IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 442 of 2007(E)
1. K.P. MOHAMMAD ALI HAJI,
... Petitioner
Vs
1. S. RASITHA, SRAMBIKKAL HOUSE,
... Respondent
2. GOVERNMENT OF KERALA, REP. BY
3. A. DIVAKARAN, DEPUTY SECRETARY,
4. THE COMMISSIONER OF CIVIL SUPPLIES,
5. THE DIRECTOR OF CIVIL SUPPLIES
6. THE DISTRICT COLLECTOR,
7. THE DISTRICT SUPPLY OFFICER,
For Petitioner :SRI.MOHAN C.MENON
For Respondent :SRI.M.RATNA SINGH (SR.)
The Hon'ble the Acting Chief Justice MR.K.S.RADHAKRISHNAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :13/04/2007
O R D E R
WA 442 & 596/2007 1
K.S. RADHAKRISHNAN, Ag. C.J. & M.N. KRISHNAN, J.
---------------------------------------------------------------------------------
Writ Appeal Nos. 442 and 596 of 2007
---------------------------------------------------------------------------------
Dated: 13th April 2007
JUDGMENT
Radhakrishnan, Ag.C.J.
Learned single judge of this court vacated Ext. P10 order
passed by the Government in exercise of its revisional powers
conferred under clause 71 of the Kerala Rationing Order on the
ground that the same was passed by an officer inferior to the officer
who has passed the appellate order.
2. The question that is posed for consideration before us is
whether the petitioner, an unemployed girl, is entitled to be
appointed as authorised wholesale distributor of rationed articles in
Kozhikode taluk area. District Collector held in favour of the
petitioner and the same was taken in appeal before the
Commissioner, appellate authority. Appeal was dismissed.
Mohammed Ali filed a revision before the Government and the
orders of the District Collector and the Civil Supplies Commissioner
were reversed and the Government granted wholesale dealership to
WA 442 & 596/2007 2
7th respondent, Mohammed Haji. Aggrieved by the same, petitioner
has approached this court by filing W.P.C. No 20262 of 2006.
Learned single judge did not go to the merits of the case, but held
that the Government have committed an error in entrusting the
revision to a lower level officer compared to that of the Commissioner
of Civil Supplies. Learned single judge noticed that the
Commissioner of Civil Supplies is a senior level officer who had
decided the appeal and the revision petition should have been
disposed of either by the Chief Secretary or by the Minister
concerned and not by an officer inferior to that of the Commissioner
of Civil Supplies. Learned single judge opined as follows:
“It is certainly improper if not illegal to have a subordinate
authority to sit in appeal over the order of the head of the
Department. The arrangement made by the minister is not a
healthy practice. I therefore vacate the Ext.P10 order of the
Deputy Secretary for the reason that he has no authority to
vacate the order issued by the superior officer. ……………………
The order issued in revision by the Deputy Secretary is in a
statutory revision to Government, and decisions in Government
are always based on the hierarchy of the officers in the
Government. In another case this court called for a report
from the Chief Secretary justifying similar anomalous situation
which in this case is found to be attributable to the minister’s
order.
In the circumstances, writ petition is disposed of by
vacating Ext. P10 order of the Deputy Secretary with a direction
to the Civil Supplies Department to place the revision file before
WA 442 & 596/2007 3
the Chief Secretary for either referring the revision petition tobe
decided by a Secretary to Government senior to the Civil
Supplies Commissioner whose order is under challenge and if
no such officer is available the Chief Secretary himself will
decide the revision.”
Learned single judge, in our view, has not properly appreciated the
legal validity of the revisional order. Counsel for the appellants
submitted that since similar matter is likely to arise in future and
unless the legal position is made clear, the judgment impugned
would stand in the way of the Government while exercising the
revisional powers. W.A. No 596 of 2007 was however filed by the
writ petitioner contending that the learned single judge was not
justified in not examining the matter on merits. Senior Counsel Shri
V.N.Achutha Kurup submitted that the Government was not justified
in upsetting the order of the District Collector and the Commissioner.
3. Shri Mohan C. Menon, counsel appearing for the appellant in
W.A. No 442 of 2007 explained the special features of the
revisional order passed by the Government. Reference was made
to the heading of the order and emblem of the Government of
Kerala and the numbering as G.O. (Rt) 270/06. Further it was
pointed out that at the terminal portion it is shown that it has been
WA 442 & 596/2007 4
issued by the order of the Governor. Counsel submitted that the
State Government means the Governor and the executive power
vested in him is exercised by him directly or indirectly by officers
subordinate to him in accordance with the provisions of the
Constitution. Referring to Article 166 of the Constitution, counsel
submitted that the executive action of the Government of a State
shall be expressed to be taken in the name of the Governor and the
orders and other instruments made and executed in the name of the
Governor shall be authenticated in such manner as may be specified
in the rules to be made by the Governor and the validity of an order
or instrument which is so authenticated shall not be called in
question on the ground that it is not an order or instrument made or
executed by the Governor. Counsel also submitted that; the rules of
business of the Government of Kerala specifically says that the
Minister is primarily responsible and that all orders made by or on
behalf of the Government of Kerala shall be expressed to be made in
the name of the Governor. Further it is submitted that every
government order shall be signed by the Secretary or the Additional
Secretary or the Joint Secretary or the Deputy Secretary or the
Under Secretary or such other officer specifically empowered and
WA 442 & 596/2007 5
that it would be deemed to be proper authentication of the order.
