BRAHAM DEO PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner seeks quashing of an order by which his services have been placed at the disposal of the Rural Development Department. He is a membar of the Bihar Administrative Service and at the relevant time he was posted as Sub -divisional officer, Marhaura in the District of Saran.

(2.) THE validity of the order has been challenged on the ground that the order is not that of the State 5 Government. It has been contended that the Government orders are supposed to be expressed in the name of the Governor and authenticated in the manner laid down under Article 166 of the Constitution but in the instant case the order has been issued by the Additional Secretary of the Personnel and Administrative Reforms Department under a memorandum (GYAP) (wrongly described as GYATAVYA in the typed copy enclosed by the petitioner as Annexure -1). In 10 response to the stand of the respondents that the order has been issued with the approval of the Chief Minister, it has been submitted that the Minister ';s order in the file is merely opinion and unless communicated in the manner prescribed i.e. in terms of Article 166, it cannot be treated as Government order. In support of the submissions reliance has been placed on Bachittar Singh V/s. State of Punjab, AIR 1967 SC 395, State of Kerala V/s. A. Lakshmikutty and ors., AIR 1987 15 SC 331 and State of Bihar V/s. Kripalu Shankar, AIR 1987 SC 1554.

(3.) THE fact that the impugned order has not been issued in the name of the Governor of Bihar also does not affect its legal character. No doubt, the order of the Government is required to be expressed in the name of the President of India or, in the case of State in the name of the Governor. But, as explained by the Supreme Court in Dattatraya Moreshwar Pangurkar V/s. State of Bombay, AIR 1952 SC 181, this merely gives an immunity to the order from being challenged on the 40 ground that it is not an order by the Governor, this does not mean that where the order is not so expressed in the name of the Governor, it ceases to be a valid order. The court observed : Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. The same view was expressed in the case of State of Bombay V/s. Purushottan Jog Naik, AIR 1952 SC 45 317 and Ghaio Mal and Sons V/s. State of Delhi, AIR 1959 SC 65. In R. Chitralekha V/s. State of Mysore, AIR 1964 SC 1823, the Supreme Court observed as under : It is therefore, settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor.