Patna High Court
Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016
      IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Letters Patent Appeal No.2294 of 2015
                                 Arising out of
                 Civil Writ Jurisdiction Case No. 17721 of 2015
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Amrawati Devi, wife of Sri Dinanath Yadav, Resident of Mohallla- Manik Chand Talab, P.O.
Anishabad, P.S. Gardanibagh, District- Patna.
.... .... Appellant Versus
1. The State of Bihar through the Principal Secretary, Urban Development and Town Planning
Department, Government of Bihar, Patna.
2. The Principal Secretary, Urban Development and Town Planning Department, Government of
Bihar.
3. The Principal Secretary, Department of Law and Justice Department, Government of Bihar.
4. Patna Municipal Corporation through its Chief Executive Officer, Maurya Lok Building, Bailey
Road, Patna.
5. Mr. Binod Kumar, son of Sri Janak Prasad Singh, Resident of Mohalla- Mohanpur, Punaichak,
P.O and P.S. Shastri Nagar, District- Patna.
6. Roop Narayan, son of Shri Ram Narayan Prasad, Resident of Mohalla- Mehandiganj, P.O and P.S.
Patna City, District-Patna, Bihar.
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=========================================================== Appearance :
For the Appellant : Mr. Vinod Kanth, Sr. Advocate.
Mr. S.B.K. Manglam, Advocate.
Mr. Ravi Ranjan, Advocate.
For the State         : Mr. Lalit Kishore, P.A.A.G.
                         Mr. U.S.S. Singh, G.P.-I
                         Mr. R.K. Chandram, A.C. to G.P.-I
For Respondent No. 6 : Mr. Jitendra Singh, Sr. Advocate.
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Mr. Piyush Lall, Advocate.
Mr. Yash Singh, Advocate Mr. Tej Pratap Singh, Advocate.
Mr. Kamal Kishore Singh, Advocate.
F o r  t h e  C o r p o r a t i o n  :  M r .  P r a s o o n  S i n h a ,  A d v o c a t e .
=========================================================== CORAM:
HONOURABLE MR. JUSTICE I. A. ANSARI, A.C.J.
and HONOURABLE MR. JUSTICE HEMANT GUPTA C.A.V. JUDGMENT (Per: HONOURABLE
MR. JUSTICE HEMANT GUPTA) Date: 22 -06-2016 The present Letters Patent Appeal is directed
against an order, dated 14th of December, 2015, passed by the learned Single Patna High Court LPA
No.2294 of 2015 dt. 22-06-2016 2 /22 Bench of this Court in C.W.J.C. No. 17721 of 2015, whereby
the writ application filed by Respondent No. 6 removing him from the post of Deputy Chief
Councillor-cum-Deputy Mayor of the Patna Municipal Corporation was set aside.
2. The facts, in brief, are that the elections of the Municipal Corporation, Patna, were held in the
year 2012 and Respondent No. 6 herein, Roop Narayan, was elected as Deputy Chief Councillor of
the Corporation. A complaint was filed by Binod Kumar, Respondent No. 5 herein, seeking removal
of Roop Narayan from the post of Deputy Chief Councillor, inter alia, on the ground that he has
avoided to attend three consecutive meetings of the Empowered Standing Committee and, thus, lost
interest in the affairs of the Municipal Corporation. On account of failure to attend three consecutive
meetings of the Empowered Standing Committee, it was submitted that Roop Narayan incurred
disqualification entailing removal from the post of Deputy Chief Councillor under Section 25(5) of
the Bihar Municipal Act, 2007 (hereinafter referred to as "the Act").
3. Since no action was taken on the complaint, the Respondent No. 5, Binod Kumar, invoked the
writ jurisdiction of this Court for directing the respondents to take an appropriate decision on the
complaint made by him. This Court disposed of the writ Patna High Court LPA No.2294 of 2015 dt.
22-06-2016 3 /22 application on 2nd of February, 2015, with a direction to the Principal Secretary,
Urban Development and Housing Department, Government of Bihar, to take an appropriate action
in accordance with law after giving an opportunity of hearing to the contesting parties, preferably,
within six months of the receipt/production of a copy of the said order. The said order reads as
under:-
"The limited grievance raised by the petitioner in this writ petition is that an
application filed before the Principal Secretary under Section 25(5) {incorrectly
mentioned as 25(4)} of the Bihar Municipal Act, 2007 (hereinafter referred to as „the
Act) seeking removal of the private respondent No. 4 remains pending before the
Principal Secretary though it was filed on 23.9.2014.
A statutory application filed before the statutory authority requires disposal in
accordance with law and cannot be allowed to remain pending and thus considering
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the limited grievance raised in this writ petition, the present application is disposed
of with the direction to the Principal Secretary, Urban Development and Housing
Department, Government of Bihar to consider the petition filed on behalf of the
petitioner on 23.9.2014, a copy of which is placed at Annexure-6 to the writ petition
and dispose of the same in accordance with law and after giving opportunity of
hearing to the contesting parties including the respondent No. 4, expeditiously and
preferably within six months from the date of receipt/production of a copy of this
order."
