Mukh Ram v. State of Rajasthan — 1993 DIGILAW 169 (RAJ)

Honble SINGHAL, J.—The petitioner, who was working as Sub-Inspector of Police, was dismissed from service by an order dated. 18.8.71 passed by the Deputy Inspector General of Police, Kota Range, Kota on the basis of his conviction by Additional Sessions Judge, Baran in a case under Sections 330/320 I.P.C. The petitioner had been sentenced imprisonment of three years. On an appeal filed before the High Court, sentence of the petitioner was reduced to three months. In passing the order of dismissal, the Deputy Inspector General of Police, Kota Range, Kota invoked powers under Rule 19(2) of the Rajasthan Civil Services (Classification Control & Appeal) Rules, 1958. (2). Against the order of dismissal, the petitioner filed a petition before the Honble Governor on 27.8.71. The petitioner also filed appeal before the Inspector General of Police, who recommended his reinstatement. At one time the government took a decision to re-employ him but subsequently it decided not to give appointment to the petitioner. The petitioner filed a writ petition before the High Court which was registered as Civil Writ No. 645/75. When the case was taken up by the Court on 12.10.83, nobody was present on behalf of the petitioner. Learned Deputy Govt. Advocate made a statement before the Court that the petitioner had been re-employed. The Court observed that the petitioner appears to be no longer interested to peruse the writ petition and on that ground the petition was dismissed. The fact however was that the petitioner was never re-employed by the respondent government and the statement made before the Honble Court was not factually correct. On a further petition made by the petitioner to the effect that his earlier representation had not been decided, Honble the Governor examined his case and found that termination of service of the petitioner was not justified. Honble the Governor, therefore, passed an order accepting the petition of the petition. Decision of the Honble Governor was communicated to the petitioner by the Office of the Secretary, Governor of Rajasthan, Raj Bhawan, Jaipur vide communication No. F.10(2)/188/GH/88/1142 dated 9.11.89. On 23.11.89 the petitioner approached the Home Commissioner, Government of Rajasthan for communicating him the decision of the Governor and he thereafter repeatedly made requests for supply of copy of the order passed by the Honble Governor. However, copy of the actual order passed by the Honble Governor was not given to the petitioner. On 23.11.89 the petitioner approached the Home Commissioner, Government of Rajasthan for communicating him the decision of the Governor and he thereafter repeatedly made requests for supply of copy of the order passed by the Honble Governor. However, copy of the actual order passed by the Honble Governor was not given to the petitioner. He, therefore, filed this writ petition before the Court. (3). A show cause notice was issued by this Court on 19.5.90 calling upon the respondents to show cause as to why the writ petition be not admitted and disposed of. On 17.1.91 the Court directed the counsel for petitioner to place before the Court copies of punishment orders etc. and also a copy of the order of this Court dated 12.10.83 incorporating statement of the Dy. Govt. Advocate to the effect that the petitioner had been re-employed, although in fact he had not been re-employed. On 25.2.91 the Court directed the learned Additional Advocate General to keep ready for perusal of the Court, order passed in the Review Petition of the petitioner. (4). Thereafter, the record was produced by the government in which the representations/petitions of the petitioner have been dealt with. (5). Case of the respondents is that the petitioner was prosecuted in the Court of Additional Sessions Judge, Baran and he was convicted for having caused injuries to S/Shri Panna, Mangu and Mishri during the course of interrogation in connection with some cases. His appeal was dismissed on 19.3.71. Only sentence was reduced from three years to three months. The respondents have denied the claim of petitioner that the Inspector General of Police had recommended his case for re-employment. According to the respondents, the Govt. had directed the I.G.P. to consider the case of petitioner for re-employment on his own, in case he fulfill conditions required for employment under the relevant rules. When question of relaxation of age came up, the government refused to grant relaxation and matter relating to re-employment of the petitioner was closed vide letter dated 25.2.74. His representation was once again rejected on 6.3.75 (Annexure-R.2). He thereafter filed a writ petition before the High Court and that was decided on 12.10.83. Thereafter he filed a Review Petition on 21.12.88 suppressing the material facts. On this Review Petition the Deputy Secretary to the Honble Government informed the petitioner vide letter dated 9.10.89 that his Review Petition has been decided. He thereafter filed a writ petition before the High Court and that was decided on 12.10.83. Thereafter he filed a Review Petition on 21.12.88 suppressing the material facts. On this Review Petition the Deputy Secretary to the Honble Government informed the petitioner vide letter dated 9.10.89 that his Review Petition has been decided. According to the respondents the date 18.8.71 has wrongly been mentioned in Annexure-1. The matter