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25. Mr. Jawahar Lal Gupta. counsel for the petitioner asserts that this should in any case be so, because not only the rules of business framed under Art. 166(5) of the Constitution are directory in nature, but even Art. 166 of the Constitution is itself directory in nature. He sought to underpin his aforesaid submissions by a Full Bench decision of Bombay High Court in Chandrakant Sekharam v. State of Maharashtra, ( 1977) 2 Serv LR 142: (AIR 1977 Bom 195) a Division Bench decision of Madhya Pradesh High Court in Raipur Transport Co. Pvt. Ltd. Raipur v. State of Madhya Pradesh, AIR 1969 Madh Pra I50 and a Supreme Court decision rendered in Civil Appeal No. 4395 of 1986 on l6th April, 1987: (reported in AIR 1977 SC 1201); State of Haryana v. P. C. Wadhwa.

28. Tulzapurkar J. (as he then was) after referring to the various provisions of the Constitution and R.9 of the Maharashtra Government Rules of Business observed as follows:--

"Having regard to the aforesaid material provisions of the Constitution, namely provisions contained in Art. 309 together with the proviso thereunder as well as the provisions contained in Art. 166 and the relevant provisions contained in the Maharashtra Government Rules of Business, it will appear clear that the rule-making power conferred upon the Governor under the proviso to Art. 309, which is legislative in character and the power to issue Circulars, Resolutions or Orders containing executive instructions in exercise of the executive power conferred upon the State under An. 166 do overlap so far as the subject-matter of Rules of recruitment and conditions of public services of State Government employees are concerned, but at the same time it cannot be disputed that all executive instructions or directions issued by the State Government in exercise of its executive power conferred under Art. 166 touching this subject-matter or topic must yield to rules that may be framed by the Governor under the proviso to Art. 309 of the Constitution in their turn, the rules framed by the Governor under the proviso to Art. 309 would be subject to any enactment made by appropriate legislature under substantive provision contained in Art. 309 of the Constitution itself. In other words, to the extent to which and in so far as executive instructions or directions issued by the State Government in exercise of its power under Art. 166 would be inconsistent with Rules that may be framed by the Governor under the proviso to Art. 309 of the Constitution, such instructions will have to be disregarded. ... ... ... ... ... ... ... ... ...

29. It is the above underlined observation that Mr. Jawahar Lal Gupta, the learned counsel for the petitioner, had pressed into service for the sustenance of his submission.

30. A perusal of the aforesaid observations, with suspect, does not even remotely suggest that the allocation and organization of the business of the Government, in exercise of the power under Art. 166, clause (3) of the Constitution would yield to the rules, framed by the Governor under Art. 309 or the provisions of the legislation, enacted by the legislature in terms of Art. 309 of the Constitution. The directory nature of Art. 166 or the Rules of Business of Government, framed under clause (J) of Art. 166 is thus not relevant to the discussion at all in the present case.

38. In a democratic set up one cannot conceive of the situation to be otherwise, more so, in the light of the Constitution that we have given to ourselves, which envisages rule of law, as against the rule of men. However, organization of Business of the Government into various Departments and the transaction of the Business in those Departments by the concerned authorities are two different matters.

39. What function is to be allotted to which Department is for the Governor to decide only on the aid and advice of the Council of Ministers, because that is to be done in the light of experience gained as a result of the transaction of the Business of the Government. Legislature is not the best Judge of it and the Legislature cannot by law provide for it. It is for the Governor as aided and advised by the Council of the Ministers to decide as to whether a given business or functions to be the part of 'A' Department or 'B' Department or it is to constitute a separate Department for performing a given nature of governmental function. If the Legislature is to provide by law that a given function is to be part of the given Department, then that would amount to impinging upon the constitutional power of the Governor exercisable by him under Art. 166, clause (3) of the Constitution. To the extent, the given provisions of the legislation impinges upon the, said power of the Governor exercisable under Art. 166, clause (3), then, such legislative provision shall be ultra vires the provisions of clause (3) of Art. 166 of the Constitution. The power given to the Legislature by Art. 245 of the Constitution expressly subjects it to the provisions of the Constitution.