( 1 ) BRIEF background of the case, giving rise to instant writ petition, is that petitioner claims that he was appointed as clerk on regular basis at Nagar Palika Parishad, Sambhal, District Moradabad. Petitioner has contended that sambhal has been nog Operations) Act, 1958. It has been further stated that besides other posts, one post of clerk in the regulated area of Sambhal was also there and as no one was directly appointed on that post, the Prescribed authority/sub-Divisional Magistrate Sambhal requested the Executive Officer, Nagar Palika Parishad for sending a clerk and Shahid Hussain was reverted back to Nagar Palika Parishad and thereafter, petitioner was attached to that post vide order dated 23. 08. 2000. Petitioner submits that he has been regularly performing and discharging duties, and there was no complaint against him from anyone. On 20. 07. 2002, Prescribed Authority requested for making permanent adjustment of petitioner as clerk in regulated area Sambhal giving him benefits of the service rendered in Nagar Palika Parishad. ( 2 ) AFTER said letter had been written, Under Secretary, Avas Evam Nagar Vikas Anubhag vide his letter dated 04. 07. 2003 asked the Prescribed Authority to act keeping in view the provisions as contained under Section 16 of the U. P. (Regulations of Building Operations) Act, 1958. ( 3 ) THEREAFTER, again letter was send on 30. 04. 2004. Petitioner has contended that on 14. 06. 2004 an order was passed qua continuance of the employees in the regulated area, who were on deputation till 28. 02. 2005. Petitioner has contended that thereafter, Raj Kumar Dixit, respondent No. 4, clerk in regulated area Bharthana, District Etawah has been sought to be transferred to regulated area, Sambhal, District Moradabad. Petitioner has approached this Court questioning the validity of the aforementioned transfer order. Counter affidavit has been filed on behalf of respondent Nos. 2 and 3, and therein, it has been sought to be contended that petitioner is a permanent employee of Nagar Palika Parishad, Sambhal; his pay and other allowances are being paid by Nagar Palika Parishad; he has not been paid any salary from regulated area, Sambhal, and he cannot be absorbed in regulated area, Sambhal. It has been further contended that petitioner has no concern with the transfer of respondent No. 4, and he has been informed vide letter dated 29. 06. It has been further contended that petitioner has no concern with the transfer of respondent No. 4, and he has been informed vide letter dated 29. 06. 2006, that petitioner cannot be absorbed in regulated area. Counter affidavit has also been filed on behalf of contesting respondent, contending therein that respondent No. 4 was appointed as junior clerk on 06. 05. 1987 in regulated area, Fatehpur Sikri, District Agra; he was confirmed on 01. 03. 1996 vide order passed by the Prescribed authority/sub-Divisional magistrate, Kirawali, District Agra. It has been further contended that contesting respondent was transferred from Fatehpur Sikri to Deoband, District Saharanpur; he had also been accorded promotional pay, and further he was transferred vide order dated 31. 05. 2005 from one regulated area to another regulated area. Qua petitioner, it has been contended that he is regular employee of Nagar Palika Parishad, and he was attached to regulated area under Section 16 of the U. P. (Regulations of Building Operations) Act, 1958, and the impugned transfer order has been passed on valid grounds. In this background, it has been contended that writ petition is liable to be rejected. ( 4 ) REJOINDER affidavit has been filed, and therein the statement of facts mentioned in the counter affidavits has been disputed and that of writ petition has been reiterated. After pleadings have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. ( 5 ) SRI B. D. Mandhyan, learned Senior Advocate, assisted by Sri Satish Mandhyan, appearing for petitioner contended with vehemence that under the U. P. (Regulations of Building Operations) Act, 1958 there is no provision for transferring an incumbent from one regulated area to another regulated area , as the service of regulated area is not centralized service, and in absence of there being any authority vested with the State Government, the State Government is not competent to effectuate the transfer, as has been sought to be done in the present case, as such entire proceeding is totally without jurisdiction. ( 6 ) SRI P. K. Pandey, learned Standing Counsel, representing the State-respondents as well as Sri H. N. Singh, along with Sri S. K. Agrawal, representing contesting respondent, on the other hand, contended with vehemence that as far as petitioner is concerned, none of his legal rights has been infringed, and further the State Government has full authority to pass order of transfer, even in the absence of specific power of transfer and said authority is traceable under Articles 75 and 162 of the Constitution of India, as such no interference is required. After respective arguments have been advanced, the relevant provisions of U. P. (Regulations of Building Operations) Act, 1958 are being looked into. The said Act has been promulgated to provide for the regulation of building operations with a view to preventing haphazard development of urban and rural areas in the State of U. P. Regulated area has been defined under Section 2 (d) to mean an area in respect of which declaration under sub-section (1) of Section 3 is made for the time being in force. Under Section 2 (g) prescribed Authority has been described as a person or body of persons appointed as such by State Government in respect of a regulated area by notification in the Official Gazette. Section 3 deals with declaration of regulated area. Section 4 deals with Controlling authority. Section 5 deals with the authority of the State Government to issue directions in respect of regulated area on any or more matters provided for. Section 5a deals with Master Plan for the regulated area. Section 7 deals with application for permission. Section 7a deals with the cancellation of permission obtained under fraud. Section 8 deals with power of entry in building. Section 15a deals with revisional power of the State Government. Section 16a deals with crediting of fees etc. Section 17a deals with the inconsistent provisions with other laws. The provisions of Sections 2 (d), 2 (g), 3, 4, 5, 15a, 16a and 17 being relevant for the purpose of the present case are being quoted below: "2 (d) regulated area means an area in respect of which declaration under sub-section (1) of Section 3 is for the time being in force. The provisions of Sections 2 (d), 2 (g), 3, 4, 5, 15a, 16a and 17 being relevant for the purpose of the present case are being quoted below: "2 (d) regulated area means an area in respect of which declaration under sub-section (1) of Section 3 is for the time being in force. " (2 (g) prescribed Authority means a person or body of persons appointed as such by State Government in respect of a regulated area by notification in the Official Gazette. 