Special Leave Petition Civil No 3865 of 1987
From the Judgment and Order dated 2187 of the Allaha bad High Court in Writ Petition No 1708286
SN Kacker and RB Mehrotra for the Petitioner
RK Jain for the Respondent
The Order of the Court was delivered by VENKATARAMIAH J The Uttar Pradesh Public Service Commission hereinafter referred to as the Commission  is the petitioner in this petition
It has questioned the correctness of the order passed by the High Court of Allaha bad in Writ Petition No 17082 of 1986 directing it to comply with the order dated August 30 1986 passed by the State Government on an appeal filed by Respondent No 1 against the order passed by the Commission in a disciplinary proceeding held against him
Respondent No 1 was working as a Section Officer in the office of the Commission
On July 18 1981 he was placed under suspension on certain charges and a departmental enquiry was initiated against him
In the said enquiry he was found guilty and he was reverted to the rank of an Upper Division Assistant by the order dated April 24 1982 and by another order passed on the same day he was dismissed from service
Against these orders Respondent No 1 preferred an appeal before the State Government
The State Government found that Respondent No 1 had not been given opportunity to cross examine the witnesses produced at the disciplinary enquiry that he had not been given a reasonable opportunity to produce evidence from his side and that therefore the punishment imposed on him was violative of Article 3112 of the Constitution
Accordingly the order of dismissal passed against him in the disciplinary enquiry was set aside and the Commission was directed to hold a fresh enquiry in accordance with law
The order of the State Government further directed the Commission to reinstate Respondent No 1 as an Upper Division Assistant pending final decision in the disciplinary enquiry
It was also ordered that the salary and allowances due to Respondent No 1 from the date 836 of his dismissal till the date of reinstatement should be paid to him
The above order was passed on August 30 1986
Respondent No 1 applied to the Commission on September 3 1986 to permit him to rejoin the service as ordered by the State Government
When the Commission declined to comply with the order of the State Government Respondent No 1 instituted the writ petition referred to above in the High Court of Allahabad for the issue of a direction to the Commission to comply with the order of the State Government
After heating the learned counsel for Respondent No 1 and the Commission the High Court allowed the writ petition and issued the directions as stated above
Aggrieved by the decision of the High Court the Commission has filed this petition
Two contentions are urged before us on behalf of the Commission i since the Commission which is a constitu tional authority is not subordinate to the State Govern ment the State Government could not have heard the appeal filed against the order passed by the Commission in a disci plinary proceeding
and ii in any event the appeal should have been disposed of by the Governor himself and not by the Governor in accordance with the advice of the State Govern ment
The conditions of service of the members of the Staff of the Commission are regulated by the UP Public Service Commission Conditions of Service Regulations 1937 made under section 2652 of the Government of India Act 1935 corresponding to Article 3 18 of the Constitution as they have been continued under the provisions of the Constitu tion
Regulation 20 of the said Regulations as amended by the Uttar Pradesh Public Service Commission Conditions of Service Amendment Regulations 1978 made by the Governor under Article 3 18 of the Constitution reads as follows 20
Appointments to the gazetted ministerial posts other than those of the Under Secretary and the Assistant Secretary shall be made by the Commission
Appeals against the order of the Commission shall be to the Governor
 Regulation 28 of the UP Public Service Commission Staff Regulations 1942 lays down as follows 28
Regulation of pay leave allowance pension and other conditions of service Except as provided in these 837 regulations or in any special declaration or order made by the Governor all matters relat ing to the pay allowances pension gratuity leave retirement and other conditions of service of the persons appointed to the staff shall be regulated by the rules declarations and orders applicable generally from time to time to servants of the State of similar classes under the control of the Uttar Pradesh Government insofar as they are not inconsist ent with any provisions expressly made in these regulations or in the Uttar Pradesh Public Service Commission Conditions of Service Regulations
 Rule 69 of the Civil Service Classification Control and Appeal Rules 1930 is to the effect that the State Government may of its own motion or otherwise call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules and inter alia confirm modify or reverse the order passed by such authority or direct that a further enquiry be held in the case
Rule 69 A sets out the proce dure to be followed in filing a petition under rule 69
Rule 69 and rule 69 A are substantially applicable to the members of the staff of the Commission by virtue of Regulation 28 of the Uttar Pradesh Public Service Staff Regulations 1942 extracted above even though the Commission may not be an authority subordinate to the State Government because while applying rule 69 to the staff of the Commission the rule should be read with the necessary modification by substitut ing in the place of the words an authority subordinate to it  the words the Uttar Pradesh Public Service Commission 
In any event by virtue of the amendment made to rule 20 in 1978 appeals against the orders of the Commission passed in respect of the gazetted ministerial officers other than the Under Secretary and the Assistant Secretary lie to the Governor
Respondent No 1 being a gazetted officer holding the post of a Section Officer is entitled to prefer an appeal under regulation 20 of the Uttar Pradesh Public Service Commission Conditions of Service Regulations 1937 to the Governor
On the facts and in the circumstances of the case we feel the contention of the Commission that an order passed by it in a disciplinary proceeding cannot be subject to an appeal is untenable by virtue of regulation 20 of the Uttar Pradesh Public Service Commission Condi tions of Service Regulations 1937 and regulation 28 of the Uttar Pradesh Public Service Commission Staff Regulations 1942
