Kerala High Court
P.Krisnan Nair vs State Of Kerala on 19 June, 2016
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY,THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
WP(C).No. 23107 of 2016 (K)
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PETITIONER :
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P.KRISNAN NAIR., AGED 67 YEARS,
S/O.PARAMESWARAN PILLAI,
SUJI BHAWAN, OLLIKKONAM,
NETTICHIRA, NEDUMANGADU P.O.,
THIRUVANANTHAPURAM-695 541.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
SRI.P.J.JOE PAUL
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT IN THE
DEPARTMENT OF LAW, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 011.
2. KERALA ADVOCATE CLERKS WELFARE FUND COMMITTEE,
REPRESENTED BY ITS SECRETARY,
OFFICE OF THE KERALA ADVOCATES CLERKS WELFARE FUND
COMMITTEE, THIRUVANANTHAPURAM-695 001.
R1 BY GOVERNMENT PLEADER SRI. S.KANNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25-10-2016, THE COURT ON 18-11-2016 DELIVERED THE
FOLLOWING:
sts
WP(C).No. 23107 of 2016 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT-P1: ATRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE
PETITIONER.
EXHIBIT-P2: ATRUE COPY OF KERALA ADVOCATES CLERKS WELFARE FUND ACT.
EXHIBIT-P3: ATRUE COPY OF ORDER NO.13216/KLBF2/16/LAW DATED 19.06.2016.
EXHIBIT-P4: ATRUE COPY OF COMMUNICATION NO.13216/KLBF2/16/LAW DATED
02.07.2016 ALONGWITH THE REMARKS MADE IN LAW (KLBF)
DEPARTMENT FILE NO.4573/KLBF2/16/LAW.
EXHIBIT-P5: ATRUE COPY OF APPLICATION DATED 19/02/2016.
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.S.TO JUDGE
sts
SHAJI P. CHALY, J.
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W.P.(C) No.23107 of 2016
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Dated this the 18th day of November, 2016
JUDGMENT
This writ petition is filed by the petitioner to declare that the nomination of the petitioner as a member from among members of Advocates' Clerks to the Kerala Advocates' Clerks Welfare Fund Committee, as per Ext.P4, is liable to be given effect to and consequential proceedings issued in furtherance of the same, and for other related reliefs. Material facts for the disposal of the writ petition are as follows:
2. Petitioner is an Advocate Clerk and is a member of the Kerala Advocates' Clerks Welfare Fund Scheme with registration No.35/KACWFC/85/A 2004, constituted under the Kerala Advocates' Clerk Welfare Fund Act, 2003 [hereinafter called, Act 27 of 2003], evident from Ext.P1. Petitioner is working as an Advocate Clerk since 1976. He was working as the registered Clerk of an Advocate who was practising in various Courts at Nedumangad. Petitioner is a matriculate, having passed Secondary School Examination conducted by the Board of Secondary Education, Kerala, and has been W.P.(C) No.23107 of 2016 2 actively participating in the well-being of Advocates' Clerks.
Petitioner was the President of the Advocates' Clerks Association, Nedumangad Unit for 9 years, and also functioned as the Secretary of the Thiruvananthapuram District Association for 5 years. He has also worked in various capacities in the Clerks Association. Petitioner has a spell as President of Trivandrum District Unit of the Kerala Advocates' Clerks Association for 6 years, and as member of the State Executive Committee for 2 years.
3. Act 27 of 2003 was enacted for the benefit of Advocates' Clerks in the State of Kerala. The Act envisages constitution of a Welfare Fund Committee to manage, administer and govern the Kerala Advocates' Clerks Welfare Fund. Sec.4 of the Act envisages establishment of Welfare Fund Committee by notification of the Government. The Committee shall be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property and shall by the said name sue and be sued.
