Appeals Nos 397 400 to 402 404 to 417 422 to 441 451 1158 to 1161 1176 1178 to 1181 1204 1207 and 1407 of 1969
Appeals from the judgments and orders dated January 6 1969 of the Madras High Court in Writ petitions Nos 846 of 1968 etc
K K Venugopal K R Nambiar and A section Nambiar for the appellants in CAs
Nos 397 400 to 402 422 423 441 and 451 of 1969
M C Chagla V Subramaniam V T Gopalan Radharani C section Prakasa Rao and K Jayaram for the appellant I s in
404 to 417 1179 1180 of 1407 of 1969
M K Ramamurthi Shyamala Pappu and Vineet Kumar for the appellant in CA No 1176 of 1969
R V section Mani for the appellants in CAs
424 to 428 1158 to 1161 and 1207 of 1969
A K Sen C A Prakasa Rao and R Gopalakrishnan for the appellants in CAs
429 431 to 438 440 441 1178 and 1181 of 1969
C section Prakasa Rao A R Ramanathan and R Gopalakrishnan for the appellant in CA No 430 of 1969
507 C section Prakasa Rao R Gopalakrishnan and Sudhir Khanna for the appellant in CA No 439 of 1969
C section Prakasa Rao K K Venugopal and R Gopalakrishnan for the appellant in CA No 1204 of 1969
Niren De Attorney General for India and A V Rangam for the respondents in C 
A No 397 of 1969
section V Gupte and A V Rangam for the respondents in CA No 400 of 1969
A V Rangam for the respondents in CA Nos 401 402 404 to 417 422 to 441 451 1158 to 1161 1176 1178 to 1181 1204 1207 and 1407 of 1969
The Judgment of the Court was delivered by Hegde J
These 52 appellants are private stage carriage operators in the State of Tamil Nadu
They have been operating in various routes in that State
Some of those routes are proposed to be rationalised
A draft scheme of nationalisation has been prepared and published under section 68 C of the Motor Vehicles Act Central Act IV of 1939 to be hereinafter referred to as the Act 
The validity of the draft scheme was challenged by the appellants before the High Court of Madras under article 226 of the Constitution
Incidentally the validity of some of the provisions of the amending Act XVIII of 1968 Madras Act also came to be challenged in those petitions
A division bench of the Madras High Court consisting of Anantanarayanan CJ and Natesan J have dismissed those petitions
As against the decision of the High Court these appeals have been brought on the strength of the certificates issued by the High Court
In these appeals we are primarily concerned with the validity of the draft scheme under challenge
The ground on which it is challenged is that the opinion requisite Under section 68 C of the Act was not formed by the State Government but by the Secretary to the government in the Industries Labour and Housing Department acting in pursuance of the powers conferred on him under rule 23A of the Madras Government Business Rules to be here inafter referred to as the Rules 
The contention of the appellants is that the said rule is ultra vires the provisions of the Consti tution
There is no dispute that if the rule in question is valid the challenge directed against the aft scheme must fail
The High Court has opined that that rule is a valid rule
It is the correctness of that conclusion that is primarily in issue in these appeals
508 Section 68C prescribes  Where any State transport undertaking is of opinion that for the purpose of providing an efficient adequate economical and properly coordinated road transport service it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking whether to the exclusion complete or partial of other persons or otherwise the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct This section requires that the State transport undertaking must form the opinion contemplated therein
In the State of Tamil Nadu the State transport undertaking is a department of the State government
Therefore the necessary opinion should have been formed by the State government
It was urged on behalf of the appellants that under our constitutional set up the requisite opinion could have been formed either by the Council of Ministers or the Minister to whom the business in question had been allocated under the Rules 
The same could not have been formed by the Secretary who is merely an official and that too by the Secretary who is not the head of the department to which the functions under the Act had been assigned
The contentions advanced on behalf of the appellants proceed thus  The executive power of the State vests in the Governor article 154
In the exercise of that power he has to be aided and advised by the Council of Ministers with the Chief Minister at the head article 1631 but the Governor can make rules for 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 the Constitution required to act in his discretion article 1663
A Minister can only deal with the business that has been allocated to him by the Governor under the Rules 
He is not competent to deal with any other business
Motor Vehicles Act has been allocated to the Home Department
Mr Karunanidhi the Transport Minister was not in charge of the Home Department
Therefore his department could not have dealt with functions arising under the Act
Further the Governor could not have allocated any business to a Secretary
Hence in making rule 23A the Governor exceeded the powers conferred on him under article 1663
509 On the other hand it was urged on behalf of the State of Tamil Nadu that originally the functions under the Motor Vehicles Act had been allocated to the Home Department but when Mr Annadurai formed the DMK government in Tamil Nadu in 1967 the Home Department as such was not allocated to any Minister
The various subjects included in that department were split up and distributed amongst the various Ministers
Transport was allocated to Mr Karunanidhi