was however again reconsidered by the Honble Governor on a request made by the government and it was finally decided on 19.8.90 that his petition cannot be considered being time barred. This decision was conveyed to the petitioner vide order dated 28.8.90 (Ann. R.3). Further case of respondents is that if any assertion was made by the Deputy Govt. Advocate regarding re-employment, then the petitioner should have annexed a copy of that assertion. Respondents have also raised an objection regarding maintainability of the writ petition at Jaipur Bench and they have finally pleaded that in view of the order dated 28.8.90, the writ petition should be dismissed as having become infructuous. (6). The petitioner has filed a rejoinder and therein he has reproduced the order passed by Honble the Governor on 7.11.89. He has then pleaded that the order dated 28.8.90 was passed after filing of the present writ petition and that no opportunity of hearing was given to him by the Honble Governor before passing the order dated 28.8.90. (7). Along with an application dated 18.8.91 the petitioner has filed copies of certain documents and on 15.3.91 the respondents have also filed some other documents. (8). Facts which emerge from rival pleadings and the record placed before this Court by the learned Additional Advocate General show that against the order of dismissal, the petitioner had submitted a petition before Honble the Governor of Rajasthan with a prayer for setting aside of the order of his dismissal and for his reinstatement. This petition was forwarded by the Raj Bhawan to the Chief Minister of Rajasthan. A copy of the petition dated. 27.8.91 was also addressed to Honble the Chief Minister. Office of the Chief Minister sent the file to the Home Department which in turn-forwarded it to the Inspector General of Police vide communication No. F.2(88)H.E.I./71 dated 30.10.71. This petition was forwarded by the Raj Bhawan to the Chief Minister of Rajasthan. A copy of the petition dated. 27.8.91 was also addressed to Honble the Chief Minister. Office of the Chief Minister sent the file to the Home Department which in turn-forwarded it to the Inspector General of Police vide communication No. F.2(88)H.E.I./71 dated 30.10.71. The Office of the Inspector General of Police wrote letter No. V.1325/Police-Force/ DE/ACD/Kta/69 dated 20.12.71 to the Police Department and communicated the comments of the Deputy Inspector General of Police, Kota Range, Kota justifying the penalty of dismissal from service imposed on the petitioner. The Home Department again wrote to the Inspector General of Police on 3.2.72 to send the comments on the representation of the petitioner. A letter dated 3.10.72 was addressed by the Office of Inspector General of Police indicating that some persons who have been convicted earlier were reinstated in service. The Home Department against sought specific comments of the Office of Inspector General of Police vide letter No. F.2(88) H.I./71 dated 16.12.72. The Office of the Inspector General of Police vide letter dated 21.2.73 observed that the government may take a compassionate view in the matter and consider reinstatement of the petitioner in service taking note of the fact that the petitioner belongs to Scheduled Caste and is still young. The government in turn wrote letter dated 31.8.73 and directed the Inspector General of Police to consider the case of petitioner for fresh employment provided he fulfills conditions required under the Rules for such employment. The Inspector General of Police wrote a letter dated 23.11.73 to the Government for relaxation in the age requirement prescribed in the Rajasthan Police Subordinate Service Rules. This request was however turned down by the government vide letter dated 25.2.74. A letter dated 6.3.75 was also sent to the petitioner in the context of his representations addressed to the Home Minister of Rajasthan. All these letters have been included in File No. F.2(88)/HE.I/71. (9). The matter relating to the petitioner has been dealt with in another file No. F.l(Kh)39/Home(Gr.I)/80. A letter dated 6.3.75 was also sent to the petitioner in the context of his representations addressed to the Home Minister of Rajasthan. All these letters have been included in File No. F.2(88)/HE.I/71. (9). The matter relating to the petitioner has been dealt with in another file No. F.l(Kh)39/Home(Gr.I)/80. The Deputy Secretary, Home Department, made a noting on 27.8.80 that although the petitioner has not been convicted for any offence involving moral turpitude, after a lapse of nine years it cannot be possible to reinstate or re-employ the petitioner in service more so when limitation of review, i.e., a period of three years, has lapsed. On 29.10.84 it was noted that the writ petition of the petitioner was rejected by the High Court. The factum of dismissal of the writ petition of the petitioner has been noted on 8.3.89, 9.3.83, 18.3.89 also and in various other nothings made from time to time. On 26.4.89 a note was submitted to Honble the Governor and the government expressed the view that it was not a fit case for reinstatement of the petitioner in service, Honble the Governor considered the matter on 7.11.89 and observed that previous petition filed by Mukhram had not been decided by the Governor and that that petition was within limitation. The Governor further observed that the offence committed by the petitioner does not come within the ambit