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2018 DIGILAW 875 (MP)

State of M. P. v. P. N. Raikwar

2018-10-11

ATUL SREEDHARAN, HEMANT GUPTA, VIJAY KUMAR SHUKLA

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ORDER : Hemant Gupta, CJ. The present appeal arises out of an order passed by the learned Single Bench on 11.10.2017. It was held that an order of punishment of withholding of three increments with cumulative effect though communicated by Deputy Secretary of the State, but for all practical purposes it is an order passed by the Hon’ble Governor himself, therefore, the alternative remedy is not available to the appellant. After returning such finding, the Court granted opportunity to the writ petitioner to submit reply to the show-cause with a further direction to the respondents to decide the same in accordance with law. Aggrieved against such judgment, the writ petitioner has filed Writ Appeal No.1146/2017, whereas the State has filed Writ Appeal No.968/2018. 2. Writ Appeal No. 1144/2017 arises out of order-dated 20.11.2017, passed in Writ Petition No. 14259/2015 (A.D. Chaturvedi Vs. State of MP and another), following the order passed in the case of P.N. Raikwar, subject matter of other two appeals. 3. Since the issue is common in all these appeals, they have been taken up for hearing together. 4. The matter came up for hearing before Division Bench of this Court on 30.7.2018. In view of the divergent views of two Division Benches of this Court in Writ Appeal No. 487/2017 (Ravi Saxena Vs. The State of Madhya Pradesh and others) decided on 9.8.2017; and, a Division Bench at Gwalior in Writ Appeal No. 510/2018 (Virendra Kumar Vs. The State of Madhya Pradesh and others) decided on 8.5.2018, the following question was referred to the Larger Bench: “Whether authentication of an order of punishment in the name of Governor is an order of the State Government against which an appeal would lie to the Governor or there is no statutory remedy against such an order.” 5. It may be stated that the order in Ravi Saxena’s case is not quoting any judgment, but in Virendra Kumar’s case, the Division Bench has relied upon the judgment of the Hon’ble Supreme Court in Brajendra Singh Yambem Vs. Union of India and another, (2016) 9 SCC 20 , while over-ruling the Single Bench order in Sanjeev Kumar Dubey Vs. Commercial Tax Department (Writ Petition No. 5906/2017) decided on 12.9.2017. 6. The Rule in question is Rule 22 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 [for short the ‘Service Rules’]. Union of India and another, (2016) 9 SCC 20 , while over-ruling the Single Bench order in Sanjeev Kumar Dubey Vs. Commercial Tax Department (Writ Petition No. 5906/2017) decided on 12.9.2017. 6. The Rule in question is Rule 22 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 [for short the ‘Service Rules’]. Such Rules provide for the punishment to be imposed upon an employee and also the imposition of penalty and the remedy of appeal. The sole question is whether the order of punishment authenticated in the name of Governor is the order of the Governor and, therefore, the right of appeal provided under Rule 22 of the Rules is not available. The relevant extract of the Rules read as under:- “22. Orders against which no appeal lies.-Notwithstanding anything contained in this part, no appeal shall lie against,- (i) any order made by the Governor; (ii) any order of an interlocutory nature or of the nature of a step-in-aid for the final disposal of a disciplinary proceeding; (ii-a) any order passed under rule 11; and, (iii) any order passed by an inquiring authority in the course of an inquiry under rule 14. (iv) any order passed by the High Court as an Appellate Authority. 23. Orders against which appeal lies.-Subject to the provisions of rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely- (i) an order imposing any of the penalties specified in rule 10 whether made by the disciplinary authority or by any appellate or reviewing authority; (ii) an order enhancing any penalty, imposed under rule 10; (iii) an order of suspension made or deemed to have been made under rule 9. Explanation.-In this rule the expression "Government servant" includes a person who has ceased to be in Govt. service. 24. Explanation.-In this rule the expression "Government servant" includes a person who has ceased to be in Govt. service. 24. Appellate authorities.-(1) A Government servant including a person who has ceased to be in Government service, may prefer an appeal against all or any of the orders specified in rule 23 to the authority specified in this behalf either in Schedule or by a general or special order of the Governor or, where on such authority is specified, (i) Where such Government servant is or was a member of a State Civil Service Class I or Class II or holder of a State Civil post, Class I or Class II- (a) to the appointing authority, where the order appealed against is made by an authority subordinate to it; or (b) to the Governor, where such order is made by any other authority. ………..” 7. The learned Single Bench referred to a judgment of the Supreme Court reported as State of Uttar Pradesh Vs. Z.U. Ansari, (2016) 16 SCC 768 , but the attention of the Court was not brought to the notice that infact the order reported is an order of disagreement and the matter has been referred to the Larger Bench. The view quoted is opinion of the one of the Hon’ble member of the Bench Judge and not the view of the Court. We find that the Members of the Bar should refer a judgment which lays down a binding precedent and not an order where there is disagreement and is not a binding precedent. 