Motor Vehicles Act as such was not allocated to any Minister
The department of Transport included functions under the Motor Vehicles Act as well
Ever since the DMK ministry was formed the functions under the Motor Vehicles Act were dealt with by the Transport ministry
At the instance of the Transport Minister Mr Karunanidhi Governor framed rule 23A for the more convenient discharge of the business
On behalf of the government it was further urged that article 1663 has two parts namely 1 rules for the more convenient transaction of the business of the government of the State and 2 rules relating to allocation of business of the State among the Ministers
It was said that after allocating the business of the government among various Ministers it was open to the Governor on the advice of the ministry to make rules for the convenient discharge of the business allocated
Rule 23A is one such rule made under article 1663
Hence its validity is not open to question
The impugned rule 23A was introduced for the first time by GOMs
No 2715 Public dated 22 12 67
Under sub cl
1 of that rule it is provided that powers and functions which State transport undertaking may exercise under section 68C of the Act shall be exercised and discharged on behalf of the State government by the Secretary to the Government of Madras in the Industries
Labour and Housing Department
The rule further provides that cases relating to such powers and functions of the State transport undertaking under section 68C need not be submitted to the Minister in charge
Under sub cl
2 of that rule the powers and functions of the State government under section 68D of the Act and the rules relating thereto are directed to be exercised and discharged by the Secretary to the government in the Home Department
Rule 4 of the Rules  deals with allocation and disposal of business
It provides
that the business of the Government shall be transacted in the department specified in the 1st Sch
and classified and distributed between those departments as laid down therein
Rule 5 says that Governor shall on the advice of the Chief Minister allot the business of the government among the Ministers assigning one or more departments to the charge of a Minister but the proviso to that rule says that nothing in that rule shall prevent the assigning of one department to the charge of more than one Minister
510 Rule 6 prescribes that each department of the secretariat shall be under a Secretary who shall be the official head of the department
Under rule 7 the Council of Ministers constituted under Art 1631 is held collectively responsible for all the executive orders issued in the name of the Governor in accordance with rules whether such orders are authorised by an individual Minister on a matter pertaining to his portfolio or as a result of the discussion at the meeting of the Council of Ministers
Rule 9 provides that without prejudice to the provisions of rule 7 the Minister in charge of a department shall be primarily responsible for the disposal of the business pertaining to his department
Section III of the Rules containing rules 21 to 30 deal with the departmental disposal of business
Rule 21 says that except as otherwise provided by any other rule cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of standing orders give such directions as he may think fit for the disposal of cases in the department copies of such standing orders shall be sent to the Governor and the Chief Minister
Rule 22 provides that each Minister shall by means of standing orders arrange with the secretary of the department what matters or class of matters are to be brought to his personal notice copies of such standing orders has to be sent to the Governor and the Chief Minister
Rule 23 prescribes that except as otherwise provided in the rules all cases shall be submitted to the Minister in charge by the secretary of the department to which they belong
Then comes rule 23A to which reference has already been made
The first question that has to be decided is whether the functions under the Motor Vehicles Act had been assigned to Mr Karunanidhi the Minister for Transport
It is true that when the various departments were reorganized in 1961 Motor Vehicles Act as well as Transport were included in the Home Department
But when the DMK ministry came to power after the 1967 general elections the Home Department as such was not allocated to any Minister
The various subjects included in that department were distributed amongst several Ministers
Transport was allocated to the Transport Minister
Motor Vehicles Act as such was not allocated to any Minister
The allocation of business among the various Ministers appears to have been made under broad heads
In 1961 while allocating subjects to the various departments there was a detailed and exhaustive enumeration of the subjects
But that method was not adopted in 1967 while distributing the business of the government among the various Ministers
The functions under the Act undoubtedly relate to Transport department
It cannot be assumed that functions under the Act had not been assigned to any Minister
It is proved that those functions were being discharged by the Minister for Transport Hence we agree with the High Court that those functions had been 511 allocated to the Transport Minister and that the State transport undertaking was being run by the Transport ministry
Mr Karunanidhi has in his affidavit filed before the High Court sworn to the fact that rule 23A was framed at his instance
Admittedly he could have assigned the functions under section 68C of the Act to the Transport Secretary by making a standing order under rule 22
If he could have done that we fail to see why he could not advise the Governor through the Chief Minister to make rule 23 A
It was urged on behalf of the appellants that the parliament has conferred powers under section 68C of the Act to a designated authority
That power can be exercised only by that authority and by no one else
The authority concerned in the present case is the State government
The government could not have delegated its statutory functions to any one else
The government means the Governor aided and advised by his Ministers
Therefore the required opinion should have been formed by the Minister to whom the business had been allocated by the Rules 
It was further urged that if the functions of the Government can be discharged by any one else then the doctrine of ministerial responsibility which is the very essence of the cabinet form of government disappears such a situation is impermissible under our Constitution
We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution
Under our Constitution the Governor is essentially a constitutional head the administration of State is run by the Council of Ministers
But in the very nature of things it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government
In order to obviate that difficulty the Constitution has authorised the Governor under sub article
3 of article 166 to make rules
for the more convenient transaction of business of the government of the State and for the allocation amongst its Ministers the business of the government
All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister
Apart from allocating business among the Ministers the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business
He can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function
But this again he can do only on the advice of the Council of Ministers
512 The cabinet is responsible to the legislature for every act ion taken in any of the ministries
That is the essence of joint responsibility
That does not mean that each and every decision must be taken by the cabinet
The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions
Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry
This again is a political responsibility and not personal responsibility
Even the most hard working minister cannot attend to every business in his department
If he attempts to do it he is bound to make a mess of his department
In every well planned administration most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure
The Minister is not expected to burden himself with the day to day administration
His primary function is to
lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the government
When a civil servant takes a decision he does not do it as a delegate of his Minister
He does it on behalf of the government
It is always open to a Minister to call for any file in his ministry and pass orders
He may also issue directions to the officers in his ministry regarding the disposal of government business generally or as regards any specific case
Subject to that over all power the officers designated by the Rules  or the standing orders can take decisions on behalf of the government
These officers are the limbs of the government and not its delegates
In Emperor vs Sibnath Banerji and ors
1 construing section 5 9 3 of the Government of India Act 1935 a provision similar to article 1663 the Judicial Committee held that it was within the competence of the Governor to empower a civil servant to transact any particular business of the government by making appropriate rules
In that case their Lordships further observed_ that the Ministers like civil servants are subordinates to the Governor
In Kalyan Singh vs State of UP2  this Court repelling the contention that the opinion formed by an official of the government does not fulfil the requirements of section 68 C observed  The opinion must necessarily be formed by somebody to whom under the rules of business the conduct of the business is entrusted and that opinion in law will be the opinion of the State Government
It is stated in the counter affidavit that all the concerned officials in the Department of Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the 1 L R 72 T A p 241
2 1962 Sup
2 section C R p 76
513 notification was issued
It is not denied that the Secre tary of the said Department has power under the rules of business to act for the State Government in that behalf
We therefore hold that in the present case the opinion was formed by the State transport undertaking within the meaning of section 68 C of the Act and that there was nothing illegal in the manner of initiation of the said Scheme
In Ishwarlal Girdharlal Joshi etc
vs State of Gujarat and anr
 3  this Court rejected_the contention that the opinion formed by the Deputy Secretary under section 171 of the Land Acquisition Act cannot be considered as the opinion of the State government
After referring to the rules of business regulating the government business this Court observed at p 282 In our case the Secretaries concerned were given the jurisdiction to take action on behalf of Government and satisfy themselves about the need for acquisition under section 6 the urgency of the matter and the existence of waste and arable lands for the application of sub sections
1 and 4 of section 17
In view of the Rules of business and the Instructions their determination became the determination of Government and no exception could be taken In Capital Multi purpose Co operative Society vs State of Madhya Pradesh and Ors
1 this Court dealing with the scope of section 68 D of the Act observed that the State Government obviously is not a natural person and therefore some natural person has to give hearing on behalf of the State Government and hence the hearing given by the special secretary pursuant to the power conferred on him by the business rules framed under article 1663 is a valid hearing
