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Ex facie the said order giving the requisite sanction purports to have been issued in the name of the Central Government and is signed by the Deputy Secretary to the Government of India in the Ministry of Home Affairs. P.W. 36, Dharambir, an Assistant in the Minstry of Home Affairs, New Delhi, has given evidence in respect of this document. He says that the papers relating to the present case were submitted to the Home Ministry by the Inspector General of Police, Special Police Establishment, New Delhi, for obtaining the necessary sanction, that the papers were put up before the Deputy Secretary in that Ministry, that the Deputy Secretary was competent to accord sanction on behalf of the President, and that he gave the said sanction under his signature. In the cross-examination, this witness says that he cannot say whether the Deputy Secretary's signature was in his own right or by way of authentication of the President's order. This uncontradicted evidence clearly established that the Deputy Secretary was competent to accord sanction on behalf of the President and that he gave the sanction in exercise of the power conferred on him, presumably, under the rules framed by the President in this behalf The statement made by this witness in the cross- examination is not inconsistent with that made by him in the examination-in-chief. The Deputy Secretary may have power to make some orders in his own right and also may have power to authenticate other orders issued in the name of the President. But in this case, this witness has clearly deposed that the Deputy Secretary had power to accord sanction in his own right and when the order giving the sanction ex facie shows that he did not authenticate it by order of the President, we must hold that he gave the sanction in his own right. In this context, an argument based upon Art. 77 of the Constitution may be noticed. Under el. (1) of Art. 77, all executive actions of the Government of India shall be expressed to be taken in the name of the President; and under cl. (2) thereof, orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, 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 President. Under the General Clauses Act, the expression "President" means the Central Government. It is, therefore, argued that as the order issuing the sanction was not expressed to be made in the name of the President, the sanction was void. This Article and the corresponding Article viz., Art. 166, were subject to judicial scrutiny by this Court. The validity of an order of detention made by the Bombay Government under s. 3 of the Preventive Detention Act, 1950, was considered in The State of Bombay v. Puru- shottam Jog Naik (1). There, in the body of the order the "satisfaction" was shown to be that of the Government of Bombay; at the bottom of the order the Secretary to the Government of Bombay, Home Department, signed it under the words "By order of the Governor of Bombay". It was contended that the order was defective as it was not expressed to be in the name of the Governor within the meaning of Art. 166(1) of the Constitution and accordingly was not protected by cl. (2) of the said Article. Adverting to this contention, Bose, J., speaking for the Court, said at p. 678:

(2) [1952] S.C.R. 612.

order made under the Preventive Detention Act, 1950, was questioned on the ground that it did not comply with the provisions of Art. 166(1) of the Constitution. There the order was made in the name of the Government and was signed by one Kharkar for the Secretary to the Government of Bombay, Home Department. Das, J., as he then was, after referring to the decision of the Federal Court in J. K. Gas Plant Manufacturing Co., (Rampur) Ltd. v. The King-Emperor (1) observed at p. 625 thus:

"Strict compliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order it- self."

The learned Judge came to the above conclusion on the ground that the provisions of the said article are only directory and not mandatory. This decision was followed by this Court in P. Joseph John v. The State of Travancore-Cochin (2). There the "show cause notice" issued under Art. 311 of the Constitution was impugned on the ground that it was contrary to the provisions of Art. 166 thereof. The notice was issued on behalf of the Government and was signed by the Chief Secretary to the Government, who had under the rules of business framed by the Rajpramukh the charge of the portfolio of "service and appointments" at the Secretariat level in the State. This Court held that the said notice was issued in substantial compliance with the directory provisions of Art. 166 of the Constitution. The latest decision on the point is that in Ghaio Mall & Sons v. The State of Delhi(1). There the question was whether the com- munication issued by the Under Secretary, Finance, Government of Delhi State, had complied with the provisions of Art. 166 of the Constitution. This Court held that it did not comply with the provisions of (1) (1947) F.C.R. 141. (2) [1935] 1 S.C.R. 1011.

The foregoing decisions authoritatively settled the true interpretation of the provisions of Art. 166 of the Constitution. Shortly stated, the legal position is this:

Art. 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Art. 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in r. (2) of the said Article, there is an irrebuttable presumption that the order or instrument is made or executed by the Governor. Any non- compliance with the provisions of the said rule does not invalidate the order, but it precludes the drawing of any such irrebuttable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority. Article 77 which relates to conduct of business of the Government of India is couched in terms similar to those in Art. 166 and the same principles must govern the interpretation of that provision. If that be the legal position, in the instant case the impugned order does not comply with the provisions of Art. 77(2) of the Constitution and, therefore, it is open to the appellant to question the validity of the order on the ground that it was not an order made by the President and to prove that it was not made by the Central Government. But this legal position does (1) [1952] S.C.R. 612.