service shall not be retained in service beyond the age of 60 years except in very special circumstances.
Explanation - For the purposes of this sub-rule, a member of the Service whose date of birth falls on the 1st day of any month shall have attained the age of fifty-eight years on the after noon of the last day of the preceding month.
Provided also that an Indian Civil Service member of the Indian Administrative Service, who attained the age of 58 years before the April 1, 1973 shall retire compulsorily on the date on which he shall retire compulsorily in accordance with the rules applicable to him immediately before October I, 1972, or on April 1, 1973, whichever is earlier unless his service has been extended before October 1, 1972 in accordance with the rules then applicable or in accordance with these rules."
27. Mr. G. Subramaniam, learned Senior Counsel for the petitioners, contended that the 1st respondent Mr. N. Haribaskar attained the age of 58 years on November 30, 1994 and normally he shall be required compulsorily to retire from service on that day. In practice, the Chief Secretary is a person who is also present at the meeting of the Council of Ministers while taking decisions on the administration of the State. It is stated that on October 26, 1994, the Chief Secretary himself put up a note to the Chief Minister that the term of office of the Chief Secretary comes to an end on November 30, 1994 and sought further orders and that the Chief Minister proposed to extend his term by another six months and forwarded the files to the Governor for approval. The fact that the approval for a proposal for extension of the service of the Chief Secretary is to come only from the Governor cannot be denied or belittled and in fact, admitted by the Chief Minister and the Chief Secretary. It is submitted that the file relating to the extension of the Chief Secretary was in the Governor's Secretariat till late in the evening of November 25,1994 and returned to Government on November 25, 1994 after office hours. But, strangely, the Governor issued a Govt. Order purporting to be issued on November 25, 1994 itself extending the term of the Chief Secretary by six months and the Chief Secretary himself; has signed the notification. Strangely, the Govt. Order reads as of "by order of the Governor", which is patently wrong. When the Governor had not approved the appointment, it is not open to the State Government, and particularly the: Chief Minister, to either over-rule the decision of the Governor or sit in judgment over the same.
28. Mr. G. Subramaniam vehemently contends that the decision of the Chief Minister to. extend the term of the Chief Secretary for another six months and further recommending to the Central Government for a further extension of seven months i.e., uptill December31, 1995, is highly mala fide, irregular and arbitrary and; unconstitutional and taken for collateral purposes. It is axiomatic that executive action is taken only in the name of the Governor and the same imposes the responsibility for the action on the Governor. In the instant case, according to> Mr. G. Subramaniam, the Governor has expressly repudiated the proposal for extension and in such a case, still to publish a Govt. order as if the Governor has passed the order is, to say the least, an attempt to mislead the public apart' from publishing false information. Any governmental action should be fair and in public interest and must be based on truth. Action to be fair and in public interest means there must be truth at the bottom of such action. If an action is taken i on untrue basis, it can neither be in public interest nor that could be called fair.
29. According to Mr. G. Subramaniam, the prospect of promotion is a condition of service and other I.A.S. officers in the Seniority list eligible for promotion as Chief Secretary are not to be side-lined by the process of giving an extension to the same officer for ulterior purposes, especially when allegations are made against the said officer. The Chief Minister's action in giving an extension to the Chief Secretary Mr. N. Haribaskar is nothing but a gross abuse of power vested in her. The power of the Chief Minister is one coupled with duty; a duty to act fairly, truly and in public interest, and if the Chief Minister acts in a way sacrificing the element of truth in her action, no Court of Law can affix a seal of approval to support such an action and that law will not enable falsity to prevail.
30.Mr. G. Subramaniam would submit that it is not open to the State Government to act on technically construing the words in Articles 166 and 167 of the Constitution relying upon certain passages and judgments of various Courts, turn out of the context. The hard fact remains that the appointing authority is the Governor and the Chief Secretary holds the office at the pleasure of the Governor. A person not legally appointed cannot be expected to discharge governmental functions and any decision taken by the Government under the Chief Secretary's signature will be ex-facie invalid and inoperative. Even without the Chief Secretary, the Secretariat can finic-tion and in the absence of the Chief Secretary, it is the Public Department which deals with many matters. Each department is headed by a Secretary and is in charge of a Minister. No single human being is indispensable in Government service and that Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, provides that extension should be in public interest. The mere repetition of the words found in the proviso will not disclose the application of mind. The Govt. order must reflect the real application of mind. Public is entitled to know, and more so, the Governor is entitled to know as to what is the public interest involved in this case. Public interest cannot mean tendency to sit or protect certain action of the Government which are liable to be questioned. Public interest is not synonymous with collusion.
31. According to Mr. G. Subramaniam, there has been a controversy relating to the Tamil Nadu Government Business Rules and as early as November 10, 1994 without the concurrence of the Governor, the Standing Orders have been modified purporting to deal with, dispose and transfer of files and the Standing Orders were issued purporting to act under Rule 35(4) of the Business Rules. The said Standing Order itself is invalid in law and is in excess of jurisdiction and it will be questioned separately. The im pugned first Govt. Order though purported to be issued on November 25,1994, was not issued on that date but has been made only long afterwards putting the date as November 26,1994. There is no date put by the officer in charge of the Section issuing the Govt. Order, probably because of his unwillingness to subscribe his signature to an.
ante-dated document. Moreover, the very Govt.
Order has been issued under the signature of the 1st respondent Thiru N. Haribasker. This is also one of the circumstances vitiating the said Govt.
Order. ;
32. Mr. G. Subramaniam, learned Senior Counsel for the petitioners contended that Standing Order No.4 issued by the Chief Minister's Office on November 10, 1994 and Stand-; ing Order No. 5 dated November 24, 1994, purported to be issued under Rule 35(4) of the Tamil Nadu Government Business Rules and Secretariat Instructions, is not valid since it is not in conformity with the strict reading of Rule 35(4). Rule 35(4) reads thus:
"Notwithstanding anything contained in this rule or any other rules, the Chief Minister may, by means of Standing Orders, give such directions as he thinks fit, to restrict and regulate the submission of any classes of cases to him or through him to the Governor, as the case may be. Copies of such Standing Orders shall be sent to the Governor."
This rule contemplates only restriction or regulation of the business and it cannot add or subtract to Rule 32(2) of the Business Rules and the Secretariat Instructions. Rule 32(2) specifi-: cally casts an obligation on the Chief Minister to submit the case to the Governor before issuing orders. Rule 35(2) has not been amended so far. Even then, neither under Rule 35(2) nor under Rule 35(4), the Chief Minister can do anything in violation of the express terms of Article 310 of the Constitution of India, whjeh contemplates the cases of officers holding office under the pleasure of the Governor during the tenure. By no stretch of imagination, there can be any rule violating the provisions of Article 310 of the Constitution, either legislating upon or interfering with the pleasure of the Governor.
33. The Chief Secretary holds the office at the pleasure of the Governor and in this case, when the files were forwarded to the Governor for invoking his pleasure, the Governor has declined to extend the pleasure. But despite this, it is unfortunate, that the Government has chosen to extend the term of the Chief Secretary in gross violation of Article 310 of the Constitution. Even the impugned first Govt. Order takes shelter under the proviso to Rule 16(1) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. But, neither Rule 35(2) nor Rule 35(4) of the Tamil Nadu Government Business Rules or any of the Articles of the Constitution empowers the Government to extend the term of the officer retiring on a particular" date on account of superannuation or illness.
34. The exercise of pleasure by the Governor is purely personal to him and doctrine of pleasure is not subject to the advice or recommendations of the Government and the Council of Ministers including the Chief Minister. This really comes under Article 163(2) of the Constitution. On this short ground, namely, that the Governor has disapproved the proposal and the Governor has not extended the pleasure to continue the 1st respondent Thiru N. Haribaskar in his office, the impugned first notification is bad in law. The amendment issued on November 16, 1994 by introducing Standing Order No. 4 itself is bad'in law for the reason that it has been made subsequent to the sending of the file relating to the extension to the Governor and when the matter was seized by the Governor's Secretariat. Having chosen to submit the papers to the Governor, it is not open to the Government to take any action stifling the process of consultation of the Governor. On this ground also, the entire action of the Government is liable to be ignored,
35. Mr. G. Subramaniam contended that the Tamil Nadu Government Business Rules have no statutory force and the act of the Government is not justified. Further, those rules are merely declaratory in nature. Winding up his argument, Mr. G. Subramaniam, said that viewed from any angle, this is a case where there are very eminent, well trained and experienced Senior I.A.S. officers in the State of Tamil Nadu. Nobody is indispensable in public service. Extension to one and the same person will demoralise the public service. When a person enters into the service, he enters with the hope that he will go up and if on reaching the superannuation he is still continued in service, people in the next ranking will be frustrated. Therefore, extension of service should be very rare and it should be granted only. to persons of proven ability and integrity.
36. Other learned Counsel appearing for the petitioners have adopted the above arguments of Mr. G. Subramaniam. The party in person Mr.: Thanga Maruthamuthu has also adopted the arguments of Mr. G. Subramaniam. He further invited my attention to the various Articles in the Constitution of India, Tamil Nadu Government Business Rules, etc. and also to some judgment; which I will refer wherever it is necessary. Since the party in person repeated the same argument, of course, in his own way, I feel there is no need to repeat the same again in this judgment.
37. Mr. N. Haribaskar filed a counter affidavit only for the limited purpose of raising a preliminary objection with regard to the maintainability of the writ petition in this Court in W.P.No.20454 of 1994. He has also filed a-detailed counter affidavit in W.P.No. 20297 of 1994 filed by Mr. K.Rajaram, former Speaker of Tamil Nadu Legislative Assembly and in W.P.No. 21153 of 1994 filed by the party in person and in W.P.No. 19967 of 1994 filed by-an advocate.
38. Mr. R. Balakrishnan, Secretary to Government, Public Department filed a very detailed but separate counter affidavit in the writ petitions, i The gist and crux of the counter affidavit is thus: The function of extending the service of a Government servant under the first proviso to Rule 16(1) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, is an executive power of the State. Whenever any executive power is to be exercised by the Governor, it has to be exercised with the aid and advice of the Council of Ministers, the Governor being the constitutional head of the executive and is also subject to allocation of business under Article 166(3) of the Constitution. In this connection, the following observation of the Supreme Court in Union of India v. Sripati Ran/an Biswas (1975-II-LLJ-363) is relevant: at page 365.
"The question which is raised in this appeal relates to the domain of appointment or dismissal of a Govt. servant. Such a question falls within the ambit of purely executive function of the President in the case of the Union Government and of the Governor in the case of State."
Therefore, appointment, dismissal or extension beyond superannuation will be in the domain of the executive function of the State.
39. In the counter affidavit it is further averred that under Article 166 of the Constitution, the executive functions of the Governor have been allocated to the various ministers. The subject "All India Services" has been allotted to the Hon'ble Chief Minister under the allocation of business made by the Governor by virtue of the latter part of Clause 3 of the Article 166 of the Constitution.
The decision of the Hon'ble Chief Minister in respect of the members of the All India Service will become the decision of the Governor. The following observations of the Supreme Court in Shamsher Singh v. State of Punjab (1974-II-LLJ-465) are on the point: pp 476 - 477 "Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution.... The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercise his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the per--sonal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of any Minister orOfficer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These Articles did not provide for any delegation. Therefore, the decision of Minister or Officer under the Rules of Business is the decision of the President or the Governor."
40. In the counter affidavit it is averred that the principles laid down in Shamsher Singh's case (supra) have been extended to a quasi-judicial function also by a Division Bench of the Supreme Court in Union of India v. SripatiRan-jan Bis-was (supra) holding that the appeal by a Government servant to the President against the order of dismissal under a statutory provision could be heard by a Minister or other officer to whom it might be allocated under the Rules. In view of the decisions referred to above, the appointment and other service matters of members of All India Services are the executive functions of the State Government and as per the latter part of Article 166(3) of the Constitution, the subject matter 'Members of All India Services' has been allotted to the Hon'ble Chief Minister. Therefore, the retention of a member of the All India Service beyond 58 years falls within the powers of the Hon'ble Chief Minister.