4. The Welfare Fund Committee consists of, among others, 3 members to be nominated by the Government from W.P.(C) No.23107 of 2016 3 among the Advocates' Clerks, as provided under Sec.4(3)(e). Sec.4(4) provides that, a member nominated above, shall hold office for a term of 3 years or until he ceases to be a member of the Kerala Advocates' Clerks Association, whichever is earlier. However, sub-clause (5) of Sec.4 provides that a member nominated under clause (b) and (d) thereof, and appointed under clause (f) of sub-section (3) shall hold office during the pleasure of the Government. Therefore, while nominating under clause (e) of sub-section 3, even though a tenure of 3 years is provided, continuance of the members nominated under other clauses is dependant on the pleasure of the Government. Sec.5 of the Act provides disqualification and removal of nominated members from among Advocates' Clerks of the Committee. A member nominated from among advocates Clerks would be disqualified if he becomes of unsound mind, an adjudged insolvent, or absent himself from the meetings of the Committee for more than 3 consecutive meetings, without leave. That apart, if a member is a perpetual defaulter to the Fund or has committed breach of trust, or convicted by a criminal court for an offence involving moral turpitude, he is liable to be removed.
W.P.(C) No.23107 of 2016 4
5. Matters being so, one Pala Gopalakrishnan Nair was re-nominated on 26.03.2015 as one among 3 nominated members under clause (e) of Sec.4(3). The said Gopalakrishnan Nair died on 19.01.2016, thus arose a vacancy of a nominated member from among Advocates' Clerks in the Committee. By virtue of Sec.6(2) of the Act, any casual vacancy in the office of a member shall be filled up as soon as may be and such member shall hold office for the remaining portion of the term of his predecessor.
6. Consequently, applications were submitted for being nominated as a member of the Committee by various Advocates' Clerks, and petitioner also submitted an application. According to the petitioner, by virtue of order No.4573/KLBF2/16/Law dated 22.03.2016, petitioner was nominated as a member of the Welfare Fund Committee. However, on account of the ensuing State General Election in 2016, such nomination was not notified and no action ensued thereon, is the contention. Circumstances being so, petitioner made an application under the Right to Information Act, seeking information as to the reason for delay in notifying the nomination. In response to such application, information was W.P.(C) No.23107 of 2016 5 provided as per Ext.P3. A true copy of the communication dated 02.07.2016 along with the remarks made in Law Department File No.4573/KLBF2/16/Law is produced as Ext.P4. In Ext.P3, it is stated, necessary orders are sought for permitting follow up action in pursuance of the nomination of the petitioner. According to the petitioner, nomination has already been made as discernible from Exts.P3 and P4 and what is remaining is only to give effect to the nomination. Therefore, it is the contention of the petitioner, there is no rhyme or reason to delay the procedure required to give effect to nomination as provided under Sec.4 of the Act. It is in this background, this writ petition is filed.
7. First respondent has filed an affidavit along with I.A.No.14625 of 2016, to vacate the interim order passed by this Court, which is sought to be treated as a counter affidavit filed to the writ petition. According to the 1st respondent, as per Sec.4(3)(e) of the Act 27 of 2003, Government is entitled to nominate 3 members to the Welfare Fund Committee from among Advocates' Clerks. Government had nominated N. Gopalakrishnan Nair as member to the Committee. On his death, one Sudheer Babu, Advocate Clerk submitted a W.P.(C) No.23107 of 2016 6 representation dated 23.01.2016 before the Government requesting to nominate him to that vacancy. The then Minister for Law directed the Law Secretary to take appropriate action on the said representation and accordingly, the request of Sudheer Babu was dealt with in Ext.P3 file. The file was then circulated to the then Chief Minister for orders. The then Chief Minister had ordered in the note file on 22.03.2016 to nominate the petitioner, as member of the Welfare Fund Committee. No formal application was submitted by the petitioner before the Government. It is further submitted, since the Code of Conduct of State Assembly Election had come into force by then, no further action was taken on the file. Consequently, Government order implementing the decision was not issued, and therefore the decision has not come into effect.
