G.K. Misra, C.J.
1. The facts of the writ application may be stated in short. The petitioner is a member of the Swatantra party. He was a candidate for the Chairmanship of the Delang Panchayat Samiti. the election of which was held on 10th of January, 1971. Abhimanyu Ransing (opposite party No. 5) and Harihar Jena (opposite party No. 6) were the contesting candidates. The poll was taken on 10th January. 1971. Opposite party No. 5 secured 103 votes while the petitioner secured 95 votes. Thus by a margin of 8 votes opposite party No. 5 was declared elected. The petitioner prayed for issuing of a suitable writ for setting aside the election of opposite party No. 5.
The election is assailed on an averment of the following facts. The coalition cabinet of the Swatantra and Jana Congress Parties tendered its resignation to the Governor on 9-1-71 at about 7.30 p. m. The Governor accepted the Chief Minister's resignation at about 8.30 p. m. on the same day. The Presidential proclamation under Article 356 of the Constitution was issued on 11-1-71. Thus for about two days from 9-1-71 till 11-1-71 there was a Governor without a cabinet. The petitioner's stand is that the executive power of the State shall be exercised by the Governor either directly or through officers subordinate to him in accordance with the Constitution and as there was no cabinet the Governor could not exercise such executive power. The Collector, Puri (opposite party No. 3), could not exercise the function of an Election Officer and had no authority to appoint Presiding Officers and Polling Officers to conduct the election held on 10th of January 1971 and that the election held on that day was invalid and inoperative.
No counter affidavit has been filed on behalf of the contesting candidates. The State Government and the Union Government have however filed their counter affidavits contending that the election was valid. The main plank of their stand is that 10th of January 1971, the date of polling, had been fixed long before under the Orissa Panchayat Samiti (Conduct of Election) Rules, 1970 (hereinafter to be referred to as the Rules) framed under Section 57 of the Orissa Panchayat Samiti Act, 1959, (hereinafter to be referred to as the Act); that the Election Officer, Presiding Officers and Polling Officers functioned under the provisions of the Act and the Rules and that the election was valid even though there was no cabinet on 10-1-71.
2. The sole question for consideration in this writ application is whether the election held on 10th of January 1971 was invalid due to the absence of a cabinet to aid and assist the Governor in exercising executive power.
3. Before noticing the rival contentions of the parties it would be proper to have a glance through the relevant provisions of the Rules under which election of Chairman of Panchayat Samitis and conduct of polling take place. Rules 3 to 37 in Part I of the Rules deal with election of Chairman of Panchayat Samitis and conduct of polling. Some of these Rules may be extracted to understand the scheme under which polling is conducted and election of the Chairman is held:
'3. (1) The Election Officer shall, at least three weeks before the date fixed for election, issue notice in the form prescribed in Schedule I, calling for names of candidates for the office of the Chairman of each of the Panchayat Samitis. x x x x
4. The Election Officer shall arrange for supply of forms relating to the election of the Chairman of PanchayatSamiti at the office of the Block concerned.
7. The Election Officer shall, at the appointed time, date and place receive nomination papers separately for the office of the Chairman of Panchayat Samiti in the form prescribed in Schedule II. He shall then scrutinise the nomination papers at the appointed time, date and place in the presence of the candidates, their proposers and seconders, if any who may be present. If he finds that the candidates are duly qualified in accordance with the provisions of Clause (a) of Sub-section (3) of Section 16 of the Act and not disqualified under any of the clauses of Section 45 of the Act, he shall approve their candidature. Objections, if any, filed in the course of scrutiny shall be enquired into summarily by the Election Officer and his decision accppting or rejecting the nomination papers shall be endorsed on the body of the nomination papers with reasons for the decision.
9. If after scrutiny under Rule 7, there is only one candidate duly nominated for the office of the Chairman of the Panchayat Samiti there shall be no poll and the Election Officer shall immediately declare the person so nominated to have been duly elected.
10. In case of a contest, the Election Officer shall immediately after the scrutiny, prepare a list of the validly nominated candidates separately for office of the Chairman of each of the Panchayat Samitis in the form prescribed in Schedule III. The names of the candidates shall be arranged in alphabetical order in the list in Oriya. Before drawing up the list, the Election Officer shall assign symbols for each candidate from among those specified by Government under Rule 14. The symbol so assigned to each candidate shall also be indicated in the list in the form prescribed in Schedule III.