of moral turpitude and the Deputy Inspector General of Police had not followed the law while passing the order dated 18.8.71 and that it will not be proper to maintain such an order. On that basis, Honble the Governor decided to cancel the order of punishment. The case was however resubmitted before Honble the Governor by the Commissioner and Secretary, Home Department and on 16.8.90 the Honble Governor recorded that the decision of his predecessor be set aside and the position arrived at earlier be restored. (10). The above facts, if summarised, lead to the following deductions :– (1) the petitioner, who was holding the post of Sub-Inspector Police, was dismissed from service by the Deputy Inspector General of Police, Kota Range, Kota vide order dated 18.8.71 on the basis of his conviction by a Court of law. For passing the order dated 18.8.71 the Deputy Inspector General of Police, Kota Range, Kota invoked power under Rule 19(2) of 1958 Rules. For passing the order dated 18.8.71 the Deputy Inspector General of Police, Kota Range, Kota invoked power under Rule 19(2) of 1958 Rules. (2) The conviction of the petitioner was not for an offence involving moral turpitude and this position has been accepted even by the government in its various notings. (3) The petitioner had submitted petition to Honble the Governor on 27.8.71. Similar petition had been addressed to Honble the Chief Minister and others. The matter was examined by the Home Department and case of the petitioner was referred to the Inspector General of Police for his reemployment. Even though the Inspector General of Police had recommended for reinstatement of the petitioner. On a reference made by the government the Inspector General of Police considered the question of re-employment of the petitioner. He made a request to the government to relax the requirement of age prescribed in the Rules. The government however refused to grant relaxation and the petitioner was conveyed with rejection of his prayer for his reinstatement. (4) The petitioner filed writ petition before the High Court which was registered as S.B. Civil Writ Petition No. 645/75. On 12.10.83 the learned Deputy Govt. Advocate made a statement before the Court that the petitioner has been re-employed and the court dismissed the writ petition by observing that the petitioner appears to be no longer interested to pursue the writ petition. (5) On further representation made by the petitioner the government expressed the view that writ petition of the petitioner has already been dismissed and that the period of review had already lapsed. Therefore, there was no justification for reinstatement of the petitioner in service. (6) The matter was considered by Honble Governor on 7.11.89 and he ordered setting aside of the punishment imposed on the petitioner. The factum of decision of Honble the Governor was conveyed to the petitioner vide Annexure-1 dated 9.11.89. (7) After filing of the writ petition and after service of notices of the writ petition, the government requested Honble the Governor, who succeeded the previous Governor, and on the request of the government, the successor in Office of the Governor directed that the previous decision of the government be maintained. On that basis, the government has communicated order dated 28.8.90 to the petitioner. On that basis, the government has communicated order dated 28.8.90 to the petitioner. (8) Although this Court had called upon the respondents to explain as to in what circumstances a statement was made before this Court on 12.10.83 by the learned Deputy Government Advocate about the re-employment of petitioner, no explanation has been submitted by the respondents. At the same time in the notings recorded in the files of the government show that dismissal of writ petition of the petitioner was considered as a factor adverse to the petitioner. (9) That apart, it is clear that the government had not rejected the petition filed by the petitioner on the ground of limitation but had refused to give relaxation in the age requirement for re-employment of the petitioner. However the last decision communicated on 28.8.90 shows that Review Petition has been treated as time barred. (11). Dr. S.K. Tewari, learned counsel for the petitioner, argued that the power of review once exercised by the Governor stood exhausted and it was not open to the successor in office to against review the order passed by the Governor in exercise of his power of review. Dr. Tewari urged that Rules of 1958 are statutory in character and the power of review vesting in the Governor is quasi judicial. An order passed in exercise of the power of review vesting in the Governor is not subject to further review and, therefore, the order passed on 28.8.90 dismissing the review petition of the petitioner is without jurisdiction. Dr. Tewari further argued that the power conferred on the Governor under Rule 34 is required to be exercised by him independently. The Governor is not bound to act on the aid and advice of the council of ministers. Dr. Tewari further submitted that the power of review vesting in the Governor as of necessity to be exercised independently because so far as the government is concerned, the power of review is available to it under Rule 33. Order under that Rule is also required to be passed in the name of the Governor. Therefore, where an employee files a review petition challenging the order passed under Rule 34, if