41. It is further averred in the counter affidavit that in sub-clause(xx) of Business Rules 35(1 )(a), appointment of Chief Secretary has been included in the list of items to be circulated to the Chief Minister. But, no such specific mention of the said subject is in the list of cases to be circulated to the Governor under Business Rules 35(2). Besides, as per Instruction 15 of the Secretariat Instructions issued by the Governor under the Business Rule 63, all proposals for grant of leave or extension of service to a gazetted officer after the date on which he should retire compulsorily shall be submitted to the Minister in charge and to the Chief Minister. Therefore, even according to the existing Business Rules viz., 35(1)(a)(xx) and Instruction 15 of the Secretariat Instructions, appointment and extension of service of Chief Secretary is not'a case to be circulated to the Governor.
42. Mr. R. Balakrishnan, Secretary, Public Department, further averred in the counter affidavit that Article 310( I) of the Constitution inter alia provides that except as expressly provided by the Constitution, every person who is a member of the Civil Service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. The pleasure contemplated under Article 310(1) of the Constitution is not the personal pleasure of the Governor but shall be exercised on the aid and advice of the Council of Ministers. The pleasure theory contemplated under Article 310 of the Constitution is not a personal pleasure of the Governor, but, as decided by the Supreme Court in Union of India v. Tulsiram Patel (1985-H-LLJ- 206) is the aid and advice pleasure which is regulated by Business Rules framed under Article 166(2) and (3) of the Constitution. Therefore, the said provisions and actions are constitutionally valid.
43. Under Article 167 of the Constitution, the Governor is empowered to direct the Chief Minister to communicate to him all decisions of the Council of Ministers and it is the duty of the Chief Minister to furnish such information. The scope of Article 167 of the Constitution is different from the scope of the administration of the State which is governed by the Rules of Business made under Article 166(2) and (3) of the Constitution. Article 167 of the Constitution only empowers the Governor to issue directions to the Chief Minister to communicate to him all decisions. As a matter of fact, the decisions taken by the Chief Minister including the Standing Orders have been communicated to the Governor even without the Governor asking for the same. The said provision viz., Article 167 of the Constitution, would not enable the Governor to override Article 166 of the Constitution or the Business Rules or Standing Orders made there-under. There was no occasion where the Government refused to furnish any information that the Governor wanted.
44. Under Article 166 of the Constitution, the executive functions of the Governor have been allocated to the various Ministers. The subject 'All India Services' has been allotted to the Hon'ble Chief Minister under the allocation of business made by the Governor by virtue of the latter part of Clause 3 of Article 166 ofthe Constitution. The decision ofthe Hon'bleChief Minister in respect ofthe members ofthe All India Service will become the decision ofthe Governor and the files need not be circulated to Governor on that score. Therefore it is prayed that the writ petitions are wholly misconceived and without any merit whatsoever and as such, the writ petitions are liable to be dismissed.
45.1 have given my anxious consideration to the rival contentions. My opinion on the (questions argued is as follows: The service conditions of the members of the All India Services are governed by various rules. The All India Services (Death-cum-Retirement Benefits) Rules, 1958, deal with retirement on superannuation, extension of service, benefits to be given on retirement, death, etc., of a member of service. I have already extracted Rule 16(1) ofthe Rules. The said rule provides that a member of the service, who is due to retire, could be retained in service on public grounds by the State Government for a period of six months and for any period beyond six months with the sanction of the Central Government. The aforesaid rule, therefore, enables the Government to extend the services of a member of the Indian Administrative Service beyond the age of superannuation for a period of six months by the State Government itself and for a period beyond six, months with the approval ofthe Central Government.
46. In the instant case, a proposal was made to extend the service of Mr. N. Haribaskar, who was due to retire on November 30,1994. Article 166 ofthe Constitution reads as follows:
"166(1) All executive action ofthe Government of a State shall be expressed to be taken in the name ofthe 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 or the State, and for the allocation among Ministers or the said business in so far as it is not business with respect to which the Governor is by or under this Constitution to act in his discretion."
47. As per the Rules of Business framed under Article 166(3) ofthe Constitution, the extension of service of Government Officers is a matter falling within Rule 15 ofthe Secretariat Instructions issued under Rule 63 of the Business Rules. As per the said provision, the extension of service is a matter which has to be dealt with and submitted to the Minister in charge and to the Chief Minister. It is not a matter falling within the purview of Rule 3 5(2) of the Business Rules, which are matters to be submitted to the Governor before issue of orders. However, in the present case, the files have been forwarded to the Governor on October 26, 1994, though it is not required to be submitted to the Governor under any provisions ofthe Business Rules. Till November 24, 1994, the files were retained by the Raj Bhavan and they were returned only thereafter. Therefore, having regard to the fact that Thiru N. Haribaskar was due to retire on November 30,1994 and taking note of the provisions of the Business Rules, the matters were placed before the Chief Minister and on November 24, 1994, the Chief Minister issued orders recording reasons for extending the service of Thiru N. Haribaskar for a period of six months.
48. The note for circulation submitted by Public (Special A) Department and the reasons recorded by the Chief Minister are extracted herein below:
"Thiru N. Haribaskar, l.A.S. (1959), Chief Secretary to Government is to superannuate on November 30, 1994, In file bearing No. 5416/94, orders of the Hon'ble Chief Minister, extending the services of Thiru N. Haribaskar, l.A.S. were obtained and the file circulated to the Governor on October 27, 1994. The fi le has not yet been received back. from the Governor.
In the light of the Standing Order No.4 dated November 10, 1994, the case is again circulated to the Hon'ble Chief Minister for kind orders. :
(Sd.) xxx December 24, 1994 Hon'ble Chief Minister In the public interest, I consider it necessary to extend the services of Thiru N. Haribaskar, I.A.S., as Chief Secretary for a period of six months from the date of superannuation. Especially in view of the fact that the Govt. of Tamil Nadu is to conduct a mega event like the World Tamil Conference in January 1995, and the fact "that the present Chief Secretary is the Chief Coordinator in charge of the myriad, intricate arrangements for the World Tamil Conference, any change at this juncture would jeopardise the smooth conduct of the Conference.
(Sd.) J. Jayalalitha, November 24, 1994
49. Thereupon, the Government issued G.O.Rt.No. 4297, Public (Special A) Department, dated November 25, 1994 which is as follows:
"Under the first proviso to sub-rule (1) of Rule 16 of the AH India Service (Death-cum-Retirement Benefits) Rules, 1958, the Government of Tamil Nadu direct that Thiru N. Haribaskar, l.A.S., Chief Secretary to the Govt. of Tamil Nadu, be granted extension of service, on public grounds, for six months from December 1, 1994.