8. Learned counsel for the State referring to Seven Judges judgment reported as Samsher Singh and another Vs. State of Punjab, (1974) 2 SCC 831 , submitted that in Samsher Singh’s case the earlier judgment in B.K. Sardari Lal Vs. Union of India, 1971 (1) SCC 411 was over-ruled. It was held therein that power under Article 311 of the Constitution has to be exercised by the President alone and such power cannot be delegated. It is contended that appointment or dismissal or removal of a person belonging to the judicial service of the State is not a personal function of the Governor, but is an executive function of the Governor exercised in accordance with the Rules in that behalf under the Constitution. The Court held as under:- “31. It is contended that appointment or dismissal or removal of a person belonging to the judicial service of the State is not a personal function of the Governor, but is an executive function of the Governor exercised in accordance with the Rules in that behalf under the Constitution. The Court held as under:- “31. Further the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the rules of business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (See Halsbury’s laws of England 4th Ed. Vol. I paragraph 748 at p. 170 and Carleton Ltd. v. Works Commissioners, [(1943) 2 All ER 560]. xxx xxx xxx 44. The distinction made by this Court between the executive functions of the Union and the executive functions of the President does not lead to any conclusion that the President is not the constitutional head of Government. Article 74(1) provides for the Council of Ministers to aid and advise the President in the exercise of his functions. Article 163(1) makes similar provision for a Council of Ministers to aid and advise the Governor. Therefore, whether the functions exercised by the President are functions of the Union or the functions of the President they have equally to be exercised with the aid and advice of the Council of Ministers, and the same is true of the functions of the Governor except those which he has to exercise in his discretion. 45. Therefore, whether the functions exercised by the President are functions of the Union or the functions of the President they have equally to be exercised with the aid and advice of the Council of Ministers, and the same is true of the functions of the Governor except those which he has to exercise in his discretion. 45. In Sardari Lal's case (supra) an order was made by the President under sub-clause (c) to clause (2) of Article 311 of the Constitution. The order was: The President is satisfied that you are unfit to be retained in the public service and ought to be dismissed from service. The President is further satisfied under sub-clause (c) of proviso to clause (2) of Article 311 of the Constitution that in the interest of the security of the State it is not expedient to hold an inquiry. The order was challenged on the ground that the order was signed by the Joint Secretary and was an order in the name of the President of India and that the Joint Secretary could not exercise the authority on behalf of the President. xxx xxx xxx 47. The decision in Sardari Lal's case that the President has to be satisfied personally in exercise of executive power or function and that the functions of the President cannot be delegated is with respect not the correct statement of law and is against the established and uniform view of this Court as embodied in several decisions to which reference has already been made. These decisions are from the year 1955 upto the years 1971. These decisions are Rai Saheb Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 , A. Sanjeevi Naidu v. State of Madras (1970) 1 SCC 443 and U. N. Rao v. Smt. Indira Gandhi (1971) 2 SCC 63 . These decisions were neither referred to nor considered in Sardari Lal's case (supra). 48. The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of any Minister or officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor. xxx xxx xxx 53. The majority view in State of U.P. Vs. Babu Ram Upadhya, AIR 1961 SC 751 , is no longer good law after the decision in Moti Ram Deka Vs. General Manager, NEF Railway, Maligaon, Pandu, AIR 1964 SC 600 . The theory that only the President or the Governor is personally to exercise pleasure or dismissing or removing a public servant is repelled by express words in Article 311 that no person who is a member of the Civil service or holds a civil post under the Union or a State shall be dismissed or removed by authority subordinate to that by which he was appointed. The words "dismissed or removed by an authority subordinate to that by which he was appointed" indicate that the pleasure of the President or the Governor is exercised by such officers on whom the President or the Governor confers or delegates power.” xxx xxx xxx 57. The words "dismissed or removed by an authority subordinate to that by which he was appointed" indicate that the pleasure of the President or the Governor is exercised by such officers on whom the President or the Governor confers or delegates power.” xxx xxx xxx 57. For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Service of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution.” 