Governor was not to exercise his independent description, the purpose of conferring separate power of review on the Governor will be defeated. Dr. Order under that Rule is also required to be passed in the name of the Governor. Therefore, where an employee files a review petition challenging the order passed under Rule 34, if Governor was not to exercise his independent description, the purpose of conferring separate power of review on the Governor will be defeated. Dr. Tewari lastly argued that the order passed on 28.8.90 suffers from serious illegalities inasmuch as Honble the Governor has not directed dismissal of the review petition on the ground of bar of limitation and yet in the order it has been recorded that the review petition is time barred. Dr. Tewari pointed out that the government has taken note of the dismissal of writ petition of the petitioner ignoring the background in which the order was passed by the High Court on 12.10.83, namely, the statement made by the Deputy Government Advocate that the petitioner has been re-employed in service. Shri C.K. Garg, learned Additional Advocate General, argued that the petitioner is guilty of concealment of facts and is, therefore, not entitled to any relief by this Court under Article 226 of the Constitution of India. Shri Garg then argued that the writ petition is highly belated and it should not be entertained after lapse of so many years. Shri Garg then argued that the decision taken by the Governor on 7.11.89 was itself illegal because the Governor had made that order without consultating the council of ministers. According to Shri Garg while exercising power of review under Rule 34 of 1958 Rules, the Governor cannot exercise independent power. By making reference to various provisions of the Constitution, Shri Garg argued that the exercise of power by Governor in such matters can only be made in consultation with the council of ministers and not otherwise and since order dated 7.11.89 had been passed ignoring this constitutional requirement, the successor in office was fully justified in recalling that order. (12). Before proceeding further, I would dispose of the two arguments of Shri Garg, namely concealment of facts and laches. In my opinion, neither of these arguments of Shri Garg merit acceptance. Allegation of concealment of facts by the petitioner is not well founded. This petition was filed by the petitioner only for issue of a writ of mandamus to the respondents to give him copy of the order passed by the Governor and nothing else. In my opinion, neither of these arguments of Shri Garg merit acceptance. Allegation of concealment of facts by the petitioner is not well founded. This petition was filed by the petitioner only for issue of a writ of mandamus to the respondents to give him copy of the order passed by the Governor and nothing else. For the purpose of this prayer it was not necessary for the petitioner to make reference to the history of the entire case. Neither the court nor the respondents were misled on account of the non-mentioning of facts which led to the passing of the original order of dismissal. Therefore, the petitioner cannot be non suited on the ground of concealment of facts. (13). Regarding laches, I may only observed that when the Governor had himself entertained the petition filed by the petitioner and accepted it by his order dated 7.11.89, it is no more open to the respondents to raise the plea of laches. The petitioners prayer for supply of copy of the order passed by the Governor on 7.11.89 cannot in any manner be termed as belated because the order was passed by the Governor only in the year 1989 and the petition was filed in the month of May 1990. (14). In some what similar circumstances an objection of laches found favour with this Court in the case of one Sualal. Their Lordships of the Supreme Court reversed the decision of the Single Bench and the Division Bench of this Court dismissing the writ petition filed by the petitioner Sualal. In Sualal v. State of Rajasthan (1), their Lordships of the Supreme Court held that once the Governor entertained the review petition and decided on merit, it was not open to the respondents to raise the plea of delay or laches and the High Court was not justified in dismissing the petition on that ground. (15). Coming to the merits of the case, I would like to observe that the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 have been enacted by the Governor in exercise of his power under proviso to Article 309 of the Constitution of India. These Rules contain various provisions relating to disciplinary action against government servants who are charged with the allegation of misconduct. These Rules contain various provisions relating to disciplinary action against government servants who are charged with the allegation of misconduct. Part I of these Rules contain general provisions including definitions; Part II relates to classification of posts; Part III refers to the appointing authorities ; Part IV deal with suspension; Part V deals with discipline. Rule 14 specifies the penalties which can be imposed on a government servant for good and sufficient reasons to be recorded in writing. Rule 15 refers to the power of the various authorities to act as disciplinary authority. Rule 16 provides for the detailed procedure which is required to be followed for imposing any of the major penalties specified in Rule 14. Rule 17 lays down the