11. A list of the validly nominated candidates for the office of the Chairman of the Panchayat Samiti shall also be published in the Notice Board of each of the Grama Panchayat and Panchayat Samiti concerned at least one week before the date fixed for election. For publication, the form prescribed in Schedule III should be adopted.
12. It shall be open to a duly nominated candidate for the office of the Chairman Panchayat Samiti to withdraw his candidature by presenting an application in person in the form prescribed in Schedule IV to the Election Officer at least three clear days before the date fixed for the poll. On such withdrawal, if there were only two contesting candidates including the person withdrawing candidature, the other candidate shall be declared elected. If on the other hand thenumber of candidates including the person withdrawing candidature exceeds two, the polling shall proceed for the remaining candidates.
15. The Election Officer shall provide a ballot box to each polling station for election of the Chairman of the Panchayat Samiti. Such box shall be so constructed that the ballot papers can be inserted through an opening without affecting the secrecy of voting but cannot be removed without opening, breaking or otherwise tampering with the arrangements of the receptacle.
17. There shall be a presiding Officer at each polling station who shall be responsible for the proper conduct of polling and he shall exercise such powers of the Election Officer as may be delegated to him. There may also be Polling Officers for each polling Station according to requirement to assist the Presiding Officer, as may be appointed by the Election Officer.
19. The Polling at each polling Station shall take place during the hours from 7 A. M. to 11 A. M.
24. It shall be the responsibility of the Presiding Officer to proceed to the polling station well in advance of the time fixed for the poll and make the required arrangements so as to ensure that polling commences exactly at the time notified by the Election Officer.
35. The result of the counting of the ballot papers in respect of Chairmanship of Panachayat Samiti shall be recorded in the form prescribed in Schedule VII.
36. x x x x x x It will be open to the candidates or their Polling Agents to affix their scrutiny of the results of the elections to the office of the Chairman of Panchayat Samitis, the Election Officer shall carefully check up the votes polled by different candidates in the presence of candidates concerned or their Polling Agents as may be present and announce the result after recording in the form prescribed in Schedule VIII the total number of votes polled by each contesting candidates. x x x x x x
37. (1) After receipt of the result from the Election Officer, the Collector of the District shall publish the name of the duly elected candidate in his notice board for the purpose of Sub-section (6) of Section 16 of the Act.X X X X X X'
4. A survey of the rules in Part I clearly shows that there is a comprehensive scheme as to how the election for the Chairmanship takes place and the poll is conducted. The duties to be performed by the Election Officer have been all statutorily prescribed. No executive function has been left to the discretion of any executive officer. The entire process of election and polling is to be performed by the Election Officer in accordance with the statutory mandate.
5. In the aforesaid background the rival contentions of the parties may be noticed. Mr. Asok Das advanced the leading argument on behalf of the petitioner while the main argument on behalf of the opposite parties was advanced by the learned Advocate-General and Messrs. M. Mohanty, R.K. Mohapatra and S. C. Mohapatra amongst others.
6. The contention of Mr. Das is that the Governor cannot exercise his executive power without a cabinet. There being no cabinet for two days the civil service had no juristic status even though it had physical existence. The election held on 10-1-71 was done by the functionary without constitutional authority and was as such void.
On behalf of the opposite parties it was contended that the acceptance of resignation of the Chief Minister by the Governor did not create any constitutional dead-lock in working out the provisions of the Act and the Rules.
The rival contentions require careful examination.
7. For proper appreciation of the contentions raised, the following Articles of the Constitution are relevant and may be extracted.
'153. There shall be a Governor for each State, x x x x x.
154. (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
(2) Nothing in this Article shall--
(a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or
(b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.
162. Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
X X X X X X163. (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
(3) The question whether any, and if so, what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court.
164. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.
X X X X X X(2) The Council of Ministers shall be Collectively responsible to the Legislative Assembly of the State.
X X X X X X166. (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 instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in 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.