9. Learned counsel for the State also refers to the Three Judges Judgment reported as Union of India and others Vs. Sripati Ranjan Biswas and another, 1975 (4) SCC 699 , wherein it has been held that appointment or dismissal falls within the ambit of purely executive function of the President in the case of Union Government and of the Governor in the case of the State Government and that a quasi-judicial inquiry held by the Minister in exercise of the Rules of the State does not affect the order passed. In the said case, a confirmed appraiser in the Customs Department was dismissed from service. A show-cause notice was served upon him as to why he should not be dismissed from service. The employee filed the writ petition before the High Court challenging the show-cause notice. The High Court allowed the writ petition and directed the Collector of Customs to reconsider the appropriate penalty. It is thereafter, an order of dismissal was passed. An appeal was preferred to the President of India under Rule 23(2)(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. The High Court allowed the writ petition and directed the Collector of Customs to reconsider the appropriate penalty. It is thereafter, an order of dismissal was passed. An appeal was preferred to the President of India under Rule 23(2)(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. Such appeal was rejected. It is thereafter the employee challenged the dismissal order as well as the appellate order. Such writ petition was allowed while giving liberty to proceed with the appeal afresh. Thereafter, Minister in the Ministry of Finance heard the appeal and the appeal to the President was rejected. The order was communicated by the Under-Secretary to Government of India in the name of the President. Such order was again challenged in the writ petition which was dismissed, but the appeal allowed. In these circumstances, Union of India was in appeal before the Supreme Court. An argument was raised that hearing of an appeal is under statutory rules; therefore, it cannot be delegated by the President to a Minister. It was held that the question is squarely covered by the judgment of the Supreme Court in Samsher Singh’s case (supra). The Court held as under:- “6. The above question is squarely covered by a recent decision of this Court in Samsher Singh v. State of Punjab and Another. Even so, Mr. A.K. Sen appearing on behalf of the respondent submits that there is still an area which has not been covered by the said decision. Mr. Sen submits that hearing of an appeal under a statutory rule, as in this case, is a quasi-judicial act and, therefore, it cannot be delegated by the President to the Minister. xxx xxx xxx 8. The question which is raised in this appeal relates to the domain of appointment or dismissal of a Government servant. Such a question falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi-judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distinguished in the appeal from the ratio of the decision in Samsher Singh's case (supra). The legal position is brought out very clearly in paragraph 57 of the report in Samsher Singh (supra) in the following extracts : ‘Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution.’ Again in para 48 the Court observed : ‘The President as well as the Governor is the Constitutional or formal head. The President as well as the Governor exercise his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the Constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercise all his powers and functions. The decision of any Minister or Officer under rules of business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.’ We are, therefore, unable to see how the present case of the respondent can get out of the rule laid down in Samsher Singh's case. 9. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the rules of business is the decision of the President or the Governor.’ We are, therefore, unable to see how the present case of the respondent can get out of the rule laid down in Samsher Singh's case. 9. In the history of the entire background of the Constitutional development of our country, when the Constitution conclusively contemplates a Constitutional President it is not permissible nor is it even intended to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must needs be to the President as the Constitutional head, as envisaged in the Constitution acting with the aid and service of the Council of Ministers. 10. Disposal of the appeal by the Minister under Rule 23(2)(b) of the Rules is, therefore, a proper and legal disposal of the appeal to the President who has acted on the advice of the Minister in confirming the impugned order of dismissal. There is no question of delegation involved in such a matter. We find no Constitutional infirmity in the impugned order of May 9, 1969.” 10. In the case reported as State of Madhya Pradesh and others Vs. Dr. Yashwant Trimbak, 1996 (2) SCC 305 , the employee was proceeded against departmentally after due sanction of the Council of Ministers. But, a duly authenticated order purported to have been passed by the order of Governor was communicated. The question in the said case was whether initiation of departmental inquiry without appropriate and valid sanction as contemplated by Rule 9(2)(b)(i) and (ii) of the M.P. Civil Services Pension Rules, 1976 is sustainable. The following two questions were examined by the Court: “1) On the admitted position that the order initiating the departmental proceeding was served upon the respondent by a duly authenticated order passed in the name of the Governor, is it open to the Court to examine the validity of the same in view of the provisions contained in Article 166(2) of the Constitution ? 