8. It is submitted, immediately after the election was over and the new Ministry took charge, the file was circulated to the Minister for Law for appropriate orders. While the matter was pending consideration of the Minister for Law, this Court passed an interim order dated 11.07.2016, directing to give effect to nomination of the petitioner as a member of the W.P.(C) No.23107 of 2016 7 Welfare Fund Committee, within 15 days. According to the 1st respondent, the direction so issued cannot be sustained under law and liable to be vacated. That apart, it is contended, the then Chief Minister had only made an endorsement in the note file. Only when Government Order is issued, it can be said that the decision has come into effect, and mere noting in the file will not confer any right on the petitioner. It is also stated, a writ of mandamus is not maintainable seeking implementation of the decision based on the notings made in the file notes. That apart, it is stated, Government intends to make fresh nomination after complying with all legal formalities and due to the interim order passed by this Court, further proceedings were not taken in the matter. Therefore, it is contended, the writ petition is not maintainable under law and it is liable to be dismissed.
9. Petitioner has filed I.A.No.16592 of 2016 and has produced Ext.P5 dated 19.02.2016. Ext.P5 is an application filed by the petitioner before the then Chief Minister. These are the background facts involved in this writ petition. W.P.(C) No.23107 of 2016 8
10. Heard learned counsel for the petitioner and the learned Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties.
11. The question remains to be considered is whether the note prepared as per Ext.P4, nominating the petitioner to the Kerala Advocates' Welfare Fund Committee, has become final so as to enable the petitioner to seek a writ of mandamus.
12. On a reading of the notes, it can be seen, on the death of Gopalakrishnan Nair, an Advocate Clerk namely one Sudheer Babu was nominated by the Law Department for the orders of the Chief Minister, who, according to the petitioner, was holding the portfolio of Law at that point of time. The note is seen signed by the officials of the Law Department on 25.02.2016. A detailed note put up shows that, Sudheer Babu has submitted an application to the Law Minister, seeking his nomination in the Welfare Fund Committee. It was in that background, the Law Department has put up note dated 25.02.2016 and the file was placed before the Chief Minister on 27.02.2016. By an order dated 22.03.2016, it is seen that the then Chief Minister has nominated the petitioner as W.P.(C) No.23107 of 2016 9 member of the Kerala Advocates' Clerks Welfare Fund Committee. Again, the file is seen signed by various officials of the Law Department on 31.03.2016, wherein it is stated that the Government has decided to nominate the petitioner as a member of the Welfare Fund Committee, in the vacancy on the death of the existing member, N. Gopalakrishnan Nair. Further it is stated in Ext.P4, since Election Code of Conduct has already come into force, permission of the Election Commission is required and therefore the file shall be put up seeking the permission of the Election Commission. On 02.04.2016, the file is seen by the Chief Electoral Officer, Election Department and the Additional Law Secretary to Government, whereby a noting is put up referring the file to the State Model Code of Conduct (MCC) Co-ordination Committee, to be chaired by the Chief Secretary, for proper examination as per the provisions of MCC and thereafter re- transmit the file with the views of the Committee to Chief Electoral Officer. Ext.P4 further shows, MCC Co-ordination Committee was held on 05.04.2016 in the Chief Secretary's Conference Hall at 10.00 a.m. and the permission was deferred stating, "there is no urgency". This is signed by the Chief W.P.(C) No.23107 of 2016 10 Secretary and other members on 06.04.2016 and 07.04.2016. Further, a note is put up on 25.07.2016, presumably after the elections are over, with respect to the filling up of the vacancy, which shows that the Law Department has decided to ascertain whether the proceedings pursuant to the decision to nominate the petitioner and consequential follow up action can be taken. A note is put up by Additional Secretary to Government on 24.06.2016, wherein it is directed to circulate the file to the Law Minister, after putting up a circulation note. Accordingly, the matter was placed before the Law Minister on 28.06.2016.