3. Declaration of regulated area.- (1) If in the opinion of the State Government any area within U,. P. Requires to be regulated under this Act with a view to prevention of bad laying out of land, haphazard erection of buildings or growth of sub-standard colonies or with a view to development and expansion of area according to proper planning, it may, by notification in the Official Gazette declare the area to be regulated area. (2) The operation of Chapter XIII of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 Sections 178, 179, 180, 180-A, 181, 182, 183, 184, 185, 186, 203, 204, 205, 206,. 207, 208, 209, 210 and 222 of the U. P. Municipalities Act, 1916 (or the said section as extended under section 338 hereafter under Section 38 of the U. P. / Town Areas Act, 1914) Sections 29, 30 and 32 of the U. P. Town Improvement Act , 1919 or as the case may be of Sections 162 to 171, of the Uttar {pradesh Kshetra Samities or Zila Parishads Adhiniyam, 1961 and shall in respect of a regulated area remain suspended for the period during which the declaration relating to it under sub-Section (1) remains in force of the provisions of Section 6 of General Clauses Act, 1904, shall apply in relation to such suspension as if th suspension amounted to repeal of the said enactments by this Act. 4. Controlling Authority.- (1) The State Government as soon as it may be after any area is declared as regulated area under this Act constitute for such area an authority here after called the Controlling Authority for the discharge of functions assigned to such authority under this Act. 4. Controlling Authority.- (1) The State Government as soon as it may be after any area is declared as regulated area under this Act constitute for such area an authority here after called the Controlling Authority for the discharge of functions assigned to such authority under this Act. (2) The Controlling Authority shall subject to th provisions of of sub-section (2-A) consist of the following members not exceeding nine, namely:- (a) Commissioner of the Division in which the regulated area is situate, or any other officer, not below the rank of a Sub-Divisional Magistrate, appointed by the State Government,who shall also be the Chairman; (b) Nominee of the State Government who among others may be - (i) The Prescribed authority of the District Board of the district in which the regulated area or any portion thereof is situate; (ii) The President of the Municipality or Notified Area, if any, in which the regulated area is situate or which is adjacent to it; provided that if the regulated area lies within the limits or more one local body,the Controlling Authority may co-opt any other President/presidents of such local body/bodies. Explanation - president for the purpose of this section includes any person exercising the powers of a president under the provisions of the U. P. District Boards Act, 1922 or the U. P. Municipalities Act, 1916, as the case may be. (2-A) The Controlling Authority shall have the power to co-opt as members one or two other persons. (3)The number of members necessary to form a quorum and the procedure to be followed by the Controlling Authority in the conduct of its by business shall be such as may be prescribed. (4)The functions of the Controlling Authority may be exercised notwithstanding any vacancy therein (5)deleted (6)All action taken by the Controlling Authority shall be expressed to be taken in the name of that authority, and orders and other instruments made and executed in the name of the said Authority shall be authenticated in such manner as may be prescribed 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 Controlling Authority. 5. 5. Power to issue directions in respect of regulated area.- the State Government may by notification in the Official gazette, issue in relation to any regulated area such regulations, not inconsistent with this Act or with the rules as it may consider necessary regarding any or more of the following matters, namely- (a) the division of any site into plots for the erection of buildings and the manner in which such plots may be allotted to intending purchasers of lessees; (b) the allotment or reservation of land for road, open spaces, gardens recreation grounds, schools, markets and other public purposes; (c) the development of any site of into a township or colony and the restrictions and condition subject to which such development may be undertaken or carried out; (d) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained n or around buildings and the height and character of buildings; (e) the alignment of buildings on any site; (f) the architectural features of the elevation or frontage of any building to be erected on any site; (g) the number of residential buildings which maybe erected on any site; (h) the amenities to be provided in relation to any site of buildings on such site whether before or after the erection of buildings and the person or authority by whom such amenities are to be provided; (i) the prohibition or restrictions regarding erection of shops, workshops, warehouses or factories or buildings of a specified architectural feature of buildings designed for particular purpose in any locality; (j) the maintenance of walls, fences, hedges or any other structural or architectural constructions and the height at which they shall be maintained; (k) the restrictions regarding the use of any site for purposes other than the erection of buildings; (l)any other matter which is necessary for the proper planning of any regulated area and for preventing buildings being erected haphazard;y in such area. 15-A. Revisional power of the State Government.- (1) The State Government may at any time either of its own motion or on an application made to it in this behalf, call for the record of any case disposed of by the Controlling Authority for the purpose of satisfying itself as to the legality or propriety of any other passed under this Act and may pass such orders in elation thereto as it may think fit. Provided that the State Government shall not pass an order prejudicial to any person without affording such person reasonable opportunity of being heard. (2) The State Government may by notification in the Gazette, declare the powers conferred upon it by sub-section (1) to any officer or authority which shall not be inferior to the Chairman or the Controlling authority. 