2) Whether the power to sanction conferred on the Governor under Rule 9(2)(b)(i) of the Pension Rules can at all be conferred on the Council of Ministers by making rules for convenient transaction of the Business of the Government of State under Article 166(3) of the Constitution ? ” In respect of the first question, a finding was returned that such order is immune from judicial review, when the following finding was recorded:- “10. Coming to the first question, from a bare look at the order which was served on the respondent, it is implicitly clear that the said order has been executed in the name of the Governor and has been duly authenticated by the signature of the Under Secretary to the Government and therefore the bar to judicial enquiry with regard to the validity of such order engrafted in Article 166(2) of the Constitution will be attracted. The order which is expressed in the name of the Governor and is duly authenticated cannot be questioned in any court on the ground that it is not made or executed by the Governor. …. xxx xxx xxx 13. This being the position and the order initiating the departmental proceeding having been signed by the Under Secretary to the Government by Order of the Governor, the same is immune from attack on the ground that it is not an order executed by the Governor as provided under Article 166(2) of the Constitution. As such the Tribunal was wholly incompetent to examine the legality of the same. In fact Article 166(2) of the Constitution has not been looked into at all by the Tribunal. In our opinion, the Tribunal was wholly in error in quashing the order on the ground that the Governor has not executed the same. In view of our conclusion on the first question, though the appeal is bound to succeed, but we think it proper to examine the second question also.” However, in respect of the second question, it was held that under Article 163(1) of the Constitution, excepting functions required by the Constitution to be exercised by the Governor in his discretion, the Governor acts on the aid and advice of the Council of Ministers. Therefore, any executive, legislative or quasi judicial function can be delegated by Rules of Business unless the contrary is clearly provided for by such constitutional or statutory provisions. Therefore, any executive, legislative or quasi judicial function can be delegated by Rules of Business unless the contrary is clearly provided for by such constitutional or statutory provisions. The relevant extract in respect of second question reads as under: “17. The order of sanction for prosecution of a retired Government servant is undoubtedly an executive action of the Government. A Governor in exercise of his powers under Article 166(3) of the Constitution may allocate all his functions to different Ministers by framing rules of business except those in which the Governor is required by the Constitution to exercise his own discretion. The expression "business of the Government of the State" in Article 166(3) of the Constitution, comprises functions which the Governor is to exercise with the aid and advice of the Council of Ministers including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. The Court has held in Godavari Shamrao Parulekar Vs. State of Maharashtra, 1964 (6) S.C.R. 446 that even the functions and duties which are vested in a State Government by a statute may be allocated to Ministers by the Rule of Business framed under Article 166(3) of the Constitution. In State of Bihar Vs. Rani Sonabati Kumari, 1961(1) S.C.R. 728 , where power of issuing notification under Section 3(1) of the Bihar Land Reforms Act, 1950 have been conferred on the Governor of Bihar, this Court held : "Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by the rules of business framed by the Governor under Article 166(3) of the Constitution". 18. Therefore, excepting the matters with respect to which the Governor is required by or under the Constitution to act in his discretion, the personal satisfaction of the Governor is not required and any function may be allocated to Ministers.” 11. In another judgment reported as Shanti Sports Club and another Vs. Union of India and another, 2009 (15) SCC 705 , it was so held as under: “41. The issue deserves to be considered from another angle. In another judgment reported as Shanti Sports Club and another Vs. Union of India and another, 2009 (15) SCC 705 , it was so held as under: “41. The issue deserves to be considered from another angle. All executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that: ‘77.(3). The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.’ Likewise, Article 166(3) lays down that: ‘166.(3) The Governor shall make 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 insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.’ 42. This means that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.” 12. Before this Court Mr. Gupta strongly relied upon the order reported as State of Uttar Pradesh and others Vs. Z.U. Ansari, (2016) 16 SCC 768 , wherein the Hon’ble the Chief Justice concluded as under:- “17. Before this Court Mr. Gupta strongly relied upon the order reported as State of Uttar Pradesh and others Vs. Z.U. Ansari, (2016) 16 SCC 768 , wherein the Hon’ble the Chief Justice concluded as under:- “17. In the light of the above pronouncements I have no hesitation in holding that: 17.1 The power to direct a disciplinary enquiry against an in-service or retired employee like the respondent is an executive function to be discharged by the State Government in exercise of the executive power of the State; 17.2 In terms of the Business of Uttar Pradesh (Allocation) Rules and the UP Rules of Business 1975, the said function stands allocated to the Ministers in charge of the department concerned like the Department of Rural Engineering in the case at hand; 17.3 The Minister not only had the power to sanction the initiation of the disciplinary proceedings, but, he had in fact exercised that power when he said: *** *** *** 17.4 The order so issued was conveyed by the Secretary to the Government of Uttar Pradesh but even when the communication/order was not expressed in the name of the Governor the same was entitled to the immunity postulated under Article 166(2) of the Constitution. 