13. Now the question is, going by the note files, whether a decision was taken by the former Chief Minister who was in charge of the Law Department, on 22.03.2016 to nominate the petitioner as a member of the Welfare Fund Committee. Contention of the learned counsel for the petitioner is, a decision was already taken by the Chief Minister/Law Minister on 22.03.2016. What is remaining is only an official communication of the decision so taken. Even though the file was placed for publication in the Gazette, by the time, the Model Code of Conduct for the State Assembly Election was implemented, pursuant to which, the matter was W.P.(C) No.23107 of 2016 11 placed before the Co-ordination Committee of MCC. The said Committee has found that since the matter is not very urgent, a decision need not be taken and accordingly, it was deferred.
14. Learned counsel for the petitioner has invited my attention to a Division Bench judgment of this Court in 'Nature Lovers' Forum v. State of Kerala' [2016 (1) KLT 75] to canvass the proposition that the Government has taken a decision by virtue of the nomination made by the Chief Minister on 22.03.2016. Therefore, it is contended, the decision was authenticated by the Chief Minister/Law Minister, and therefore it has become an order of the Government. It is also submitted by the learned counsel, the decision of the Government authenticated as per the Rules of Business prescribed under Article 166. Learned counsel has invited my attention to a judgment of this Court in 'Abdul Rasheed v. State of Kerala' [2008 (4) KLT 664] and specifically to paragraph 5, which read thus:
"The cabinet is responsible to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal W.P.(C) No.23107 of 2016 12 responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard-working minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department. In every well-planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as delegate of his Minister. He does it on behalf of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates."
The above principle has been further reiterated by the Apex Court in Samsher Singh's case (supra) in the following manner :-
W.P.(C) No.23107 of 2016 13
"48. The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises 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 personal 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 exercises all his powers and functions. The decision of any Minister or office under rules of business made under any of these two Art. 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."
15. Therefore, it is the contention of the counsel, the decision taken by the Chief Minister was in accordance with law. Learned counsel has also invited my attention to the Rules of Business of the Government and to Rule 7, wherein it W.P.(C) No.23107 of 2016 14 is stated, the Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these rules, whether such orders are authorised by an individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council, or otherwise. Therefore, it is the contention of the learned counsel, since already an order is passed by a Minister nominating the petitioner, the successor Government ought to have published the same as required under law, and the decision taken on 22.03.2016 and consequential actions thereto should have been put into effect.
16. Per contra, learned Government Pleader submitted that, in order to attain a finality, a decision taken by any individual Minister, should have been placed before the Cabinet. According to the learned Government Pleader, Ext.P4 note file produced by the petitioner itself is a testimony to show that there was no decision of the Cabinet consequent to the decision taken by the Chief Minister/Law Minister, and therefore the decision dated 22.03.2016 can never be termed as a decision of the Government.
W.P.(C) No.23107 of 2016 15
17. Learned Government Pleader has invited my attention to Rule 11 of the Rules of Business and contended, all orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor. Learned Government Pleader has also invited my attention to Rule 12, wherein it is stipulated that every order or instruments of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument. According to the learned Government Pleader, no such orders are passed with the signature of such officers as are contemplated under Rule 12.
18. Learned Government Pleader has invited my attention to paragraph 37 of the judgment of the Apex Court in 'Shanti Sports Club and another v. Union of India and others' [(2009) 15 SCC 705 : 2010 KHC 6158], which reads as follows:
W.P.(C) No.23107 of 2016 16
"37. As a result of the above discussion, we hod that the noting recorded in the official files by the officers of the Government at different levels and even the Ministers do not become decision of the Government unless the same is sanctified and acted upon by issuing an order in the name of the President or Governor, as the case may be, authenticated in the manner provided in Art.77(2) and Art.166(2) and is communicated to the affected persons. The notings and/or decisions recorded in the file do not confer any right or adversely affect the right of any person and the same can neither be challenged in a court nor made basis for seeking relief. Even if the competent authority records noting in the file, which indicates that some decision has been taken by the concerned authority, the same can always be reviewed by the same authority or reversed or over-turned or overruled by higher functionary/authority in the Government."