procedure for imposing any of the minor penalties. Rule 18 refers to joint departmental inquiries. Rule 19 lays down the special procedure to be followed in special cases. Part VI deals with appeals, Part VII deals with revision and review. Rule 32 confers power on the appellate authority to suo moto call for and examine the record of the case in disciplinary proceeding and pass appropriate order. Rule 33 empowers the government to review, on its motion or otherwise, an order imposing any of the penalties specified in Rule 14 against a member of the State services. Rule 34 empowers the Governor to review any order which is made or appealable under the Rules. Rule 33 empowers the government to review, on its motion or otherwise, an order imposing any of the penalties specified in Rule 14 against a member of the State services. Rule 34 empowers the Governor to review any order which is made or appealable under the Rules. Rules 32, 33 and 34, which are relevant for decision of this case, are quoted below : — "Rule 32Revision- The authority to which an appeal against an order imposing any of the penalties specified in rule 14 lies may, if no appeal has been preferred therefrom of its own motion or otherwise, call for and examine the records of the case in a disciplinary proceedings held by an authority subordinate to it and after making further investigations, if necessary, revise any order passed in such a case and after consultation with the Commission where such consultation in necessary— (a) confirm, modify or set aside the order: (b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order; (c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as it considers proper in the circumstances of the case; or (d) pass such order as it deems fit: Provided that - (1) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty; (2) if the appellate authority proposes to impose any of the penalties specified in clause (iv) to (vii) of rule 14 in a case where an enquiry under rule 16 has not been held, it shall, subject to the provisions of rule 19, direct such an inquiry to be held and thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it deems fit; (3) no action under this rule shall be initiated more than 6 months after the date of order to be revised. Rule 33: Review of orders in disciplinary cases against members of the State Services— The Government may, of its own motion or otherwise, call for the records of the case in which an order imposing any of the penalties specified in rule 14 has been made against a member of the State Services, review any order passed in such a case and after consultation with the Commission where such consultation is necessary- (a) confirm, modify or set aside the orders: (b) impose any penalty or set aside, reduce or enhance the penalty imposed by it. Provided that an order enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty: Provided further that no action under this rule shall be initiated more than three months after the date of the order to be reviewed. Provided that an order enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty: Provided further that no action under this rule shall be initiated more than three months after the date of the order to be reviewed. Rule 34: Governors powers to review— Notwithstanding anything contained in these rules, the Governor may on his own motion or otherwise, after calling for the records of the case, review any order which is made or is applicable under these rules or the rules repealed by rule 35 and, after consultation with the Commission where such consultation is necessary : (a) confirm, modify or set aside the orders; (b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order; (c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as he considers proper in the circumstances of the case; or (d) pass such other orders as he deems fit : Provided that : — (i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty; (ii) if the Governor proposes to impose any of the penalties specified in clauses (iv) to (vii) of rule 14 in case where in a case where an inquiry under rule 16 has not been held, he shall, subject, to the provisions of rule 19, direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish make against such penalty, pass such orders as he may deem fit. No action under this rule shall be initiated more than three years after the date of the order to be reviewed." (16). A look at the three provisions show that while Rule 32 empowers the appellate authority to revise any order passed in a disciplinary proceeding, where appeal has not been preferred by the delinquent. Rule 33 gives power of review to the government in departmental inquiries relating to members of the State services. A look at the three provisions show that while Rule 32 empowers the appellate authority to revise any order passed in a disciplinary proceeding, where appeal has not been preferred by the delinquent. Rule 33 gives power of review to the government in departmental inquiries relating to members of the State services. Rule 34 begins with a non-obstantee clause and it confers a general power of review on the Governor in respect of any order which is made under the Rules. (17). Part VI of the Constitution deals with the States. Article 153 provides that there shall be a Governor for each State, Article 154 refers to the executive power of the State. Article 155 speak that the Governor of a State shall be appointed by the President; Article 156 refers to the term of office of Governor; Article 157 specify the qualifications for appointment as a Governor; Article 158 lays down conditions of Governors office; Article 160 refers to discharge of the functions of the Governor in certain contingencies; Article 161 deals with the power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases; Article 162 deals with the extent of executive power of State; Article 163 provides that there shall be a council of ministers to aid and advise Governor, Article 164 contain other provisions as to Miniserts; Article 165 refers to Advocate General for the State and Article 166 deals with the conduct of business of the Government of a State. Article 154, 162, 163(1) and 166 reads thus:- "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. 