4. Since the order, dated 2nd of February, 2015 aforementioned, was not complied with a contempt
application was filed. It was during the pendency of the contempt application that a Patna High
Court LPA No.2294 of 2015 dt. 22-06-2016 4 /22 final order was passed by the Principal Secretary,
Urban Development and Housing Department, Government of Bihar, on 30th of October, 2015,
whereby Roop Narayan was removed from the post of Deputy Chief Councillor, Patna Municipal
Corporation.
5. The argument of the writ petitioner before the learned Single Bench, inter alia, was that in terms
of Section 25(5) of the Act, an order could be passed only by the State Government and that
jurisdiction would vest in the Minister-in-Charge of the Department in view of Rules 5, 11, 21, 22
and 23 of the Rules of Executive Business and the schedule thereto framed by the Hon'ble Governor
under Article 166 of the Constitution of India. Learned Single Bench accepted the argument and
held that the removal of Roop Narayan is by an authority not authorized by law.
6. Another argument raised was that the meetings, the non attendance of which, led to the removal
of the Roop Narayan, are not the meetings of the Municipality, but that of the Empowered Standing
Committee. The learned Single Bench did not agree with the argument that failure to attend the
meetings of the Municipality alone will not lead to violation of Section 25(5) of the Act. It was held
that failure to attend meetings of Empowered Standing Committee also leads to disqualification.
The learned Single Bench allowed the writ application on the ground that the impugned order has
been issued by Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 5 /22 the Principal Secretary,
Urban Development and Housing Department, Government of Bihar, and such order cannot be
termed as an order of the State Government. Learned Single Bench has held that in terms of the
Rules of Executive Business notified by the authorities of the Governor in terms of Article 166 of the
Constitution of India, the executive power of the State could be exercised only by the
Minister-in-Charge of the Department or in terms of the standing orders issued by the
Minister-in-Charge. Since there is no standing order issued and the order has not been passed by
the Minister-in- Charge, it is not an order by the State Government.
7. Before examining the respective contentions of the parties, certain provisions of the Statute,
relevant issues needs to be examined, e.g., Section 25(5) and Section 44 of the Act, which are
reproduced hereinbelow:-
"25(5). Without prejudice to the provisions under this Act, if, in opinion of the
Government, the Chief Councillor/Deputy Chief Councillor absents himself without
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sufficient cause for more than three consecutive meetings or sitting or wilfully omits
or refuses to perform his duties and functions under this Act, or is found to be guilty
of misconduct in the discharge of his duties or becomes physically or mentally
incapacitated for performing his duties or is absconding being an accused in a
criminal case for more than six months, the Government may, after giving the Chief
Councillor/Deputy Chief Councillor a reasonable opportunity for explanation, by
order, remove such Chief Councillor from office.
Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 6 /22 [Provided that after appointment of
Lok Prahari, under section-44, the Government, may pass order under this sub-section only on the
basis of recommendation of such Lok Prahari]. (Ins by Act No. 7 of 2011)
8. Learned counsel for the respondents raised a preliminary objection that the Letters Patent Appeal
has been filed by a person, who was not party before the learned Single Bench. She is a stranger to
the lis and not competent to file an appeal against an order passed by the learned Single Bench,
more so, when the State has not appealed against the judgment in question. Reliance has been
placed over an order passed by the Hon'ble Supreme Court in Poonam Vs. State of U.P. & Ors.,
reported in (2016) 2 SCC 779.
9. The argument of the learned counsel for the appellant is that she was elected as a Deputy Chief
Councillor after removal of Roop Narayan as Deputy Chief Councillor and, therefore, her rights are
affected by the order setting aside removal of Roop Narayan. It is also argued that the appeal is by
member of the Municipal Corporation and, in a matter of removal of an office-bearer of the
Municipality, each of the member of the House would have a right to impugn any decision, which
affects the rights of the Municipal Councillors as to who should work on and for the Municipal
Corporation. It is further argued that not only the Municipal Councillors, but also any resident of the
Municipal Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 7 /22 Corporation shall have a
right in the matter of the office-bearers, who shall manage the Municipal Corporation. It is
submitted that the judgment in Poonam's case (supra) deals with the right of allotment of a business
site; whereas, the present case pertains to right or management of a Municipality, which cannot be
equated as a right of property. The management of the Municipality is in public interest and any
person, who has a right to be administrated by the Municipality, would have a right to dispute as to
who shall manage the Municipality as well.
10. We have heard learned counsel for the parties on the preliminary objection raised and find no
merit in the objection so raised by Mr. Jitendra Singh, Senior Advocate representing Respondent
No. 6.
11. The issue, which was examined in Poonam's case (supra), was whether a subsequent allottee of a
shop is a necessary party in a matter involving allotment of site. In an appeal challenging the order
of cancellation of allotment, the Court, inter alia, held as under:-
"17. The term "entitled to defend" confers an inherent right to a person if he or she is
affected or is likely to be affected by an order to be passed by any legal forum, for
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there would be violation of natural justice. The principle of audi alteram partem has
its own sanctity but the said principle of natural justice is not always put in strait
jacket formula.