2. Thiru N. Haribaskar, I.A.S., will continue to act as Chief Secretary to the Government of Tamil Nadu during this period.
(By order of the Governor) (Sd.)N. Haribaskar, Chief Secretary to Government."
50. On November 28, 1994, the file submitted to the Governor was received by the Office of the Chief Secretary, in which the Governor has made certain remarks dis-approving the proposal to extend the services of Thiru N. Haribaskar. The dis-approval note of the Governor dated November 25, 1994 runs thus:
"When the file was circulated to me no special reasons have been given for extending the services of Sri. Haribaskar, l.A.S. I do not approve of the practice of granting extension for Chief Secretaries without giving valid reasons which is admittedly absent in the files in spite of my earlier remarks on these lines.
The morale of the bureaucracy has already been severely affected by the action of the present Government, favouring a chosen few like Sri N. Haribhaskar. Even on merits, in view of the various controversies which surround him, it will not be appropriate to give an extension to him.
My opinion of him continues to remain the same and both in public interest as well as that of the administration and also to preserve the chance of some other competent officer becoming the Chief Secretary in his legitimate right, I disapprove the proposal to extend the services of Sri. N. Haribaskar.
(Sd.) M. Chenna Reddy, Governor."
51. The Chief Minister, however, made a record in the file about the factual and legal position referred to above to the effect that orders of extension of the service need not be submitted to the Governor and that it has already been passed by the competent authority. The reasons recorded by the Chief Minister on November 28, 1994 in the file relating to first extension runs thus:
"The case of extension of service of Gazetted Officers is a matter falling under Clause 15: of the Secretariat Instructions read with Rule 63 of the Business Rules, The file, therefore, need not have been sent to the Governor in the first place. After November 10, 1994, however, even if the case is taken to fall: within 35(2) of the Business Rules, the file need not be sent to the Governor in view of the Standing Order No.4. In the circumstances, the orders already passed on November 24, 1994 may stand and no further; circulation is necessary to the Governor.
Since the pleasure of the Governor is not personal but is on aid and advice, the Governor is also not entitled to disapprove the proposal. In. the circumstances, the noting of the Governor on the file sent in October, 1994, is of no avail and can be lodged.
(Sd.) J. Jayalalitha, November 28, 1994."
52. Coming to the validity of the order dated November 25, 1994, it is necessary to refer to> certain relevant provisions of the Constitution and the Business Rules in order to appreciate the issue in controversy. Article 154 of the Constitution reads as follows:-
"154. Executive power of State: (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
2. Nothing in this article shall (a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor."
The said Article provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.
53. Article 163 of the Constitution reads as follows:
"163. Council of Ministers to aid and advise Governor: (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
2. If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought not to have acted in his discretion.
3. The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court."
The above Article provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to exercise his functions in his discretion.
54. We now come to Article 166 of the Constitution.. It runs thus:
"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 alllocation among Ministers of the said business in sofaras it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion."
Article 166(1) provides that al I executive ac-. tionis of the Government shall be expressed to be taken in the name of the Governor.
Articles 166(2) provides that orders and other instruments made and executed in the narne of the Governor shall be authenticated in such manner as may be specified in Rules to be made by the Governor. Article 166(3) provides that the Governor shall make rules for the more convenient transaction of the business of the Government and for the allocatiop-among the Ministers of the said business.
55. The Business Rules have been framed by the Governor under Article 166(3) of the Constitution. The Business Rules are not exhaustive. In terms of Rule 63 of the Business Rules, Secretariat Instructions have been issued by the Governor to supplement the Business Rules. As per the provisions of the Constitution and the Rules framed thereunder, all executive functions of the Government are exercised with the aid and advice of the Council of Ministers. The matter relating to service of Government servants is admittedly a function which falls within the aid and advice power. The exercise of such power is thus made by the Minister concerned or by the Officers concerned, who are authorised by the Rules to function on behalf of the Government. The orders issued by the Government are issued in the name of the Governor as required under Article 166(1) of the Constitution and are authenticated in the manner prescribed in the rules in terms of Article 166(2) of the Constitution. A decision or order of the Government, which falls within the aid and advice function, is thus the decision or order of the Council of Ministers or a Minister or an Officer, who are authorised by the Rules. The decision or satisfaction contemplated by the Constitution in such areas is not the personal satisfaction or personal pleasure of the Governor.
In this context, a reference can be made to the judgments of the Supreme Court reported in Samsher Singh v. State of Punjab (supra) and Union of India v, Tulsiram Patel (supra)
56. In Samsher singh case at page 484 & 510 A.I.R. (supra) it has been held as follows.
"For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion, the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of the members of the Subordinate Judicial Service is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. Appointments and removals of persons are made by the President and the Governor as the constitutional head of the executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union of the State in regard to appointment or dismissal is brought against the Union or the State and not against the President or the Governor...
We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which fyas lost its majority in the, House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is recassitous although in this area the head of State should avoid getting involved in politics and must be advised by the Prime Minister: (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that De Smith's Statement (Constitutional and Administrative Law by S.A.De Smith - Penguin Books on Founda-; tions of Law) regarding royal assent holds good for the President and Governor in India.
'Refusal of the royal assent on the ground that the monarch strongly disapproved of a bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course - a highly improbable contingency - or possibly if it was notorious that a bill had been passed in disregard to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent"
57. In the case of Union of India v. Tulsiram Patel (supra) Supreme Court observed as follows: (at page 229) "The position, therefore, is that the pleasure of the President or the Governor is not required to be exercised by either of them personally, and that is indeed obvious from the language of Article 311. Under Clause 1 of that Article, a government servant cannot be dismissed or removed by an authority subordinate to that bywhich he was appointed. The question of an authority equal or superior in rank to the appointing authority cannot arise if the power to dismiss or remove is to be exercised by the President or the Governor personally. Clause (b) of the second proviso to Article 311 equally makes this clear when the power to dispense with an inquiry is conferred by it upon the authority empowered to dismiss, remove or reduce in rank a Government servant in a case where such authority is satisfied that for some reason., to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry, because if it was the personal satisfaction of the President or the Governor, the question of the satisfaction of any authority empowered to dismiss or remove or reduce in rank a Government servant would not arise. Thus, though under Article 310(1) the tenure of a Government servant is at the pleasure of the President or the Governor, the exercise of such pleasure can be either by the President or the Governor acting with the aid and on the advice of the Council of Ministers or by the authority specified in Acts made under Article 309 or in rules made under such Acts or made under the proviso to Article 309; and in the case of clause (c) of the second proviso to Article 311(2), the inquiry is to be dispensed with not on the personal satisfaction of the President or the Governor but on his satisfaction arrived at with the aid and on the advice of the Council of Ministers".