162. (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. 162. Extent of executive power of State.- Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the state shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. 163. (1) There shall be a Council of Ministers with the 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. 166. Conduct of business of the Government of a State.- (1) All executive actions of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made 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 allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." (18). The above quoted constitutional provisions show that executive power of the State vests in the Governor and he is required to exercise this power in accordance with the provisions either directly or through officers subordinate to him. The above quoted constitutional provisions show that executive power of the State vests in the Governor and he is required to exercise this power in accordance with the provisions either directly or through officers subordinate to him. Article 163(1) requires that there shall be a council of Ministers to aid and advise the Governor in exercise of his functions. However, there is an exception to this general provision, namely where the Governor is required to exercise his functions by or under the Constitution in his discretion, the main part of Article 163(1) is not attracted. (19). The expression by or under this Constitution is very significant. The Governor is not required to act in exercise of his functions in accordance with the advise of council of Ministers where he is required to exercise such functions in his discretion by or under the provisions of the Constitution of India. A similar expression used in Forward Contracts Regulation Act, 1952 came up for interpretation before the Apex Court in Dr. Indramani Pyarelal Gupta and others v. W.R. Nathu and others (2), by a majority. The Constitution Bench of the Supreme Court made the following observations: — "By an Act would mean by a provision directly enacted in the statute in question and which is gatherable from its express language or by necessary implication therefrom. The words "under the Act" would, in that context signify what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done; in other words, bye laws made by a Subordinate law-making authority which is empowered to do so by the parent Act. The distinction is thus between what is directly done by the enactment and what is done indirectly by rule making authorities which are vested with powers in that behalf by Act." (20). In A.K. Roy v. Union of India and another (3), their Lordships of the Supreme Court clearly recognised power of the President of issuing Ordinance and observed that it was a legislative function conferred on the President by the Constitutional provisions. Some of the observations made by their Lordships are as under : — "An ordinance made by the President is not an executive act. Some of the observations made by their Lordships are as under : — "An ordinance made by the President is not an executive act. An ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and is, fortunately and unquestionably, subject to the same inhibitions. It is not true to say that, under our Constitution, the exercise of legislative power by the legislature properly so-called is the only source of law. Ordinances issued by the President and the Governors and the laws made by the President or his delegate under Article 357(l)(a) partake fully of legislative character and are made in the exercise of legislative power, within the contemplation of the Constitution." (21). The ambit and scope of the discretionary power conferred by or under the Constitution in favour of the President and the Governor of State came up for examination before the Supreme Court in large number cases. In J.P. Mitter v. Chief Justice of Calcutta (4), their Lordships of the Supreme Court ruled that question relating to determination of age of a Judge of the High Court vested in the exclusive jurisdiction of the President. Their Lordships of the Supreme Court held that President himself should decide the age of a Judge uninfluenced by the executive i.e. the Minister incharge of the portfolio dealing with law & justice. In Union of India v. Jyoti Prakash Mitter (5), their Lordships of the Supreme Court found as a matter of fact that the decision was that of the President himself and not of the Prime Minister or the Home Minister. (22). In Samsher Singh v. State of Punjab and another (6), this question has been examined by a Bench of seven Judges. Therein their Lordships