Learned counsel also submitted that the learned single judge failed
to note the vital difference between the institutional decision and the
individual decision. Counsel also referred to the Rules of Business
of the Government of Kerala Part II in support of his contentions.
4. Smt K. Meera, learned Government Pleader placed before
court the Kerala Government Secretariat Instructions. Reference was
made to Instruction 94 which deals with the procedure and mode of
disposal of appeals and revisions which lie to the Government.
Government while disposing of the revision under clause 71 of the
Kerala Rationing Order was discharging a quasi judicial function.
Instruction 94 of the Kerala Government Secretariat Instructions,
which is relevant for our purpose, is extracted below for easy
reference.
94. The procedure and mode of disposal of appeals
and revisions which lie to Government will be as follows:
(i) Statutory appeals and revision petitions to Government will
be disposed of by the Minister concerned, unless the Minister
specifically delegates this power to the Special Secretary,
Secretary, Additional Secretary/Joint Secretary or Deputy
Secretary as the case may be.
(ii) When a case is delegated to any of the Subordinate
authority specified above for personal hearing of the parties
WA 442 & 596/2007 6
involved, the power of final disposal of the matter will also vest
in that authority. Accordingly, the authority which hears a case
will itself pass final orders thereon.
Above mentioned provision would indicate that statutory appeals and
revision petitions to the Government shall be disposed of by the
Minister concerned unless the Minister specifically delegates the
power to the Special Secretary, Secretary, Additional Secretary/Joint
Secretary or Deputy Secretary as the case may be. Powers
conferred on the Minister concerned can be delegated to the officers
upto the level of Deputy Secretary. It is in accordance with the
above mentioned procedure laid down in the Kerala Government
Secretariat Instructions that the Minister has authorised the Deputy
Secretary to decide the appeal.
5. We called for the original files and examined the manner in
which the order was passed. We find it was the Deputy Secretary
who had heard the affected parties and after passing the order but
before issuing the same, the order was placed before the Minister
and the Minister gave his approval. On approval by the Minister it
becomes an order passed by the Government in accordance with
the Rules of Business of the Government of Kerala, particularly in the
WA 442 & 596/2007 7
light of Instruction 94 quoted above. Every order passed by the
Government whether it is signed by the Deputy Secretary,Secretary
or Additional Secretary, it means as an order passed by the
Government in accordance with the Rules of Business. Only in
cases where the Minister has not given his approval the order
becomes bad in the eye of law. Order passed in this case is not
strictly an executive order falling within the scope of Article 166.
6. Article 166 of the Constitution says that all executive action
of the Government of a State shall be expressed to be taken in the
name of the Governor. But when a minister exercises quasi
judicial power sitting as a revisional authority under the statute and
passes an order as quasi judicial authority, it can never be termed as
an executive order requiring authentication under Rule 12 of the
Rules of business of the Government of Kerala. Apex court in State
of Maharashtra v. Basantilal (2003) 10 S.C.C 620) examined the
question whether quasi judicial order made under the provisions of
the statute by the revisional authority who is also a minister requires
authentication under Article 166. Apex court held that if the
minister exercisimg revisional jurisdiction under the statute as a
quasi judicial authority and passes an order it can never be termed
WA 442 & 596/2007 8
as an executive order requiring authentication under Article 166 of
the Constitution. We may extract the relevant portion of the judgment
of the apex court in Basantilal’s case, supra as follows:
“The question, therefore, for our consideration is
whether a quasi-judicial order made under the provisions of a
statute by a revisional authority who is also a Minister in the
State Cabinet, requires authentication under Article 166.
It is an admitted fact that the order made by the
Minister concerned was on a revision petition filed against the
order of the Commissioner of Excise who himself was
entertaining a petition before him under the provisions of the
Act sitting as a quasi-judicial authority. It is also an undisputed
fact that executive authorities also, if so empowered under a
statute, exercise quasi-judicial powers. Such powers when
exercised by an authority under a statute, sitting as a quasi-
judicial authority result in a quasi-judicial order which can never
be termed as an executive order requiring authentication under
Article 166 of the Constitution of India.”
7. We find in the instant case order has been issued in the
name of the Governor, though strictly speaking when minister
exercises his quasi judicial power it requires no authentication
under Article 166 of the Constitution. Nevertheless it never ceases
to be an order passed by the minister in exercise of his quasi judicial
power under the Kerala Rationing order. In our view, since the
minister has affixed his signature to the order passed by the Deputy
Secretary to whom he has delegated his power under Instruction 94
WA 442 & 596/2007 9
of the Kerala Government Secretariat Instructions it is an order
passed by the Government, consequently it is an order validly
issued. In such circumstances, we are of the view learned single
judge has committed an error in holding that since order has been
signed by the Deputy Secretary it will cease to be an order passed by
the Government. In such circumstances, we set aside the judgment
of the learned single judge and direct the registry to place the matter
before the learned judge as per the roaster and the case will be
disposed of on merits. Both the appeals are disposed of as above.
Sd/-
K.S. RADHAKRISHNAN
Ag. Chief Justice
Sd/-
M.N. KRISHNAN
13/04/2007 Judge
en/
true copy