58. The above two decisions, in my opinion, would cjearly go to show that the decision of the Government or Governor is the decision of the Council of Ministers and not the personal satisfaction or decision of the Governor and that the Governor has necessarily to act on the basis of the aid and advice and he cannot act against the advice of the Council of Ministers.
59. In the light of the above legal principles, it would be seen that once a matter is decided by the Minister in charge or by the Chief Minister, where it is required, the said decision is the decision of the Governor or the Government. The order so issued on the basis of the said decision is the order of the Governor or the order of the Government, which is accordingly issued in the name of the Governor as required by Article 166(1) of the Constitution. In the light of the aforesaid principles, in my opinion, the contentions of the petitioners are without any merit and substance.
60. As already discussed, the subject matter is one not falling within Rule 35(2) of the Tamil Nadu Government Business Rules. Rule 35(1)(a) reads as follows:-
"35 (1)(a). The following classes of cases shall be submitted to the Chief Minister before the issue of orders:
...xxxxxxxx 35(1)(a)(xx) Appointment of the Chief Secretary."
61. Rule 35(2) of the Business Rules reads as follows:-
35(2). The following classes of cases shall be submitted by the Chief Minister to the Governor before the issue of orders:
(i)(a) Proposals for the grant of pardon in pursuance of Article 161 of the Constitution.
(b) proposals to suspend, remit or commute sentences passed on convicted persons in important cases.
(c) Cases relating to petitions for mercy from or on behalf of persons sentenced to death,
(ii) Cases raising questions of policy.
(iii) Cases which affect or are likely to affect the peace and tranquility of the State or any part thereof.
(iv) Cases which affect or are likely to affect the interests of any minority community, Scheduled Castes, Scheduled Tribes and Backwards Classes.
(v) Cases which affect the relations of the State Government with the Govt. of India, any other State Government, the Supreme Court or the High Court.
(vi) Cases pertaining to the Governor's personal establishment and Govt. House matters.
(vii) Proposals for the appointment of Chair-man and Members of the State Public Service Commission, cases dealing with resignation of the Chairman or any such Member and proposals for the appointment of the Secretary, Joint Secretary, Deputy Secretary and Assistant Secretary of the State Public Service Commission.
(viii) Proposals for dismissing, removing or compulsorily retiring any Government Officer except cases of retirement under F.R. 56(d).
(ix) Proposals for the appointment, posting and promotion of the following officers:
(a) Secretaries, Additional Secretaries and Joint Secretaries to Government;
(b) Heads of Departments;
(c) Special officers such as Food Commissioner.
(d) District Judges including Additional District Judges, Joint District Judges, Assistant District Judges, Chief Judge, Court of Small Causes, Principal Judge, City Civil Court, Additional Judges, City Civil Court, Chief Metropolitan Magistrate, Administrator General and Official Trustee, Sessions Judges, Additional Sessions Judges and Asst. Sessions Judges;
Explanation - In respect of officers mentioned in item (d), the expression 'appointment, posting and promotion' shall mean the first appointment, posting and promotion and the word 'posting' shall not include 'transfer'.
(e) Deputy Inspector General of Police;
(f) Collectors;
(g) District Magistrates;
(h) Sheriff of Madras;
(i) Advocate General (including proposals for determining or varying the remuneration payable to him) and cases dealing with his resignation and his removal.
(x) All proposed rules affecting the pay, allowances or pension payable to or in respect of officers appointed by the former Secretary of State for India.
(xi) All cases relating to the issue of any notification under sub-section (2) of Section 15 or under Section 16 of the Representation of the Peoples Act, 1951 (Central Act XLIII of 1951), summoning and prorogation of either House of the Legislature, dissolution of the Legislative Assembly, disqualification of Members of the State Legislature arising under Article 192, proposals to nominate Members of the Legislative Council under Article 171(3)(e) or proposals for the provision of representation to the Anglo-Indian Community under Article 333.
(xii) Cases relating to the appointment of Secretary, Deputy Secretary and Under Secretary to the Legislature.
(xiii) Cases relating to the application of Acts of Parliament or. of the State Legislature to the Scheduled areas and the making of regulations for the peace and good Government of those areas.
(xiv) Cases relating to the presentation to either House of the Legislature of the annual financial statement or a statement relating to supplementary, additional or excess grants and Appropriation Bills.
(xv) Any departure from these rules which comes to the notice of the Chief Secretary or the Secretary of any Department.
(xvi) Such other cases of administrative importance as the Chief Minister might consider necessary or as the Governor may wish to see.
(3) Cases relating to the appointment or resignation of the Chief Minister or any other Minister shall be submitted to the Governor.
(4) Notwithstanding anything contained in this rule or any other rules, the Chief Minister may, by means of Standing Orders, give such directions as he thinks fit, to restrict and regulate the submission of any classes of cases to him or through him to the Governor, as the case may be, Copies of such Standing Orders shall be sent to the Governor."
62. As referred to already, the subject matter of dispute is one not falling within Rule 35(2) of the Business Rules and therefore, as rightly contended by the learned Advocate General, the file relating to the extension of service of the Chief Secretary need not be circulated to the Governor. On the other hand, the matter in question squarely falls within the Secretariat Instructions No. 15 read with Business Rule No. 63, which is to rest with the Chief Minister.
63. Secretariat Instruction No. 15 reads as follows :-
"All proposals for the grant of leave or an extension of service to a Gazetted Officer after the date on which he should retire com-pulsorily shall be submitted to the Minister in charge and to the Chief Minister."
Rule 63 of the Business Rules reads as follows :-
"63. These rules may to such extent as may be necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister."