of the Supreme Court made some observations which are extremely important for deciding the question involved in this case. (22). In Samsher Singh v. State of Punjab and another (6), this question has been examined by a Bench of seven Judges. Therein their Lordships of the Supreme Court made some observations which are extremely important for deciding the question involved in this case. In paras 121 and 153 of the Judgment their Lordships observed : — "121:-We have extensively excerpted from various sources not for adopting quotational jurisprudence but to establish that the only correct construction can be that in constitutional law the functions of the President and Governor and the business of Government belong to the Ministers and not to the head of State, that aid and advice of ministers are terms of art which, in law mean, in the Cabinet context of our constitutional scheme, that the aider acts and the adviser decides in his own authority and not subject to the power of President to accept or reject such action or decision, except, in the case of Governors, to the limited extent that Article 163 permits and his discretion, remove controlled by the Centre, has pay." 153:-"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 through this choice is by the paramount consideration that he should command a majority in the House ; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous although in this area the Head of State should avoid getting involved in politics and must be advised by his 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 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 Smiths statement regarding roval 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 never theless 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." (23). It is thus clear that even in exercise of his executive power the Governor has been conferred with some discretion in certain matters where he is to exercise his function independently and he is not bound to act on the aid and advice of council of Ministers. The situations suggested by the Supreme Court in which the Governor may exercise his power independently of the aid and advice of council of Ministers cannot be termed as exhaustive and with the changing political scene in the country, occasion may arise for the courts to redetermine the extent and scope of the power of Governor which is required to be exercised by him in his own discretion. Apart from the above observations in regard to the executive power of the State, what I am really concerned with in the case in hand is in relation to the exercise of quasi judicial power by the Governor. The nature of power conferred on the Governor by a Rule made under proviso to Article 309 of the Constitution does not require an elaborate elucidation because exercise of the power of review under Rule 33 as well as under Rule 34 certainly affects the rights of the government servant. The nature of power conferred on the Governor by a Rule made under proviso to Article 309 of the Constitution does not require an elaborate elucidation because exercise of the power of review under Rule 33 as well as under Rule 34 certainly affects the rights of the government servant. The very nature of power of review conferred postulates objective application of mind to the record of case and passing of a reasoned decision. In appropriate case an opportunity of personal hearing can also be afforded to the employee where he makes a request for the and where the reviewing authority intends enhance the penalty already imposed, hearing to the concerned government servant is mandatory. (24). Once it is recognised that the power conferred under Rules 33 and 34 are quasi judicial, it has to be exercised by the authority upon which the power is conferred under the Rules. Such power cannot be exercised by any other authority. Rule 33 begins with the words The government may. ........ and Rule 34 begins with the words Notwithstanding anything contained in these rules, the Governor may...... When the government exercises the power of review under Rule 33, it is reasonable to say that that power has to be exercised in accordance with the provisions contained in the business rules because the government is an abstract juridical personality and it has to exercise its functions through some or other of its officers. Such officer acts on behalf of the government. However, the Governor has been conferred with an independent power over and above the power of the government. The opening words of Rule 34 clearly show that the rule making authority intended to vest the Governor with special power of review and this power is open to be exercised in respect of any order which is made or appealable under the Rules of 1958. If Governor was to exercise this quasi judicial power on the aid and advice of the council of Ministers or the matter was to be dealt with in accordance with the business rules framed under Article 166(3) of the Constitution, the very confirment of the power of review on the Governor will become otiose. (25). That apart, if arguments of the learned Additional Advocate General were to be accepted, rule 34 will be rendered nugatory. (25). That apart, if arguments of the learned Additional Advocate General were to be accepted, rule 34 will be rendered nugatory. This will be so because under Rule 33 itself the power of review has been conferred on the government to call for the records of the case in