17.5 The order so made was in law and in the constitutional scheme an order passed by the Governor of the State within the meaning of Regulation 351-A of the Regulations and was, therefore, valid in the eye of the law.” Hon’ble Justice V. Gopala Gowda differed and held as under: “42. In the absence of any evidence on record to show that the Governor had delegated his power to the Minister concerned under Regulation 351-A of the Civil Services Regulations, 1975 to accord sanction, the sanction granted by the Minister-in-charge cannot be said to be a valid sanction and sustained in law. The same is liable to be set aside and accordingly is set aside. The appeal is accordingly, dismissed.” In view of the difference of opinion, the matter was referred to the Larger Bench. 13. Mr. Siddharth Gupta, learned counsel for the respondent, contended that both views in the aforesaid order support the contention of the employee. The same is liable to be set aside and accordingly is set aside. The appeal is accordingly, dismissed.” In view of the difference of opinion, the matter was referred to the Larger Bench. 13. Mr. Siddharth Gupta, learned counsel for the respondent, contended that both views in the aforesaid order support the contention of the employee. He also refers to the judgment in Brajendra Singh Yambem’s case (supra), wherein it was held that the sanction to initiate disciplinary proceedings by the President is not in exercise of his executive powers, but is a statutory exercise of power by the President under Article 309 of the Constitution and, therefore, such order is subject to judicial review. The Bench set aside the findings in Dr. Yashwant Trimbak’s case on question No.(1). It also held that sanction granted by the President is in terms of the proviso to Article 309 of the Constitution; therefore, it is not an executive action of the Government of India. The relevant extracts read as under:- “42. The judgment of this Court in the case of Yashwant Trimbak (supra) also does not apply to the facts of the case on hand. This Court had held in that case that the order of sanction to initiate disciplinary proceedings granted by the Governor cannot be scrutinized by this Court in exercise of its power of judicial review, as the said action comes within the protection of Article 166(2) of the Constitution of India. This principle of law is not applicable to the present fact situation for the reason that the order of sanction granted by the President of India is not in exercise of his executive power under Article 77(2) of the Constitution which speaks of orders and other instruments made and executed in the name of President of India. The Rules specified under Article 77(3) of the Constitution are rules framed by the President of India for transaction of business of the Government of India. The said constitutional immunity conferred either upon the Governor or President is confined only to the executive action of the appropriate Government. 43. The order of sanction to be granted by the President of India as provided under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 is for initiation of the disciplinary proceedings against the appellant, which cannot be treated as an executive action of the Government of India. 43. The order of sanction to be granted by the President of India as provided under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 is for initiation of the disciplinary proceedings against the appellant, which cannot be treated as an executive action of the Government of India. Rather, it is a statutory exercise of power by the President, under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The said Rules are framed by the President of India in exercise of legislative power conferred under Article 309 of the Constitution of India. xxx xxx xxx 50. The observation made by this Court in the case of Yashwant Trimbak (supra) to the extent that orders of sanction granted by the Governor are outside the scope of judicial review, is untenable in law. The same is contrary not only to the law laid down by this Court referred to supra, but also the provisions of Articles 77(2) & 166(2) of the Constitution of India. Therefore, the same has no application to the fact situation for the reason that the President has exercised his statutory power for grant of sanction under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 to initiate the disciplinary action but not the executive action against the appellant.” 14. However, the attention of the Court was not drawn to the Seven Judges judgment in Samsher Singh’s case and also to the three Judges judgment in Sripati Ranjan Biswas’s case. 15. Learned counsel for the respondent relies upon a Constitution Bench judgment reported as The State of Bihar Vs. Rani Sonabati Kumari, AIR 1961 SC 221 . The principle point of law raised was whether the State is liable to be proceeded against in proceedings under Order 39 Rule 2(3) of the Code of Civil Procedure, when it willfully disobeys an order of temporary injunction passed. The Court had issued injunction which was restraining the defendants from issuing any Notification with regard to plaintiff’s estate under the Bihar Land Reforms Act. It was held as under: “40. Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by the rules of business framed by the Governor under Art. 166(3) of the Constitution. But this does not afford any assistance to the appellant. Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by the rules of business framed by the Governor under Art. 166(3) of the Constitution. But this does not afford any assistance to the appellant. The order of Government in the present case is expressed to be made "in the name of the Governor " and is authenticated as prescribed by Art. 166(2), and consequently " the validity of the order or instrument cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor ". 41. Authorities have, no doubt, laid down that the validity of the order may be questioned on grounds other than those set out in the Article, but we do not have here a case where the order of the Government is impugned on the ground that it was not passed by the proper authority. Its validity as an order of Government is not in controversy at all.” 16. The Single Bench judgment of this Court in Writ Petition No. 5906/2017-(Sanjeev Kumar Dubey vs. Commercial Tax Department) was examining the suspension of the writ petitioner who was working as Assistant Commissioner in the Excise Department. The learned Single Bench quoted from the Division Bench judgment of Chhattisgarh High Court in G.S. Devangan Vs. State of Chhattisgarh, Writ Appeal No.80/2012 decided on 15.2.2012, wherein after considering the judgment in Samsher Singh’s case and Sripati Ranjan Biswas’s case (supra), it was held that the petitioner is having alternative efficacious remedy of appeal against the order of termination. The Court has returned the following finding:- “8. That Rule 23 of Rules, 1966 provide the remedy of appeal before the Appellate Authority. The provision of Rule 22 would not be not applicable in the case, as suspension order is not passed by the Governor. In the present case, the order of suspension is passed only in the name of Governor but issued by the Additional Secretary. In all cases, in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers as the case may be." 17. In the present case, the order of suspension is passed only in the name of Governor but issued by the Additional Secretary. In all cases, in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers as the case may be." 17. Still further, another Division Bench of this Court in the case of Smt. Shanti Bavaria Vs. State of MP and others, Writ Appeal No. 58/2017 decided on 10.10.2017, has examined Rule 9 of the MP Civil Services (Pension) Rules 1996. The Division Bench examined the question of issuance of charge-sheet without approval of the Hon’ble Governor. It was found as under: “9. The question as to whether the charge-sheet was required to be approved by the Hon’ble President or the Hon’ble Governor personally or in accordance with Rules of business framed by the Council of Ministers was a specific question raised and decided in Yashwant Trimbak’s case (supra), as reproduced hereinabove. It is only that part of the order whereby the Court held that the sanction granted by the Governor is outside of scope of judicial review, was found to be untenable. 10. The question as to whether the power of sanction has to be exercised by the Hon’ble President or the Governor as the case may be, personally, has come up for consideration before the Supreme Court time and again. In Ram Jawaya Kapur’s case (supra), it was held that the executive power of the State under Article 162 is exclusively in respect of matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by Parliament. “16. In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be a Council of Minister with the Prime Minister at the head to aid advise the President in the exercise of his functions. The president has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The president has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part." The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them. ” 11. In seven Bench Judgment in Samsher Singh’s case (supra), the Court was seized of a question as to whether the termination of services of a probationer is required to be personally approved by the Hon’ble Governor. It is held therein that there is Council of Ministers to aid and advise the Governor. The rules of business are for discharge of executive powers and function of the State in the name of the Governor. xxx xxx xxx 14. Thus, there is no doubt that the Hon’ble Governor acts on the aid and advice of his Council of Ministers except the matters which fall exclusively to be exercised by him in his discretion. The power as to whether pension of an employee should be stopped or not is not a matter which falls within his exclusive discretion. Therefore, the charge-sheet dated 11.1.2012 served upon the appellant in the name of Hon’ble Governor cannot be said to be without jurisdiction and thus same is not suffering from any illegality.” 18. The argument of Mr. Gupta is that since the order is authenticated in the name of the Governor, therefore, an appeal would not lie to the Governor in terms of Rule 24 of the Rules. 19. The argument of Mr. Gupta is that since the order is authenticated in the name of the Governor, therefore, an appeal would not lie to the Governor in terms of Rule 24 of the Rules. 