64. Therefore, I am of the opinion, that the decision taken by the Chief Minister on November 24, 1994, followed by the Govt. Order on November 25, 1994, is proper and perfectly valid and within the frame work of the Tamil Nadu Government Business Rules.
65. In the light of the above principles, this Court need not go into the other questions about the validity of the notings of the Governor in the file. As observed by the Supreme Court in (1974- II-LLJ-465) the Governor cannot act against the aid and advice of the Council of Ministers in the area falling within the executive functions which are to be exercised with the aid and advice of the Council of Ministers. Therefore, the notings on the file by the Governor, which has been received by the Government on November 28, 1994, have no sanctity in law. Therefore, I am of the opinion that the contention of the petitioners about the Governor's refusal or about the alleged requirement of the Governor to approve the proposal is without substance.
66. In this context, it is necessary to notice two more judgments, which may be relevant to the point at issue. The first one is the Full Bench judgment of the Bombay High Court reported in Chandrakant Sakharam Karkhanis v. State of Maharashtra wherein it has been observed as follows:
"Circulars, orders or Resolutions or parts thereof laying down the rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by signature under the endorsement 'By order, and in the name of the Governor of Maharashtra' and intended to be applicable straightaway can amount to rules framed in exercise of the powers conferred under the proviso to Article 309, although the said Circulars, Orders or Resolutions do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Article 309 and are not published in the Government Gazette. ... Whether Circulars, Resolutions and Orders are really in the nature of executive instructions or directions issued by the State Government in exercise of executive power or statutory rules framed by the Governor under the proviso to Article 309, will have to be resolved by taking into account four aspects, namely, (a) subject matter, (b) general applicability, (c) form and formalities, if any, and (d) publication. The question is which of these aspects will have to be regarded as essential or decisive and which are relevant but not decisive.... Before any Circular, Order or Resolution could be said to contain rules framed under the proviso to Article 309, it would be absolutely essential to find out whether the contents of such Circular, Order or Resolution mainly or substantially deal with the topic of recruitment rules and/or service conditions of Government employees. Secondly, it will have to be considered whether such circular, Order or Resolution contains rules or principles of general applicability or not, for, ordinarily unless the rules or principles comprised in such Circular, order or Resolution partake of the character of general applicability, such instrument would not be regarded as containing rules framed under the proviso to Article 309.... There is no particular charm in the expression 'By order and in the name of the Governor' and its absence in any particular Circular, Order or Resolution would not be conclusive one way or the other, for, even if such expression is absent it is well settled that the fact that the instrument has been issued under the authority of the Governor can be proved by other evidence if necessary and if it is so proved, there would be no question of the relevant Circular, Order or Resolution getting vitiated by reason of its absence. Its presence also cannot be regarded as decisive on the point as to whether the contents of the instrument should be regarded as amounting to Rules under Article 309 or as containing executive instructions and the same will have to be regarded as of no consequence.... No particular form is necessary in which a rule under the proviso to Article 309 should be framed and the rules governing recruitment and service conditions framed under the proviso to Article 309 can take any form of either a letter or a Memorandum or a Circular or an Order or a Resolution and it is not necessary that these should be styled as Rules framed under the proviso to Article 309 of the Constitution.... The aspect whether the source of power viz., proviso to Article 309 has been specifically referred to in the instrument in question though a relevant factor would not be a decisive factor to decide the question whether the contents of the instrument could be regarded as rules framed underthe proviso to Article 309.... The power which is conferred upon the President or the Governor under Article 309 being legislative in character and the rules that are to be framed thereunder being tantamount to laws regulating recruitment and other service conditions of the Government employees in public services or posts which will have general applicability, the publication of such rules is absolutely essential, but it will be too narrow a view to.take that such publication must necessarily be in the official gazette.... The Maharashtra Government Rules of Business framed on June 26, 1975 are only directory. In fact the provisions of Article 166 of the Constitution themselves are directory in nature and the rules framed by the Governor under Clause 3 of Article 166 must be regarded as rules having been framed for more convenient transaction of business of the Government and as such directory and not mandatory in character. Any non-compliance thereof would be a mere procedural defect but would not confer any right upon any citizen to approach the Court under Article 226 of the Constitution"
67. The next judgment is that of my learned brother Shivaraj PatilJ in N. Ramu v. Union of India 1995, Writ L.R., 146. The learned Judge also followed the Full Bench decision of the Bombay High Court in of the judgment can be usefully referred to in the present context. It runs thus:
"The legal position that emerges from the decisions cited above are:
(i) compliance with the requirements of Article 166 gives an immunity to the order inasmuch as it cannot be challenged on the ground that it is not an order made by the Governor, but it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor, and that the provisions of Article 166 of the Constitution are only directory and not mandatory in character.
(ii) The Business Rules framed by the Governor under Article 166(3) of the Constitution are for more convenient transaction of the business of the Government of the State;
(iii) All executive action of the Government of a State shall be taken in the name of the Governor and that the orders made in the name of the Governor shall be authenticated in such manner as may be specified in Rules. There is no specific or set form in which an executive order should be expressed. What is to be seen is whether there is substantial compliance of the requirements of Article 166 of the Constitution."
Both the above judgments laid down the scope and content of the Business Rules and also laid down that even if there is a contravention of the Business Rules, it would not give any right to any citizen to question the Government Order.
68. One other contention raised by the petitioners is that the Government order cannot be stated to be under the Orders of the Governor since he has dis-approved. An argument was also advanced that there has been no proper authentication of the order. Both these submissions, in my opinion, are mis-conceived. Every order of the Government should be expressed to be taken in the name of the Governor as required by Article 166(1) of the Constitution. As referred to earlier, once a decision has been taken by a proper authority, either an Officer or a Minister, it constitutes a decision of the Governor/Government. Such orders are necessarily to be issued in the name of the Governor. The authentication has been properly made as required by the Rules.
69. The further contention urged by the petitioners is that the extension of service can be made only on public grounds, for reasons to be recorded in writing. I have already referred to the notings made in the files. The files disclose that reasons have been given by the Chief Minister to the effect that public interest requires that the service of Mr. N. Haribaskar is to be extended. In this context, it is pertinent to refer to the letter sent by the Chief Minister of Tamil Nadu to the Prime Minister of India seeking sanction for the extension of service of Mr. N. Haribaskar for a further period of seven; months i.e, uptill December 31,1995. The letter reads as follows.