which order imposing any of the penalties specified in Rule 14 has been made against the member of State service. The matter is required to be dealt with in accordance with the business rules and finally order is to be passed by the government in the name of Governor as per the requirement of constitutional provisions. If power of review under Rule 34 was to be exercised in the same manner, there was no logic or meaning in conferring a special power of review on the Governor because in exercise of Rule 34, the Governor has the power to review even such an order which is passed by the government in respect of State service officers in exercise of its power under Rule 33 of the Rules. Confirment of power under Rule 34 on the Governor for calling of the record of any case and to review any order made under the Rules of 1958 shows that this power has to be exercised by him in his own discretion and he is not required to act on the aid and advice of the council of Ministers and that he is not required to act in accordance with the procedure prescribed in the Rules of business. (26). In view of the above discussion, it must be held that the Governor had every jurisdiction to pass order dated 7.11.89 accepting the petition filed by the petitioner and the decision taken by the Governor to set aside the penalty imposed on the petitioner cannot be treated as without jurisdiction. Other argument of Dr. Tewari about the invalidity of order dated 28.8.90 also deserves to be accepted. Admittedly the order dated 7.11.89 had been passed by the Governor in exercise of his power of review. Rules of 1958 do not confer any power of review of order passed by Governor on any authority including the Governor himself. Once an order is passed under Rule 34 of 1958 Rules, even the Governor cannot review that order. Admittedly the order dated 7.11.89 had been passed by the Governor in exercise of his power of review. Rules of 1958 do not confer any power of review of order passed by Governor on any authority including the Governor himself. Once an order is passed under Rule 34 of 1958 Rules, even the Governor cannot review that order. In the absence of any statutory provision authorising review of an order passed under Rule 34 in exercise of power of review vesting in the Governor, neither the same Governor nor his successor in office can review that order. Therefore, the subsequent review made by the successor in office whereby he set aside the order dated 7.11.89 is liable to be quashed on the ground of lack of jurisdiction in passing of the subsequent order. (27) Another infirmity with which the order dated 28.8.90 suffers is that the Government has rejected the petition of petitioner on the ground of bar of limitation even though the order passed by the Governor on the file shows that the Governor has not ordered rejection of the review petition on the ground of bar of limitation. (28) Before parting with the case I would like to observe that the petitioner has been sufferer on account of wholly casual approach adopted not only by the government but even by the Government Advocate who appeared before the Court on 12.10.83. The Government had at one time taken an absolutely correct decision of giving re-employment to the petitioner. The government had rightly expressed the opinion that conviction of the petitioner was not for an offence involving moral turpitude. It was right in directing the Inspector General of Police to take a decision in the matter in his own discretion. However, subsequently the government itself adopted a lope side approach by rejecting the recommendation of Inspector General of Police for relaxation of the age requirement. The Deputy Govt. Advocate who appeared before the Court on 12.10.83 apparently made a statement which was patently incorrect and this had apparently misled the court in thinking that the petitioner was not interested in prosecuting the petition. The Governor subsequently did justice to the petitioner by passing order dated 7.11.89. That order of the Governor, however, could not give real relief to the petitioner and he was compelled to seek redressal of his grievance from this Court by way of this Writ Petition. The Governor subsequently did justice to the petitioner by passing order dated 7.11.89. That order of the Governor, however, could not give real relief to the petitioner and he was compelled to seek redressal of his grievance from this Court by way of this Writ Petition. (29) On the basis of the above discussion, it is held that he Governor can exercise the power under Rule 34 of 1958 Rules independently and he is not bound by the advice of the government. The order dated 7.11.89 passed by the Governor was within his jurisdiction and the review of that order by his successor in office was not warranted in law. Order dated 28.9.90 passed by the government seeking to reject the Review Petition of the petitioner as time barred, is declared illegal and without jurisdiction and the same is quashed. The Government should pass order in accordance with the decision of the Governor dated 7.11.89 and reinstate the petitioner in service. Since the petitioner has not worded on the post during this entire period, he shall not be entitled to back wages. He shall, however, be entitled to other notional benefits, like seniority, fixation of pay, grant of increments and benefit of Revised Pay-scale Rules of the service and other service benefits. Costs made easy.