It may be that as held by this Court in Hargovind Pant vs Dr Raghukul Tilak  Ors  the Com mission may be a constitutional authority not subordinate to any other authority
But the orders 838 passed by the Commission in disciplinary proceedings held against the members of its staff are subject to the appeal to the State Government under rule 69 of the Civil Service Classification Control and Appeal Rules read with regula tion 20 of the Uttar Pradesh Public Service Commission Conditions of Service Regulations 1937
There is no ground for thinking that the independence of the Commission would be affected by the State Government exercising the appellate power in disciplinary matters as provided by regulation 20
We therefore reject the first contention
We shall now deal with the second contention
It is no doubt true that regulation 20 provides that appeals against the orders of the Commission shall be made to the Governor
But while exercising his powers under that regulation the Governor has to act on the advice given by the State Govern ment by virtue of Article 1631 of the Constitution which reads thus 1631
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 insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion
 The function of heating an appeal against an order passed by the Commission in a disciplinary proceeding held against any member of its staff is not one of those func tions which the Governor is required to exercise in its discretion under any of the provisions of the Constitution
The Governor has therefore to act on the advise of the State Government
This position has been settled by the decision of this Court in Shamsher Singh  Ant
vs State of Punjab 14
Ray CJ speaking for him self Palekar Mathew Chandrachud and Alagiriswami JJ
has observed at page 836 thus For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vest in the executive whether those functions are executive or legislative in character
Neither the President nor the Governor is to exercise the executive functions personally
 The function of deciding an appeal against an order of punish 839 ment imposed in a disciplinary proceeding is an executive function
Hence by acting in accordance with the advice tendered to him by the State Government the Governor has not acted contrary to the provisions of the regulations or of the Constitution
The appellate power is exercised in the instant case in accordance with Article 166 of the Constitu tion
We do not therefore find any merit in the second contention too
The petition is therefore dismissed
HLC Petition dis missed


Summary:
In an appeal preferred by respondent No 1 against orders reverting him from the post of Section Officer to a lower post and dismissing him from service the State Gov ernment found that he had not been afforded a reasonable opportunity to defend himself at the inquiry and set aside the order of dismissal directing the State Public Service Commission to reinstate him in the lower post and hold a fresh inquiry
The Commission having declined to comply with the order of the State Government respondent No 1 filed a writ petition and the High Court directed the Commission to comply with the said order
In this petition for special leave to appeal the Com mission contended 1 that since it was a Constitutional Authority being not subordinate to the State Government the latter could not have heard the appeal filed against its order passed in a disciplinary proceeding and 2 that in any event the appeal should have been disposed of by the Governor himself and not by the Governor in accordance with the advice of the State Government
Dismissing the petition HELD The Commission may be a constitutional authority not subordinate to any other authority
But the orders passed by the Commission in disciplinary proceedings held against the members of its staff are subject to the appeal to the State Government under r 69 of the Civil Service Classification Control and Appeal Rules 1930 read with Regulation 20 of the Uttar Pradesh Public Service Commission Conditions of Service Regulations 1937 as amended in 1978
There is 834 no ground for thinking that the independence of the Commis sion would be affected by the State Government exercising the appellate power in disciplinary matters as provided by Regulation 20
837H 838A B Hargovind Pant vs Dr Raghukul Tilak  Ors   referred to
Rule 69 of the Civil Service Classification Control and Appeal Rules 1930 is to the effect that the State Government may of its own motion or otherwise call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules and inter alia confirm modify or reverse the order passed by such authority or direct that a further enquiry be held in the case
Rule 69 A sets out the proce dure to be followed in filing a petition under rule 69
Rules 69 and 69 A are substantially applicable to the mem bers of the staff of the Commission by virtue of Regulation 28 of the Uttar Pradesh Public Service Staff Regulations 1942 even though the Commission may not be an authority subordinate to the State Government because while applying r 69 to the staff of the Commission the rule should be read with the necessary modification by substituting in the place of the words an authority subordinate to it  the words the Uttar Pradesh Public Service Commission 
In any event by virtue of the amendment made to Regulation 20 of the Uttar Pradesh Public Service Commission Conditions of Service Regulations 1937 in 1978 appeals against the orders of the Commission passed in respect of the gazetted ministerial officers other than the Under Secretary and the Assistant Secretary lie to the Governor
Respondent No1 being a gazetted officer holding the post of a Section Officer was entitled to prefer an appeal under Regulation 20 to the Governor
837C G 2
It is no doubt true that Regulation 20 of the Uttar Pradesh Public Service Commission Conditions of Service Regulations 1937 provides that appeals against the orders of the Commission shall be made to the Governor
But while exercising his powers under that Regulation the Governor has to act on the advice given by the State Government by virtue of article 1631 of the Constitution
The function of hearing an appeal against an order passed by the Commission in a disciplinary proceeding held against any member of its staff is an executive function and not one of those functions which the Governor is required to exercise in its discretion under any of the provisions of the Constitution
The Gover nor has therefore to act on the advice of the State Gov ernment
838C F 835 Shamsher Sing vs State of Punjab   referred to