"Thiru N. Haribaskar, I.A.S. of Tamil Nadu Cadre (1959) was appointed as Chief Secretary to Government of Tamil Nadu with effect from June 1,1994. He was to retire from service on November 30, 1994, on attaining the age of superannuation. But, he was given an extension of service by the State Government for a period of six months from December 1, 1994 on public grounds.
Though his tenure as Chief Secretary is short, he was able during th is short period to see that a highly ambitious plan target was not only achieved but also surpassed. Utilising his rich experience in various important departments, he was able to successfully co-ordinate the mega event viz., the Eighth World Tamil Conference at Thanjavur under my guidance.
He is now presently the co-ordinator of yet another mega event viz., 'The SAP Games' which is an international event and for which Olympic Standards have to be observed. Any change at this time will affect co-ordination and will tell upon the ultimate result.
Apart from this, he is also in charge of local body elections for Panchayats and Municipal Councils. As such, it is essential-that he should continue to be in charge till these events are completed.
He is also in overall supervision of the Telugu Ganga Scheme for bringing drinking water to Madras City and he is monitoring its progress.
It is also understood that the Goyt. of India has been good enough to accord its concurrence very recently in similar cases in Orissa, Punjab, etc. Under these circumstances, I request you to kindly sanction the extension of service of Thiru N. Haribaskar for a further period from June 1, 1995 to December 31, 1995.
(Sd.) J. Jayalalitha ChiefMinister April 8, 1995
70. A Fax Message from Shri A.K. Thakur, Director (S), Department of Personnel and Training, New Delhi, to The Chief Secretary, Government of Tamil Nadu, Madras dated April 21, 1995 in No. 26014/1/95-ATS (II) reads as follows:
"Reference letter dated April 6, 1995 from ChiefMinister, Tamil Nadu, regarding proposal for extension in service of Shri N. Hari baskar, I.A.S. (T.N.59), Chief Secretary, Government of Tamil Nadu. Approval of Government of India under Rule 16( 1) of the DCRB Rules, 1958 is conveyed to the further extension in service of Shri N.Haribaskar, I.A.S. (T.N.59) upto December 31, 1995."
71. Thereupon, the Government of Tamil Nadu passed G.O.Rt.No. 1876, Public (Special A) Department, dated May 29, 1995, which reads as follows:
"Under the first proviso to Sub-rule(1) of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, the Government of Tamil Nadu with the sanction of the Govt. of India, grant extension of service on public grounds, to Thiru N. Haribaskar, I.A.S. Chief Secretary to the Government of Tamil Nadu for a further period from June 1, 1995 to December 31, 1995.
2. Thiru N. Haribaskar, I.A.S. will continue to act as Chief Secretary to the Government of Tamil Nadu during this period.
By order of the Governor (Sd)N. Haribaskar Chief Secretary to Government"
72. In the decision reported in Sajan Mannali v. Hon'ble Chief Justice (I994-II-LLJ-817) a Division Bench of the Kerala High Court while considering an identical case regarding extension of service observed as follows: pp 823-824 "Public ground is complementary to public interest. It comprehends a ground of a public nature, a ground related to public administration as such, as against a mere private reason. It may that be, in a given case, the public interest may not be directly subserved oy the extension of service of a particular Government servant, or the service of the officer may not be indispensable, but the continuance in office of a particular incumbent may be in the interest of administration. In such cases, though the extension may not be absolutely necessary for the general public interest, still the ground may otherwise be of public nature, justifying the extension of service.... The requirement of public grounds in avoidance of arbitrariness which is ensured by the insistence on recording them in writing. No publication of the grounds or disclosure to the public is contemplated as a condition precedent to the extension of service... All that Rule 60(a) requires is the existence of public grounds to be recorded in writing. It is nowhere stated that the grounds should be disclosed to, and be made, public.... Essentially the question for consideration is whether the authority acted bonafide on a ground that will stand the test of scrutiny in a Court of law as based on relevant objective consideration. The scope of judicial review in such cases will be very limited, to see whether the authority has acted bonafide for reasons which are relevant."
73. In the instant case, the Business Rules have been issued by the Governor of Tamil Nadu under Articles 166(2) and (3) of the Constitution of India which provide for rules being made for convenient transaction of the business of the Government. The Tamil Nadu Secretariat Instructions have been issued by the Governor under Business Rule 63. Rule 21 of the Business Rules provides for the disposal of cases by or under the authority of the Minister in charge. Rule 35(1 Xa) of the Business Rules provides for the classes of cases which are to be submitted to the Chief Minister before issue of orders. There are 54 classes of cases which are dealt with under Rule 35(1)(a), which are to be submitted to the Chief Minister before issue of orders. Rule 35(2) of the Business Rules provides that the classes of cases mentioned therein should be submitted to the Governor before issue of Orders. The same has been extracted in paragraphs^ supra. It is seen that out of the 54 classes of cases which are to be submitted to the Chief Minister, before issue of orders, only 16 classes of cases mentioned in Rule 35(2) alone are to be submitted to the Governor. The appointment of Chief Secretary to Government does not find place in Rule 35(2). As such the cases of appointment of Chief Secretary and the extension of service do not need circulation to the Governor. Rule 35(4) of the Business. Rules provides that notwithstanding anything contained in the said rule viz., Rule 35, or any other Rules, the Chief Minister may by means of Standing Orders give such directions as he thinks fit to restrict and regulate the submission of any classes of cases to him or through him to the Governor, as the case may be. Having regard to the provision contained in Rule 35(4) of the Business Rules, it would be obvious that ,the said provision confers an over-riding power on the Chief Minister under the Business Rules to issue such Standing Orders to restrict and regulate the classes of cases to him or to the Governor. It is in terms of this sub-rule that the Chief Minister has issued a Standing Order on November 10, 1994 restricting and regulating certain classes of cases and directing that those classes of cases need not be submitted to the Governor before the issue of orders.