16-A. Crediting of fees etc. , in the funds of local authority. (1) all fees realized under this Act and all sums realized under sub-section (3) of Section 12 in relation to performance of the functions of the Prescribed Authority or the Controlling authority within the limits of a City (as defined in the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959) shall be credited to the fund of the Nagar Mahapalika concerned. (2) The State Government may by notification in the official Gazette, extend the provisions of sub-Section (1) to any Municipality as defined in the United Provinces Municipalities Act, 1916, with effect from such date as it may direct, and thereupon the reference in that sub-section to a City shall in relation to that Municipality, be constructed as including, reference to that municipality. (3) The State Government may by notification in the official Gazette direct that the provisions of sub-Section (1) shall cease to apply to any City and thereupon the provisions of sub-Section (1) shall cease to apply to such City and likewise may rescind any notification under sub-Section (2) and thereupon the provisions of sub-Section (1) shall cease to apply to municipality concerned. (4) Every Nagar Mahapalika or Municipal Board to which the provisions of sub-section (1) for the time being apply shall, when so requested by the Prescribed authority or the Controlling Authority, make available to it such staff as may be necessary for the performance of the functions of that authority, within the limits of the City or the Municipality, as the case may be. 17. 17. Effect of the provisions of the Act inconsistent with other laws.- The provisions of this act shall of notwithstanding anything inconsistent therewith contained in any other law in force at the commencement of this Act. " ( 7 ) A perusal of the provisions quoted above would go to show that in the opinion of the State Government if any area within U. P. requires to be regulated under this Act with a view to prevent bad laying out of land, haphazard erection of buildings or growth of sub-standard colonies or with a view to development and expansion of area according to proper planning, it may, by notification in the Official Gazette declare the area to be regulated area. Operation of Chapter XIII of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, Sections 178, 179, 180, 180-A, 181, 182, 183, 184, 185, 186, 203, 204, 205, 206, 207, 208, 209, 210 and 222 of the U. P. Municipalities Act, 1916, (or the said section as extended under Section 388, hereafter under Section 58 of U. P. Town Area Act, 1914, Sections 29, 30 and 32 of Town Improvement Act, 1919 shall in the regulated area stand suspended for the period during which the declaration relating to it under sub-Section (1) remains in force. Further it has been provided that the provisions of Section 6 of General Clauses Act, 1904, shall apply in relation to such suspension as if the suspension amounted to repeal of the said enactments by this Act. Under Section 2 (g) prescribed Authority has been described as a person or body of persons appointed as such by State Government in respect of a regulated area by notification in the Official Gazette. Section 5 deals with the authority of the State Government to issue directions in respect of regulated area. Section 15a deals with revisional power of the State Government. Section 16a deals with crediting of fees etc. Section 16-A (4) provides that every Nagar Mahapalika or Municipal Board to which the provisions of sub-section (1) for the time being apply shall, when so requested by the Prescribed authority or the Controlling Authority, make available to it such staff as may be necessary for the performance of the functions of that authority, within the limits of the City or the Municipality, as the case may be. The scheme of the Act clearly shows that every regulated area has got its own separate entity and one regulated area is not connected with another regulated area, in any manner, whatsoever. On 09. 08. 1996 State Government created posts for the office of Prescribed Authority in newly declared regulated area. For newly declared Regulated area of Bharthana, Nazibabad, Nagina, Roorkee, Chandausi, Deoband, Siswa Bazar, Anandnagar, Gochar, Khatauli, Mawana, Chandpur, Gajraula, Kopaganj, Ghoshi, Konch, Balrampur and Tilhar, for the office of the Prescribed Authority, 18 posts of Junior Engineer and 18 posts of Junior clerk, have been sanctioned and for regulated area Sitapur, Amroha, Sambhal, Dhampur, Tanda, Mahrajganj, Kashipur, gonda, for the office of the Prescribed Authority 8 posts of Junior clerk have been sanctioned. In paragraph 2 of the said order, it has been categorically mentioned that the posts which have been created, would not be filled up by way of direct recruitment, and 18 posts of Junior Engineers shall be filled up from amongst Junior Engineers, who have been declared surplus by Jal Nigam. Posts of Junior Clerks shall be filled up, from the extra staff available in different Development Authorities and the institutions/offices of Housing Department. Details have also been furnished qua the financial backup. Thus, the Government while creating posts has given categorical direction with regard to way and manner in which these posts are to be filled up with no liberty to make fresh selection and appointments. Under the U. P. (Regulations Building Operations) Act, 1958, there is no authority vested with the State Government authorizing it to transfer one or more employees from one regulated area to another. Each regulated area is separate entity under the U. P. (Regulations Building Operations) Act, 1958, and there is no centralized service which provides for transfer of one incumbent from one regulated area to another regulated area. In the absence of there being explicit or implicit provision of transfer, under U. P (Regulation of Building Operations) Act, 1958, it has been suggested that, State Government has executive power referable under Articles 73 and 162 of the Constitution of India to issue executive instructions regulating service conditions of government servants, to transfer an incumbent from one regulated area to another regulated area. The provisions of Articles 73, 162 and 166 of the Constitution being relevant are being quoted below: "73. The provisions of Articles 73, 162 and 166 of the Constitution being relevant are being quoted below: "73. Extent of executive power of the Union.- (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend- (a) to matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer of authority of a State may, notwithstanding anything contained in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution. 162. Extent of executive power of State.- Subject to the provisions of this Constitution, the executive powers 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. 166. Conduct of business of the Government of a State.- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instrument s made and executed in the name of the governor shall be authenticated in such manner a may be specified in rules to be made by the Governor, and the validity of an order or instruments which is so authenticated shall not be called in question on the ground that is is not an order or instrument made or executed by the Governor. (3) The Governor shall made rules for the more convenient transaction of the business of the Government of the State ,and for the 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. " ( 8 ) ARTICLE 162 of the Constitution has been subject matter of interpretation in various cases before the Honble Apex Court from time to time. Honble Apex Court in the case of Rai Sahib Ram Jawayar Kapur and others v. The State of Punjab, AIR 1955 SC 549 , took the view that the functions of a modern State like the Police States of old are not confined to mere collection of taxes or maintenance of laws and protection of the realm from external or internal enemies. A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community. Neither of Articles 162 and 73 contain any definition as to what the executive function is and what activity would legitimately come within its scope. Paragraphs 6 and 7 of the aforesaid judgment being relevant are quoted below: "6. The functions of a modern State like the Police States of old are not confined to mere collection of taxes or maintenance of laws and protection of the realm from external or internal enemies. A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community. 7. Neither of Articles 162 and 73 contain any definition as to what the executive function is and what activity would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other, They do not mean that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respect lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand,the language of Art. 162 clearly indicates that the powers of the State Government do extend to matters up90n which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Art. 73 of the Constitution. " ( 9 ) HONble apex Court in the case of Jayantilal Amratlal Shodhan v. F. N. Rana and others, AIR 1964 SC 648 took the view that the executive power of the Union extends to all matters with respect to which Parliament has power to make laws and in respect of matters to which the power of the Parliament extends. Paragraphs 11 and 14 of the said judgment being relevant are being quoted below: "11. In Halsburys Laws of England, 3rd Edn. Vol. 7, Art. 409 p. 192 it is observed : "executive functions are incapable of comprehensive definition, for they are merely the residue of the functions of government after legislative and judicial functions have been taken away. They include, in addition to the executive of the laws, the maintenance of public order, the management of Crown property and nationalised industries and services, the direction of foreign policy, the conduct of military operations, and the provision or supervision of such services as education, public health, transport, and state assistance and insurance. " similarly in Wade and Phillips Constitutional Law 6th Edn. At p. 16 it is observed : "it is customary to divide functions of government into three classes, legislative, executive (or administrative) and judicial. " ( 10 ) IN Ram Jawaya v. State of Punjab, 1955-2 SCR 25 : ( (S) IR 1955 SC 549) in dealing with the question whether publishing, printing and selling of text books for the use of students may be regarded as an executive function of the State Government, Mukherjea, C. J. speaking for the Court observed : "it may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. " ( 11 ) IT cannot however be assumed that the legislative functions are exclusively performed by the Legislature, executive functions by the executive and judicial functions by the judiciary alone. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. " ( 11 ) IT cannot however be assumed that the legislative functions are exclusively performed by the Legislature, executive functions by the executive and judicial functions by the judiciary alone. The Constitution has not made an absolute or rigid division of functions between the three agencies of the State. To the executive, exercise of functions legislative or judicial are often entrusted. For instance power to frame rules, regulations and notifications which are essentially legislative in character is frequently entrusted to the executive. Similarly judicial authority is also entrusted by legislation to the executive authority ; Harinagar Sugar Mills Ltd. v. Shyamsundar, (1962) 2 SCR 339 : (AIR 1961 SC 1669 ). In the performance of the executive functions, public authorities issue orders which are not far removed from legislation and make decisions affecting the personal and proprietary rights of individuals which are quasi-judicial in character. In addition to these quasi-judicial, and quasi-legislative functions, the executive has also been empowered by statute to exercise functions which are legislative and judicial in character, and in certain instances, powers are exercised which appear to partake at the same moment of legislative, executive and judicial characteristics. In the complexity of problems which modern government have to face and the plethora of parlimentary business to which it inevitably leads, it becomes necessary that the executive should often exercise powers of subordinate legislation. Halsburys Laws of England, Vol. 7, Art. 409. It is indeed possible to characterise with precision that an agency of the State is executive, legislative or judicial, but it cannot be predicated that a particular function exercised by any individual agency is necessarily of the character which the agency bears. " "14. The President is authorised by Art. 258 (1) to entrust functions with which the Union Government is invested, provided the functions are in relation to any matter to which the executive power of the Union extends. By virtue of Art. 367, the General Clauses Act, 1897, applies to the interpretation of the Constitution and S. 3 (8) defines "central Government " by cl. (b) in relation to anything done or to be done after the commencement of the Constitution, as meaning the President and includes in relation to functions entrusted under cl. By virtue of Art. 367, the General Clauses Act, 1897, applies to the interpretation of the Constitution and S. 3 (8) defines "central Government " by cl. (b) in relation to anything done or to be done after the commencement of the Constitution, as meaning the