(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 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. Mr. Asok Das on behalf of the petitioner develops his contention as follows:
The Governor under the Constitution is the head of the State but is not the head of the Executive; he represents the State but does not rule the State; officers or authorities subordinate to the Governor mean officers subordinate to the cabinet as under Article 163 the functions of the Governor have to be discharged with the aid and advice of the Council of Ministers; the absence of a cabinet means the absence of officers or authorities subordinate to the cabinet; since during these two days no cabinet existed, no officers subordinate to the Governor, that is, no Collector existed as such to discharge the functions under Article 154 (1) or (2); under Article 310(1) civil servants hold office during the pleasure of the Governor which means the pleasure of the cabinet; in case of a continued cabinet the civil service as a whole is placed by the outgoing cabinet in the hands of the incoming cabinet; the cabinet is always the head of the civil service; the cabinet through financial control is also to control the civil service; it is the cabinet who is to provide forfunds to meet the necessities of the public service; without a cabinet in existence no money can legitimately be spent for doing any executive work whether delegated by statute or otherwise; the authority to remove a Collector during these two days was absent due to the absence of the cabinet In case of absence of a cabinet the civil service loses its protection, control and existence. During those two days constitutionally no Collector existed. All acts delegated to a Collector by the Legislature were incapable of being performed constitutionally.
9. To test the correctness of this argument, a critical analysis of the aforesaid Article is necessary to see if the executive power of the State cannot be exercised in respect of any matter without the existence of a cabinet to aid and advise the Governor.
10. Under Article 153, there shall be a Governor for each State. During the two days when there was no cabinet there was a Governor for Orissa.
11. Article 154 postulates the following concepts:
(i) The Executive power of the State vests in the Governor.
(ii) The Governor shall exercise the executive power directly in some eases in accordance with the Constitution.
(iii) The Governor shall exercise executive power in other cases through officers subordinate to him in accordance with the Constitution.
(iv) Any executive function conferred on any authority subordinate to the Governor by any law is outside the ambit of the Executive power vesting in the Governor.
12. To understand the true import of the aforesaid concepts, the following questions need examination:
(i) What is the meaning of the expression 'executive power'?
(ii) In what cases would the Governor exercise his executive powers directly?
(iii) In what cases would the Governor exercise his executive powers through his subordinate officers? Are Ministers officers subordinate to the Governor.?
(iv) What is the meaning of the expression 'in accordance with the Constitution'?
(v) What executive functions are excluded from the executive powers of the Governor?
13. What is the meaning of the expression 'executive power'? The scope and ambit of this expression have been fully explained in AIR 1955 SC 549 (Ram Jawaya Kapur v. State of Punjab). The following extracts are relevant,
'On the other hand, the language of Article 162 clearly indicates that the powers of State Executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already.'
'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.
The Indian Constitution has not Indeed recognised the doctrine of separation of powers in its absolute regidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.
It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the functions of the Constitution or of any law.'
'The Executive function comprises both 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 President has thus been madea formal or constitutional head of theexecutive and the real executive powersare vested in the Ministers or the Cabinet.The same provisions obtain in regard tothe Government of States; the Governoror the Rajpramukh, as the case may be.occupies the position of the head of theexecutive in the State but it is virtuallythe 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 theCouncil of Ministers consisting as it does,of the members of the legislature is, likethe British cabinet.' a hyphen whichjoins, a buckle which fastens the legislative part of the State to the executivepart.'
14. From the aforesaid extracts, the following principles emerge.
(i) The connotation of the expression 'executive power' is very wide.
(ii) The performance of legislative and judicial functions of the State does not ordinarily come within the ambit of this expression.
(iii) The expression includes acts necessary for carrying on or supervision of the general administration of the State including both a decision as to the action and the carrying out of the decision.
(iv) The executive cannot go against the provisions of the Constitution or of any law.
(v) Power which vests in the Governor by specific provisions of the Constitution is excluded from the residue of executive power comprised in Article 154(1).
15. What are the executive powers which the Governor shall exercise directly in accordance with the Constitution? Where the Constitution enjoins that the Governor would act in his discretion, the Governor would exercise those powers directly and not with the aid and advice of the Council of Ministers. The expression 'to act in his discretion' has been used in Article 163(1) and Article 166(3). It, however, appears that the only instances of functions required by the Constitution to be exercised by a Governor in his discretion are the powers of the Governor of Assam under Paragraphs 9 and 18 of the Sixth Schedule of the Constitution and the functions of a Governor appointed to be the Administrator of a Union territory under Article 239(2). There is no other matter in respect of which a Governor may under the Constitution act in his discretion. It is clear that the Governor of Orissa has no power to act in his discretion in any matter.
