Bk. Sardari Lal vs Union Of India

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1971 Supreme(SC) 58

SUPREME COURT OF INDIA
J.C. SHAH, C.J.I., G.K. MITTER, K.S. HEGDE, A.N. GROVER AND A.N. RAY, JJ.
B.K. Sardari Lal Appellant
Versus
Union of India and others, Respondents. Bhagwan Dass Shastry, intervener.
Civil Appeal No. 576 of 1969, D/2l-1-1971.
Advocates appeared
Mr. A. S. R. Chari Sr. Advocate, (M/s. S. K. Mehta and K. L. Mehta, Advocates of M/s. K. L. Mehta and Co., and K. R. Nagaraja, Advocate with him), for Appellant Mr. S. T. Desai Sr. Advocate,1548 (Mr. R. N. Sachthey, Advocate with him), for Respondents Nos. 2, 3 and 6; Mr. S. P. Nayar Advocate, for Respondents Nos. 1, 4 and 5; M/s. S. K. Mehta and K. L. Mehta, Advocates of M/s. K. L. Mehta and Co., for Intervener.

Advocates:
A.S.R.CHARI, K.L.Mehta, K.R.Magaraja, R.V.Sachthey, S.K.MEHTA, S.P.MAYOR, S.T.DESAI

Headnote:CLAUSE (c) OF PROVISO TO ARTICLE 311(2)—FUNCTIONS AND POWERS EXERCISABLE UNDER IT - DOCTRINE OF PLEASURE IN ARTICLE 310 IS NOT COVERED BY ARTICLES 53 AND 54
       -held, if powers under it could not be delegated by the President to any one else, then the court cannot be prevented under Article 77 (2) from examining the orders passed by the Joint Secretary in the name of the President under the Government of India (Allocation of Business) Rules 1961.
       -see decision in B.K. Sardari Lal v. Union of India AIR 1971 SC 1547=(1971)2 SCA 129.
       -held, power cannot be delegated and has to be exercised by the President or Governor as per prescribed procedure. This does not prohibit making rule under Art. 309 prescribing the procedure and authority for exercise of pleasure.

Judgment

GROVER, J.: - This is an appeal by certificate from a common judgment of the Delhi High Court which disposed of a batch of 14 petitions under Article 226 of the Constitution- The question involved is of importance and relates to the exercise of powers expressly conferred on the President by clause (c) of the proviso to Article 311 (2) of the Constitution

2. On 14th April, 1967, the appellant and 17 other members of the Delhi Police Force were dismissed from service. The order dismissing the appellant is reproduced below :

ORDER

Whereas, you Shri Sardari Lal, Sub Inspector, Delhi Police No. 331/D, Police Station Kamla Market, Delhi hold your office during the pleasure of the President and

Whereas the President is satisfied that you are unfit to be retained in the public service and ought to be dismissed from service, and

Whereas 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,

Now, therefore, the President is pleased to dismiss you from service with immediate effect.

By order and in the name of the President of India

Sd/

(B. Venkatararman)

Joint Secretary to the Government of India in the Ministry of Home Affairs.

3. It was common ground before the High Court and has not been disputed before us that the President had no occasion to deal with the case of the appellant himself and the order was made by Shri Venkataraman, Joint Secretary to the Government of India in the Ministry of Home Affairs. It was claimed by him that he was competent to make the order by virtue of the authority which he derived under the Government of India (Allocation of Business) Rules, 1961 made under Article 77 (3) of the Constitution Before the High Court, the controversy was confined to the narrow point whether the function which is to be performed by the President under Clause (c) of the proviso to Article 311 (2) could be performed by the authority to whom such function had been allocated under the aforesaid Rules. The High Court negatived the contention raised on behalf of the appellant that such a function could not have been delegated by the President to any other authority. The High Court also relied on the provisions of Article 77 (2) which provides for the authentication of orders made in the name of the President.

4. Under Article 53 (1) the Executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution Article 77 (1) lays down that all executive action of the Government of India shall be expressed to be taken in the name of the President. Clause (3) of that Article enables the President to make rules for the more convenient transaction of the business of the Government of India. Chapter I of Part XIV contains inter alia the three main provisions relating to the Services. Articles 309, 310 and 311 may be set out to the extent necessary.

"309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

"Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."

"310 (1) Except as expressly provided by this Constitution, every person who i