President and includes in relation to functions entrusted under cl. (1) of Art. 258 of the Constitution to the Government of a State, the State Government acting within the scope of the authority given to it under that clause. By Art. 53 the executive power of the Union is vested in the President and is exercisable by him either directly or through officers subordinate to him in accordance with the Constitution and the executive power of the Union by Art. 73 extends subject to the provisions of the Constitution : (a) to the matter with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreements : provided that the executive power referred to in sub-cl. (a) shall not save as expressly provided in the Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Prima facie, the executive power of the Union extends to all matters with respect to which Parliament has power to make laws and in respect of matters to which the power of the Parliament extends. It was claimed that by the use of the expression "save as expressly provided in the Constitution" it was intended that unless a provision in the Constitution expressly enacts that the executive power of the Union shall, within the meaning of Art. 73 (1) proviso, extend to a matter in respect of which the Legislature of a State has also power to make laws, that provision cannot exclude the operation of the proviso to Art. 73 (1 ). But the expression "save as expressly provided in the Constitution" is not susceptible of that limited interpretation. A provision in the Constitution conferring authority upon the Union to exercise its powers in matters with respect to which the Legislature of the State has also power to make laws, operates notwithstanding the limitation enacted by the proviso. But the expression "save as expressly provided in the Constitution" is not susceptible of that limited interpretation. A provision in the Constitution conferring authority upon the Union to exercise its powers in matters with respect to which the Legislature of the State has also power to make laws, operates notwithstanding the limitation enacted by the proviso. Article 298, which inter alia, extends the power of the Union to the "acquisition" of property, is one such provision. Our attention has not been invited to any provision which makes an enactment of the nature suggested by counsel for the appellant excluding the operation of the proviso to Art. 73 (1 ). Articles 353, 360 (3), 339 (2), 256 and 257 on which reliance was placed, merely enact provisions in the Constitution for giving directions to the State Government in respect of certain specified matters or purposes. The form in which these provisions are couched do not expressly provide that within the field of their operation Art. 73 (1) proviso will not apply. The language used, on the other hand, supports the view that power is conferred upon the Union to do certain things falling within the limits of the executive power, even though normally the power in respect of that matter may be exercised by the State Legislature by virtue of the legislative entry to which it relates. It is therefore open to the President, subject to the proviso to cl. (1) of Art. 73, with the consent of the State Government, to entrust executive power of the Union relating to acquisition of land either to the State or any officers of the States. " ( 12 ) HONble apex Court in the case of Sarkari Sasta Anaj Vikreta Sangh and others v. State of Madhya Pradesh and others, AIR 1981 SC 2030 , took the view that The executive power of the State Government under Article 162 of the Constitution is co-extensive with the legislative power of the State Legislature. Paragraph 9 of the judgment being relevant is being quoted below: "9. One of the submissions of the learned counsel was that the formulation of the scheme was an exercise of power by the delegate of a delegate and, therefore, void. We see no force in this submission. Paragraph 9 of the judgment being relevant is being quoted below: "9. One of the submissions of the learned counsel was that the formulation of the scheme was an exercise of power by the delegate of a delegate and, therefore, void. We see no force in this submission. The basic assumption underlying the argument was that the scheme was formulated by the Government pursuant to some power purported to be vested in the Government under the M. P. Foodstuffs (Distribution) Control Order, 1960 and that the Government would otherwise have no power to formulate such a scheme. The assumption is not well founded. In the first place the M. P. Foodstuffs (Distribution) Control Order, 1960 as amended in 1980 defines fair price shop as a "shop set up by the Government under the Government scheme" and the government scheme as "the scheme for distribution of foodstuffs to consumers through fair price shops set up by the Government in this behalf". There is no other provision in the order authorising the setting up of fair price shops or the making of a scheme for setting up fair price shops. On the other hand the State Government has undoubted competence to make a scheme for setting up fair price shops and to set up fair price shops in pursuance thereof, in exercise of its executive power under Article 162 of the Constitution. The executive power of the State Government under Article 162 of the Constitution is co-extensive with the legislative power of the State Legislature. Entry 33 (b) of List III (Concurrent List) is "trade and commerce in, and the production, supply and distribution of foodstuffs, including edible oil-seeds and oils". The Government, therefore, has the undoubted right to make a scheme for the distribution of foodstuffs, without being vested with any special authority under any order made under the Essential Commodities Act. As already mentioned by us the M. P. Foodstuffs (Distribution) Control Order, 1960 does not purport to vest any such power in the Government. It must, therefore, be taken that the M. P. Foodstuffs (Civil Supplies Public Distribution) Scheme, 1981, was made in exercise of the executive power of the Government and not in exercise of any power delegated by a delegate under the Essential Commodities Act. It must, therefore, be taken that the M. P. Foodstuffs (Civil Supplies Public Distribution) Scheme, 1981, was made in exercise of the executive power of the Government and not in exercise of any power delegated by a delegate under the Essential Commodities Act. " ( 13 ) HONble apex Court in the case of P. U. Joshi and others v. Accountant General Ahmedabad, (2003) 2 SCC 632 took the view that State Government is fully competent to to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Paragraph 10 of the judgment being relevant is quoted below: "10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. " ( 