16. Certain Articles of the Constitution vest the Governor with the power to act directly even when he does not act in his discretion. Take, for instance, Article 356 of the Constitution. Provision has been made in this Article in case of failure of constitutional machinery in the State. If the President on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation assume to himself all or any of the functions of the government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State. When the Governor sends a report to the President that the constitutional machinery of the State has failed, he is to act directly and not with the aid and advice of the cabinet. Reference to other Articles under which the Governor can act directly is unnecessary.
17. Cases where the Governor would exercise his powers through his subordinate officers may now be examined. Under Article 163(1), there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. This Article makes it clear that except in cases where the Governor is required to act in his discretion or directly he is to act with the aid and advice of Ministers.
It is well settled that Ministers are officers subordinate to the Governor. The executive power of the Governor shall be exercised in accordance with the Constitution, that is to say, it cannot be so exercised as to override a provision in the Constitution. For instance, the Governor has power to dismiss a civil servant at his pleasure under Article 310(1). The exercise of this power, however, is subject to Article 311 which prescribes that a member of the civil service of a State shall not be dismissed or removed or reduced in rank except after an enquiry as prescribed in Article 311(2). Thus in respect of the residuum of executive power left after excluding matters where the Governor acts in his discretion or those covered by Article 154(2) or where he is to act directly in accordance with the Constitution, the Governor is to act with the aid and advice of the Council of Ministers as prescribed in Article 163(1).
18. Matters which are covered by Article 154(2) do not fall within the ambit of the executive power of the State vesting in the Governor under Article 154(1).
19. We are not concerned in this case with any executive function conferred by any existing law on any other authority. Article 154(2)(b) directly covers this case. By the Act and the Rules executive functions have been conferred on the various authorities subordinate to the Governor. In the exercise of their executive functions they are to act under the Act and the Rules and are not subject to the supervision of the Governor which means the cabinet. Most of the acts under Rules 3 to 37 including fixation of the date of election to 10th January, 1971 had already been done prior to 9th January, 1971. Under Rule 12 all withdrawals from candidature are to be made at least three clear days before the date fixed for the poll. The candidates to ultimately contest were therefore known by 7th January, 1971. The polling date had been fixed earlier and all arrangements for polling had been previouslymade. Under Rule 17 the Presiding Officer at each polling station shall be responsible for the proper conduct of polling. It is the responsibility of the Presiding Officer under Rule 24 to proceed to the polling station well in advance of time fixed for the poll and make the required arrangements so as to ensure that polling commences exactly at the time notified by the Election Officer. The Election Officer, Presiding Officers and Polling Officers discharged their duties under the statute on 10th January, 1971 and did not exercise and executive function vesting in the Governor under Article 154(1). The Council of Ministers is not entitled to tender any aid and advice relating to the discharge of functions in exercise of the statutory powers of these officers. AIR 1956 Madh B. 163. Laxminarayan v. The Collector lays down the law correctly. The election held on 10th January, 1971 is valid.
20. The aforesaid conclusion does not, however, mean that the contention of Mr. Asok Das is wholly unsubstantial.
In this case there was no cabinet or President's rule only for two days, would the position be the same if the aforesaid state of affairs existed for a long time? Take for instance, there was no cabinet to aid and advise the Governor or, in the alternative, President's rule from January to July 1971. Can any authority subordinate to the Governor exercise executive functions conferred on him by law under Article 154(2)(b)?
The difficulty can be appreciated by reference to Articles 202 to 207 of the Constitution. These Articles deal with financial procedure.
Article 202(1) prescribes that the Governor shall in respect of every financial year cause to be laid before the House or Houses of the Legislature of the State a statement of the estimated receipts and expenditure of the State for that year, in this Part referred to as the 'annual financial statement.'
Article 202(2) runs thus:
'The estimates of expenditure embodied in the annual financial statement shall show separately.
(a) the sums required to meet expenditure described by this Constitution as expenditure charged upon the Consolidated Fund of the State; and
(b) the sums required to meet other expenditure proposed to be made from the Consolidated Fund of the State;
and shall distinguish expenditure on revenue account from other expenditure.'
Article 202(3) mentions the expenditure which shall be charged on the Consolidated Fund of each state.
Article 203 refers to the procedure in Legislature with respect to estimates. So much of the estimates as relates toexpenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of the Legislative Assembly, but nothing in that clause shall be construed as preventing the discussion in the Legislature of any of these estimates. So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the Legislative Assembly, and the Legislative Assembly shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.
Article 203(3) prescribes that no demand for a grant shall be made except on the recommendation of the Governor.