19. Therefore, it is contended, merely because the Chief Minister made certain noting, that has not become an order of the Government, unless and until the same is sanctified and acted upon by issuing an order in the name of the Governor. Learned Government Pleader has also invited my attention to the judgment of the Apex Court in 'Bansal v. State of Rajasthan' [(2003) 5 SCC 134 : 2003 KHC 697], wherein in paragraph 8, it is held as follows:
W.P.(C) No.23107 of 2016 17
"8. We need not delve into the disputed question as to whether there was any Cabinet decision, as it has not been established that there was any Government order in terms of Art.166 of the Constitution. The Constitution requires that the action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking the Council for Ministers are advisors and as the head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor, views of the Council of Ministers does not get crystallized into action of the State."
20. Therefore, it is the contention of the learned Government Pleader, till such time the advice is accepted by the Governor, the views of the Council of Ministers does not get crystallize into action of the State. Learned Government Pleader has further invited my attention to the judgment of this Court in 'Antony K.P. and another v. Chellanam Grama Panchayat and others' [2009 (3) KHC 331 : 2009 (3) KLT 334] and to paragraph 13, to canvass the proposition that an order becomes an enforcible order only when the same is communicated to the affected party. Therefore, it is the W.P.(C) No.23107 of 2016 18 contention of the learned Government Pleader that, in this case, the order was never communicated to the petitioner and therefore there is no right crystallized in favour of the petitioner. So also, relevance is placed on the judgment of the Apex Court in 'State of West Bengal v. M.R. Mondal and others' [(2001) 8 SCC 443] and invited my attention to paragraph 16, wherein it is held that an order passed but retained in file without being communicated to the plaintiff can have no force or authority whatsoever, and the same has no valid existence in the eye of the law or claim to have come into operation and effect.
21. Learned Government Pleader also invited my attention to the judgment of the Apex Court in 'MRF Limited v. Manohar Parrikar and others' [(2010) 11 SCC 374] and specifically to paragraphs 71 and 72, to canvass the proposition that a mere noting made by a Minister without concurrence of the council of Ministers can never be termed as an order of the Government. Further, in paragraphs 71 and 72 of the said judgment, it is stated, in a democratic set-up, the decision of the State Government must reflect the collective wisdom of the Council of Ministers or at least that of the Chief W.P.(C) No.23107 of 2016 19 Minister who heads the Council. The judgment of the Apex Court in 'State of Uttaranchal and another v. Sunil Kumar Vaish and others' [(2011) 8 SCC 670] is pressed into service to canvass the proposition, noting in a file can never be termed as decision of the Government, unless and until the same is sanctified and acted upon by an order in accordance with Article 77(1) and (2) or Article 166(1) and (2). Paragraph 19 of the said judgment read thus:
"19. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Art.77(1) and (2) or Art.166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting the right of the parties only when it is expressed in the name of the President or he Governor, as the case may be, and authenticated in the manner provided in Art.77 (2) or Art.166(2). A noting or even a decision recorded in the file can always be reviewed/reversed / overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise W.P.(C) No.23107 of 2016 20 of the power of judicial review."
22. Taking note of the respective submissions made across the Bar and assimilating the proposition of law laid down by the Apex Court as well as this Court, the issue to be considered is what is the nature of Ext.P4 note file which was signed by the then Chief Minister nominating the petitioner as a member of the Welfare Fund Committee. The notings contained in the file and the decision of the Chief Minister/Law Minister is not in dispute. Whether the said decision remained in the file of the Government could be treated as an order of the Government. The judgments of the Apex Court would show that unless and until an order is published in the name of the Governor, the notings contained in a file note will not be an order in the eye of law and the same has no sanctity at all. Here, in this case, a decision was taken and the same is signed by the Chief Minister/Law Minister and the Secretary and Additional Secretary etc. etc., as contemplated under Rule 12 of the Rules of Business of the Government of Kerala. Even though the same would have been published/notified under ordinary circumstances, publication was not carried out consequent on the introduction of Model Code of Conduct due W.P.(C) No.23107 of 2016 21 to State Assembly Elections. The Co-ordination Committee decided that the subject matter is not urgent and therefore the notification was deferred. In my considered opinion, so far as the Rules of Business of Government of Kerala is concerned, it shall be made or executed by, or on behalf of the Government of the State, shall be expressed to be made or executed in the name of the Governor. As per Rule 7 of the Rules of Business, the Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these rules, whether such orders are authorised by an individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council, or otherwise. Rule 12 states that every order or instrument of the Government of the State shall be signed by the Secretary, an Additional Secretary, Joint Secretary, a Deputy Secretary and an Under Secretary or by such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.
23. However, Article 166 of the Constitution of India stipulates that all executive action of the Government of a W.P.(C) No.23107 of 2016 22 State shall be expressed to be taken in the name of the Governor. Clause (2) of Article 166 reads that, 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. Article 167 encompasses a duty on the Chief Minister to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation.
24. Therefore, the Rules of Business of the Government envisages authentication of the orders passed by the Minister/Council of Ministers, and authenticated as contemplated under Rule 12 is bound to be forwarded to the Governor by the Chief Minister in order to authenticate the same as provided under Article 166(2) of the Constitution of India. Therefore, taking note of the fact situations in this case, it is vivid and clear, what was remaining after the decision of the Chief Minister on 22.03.2016 and authentication made by W.P.(C) No.23107 of 2016 23 the officers concerned on 31.03.2016, was forwarding the same to the Governor by the Chief Minister. But, by that time, the Model Code of Conduct came into being and the Chief Minister could not follow the same without necessary orders from the Co-ordination Committee on Model Code of Conduct. The Co-ordination Committee deferred the matter since it is not urgent. These are the background circumstances which prevented the decision of the Chief Minister as per the Rules of Business from being forwarded to the Governor for authentication under Article 166 (2). Only on forwarding the decision of the Ministry, the Governor is bound to authenticate the same, which according to me, is a consequential action on the basis of the decision taken by the Council of Ministers or Minister in charge.
25. Therefore, going by the Rules of Business, the action of the Government is complete when such signatures are affixed by the officers of the Government, as provided under Rule 12. The Chief Minister has signed the decision on 22.03.2016 and the same is authenticated by the officials of the Department concerned, evident from Ext.P4 note file. In that view of the matter, I am of the considered opinion that W.P.(C) No.23107 of 2016 24 the decision of the Government has come into force when it was signed by the Chief Minister and signatures were affixed by the officials as provided under Rule 12 of the Rules of Business of the Government of Kerala.
26. Yet another contention advanced by learned Government Pleader is that going by the proposition of law laid down by the Apex Court, till such time the order is communicated, there is no order in the eye of law. However, petitioner was not communicated with any order by the Government, and therefore petitioner is not entitled to seek implementation of an order of the Government, is the contention. However, consequent to the introduction of the Right to Information Act, 2005, every person, in accordance with the provisions of the said Act, is entitled to seek information to any authority under the Government. When such information is furnished, it can only be viewed as a communication. The decision with respect to the communication of the order was rendered by the Apex Court was in a case prior to the introduction of the Right to Information Act. Therefore, it cannot be said that the information is not communicated to the petitioner, leaving W.P.(C) No.23107 of 2016 25 open a right to the petitioner to enforce the same. The Right to Information Act was introduced with the objective of openness, fairness, transparency, information to public etc. etc. In my considered opinion, the said issue raised by the learned Government Pleader also cannot have any legal backing.
27. Assimilating the fact situations and the circumstances involved in the case, I am of the considered opinion, petitioner is entitled to succeed in this writ petition. Consequentially, there will be a direction to the respondents to pass appropriate orders on the basis of the nomination made by the Government on 22.03.2016 and 31.03.2016, evident from Ext.P4 order of the Government passed in the note file. The whole exercise shall be completed within a month from the date of receipt of a copy of this judgment.
The writ petition is allowed accordingly.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
15.11.2016