14 ) HONble apex Court in the case of M/s Bishambar Dayal Chandra Mohan v. State of U. P. , AIR 1982 SC 33 , took the view that the State Government, in exercise of its executive power can introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check-posts. Paragraphs 20 and 21 of the judgment being relevant are being quoted below: "20. Even assuming that the impugned teleprinter message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check-posts on the border and place restrictions; on inter-district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225 : ( AIR 1955 SC 549 ), Mukherjea, C. J. , dealt with the scope of Arts, 73 and 162 of the Constitution. Thelearned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed : "ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. Thelearned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed : "ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. " It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill. 21. In Ram Jawaya Kapurs case (1955) 2 SCR 225 at p. 236 : ( AIR 1955 SC 549 at p. 556) (supra) it was contended that the executive power of the State did not extend to the carrying on of trade of printing, publishing and selling of text-books for schools unless such trade was authorised by law. In repelling the contention, Mukherjea, C. J. speaking for the Court, observed : our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function, comprises both of the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State. The executive function, comprises both of the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State. The learned Chief Justice then went on to observe : Ibid at 239 (of SCR) : (at P. 557 of AIR): the Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens. Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution. On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under Article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed. ( 15 ) IN Naraindas Indurkhya v. State of Madhya Pradesh, (1974) 3 SCR 624 : ( AIR 1974 SC 1232 ), Bhagwati, J. , speaking for the Court, reiterated the principles laid down by Mukherjea, C. J. in Ram Jawaya Kapurs, case, (supra) and held that the State Government could not in exercise of the executive power of the State under Art. 162 of the Constitution in relation to any matter with respect to which the State Legislature has power to make laws even if there was no legislation to support such executive action. There is no denying the fact that the State Legislature is competent to enact a law on the subject covered by Entry 33, List III, which reads : 33. Trade and commerce in, and the production, supply and distribution of,- (b) foodstuffs, including edible oilseeds and oils. There is no denying the fact that the State Legislature is competent to enact a law on the subject covered by Entry 33, List III, which reads : 33. Trade and commerce in, and the production, supply and distribution of,- (b) foodstuffs, including edible oilseeds and oils. " ( 16 ) HONble Apex Court it the case of P. Tulsidar and others v. Government of Andhra Pradesh and others, (2003) 1 SCC 364 has taken the view that in the absence of Rules under Article 309 of the Constitution in respect of a particular area, aspect or subject, it was permissible for the State to make provisions in exercise of its executive powers under Article 162 which is co-extensive with its legislative powers laying conditions of service and rights accrued to or acquired by a citizen would be as much rights acquired under law and protected to that extent. Paragraph 14 of the judgment being relevant is quoted below: "14. On a careful consideration of the principles laid down in the above decisions in the light of the fact situation in these appeals we are of the view that they squarely apply on all fours to the cases on hand in favour of the appellants. The submissions on behalf of the respondent-State that the rights derived and claimed by the appellants must be under any statutory enactment or rules made under Article 309 of the Constitution of India and that in other respects there could not be any acquisition of rights validly, so as to disentitle the State to enact the law of the nature under challenge to set right serious anomalies which crept in and deserved to undone, does not merit our acceptance. It is by now well settled that in the absence of Rules under Article 309 of the Constitution in respect of a particular area, aspect or subject, it was permissible for the State to make provisions in exercise of its executive powers under Article 162 which is co-extensive with its legislative powers laying conditions of service and rights accrued to or acquired by a citizen would be as much rights acquired under law and protected to that extent. The orders passed by the Government, from time to time beginning from February 1967 till 1985 and at any rate up to the passing of the Act, to meet the administrative exigencies and cater to the needs of public interest really and effectively provided sufficient legal basis for the acquisition of rights during the period when they were in full force and effect. The orders of the High Court as well as the Tribunal also recognised and upheld such rights and those orders attained finality without being further challenged by the Government, in the matter known to law. Such rights, benefits and perquisites acquired by the Teachers concerned cannot be said to be rights acquired otherwise than in accordance with law or brushed aside and trampled at the sweet will and pleasure of the Government, with impunity. Consequently we are unable to agree that the Legislature could have validly denied those rights acquired by the appellants retrospectively not only depriving them of such rights but also enact a provision to repay and restore the amounts paid to them to the State. The provisions of the Act, though can be valid in its operation `in futuro cannot be held valid insofar as it purports to restore status quo ante for the past period taking away the benefits already available, accrued and acquired by them. For all the reasons stated above the reasons assigned by the majority opinion of the Tribunal could not be approved in our hands. The provisions of Sections 2 and 3 (a) insofar as they purport to take away the rights from 10-2-1967 and obligates those who had them to repay or restore it back to the State is hereby struck down as arbitrary, unreasonable and expropriatory and as such is violative of Articles 14 and 16 of the Constitution of India. No exception could be taken, in our view, to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the category of the persons similarly situated whether approached Courts or not seeking relief individually. The provisions contained in Section 2 have to be read down so as to make it only prospective, to save the same from the unconstitutionality arising out of its retrospective application. The provisions contained in Section 2 have to be read down so as to make it only prospective, to save the same from the unconstitutionality arising out of its retrospective application. " ( 17 ) HONble Apex Court it the case of State of U. P. v. Neeraj Awasthi and others, JT 2006 (1) SC 19, has taken the view that the State Government in exercise of its power under Article 162 can issue directions. The power of State Government is confined to issuing directives on the question of framing policy. The question which, however, falls for consideration is as to whether any appointment can be made dehors the provisions of the Act and the rules. Such a decision on the part of the State Government must be taken in terms of the constitutional scheme, i. e. upon compliance of the requirement of Article 162 read with Article 166 of the Constitution of India. In the instant case, the directions were purported to have been issued by an office of the State. Such directions were not shown to have been issued pursuant to any decision taken by Executive Business of the State framed under Article 166 of the Constitution of India. Paragraphs 32 to 43 of the judgment being relevant are quoted below: "32. Both the Services Regulations and the Establishment Regulations, as noticed hereinafter, are applicable respectively to the employees of the Board as also the Market Committees. The said regulations provide for detailed procedure for appointment and the terms and conditions therefor. No appointment, thus, can be made in violation of the provisions of statute and statutory rules. 33. Submission of the learned counsel appearing on behalf of the employees is that the procedures prescribed by reason of the Regulations are applicable to the regular employees. It is so. The question which, however, falls for consideration is as to whether any appointment can be made dehors the provisions of the Act and the rules. Our attention has been drawn to the definition of employee which does not include persons employed on daily wages, work charged and/or part-time basis. If the expression employee does not bring within its fold any person employed on daily wages, work charged and/or part-time basis, the same would mean that the persons so appointed would not be the employees within the meaning of the said regulation. If the expression employee does not bring within its fold any person employed on daily wages, work charged and/or part-time basis, the same would mean that the persons so appointed would not be the employees within the meaning of the said regulation. It would, therefore, not be correct co contend that the Market Committees or the board have the jurisdictions to appoint anybody on daily wages, work charged and/or part-time basis dehors rules. The power to make appointment by the Committee or the board whether contained in Section 23 or Section 26f of the Act are statutory in nature. In absence of any provisions conferred upon tem to appoint any employee dehors the provisions of Sections 23 and 26f and the regulations framed thereunder, indisputably would mean that such appointments are dehors the Act and the rules. The Rules also provide that any appointment made by the committee under sub-section (1) of Section 23 shall be intimated within 30 days of such appointment to the Director or to such other officer as maybe authorized by the Director in this behalf. It implies that although the Market Committee may have power to make appointments, such appointments can be made in relation to the pots created therefor by the board wherefor requisite intimation has to be given to the Director or the officer authorized in this behalf. We may assume that for meeting the exigencies of situations it may be possible for the Committee or the Board to appoint a person on adhoc basis. Such adhoc employees, however, being not employee within the meaning of the provisions of the Act and the Regulations, a legal relationship between the employer and the employee would come into being. As no legal relationship of employer and employee comes into being, evidently such persons do not derive any status. They a fortiori derive no legal right to continue in service subject of course to the compliance of the provisions of any other Act or the rules conferring certain benefit to them (See State of M. P. and another v. Dharambir, J. T. 1998 (4) SC 363 ). 34. They a fortiori derive no legal right to continue in service subject of course to the compliance of the provisions of any other Act or the rules conferring certain benefit to them (See State of M. P. and another v. Dharambir, J. T. 1998 (4) SC 363 ). 34. Sections 23 and 26f of the Act categorically mandate that all appointments mush be made in terms of the provisions of the regulations, The terms and conditions of such services are also required to be prescribed by the regulations, the logical corollary whereof would be that permanent status is required to be given to a person who is not otherwise an employee of the Board of the Market committee, as the case maybe it is required to be done in terms of the regulation only. 35. The Board is entitled to take a decision which is within its powers and functions delineated by the Act. A decision by way of resolution or other cannot be taken by the Board which is beyond the scope o\and purview of the act and the regulations framed thereunder. 36. The board, therefore, was bound to make regulation if it intended to put the respondents on its rolls. The High Court as noticed hereinbefoe, however was of the opinion that it was not necessary to so do. ,for reasons aforementioned, we do not agree. POWERR OFSTATE TO ISSUE DIRECTINIS 37. The State in exercise of its power conferred upon it could issue directions, the power of the State Government is confined to issue directions on question of policy. It cannot, however, interfere in the day to day functionings of the board. Such policy decision, however, must be in relation to the activities of the board under the Act and not dehors the same. (see Rakesh Ranjan Verma (supra) Ram Autar (supra) and Banglore Development Authority and others v. R. Hanumaiah and others, J. T. 2005 (12) SC 64. 38. Such a decision on the part of the State Government must be taken in terms of the constitutional scheme, i. e. upon compliance of the requirement of Article 162 read with Article 166 of the Constitution of India. In the instant case, the directions were purported to have been issued by an office of the State. 