19. Learned counsel for the State has controverted such fact to contend that in the Rules of Business framed in exercise of the powers conferred by Clauses 2 and 3 of Article 166, the power is required to be exercised in these circumstances either by the Minister or by the Council of Ministers. The relevant extracts of the Rules reads as under: “BUSINESS ALLOCATION RULES In exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution of India, the Governor of Madhya Pradesh is pleased to make the following rules, namely: – 1. These rules may be called the Madhya Pradesh Government Business (Allocation) Rules. 2. The business of the Government will be transacted in the following Secretarial Departments : I General Administration….. 3. The business of the Government shall be classified and distributed between the Secretariat Departments in the manner specified in the schedule in these rules. xxx xxx xxx xxx xxx xxx 6. All orders or instruments made or executed by order or on behalf of the Government of Madhya Pradesh shall be expressed to be made or executed by order and in the name of the Governor of Madhya Pradesh. ……....” 20-Mr. Seth has pointed out that the writ petitioner is an employee of the Commerce, Industry and Employment Department, which is dealt with at Serial No.11:- XI-COMMERCE INDUSTRY AND EMPLOYMENT DEPARTMENT (A) Matter of Policy dealt within the Department: xxx xxx xxx xxx xxx xxx 23. All matters relating to the Services with which the Department is concerned (other than matters allotted to the Finance Department and the General Administration Department) e.g. appointments, postings, transfers, pay, leave, pensions, promotions, provident funds, deputations, punishments and memorials. ….. PART II contains the directions issued under Rule 7 as under:- PART II – DIRECTION ISSUED UNDER RULE 7 OF THE BUSINESS RULES IN REGARD TO COUNCIL CASES OR CASES TO BE BROUGHT BEFORE THE COUNCIL. ….. PART II contains the directions issued under Rule 7 as under:- PART II – DIRECTION ISSUED UNDER RULE 7 OF THE BUSINESS RULES IN REGARD TO COUNCIL CASES OR CASES TO BE BROUGHT BEFORE THE COUNCIL. Under Rule 7 of the Business rules, the Governor of Madhya Pradesh is pleased to issue the following directions as to the cases which shall be brought before the Council:- The following cases shall be brought before the Council, subject to the proviso that if the Chief Minister considers any case to be so urgent as to necessitate the immediate issue of orders, he may direct the issue of orders at once, and when orders have been issued, the papers shall, without avoidable delay, be circulated and brought, before a meeting of the Council in accordance with the procedure laid down in supplementary instruction 18 under rule 13:- xxx xxx xxx xxx xxx xxx (xxv) Appeals preferred by the Government Servants to the Governor in accordance with the rules, in force, against the orders of the State Government in disciplinary cases issued after obtaining approval in coordination. PART IV contains directions issued under Rule 10 as under:- PART IV – DIRECTION ISSUED UNDER RULE 10 OF THE BUSINESS RULES IN REGARD TO COORDINATION CASES. under rule 10 of the Business rules, the Governor of Madhya Pradesh is pleased to issue the following directions for the submission to the Chief Minister of matters with respect to the business of the Government:- “The following cases, and cases shown in Direction 3 of Part-III of these Rules, shall be submitted for approval to the Chief Minister through the Chief Secretary, by the Secretary of the department concerned, after consideration by the Minister-in-charge:- xxx xxx xxx xxx xxx xxx xxx xxx xxx (ddd) Appeals preferred by Government Servants to the Governor in accordance with the rules inforce, against orders of the State Government in disciplinary cases issued after obtaining approval of the Minister-in-Charge.” 21. Attention was drawn to a circular dated 8.4.1999 issued by the General Administration Department which is to the following effect:- “Government of Madhya Pradesh General Administration Department Ministry No.C-6-5/99/3/1 Bhopal, Dated 8.04.1999 To, All the Principal Secretaries/Secretaries, Government of Madhya Pradesh, Bhopal. Subject:-Filing appeal against the order of penalty passed by the State Government. Reference:-Notification No.A-3-45/97/one (1), Dated 22.2.1999 by General Administration Department. Subject:-Filing appeal against the order of penalty passed by the State Government. Reference:-Notification No.A-3-45/97/one (1), Dated 22.2.1999 by General Administration Department. Against the order of penalty imposed by the State Government under the M.P. Civil Services (Classification, Control and Appeal) Rules 1966, the departmental appeal is filed before Hon’ble Governor. As per the provisions of “Work Rules” of Madhya Pradesh Government, final order on the said appeal is passed by the “Council of Ministers”. 2. “Work Rules” have been amended vide Notification dated 22.2.1999 by the General Administration Department. By the said amendment, following procedure would be adopted in the above cases:- 1. On appeal against the penalty imposed on the Government Servant by the order passed by State Government after obtaining approval from the “Minister-In-charge”, for final decision, the matters would be placed in Coordination (Hon’ble Chief Minister). 2. In case, the concerned Government servant is imposed penalty order by the State of MP after obtaining approval in “Coordination”, then in appeal preferred to Hon’ble Governor, against such orders, the final decision would be taken by the “Council of Ministers”. 