As mentioned earlier in the very nature of things neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government
Those matters have to be attended to and decisions taken by various officials at various levels
When those officials discharge the functions allotted to them they are doing so as limbs of the government and not as persons to whom the power of the government had been delegated
In Halsbury Laws of England Vol
I 3rd Edn
at p 170 it is observed  Where functions entrusted to a Minister are performed by an official employed in the Minister s department 1 1968 2 section C R p 266
2 C A 2201 of 1966 decided on 3031967
L8Sup CI70 3 514 there is in law no delegation because constitutionally the act or decision of the official is that of the Minister
 Similar view has been expressed in Principles of Administrative Law by Griffith and Street
That is also the view taken by Sir Ivor Jennings in his Cabinet Government
For the reasons mentioned above we are of opinion that the functions under the Motor Vehicles Act had been allocated by the Governor to the Transport Minister under the Rules and the Secretary of that ministry had been validly authorised under rule 23 A to take action under section 68 C of the Act
The validity of some of the provisions of Madras Act 18 of 1968 which amended the Act was canvassed before us
It is not necessary to go into those questions for deciding the validity of the impugned scheme
Those questions can be more appropriately gone into and decided if and when action is taken on the strength of those provisions
Hence we leave open those questions
In the result these appeals fail and they are dismissed with costs hearing fee one set
RKPS Appeals dismissed


Summary:
A draft scheme for the nationalisation of certain transport routes was prepared and published by the respondent State Government under Section 68C of the Motor Vehicles Act 4 of 1939
The validity of the scheme was challenged by the appellants who were private stage carriage operators in a petition under Article 226 of the Constitution but the peti tion was dismissed by the High Court
In appeal to this Court the validity of the scheme was mainly challenged on the ground that the opinion requisite under Section 68C was not formed by the State Government but by the Secretary to the Government acting pursuant to powers conferred on him under Rule 23 A of the Madras Government Business Rule
It was further contended that the said rule was ultra vires the provisions of the Constitution Parliament has conferred powers under Section 68 C to a designated authority and that power can be exercised only by the authority specified and no one else
The authority concerned in the present case was the State Government and it could not have delegated is statutory functions to any one else
By Government was meant the Governor aided and advised by his Ministers
The requisite opinion should therefore have been formed by the Minister to whom the business had been allocated under the Rules
HELD  The functions under the Motor Vehicles Act had been allocated by the Governor to the Transport Minister under the Rules and the Secretary of that Ministry had been validly authorised under Rule 23 A to take action under section 68C of the Act
In the very nature of things neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government
Those matters have to be attended to and decisions taken by various officials at various levels
When those officials discharge the functions allotted to them they are doing so as limbs of the Government and not as persons to whom the power of the Government had been delegated
513 G Under our Constitution the Governor is essentially a constitutional head the administration of the State is run by the Council of Ministers
in order to obviate the difficulty that would arise if the Council of Ministers had to deal with every matter the Constitution has authorised the Governor under sub article 3 of the Article 166 to make rules for the more convenient transaction of the business of the Government of the State and for the allocation amongst its Ministers of the business of Government
All matters excepting those in which the Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on 506 the advice of the Chief Minister
Apart from allocating business among the Ministers the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business
He can not only allocate the various subjects amongst the Ministers but may go further and on the advice of his Ministers designate a particular official to discharge any particular function
511 F The cabinet is responsible to the Legislature for every action taken in any of the Ministries
This is the essence of joint responsibility
That does not mean that each and every decision must be taken by the cabinet
The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the functions of the Government
Similarly an individual Minister is responsible to the Legislature for every action taken or omitted to be taken in his ministry
This again is a political responsibility and not personal responsibility
In every well planned administration most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure
The Minister is not expected to burden himself with the day to day administration
His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government
512 A Emperor vs Sibnath Banerjee  Ors
LR 72 IA p 241 Kalyan Singh vs State of UP 1962 Supp 2 SCR 76 Ishwarlal Girdharlal Joshi vs State of Gujarat and anr
  Capital Multipurpose Cooperative Society vs State of Madhya Pradesh and Ors
Civil Appeal No 22011966 decided on 30 3 1967 referred to