38. Such a decision on the part of the State Government must be taken in terms of the constitutional scheme, i. e. upon compliance of the requirement of Article 162 read with Article 166 of the Constitution of India. In the instant case, the directions were purported to have been issued by an office of the State. Such directions were not shown to have been issued pursuant to any decision taken by Executive Business of the State framed under Article 166 of the Constitution of India. 39. In Punit Rai v. Disnesh Chadhary, J. T. 2003 (suppl. 1) SC 557,this court held: "the said circular letter has not been issued by the State in exercise of its power under Article 162 of the Constitution of India. It is not started therein that the decision has been taken by the Cabinet or any authority authorized in this behalf in terms of Article 166 (3) of the Constitution of India. It is trite that a circular letter being an administrative instruction is not a law within the meaning of Article 13 of the Constitution of India (See Dwarika nath Tewari v. State of Bihar)" 40. However, it is not correct that power of the State to issue directions must be confined to the matters enumerated in sub-section (1) of Section 25l of the Act. Section 2l is subject to the provisions of the Act. The functions of the Board enumerated in Section 26l of the Act are therefore, no exhaustive. Appointment of servants and officers are also one of the functions of the board. The Board also has right to supervise and control the activities of the officers and Market Committees. In that view of the matter, if a policy decision is taken by the Board in regard to the appointment or terms and conditions of servants, the even, regulations made in this behalf do not contain any provisions, such policy decision must conform to the directives of the States issued in that behalf, if any. The Board further is empowered to do such other thins as are specified in clause (x) of Section 26l of the Act. 41. The Board, however, in law could have abdicated its power in favour of the State Government. 42. We are, therefore, of the opinion that the direction by the state was strictly not in accordance with law. The Board further is empowered to do such other thins as are specified in clause (x) of Section 26l of the Act. 41. The Board, however, in law could have abdicated its power in favour of the State Government. 42. We are, therefore, of the opinion that the direction by the state was strictly not in accordance with law. " ( 18 ) HONble Apex Court it the case of Sanjay Kumar Manjul v. Chairman UPSC and others, (2006) 8 SCC 42 has held that statutory authority is entitled to frame rules and lay down terms and conditions of service and prescribe qualifications for posts, and only the authority concerned is entitled to take a decision in the matter. ( 19 ) ON the touchstone of the principles lid down in the judgments referred to and quoted above, the inevitable conclusion is that, in absence of Rules under Article 309 of the Constitution, in respect of particular area, aspect or subject, it is permissible for the State to make provisions and issue directions in exercise of its executive powers under Article 162, which is co-extensive with its legislative powers, laying conditions of service. The authority of the State Government is to be exercised in public interest, by means of policy decision, and same cannot be exercised for achieving private interest, and interfering in day to day routine matters. Such decision has to be taken in terms of constitutional scheme i. e. upon compliance of the requirement of Article 162 and Article 166 i. e. decision taken by a competent authority in terms of Rules of Executive Business of the State framed under the said Articles. The facts of the present case are now being adverted to. It is true that Government order dated 09. 08. 1996 created 18 posts of Junior Engineers and 26 posts of junior clerks for various regulated areas, including Sambhal. In paragraph 2 thereof, which forms part of record, which has been supplied by learned Standing counsel, the way and manner in which aforesaid posts are to be filled up has also been provided. 08. 1996 created 18 posts of Junior Engineers and 26 posts of junior clerks for various regulated areas, including Sambhal. In paragraph 2 thereof, which forms part of record, which has been supplied by learned Standing counsel, the way and manner in which aforesaid posts are to be filled up has also been provided. Specific prohibition has been made for making new appointment, and it has been categorically provided for that 18 posts of Junior Engineer, shall be filled up from amongst the surplus staff of Jal Nigam and remaining 26 posts of junior clerk be filled up from amongst the surplus staff of Development Authorities and from other offices/institutions of Avas Vibhag. Nowhere under the said Government order, it has been provided that the said vacancies can be filled up by way of transfer by transferring an employee of one regulated area to another regulated area. The entire scheme of 1958 Act does not show that the State Government at any point of time made the services of employees of the regulated area to be centralized service, and at no point of time State Government took any policy decision to send/transfer an incumbent from one regulated area to another regulated area. In present case record in question clearly reflects that respondent No. 4 has been transferred to regulated area Sambhal from regulated area Bharthna by the order of Under Secretary Shivjanam Chaudhary in routine course. The aforesaid order is not based on any policy decision, and it is clearly an act in favour of a particular incumbent. The executive functions of the State Government referable under Articles 73, 162 and 166 of the Constitution of India are clearly not in context to extend the individual benefits. Respondents have failed to point out that any policy decision has been taken by the State Government resolving to transfer an incumbent from one regulated area to another regulated area, and thereafter order has been issued by competent authority in terms of the Rules of Executive Business of the State framed under Article 166 of the Constitution of India. Once there is no policy decision, as such the impugned order, which has been passed in favour of a particular incumbent, cannot be subscribed. ( 20 ) CONSEQUENTLY, writ petition succeeds and is allowed. The impugned order dated 11. 05. Once there is no policy decision, as such the impugned order, which has been passed in favour of a particular incumbent, cannot be subscribed. ( 20 ) CONSEQUENTLY, writ petition succeeds and is allowed. The impugned order dated 11. 05. 2006, transferring the contesting respondent No. 4 to regulated area Sambhal is hereby quashed and set aside. No order as to costs. .