74. Article 310(1) of the Constitution inter alia provides that except as expressly provided by the Constitution, every person who is a member of the Civil Service of a State or holds any civil post under a State holds office during the pleasure of the Governor 6f the State. The pleasure contemplated under Article 310(1) of the Constitution is not the personal pleasure of the Governor but shal] be exercised on the aid and advice of the Council of Ministers. The observations of the Supreme Court in (1985-II-LIJ-206) in this regard have already been extracted in paragraphs supra. Therefore, the pleasure theory contemplated under Article 310 of the Constitution, in my considered opinion, is not a personal pleasure of the Governor; but as decided by the Supreme Court in the case referred to supra, is the aid and advice pleasure of the Council of Ministers, which is regulated by Business Rules framed under Article 166(2) and (3) of the Constitution. Therefore, I am of the view, that the said provisions are constitutionally valid and binding.
75. In any event, as per Rule 35(1)(a)(xx) of the Business Rules and as per Standing Order No. 4 dated November 10,1994, issued invoking the provisions of Rule 35(4) of the Business Rules, the Chief Minister has got every authority to extend the service of ThiruN. Haribaskar. The order issued granting the extension of service is based on public grounds which will fulfil the requirement of the Rules. I have already extracted the reasons given by the Chief Minister for extending the services of Thiru N. Haribaskar. The post of Chief Secretary to Government is a Head of the Service which involves multifarious activities which are highly confidential and sensitive in nature. AH relevant factors had been taken into account in passing the impugned order. Therefore, the orders issued extending the services of Thiru N. Haribaskar are entirely in order.
76. Further, in sub-clause(xx) of Business Rule 35(lXa), appointment of Chief Secretary has been specifically included in the list of items to be circulated to the Chief Minister. But, there is no such specific mention of the said subject in the list of cases to be circulated to the Governor under Rule 35(2) of the Business Rules. Besides, as per Instruction No. 15 of the Secretariat Instructions issued by the Governor under Business Rule No. 63, afl proposals for grant of leave or extension of service to a gazetted officer, after the date on which he should retire compulsorily, shall be submitted to the Minister in charge and to the Chief Minister. Therefore, even according to the existing Business Rules viz., Rule 35(1)(a)(xx) and Instruction No. 15 of the Secretariat Instructions, appointment and extension of service of Chief Secretary is not a case to be circulated to the Governor.
77. Article 310(1) of the Constitution inter alia provides that except as expressly provided by the constitution, every person who is a Member of the Civil Service of a State or holds any civil post under a State, holds office during the pleasure of the Governor of the State. As already stated, the pleasure contemplated under Article 310(1) of the Constitution is not the personal pleasure of the Governor but shall be exercised on the aid and advice of the Council of Ministers. Therefore it is clear that the pleasure theory contemplated under Article 310 of the Constitution is not a personal pleasure of the Governor but as decided by the Supreme Court in the decision reported in (1985-II-LLJ-206) (supra) is the aid and advice pleasure which is regulated by Business Rules framed under Article 166(2) and (3) of the Constitution. Therefore, in my opinion, the said provisions are constitutionally valid and binding.
78. In the instant case, as already seen, the Chief Mintster has recorded reasons for extending the service of Thiru N. Haribaskar Chief Secretary, in writing. There is no material to show that the Chief Minister has not acted bona fide. It is also to be noticed that in matters like this, the scope of judicial review will be very limited to see whether the authority has acted bonafide for reasons which are relevant. The second extension to Thiru N. Haribaskar has been considered by the Central Government and the Prime Minister's Secretariat has forwarded a communication to the State Government by Fax conveying the approval of the Central Government for further extension as. provided by the Proviso to Section 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, and based on such prior approval, the State Government issued G.O/Rt.No. 1876, Public (Special A) Department, dated May 29, 1995 extending the services of Thiru N. Haribaskar till December 31, 1995. It would, therefore, be seen that there is nothing to show that the order has been passed arbitrarily or contrary to the rules.
79. Before parting with this case, it is my duty to notice certain facts which come before Court very often. Indiscriminate grant of extension of service has been brought before Court on number of occasions. Extension of service after reaching the superannuation has to be resorted to only under extraordinary circumstances. In; other words, grant of extension of service to a superannuated officer should be an exception and normally extension should not be granted unless extraordinary and compelling circumstances exist warranting extension of service af-: ter an officer reaches the age of superannuation. Such extensions generate disgruntlement and dis-appointment amongst the other officers lower down in the ladder whose only aspiration in official career would be to reach the top most; post in administrative set up. It is undoubtedly true that ultimate arbiter of public interest is the Government and the Court can only discern whether public interest exists or not. It is not uncommon now-a-days to find authorities granting extension after extension to public servants taking shelter under 'public interest and such extensions are granted at times for two to three years as if the entire administration would come to a grinding halt but for the continuance in' service of such Government servants who had attained the age of superannuation. As the saying goes, 'nobody is indispensable in this world'. If extensions are granted as a matter of course instead of subserving public interest, its would adversely affect public interest and it would become counter productive besides totally destroying the aspirations of Government servants and servants of other public bodies and institutions who have been waiting to reach the promotional post after putting forth efficient and meritorious service. It may be that those who are waiting in the queue may be able to render better service than the one whose extensions are granted. The arms of law would be extended where the Court finds that extension of service is granted on extraneous and irrelevant considerations and in that event the defence of' Public Interest' would lose its validity and force. The mere mention of the word 'Public Interest' does not lead to the irrebuttable presumption that there exists public interest and in appropriate cases Court can find out whether the public interest referred to in the order of extension is supported by facts and materials. If the Government or other institutions start extending the services of superannuated officials, as a matter of bounty, then there is every possibility of the officer in service playing to the tunes of those in power totally acting against public interest. Legitimate and lawful aspirations of officers in service should not be destroyed by grant of indiscriminate extensions of service. It would be in the interest of the administration to recognise the legitimate and lawful claims of those who would have got promoted to a higher post but for the extension granted to those occupying such higher positions. Some of the public servants who are next in rank may not even come forward to challenge illegal extension of services granted in the unlawful hope that they would also get similar extensions after attaining the age of superannuation. In fine, I would like to conclude by saying that in any public service, the normal course should be to allow a public officer to retire on attaining the age of superannuation and that extension of service thereafter should be avoided. This will keep the administration in stead which would not only serve public interest but also meet the ends of justice.
80. For the fore-going reasons, I hold that the writ petitions are maintainable in this Court. However, none of the other contentions raised by the petitioners merit acceptance. Consequently, all the writ petitions fail and are dismissed. However, there will be no order as to costs.