3. Final Order for withholding/withdrawing or lowering of “pension” under Rule-9 of the M.P. Civil Services “Pension” Rules 1976 would be passed by the “Council of Ministers”. Sd/- (M.K.Verma) Deputy Secretary Government of M.P. General Administrative Department.” 22. The present is a case where an order authenticated in the name of the Governor is said to have been passed by the Governor personally, therefore, appeal to the Governor is not maintainable. Such argument does not stand as the executive functions of the State are carried out in the name of the Governor, but are not exercised by the Governor personally, as it is not a function which is required to be exercised by him in his personal capacity. Reference may be made to the Constitution Bench judgment reported as Nabam Rebia and Bamang Felix Vs. Deputy Speaker, Arunachal Pradesh Legislative Assembly and others, 2016 (8) SCC 1 holding as under:- “153. Though the debate could be endless, yet we would consider it apposite to advert to the decisions rendered by this Court in B.K. Sardari Lal Vs. Union of India, 1971 (1) SCC 411 , and Samsher Singh Vs. State of Punjab and another, AIR 1974 SC 2192 . Though the debate could be endless, yet we would consider it apposite to advert to the decisions rendered by this Court in B.K. Sardari Lal Vs. Union of India, 1971 (1) SCC 411 , and Samsher Singh Vs. State of Punjab and another, AIR 1974 SC 2192 . Insofar as Sardari Lal case is concerned, this Court had held therein that the President or the Governor, as the case may be, would pass an order only on his personal satisfaction. In the above case, this Court while examining the case of an employee under Article 311(2) [more particularly, under proviso (c) thereof], recorded its conclusions, in the manner expressed above. The same issue was placed before a seven-Judge Bench constituted to re-examine the position adopted in Sardari Lal case. The position came to be reversed. This Court in Samsher Singh case declared that wherever the Constitution required the satisfaction of the President or the Governor, for the exercise of any power or function, as for example under Articles 123, 213, 311(2), 317, 352(1), 356 and 360, the satisfaction required by the Constitution was not the personal satisfaction of the President or the Governor “… but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government”. It is, therefore, clear that even though the Governor may be authorised to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in his own discretion. 154. We are, therefore, of the considered view that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the constitutional provision concerned, could not be construed otherwise. We, therefore, hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers. We, therefore, hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers. We accordingly, also turn down the contention, that whenever the Governor in the discharge of his functions, takes a decision in his own discretion, the same would be final and binding, and beyond the purview of judicial review. We are of the view that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e. where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms. 155. We may, therefore, summarise our conclusions as under: 155.1. Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefore, under Article 163(1). 155.2. Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion. 155.3. Thirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the provision concerned, and the same cannot be construed otherwise. 155.4. Fourthly, in situations where this Court has declared that the Governor should exercise the particular function at his own and without any aid or advice because of the impermissibility of the other alternative, by reason of conflict of interest. 155.5. Fifthly, the submission advanced on behalf of the respondents, that the exercise of discretion under Article 163(2) is final and beyond the scope of judicial review cannot be accepted. Firstly, because we have rejected the submission advanced by the respondents, that the scope and extent of discretion vested with the Governor has to be ascertained from Article 163(2), on the basis whereof the submission was canvassed. And secondly, any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review. ……….” 23. Firstly, because we have rejected the submission advanced by the respondents, that the scope and extent of discretion vested with the Governor has to be ascertained from Article 163(2), on the basis whereof the submission was canvassed. And secondly, any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review. ……….” 23. In view of the above, we find that no appeal shall lie to the Governor if an order is passed by him personally in terms of Rule 22 Clause (i) of the Service Rules, but since the order of punishment has not been passed by the Governor personally but has been passed in the name of the Governor, therefore, an appeal would lie under Rule 23 of the Service Rules. The appellate authority shall be Governor in terms of Rule 24(1)(i)(b) of the Service Rules, but again it is not the power to be exercised by the Governor personally, but in terms of Rule of Business by the ‘Council of Ministers’ or the ‘Minister’ as may be warranted in the Rule of Business. 24. Therefore, we find that the judgment of this Court in Virendra Kumar’s case (supra) is not the correct enunciation of law. The same is set aside while the Single Bench order in Sanjeev Kumar Dubey’s case (supra) is the correct enunciation of law. 25. In the light of the aforesaid opinion, the writ appeals be placed for orders as per roster.