Article 204 speaks of Appropriation Bills. As soon as may be after the grants under Article 203 have been made by the Assembly, there shall be introduced a Bill to provide for the appropriation out of the Consolidated Fund of the State of all moneys required to meet --
(a) the grants so made by the Assembly; and
(b) the expenditure charged on the Consolidated Fund of the State but not exceeding in any case the amount shown in the statement previously laid before the House or Houses.
Article 204(2) says that no amendment shall be proposed to any such Bill in the House or either House of the Legislature of the State which will have the effect of varying the amount or altering the destination of any grant so made or of varying the amount of any expenditure charged on the Consolidated Fund of the States, and the decision of the person presiding as to whether an amendment is inadmissible under this clause shall be final.
Article 204(3) is to the effect that subject to the provisions of Articles 205 and 206, no money shall be withdrawn from the Consolidated Fund of the State except under appropriation made by law passed in accordance with the provisions of this Article.
Article 206 deals with supplementary, additional or excess grants and Article 206 deals with votes on account, votes of credit and exceptional grants.
Article 207 relates to special provisions as to financial Bills.
21. The expenses to be incurred for discharging the executive functions conferred by law on any authority Subordinate to the Governor under Article 154(2)(b) are not expenditure charged on the Consolidated Fund of the State as referred to in Article 202(3). Those expenses are, therefore, to be made out of the Consolidated Fund as covered by estimates of expenditure embodied in the annual financial statement referred to in Article 202(2)(b). By Article 203(3) no demand for a grant shall be made except on the recommendation of the Governor which means the Council of Ministers to aid and advise the Governor in exercise of his functions. By virtue of Article 204(3) no money shall be withdrawn from the Consolidated Fund of the State except under appropriation made by law passed in accordance with the provisions of this Article. No such law can be passed unless such a Bill is moved by the cabinet in the Legislature or, in the alternative, unless there is President's rule in which case the Bill will be moved in the Parliament.
22. As a result of the aforesaid discussions it will be clear that the executive functions to be discharged under any law by any authority subordinate to the Governor under Article 154(2)(b) cannot be discharged unless there is budgetary provision for expenditure to meet the expenses necessary to be incurred in connection with the discharge of executive functions. If there is neither a cabinet to aid and advise the Governor nor President's rule, no budget can be passed and no money will be available to meet the expenditure. Suppose, the date of election had been fixed sometime in April, there would be no budget provision to meet the expenses and the election cannot be held because there will be no officer with budgetary provision for his salary and remuneration or for the expenses to be made to carry out the election.
We have no doubt that such a position would never arise because that would lead to a complete breakdown of the constitutional machinery. The Constitution cannot be worked out unless the various functionaries entrusted with duties carry them out. It will be difficult to visualise a Governor in the State who would either dismiss a ministry or accept its resignation without making a report to the President for promulgation of President's rule. If the Governor fails to report the situation to the president, the President himself would intervene. But if such a position in fact does arise, it would be impossible to discharge executive functions as envisaged in Article 154(2)(b).
23. As we have already stated, the position is, however, completely different so far as this case is concerned. There was budgetary provision for meeting the necessary expenses for discharge of executive functions as contemplated in Article 154(2)(b). The Collector and the authorities held the election in accordance with the provisions of the Act and the Rules. The election, therefore, cannot be questioned on that account.
It need hardly be stated that if during those two days, the Governor hadperformed any executive functions which he cannot validly do without the aid and advice of the Council of Ministers, then those acts are liable to be struck down. (AIR 1971 SC 1002, U.N. Rao v. Smt. Indira Gandhi).
24. Our conclusions may be summed up thus:
(1) Where the Governor has to perform certain executive functions with the aid and advice of the Council of Ministers, then such acts done by him in the absence of the cabinet are unconstitutional and void.
(2) Executive Act performed by subordinate officers under any law may be valid even if there is no cabinet for a few days.
(3) Difficulties may, however, arise even in the performance of executive acts under any law as envisaged in Article 154(2)(b) if there is no Council of Ministers or President's rule for a pretty length of time. Such an unfortunate position leading to breakdown of the Constitution would hardly arise.
(4) The election held on 10th January, 1971 under the Act and the Rules is valid in view of the constitutional provision in Article 154(2)(b).
25. In the result, the writ application fails and is dismissed but in the circumstances without costs.
R.N. Misra, J.
26. I agree with my Lord the Chief Justice.