That apart, a person or an authority must have a legal right or Patna High Court LPA No.2294 of
2015 dt. 22-06-2016 8 /22 right in law to defend or assail."
12. The Court also observed, in Poonam's case (supra), that the person, who has been elected in the
meantime from amongst the member of the Panchayat Samiti or Sabha in a situation, where
Sarpanch or the Chairman is removed and the challenge is by a Sarpanch or Chairman to the order
of removal, the Court held that such person is not a necessary party. The relevant extract of the said
judgment reads as under:-
"47. Few examples can be given so that the position can be easily appreciated. There
are provisions in some legislations pertaining to Gram Panchayat or Panchayat
Samiti where on certain grounds the competent authority has been conferred the
power to remove the elected Sarpanch or the Chairman, as the case may be on certain
counts. Against the order of the Collector, an appeal lies and eventually either a
revision or a writ lies to the High Court. After his removal, someone by way of
indirect election from amongst the members of the Panchayats or the Panchayat
Samiti is elected as the Sarpanch or the Chairman. The removed Sarpanch assails his
order of removal as he is aggrieved by the manner, method and the reasons for
removal. In his eventual success, he has to hold the post of the Sarpanch, if the tenure
is there. The question, thus, arises whether the person who has been elected in the
meantime from amongst the members of the Panchayat Samiti or Sabha is a
necessary party. The answer has to be a categorical „no, for he cannot oppose the
order of removal assailed by the affected Sarpanch nor can he defend his election
because he has come into being because of a vacancy, arising due different situation."
Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 9 /22
13. We find that the appellant, elected consequent to the vacancy fallen on account of removal of
Roop Narayan, is a proper party in the appeal even if she is not a necessary party. She has a right to
impugn the decision of setting aside the removal of Roop Narayan to which she, as a Municipal
Councillor, has a right being a member of the elected representative body. We find that necessary
party to be impleaded as respondent, in an application, stands on a different footing than right to
file an appeal aggrieved against a decision, which affects the right of the entire elected body.
Therefore, in view of Poonam's case (supra), we find that the appellant would have the right to file
an appeal against the setting aside of the removal of Roop Narayan. Even otherwise also, any person
aggrieved has a right to prefer an appeal under Clause X of the Letters Patent.
14. The argument that the State has not chosen to file an appeal against the order passed by the
learned Single Bench and the appellant will, therefore, not have any right to dispute the setting aside
of the removal of Roop Narayan is, again, misconceived.
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15. Though the State has not filed an appeal, but Mr. Lalit Kishore, Principal Additional Advocate
General, submits that State adopts the argument of Mr. Binod Kanth, learned Senior Counsel for the
appellant, assailing the order passed by the learned Patna High Court LPA No.2294 of 2015 dt.
22-06-2016 10 /22 Single Bench.
16. We do not find that non-filing of appeal by State anyway forecloses the right of an aggrieved
Municipal Councillor from disputing the setting aside of removal of the office bearer of the
Municipality. A Municipal Councillor has an independent right in the manner of affairs of the
Municipal Corporation and how they are conducted and, therefore, omission to filing of appeal by
the State has no consequences so as to affect the rights of the appellant.
17. On merits, learned counsel for the appellant refers to a Constitution Bench decision reported in
A. Sanjeevi Naidu etc., etc., Vs. State of Madras and another (AIR 1970 Supreme Court 1102) to
contend that the Minister is not expected to burden himself with day-to-day administration. His
primary function is to lay down the policies and programmes of his ministry, while the Council of
Ministers settles the major policies and programmes of the Government. When a civil servant takes
a decision, he does not do it as a delegate of a Minister. He does it on behalf of the Government.
Relevant extract of the said judgment reads as under:-
"12. The cabinet is responsible to the legislature for every action 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.
Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 11 /22 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 either 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.
18. Reference was also made to Samsher Singh Vs. State of Punjab and another, (A.I.R. 1974 S.C.
2192), particularly, paragraph 35 thereof, which reads as under:-
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"35. The Scheme was upheld for these reasons. The Governor makes rules under
Article 166 (3) for the more convenient transaction of business of the Government of
the State. The Governor 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 that could be Patna High Court LPA No.2294 of 2015 dt.
22-06-2016 12 /22 done on the advice of the Council of Ministers. The essence of
Cabinet System of Government responsible to the Legislature is that an individual
Minister is responsible for every action taken or omitted to be taken in his Ministry.
In every administration, decisions are taken by the civil servants. The Minister lays
down the policies. The Council of Ministers settle the major policies. 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. The officers are the limbs of the Government and not its
delegates. Where functions are entrusted to a Minister and these are performed by an
official employed in the Ministrys department, there is in law no delegation because
constitutionally the act or decision of the official is that of the Minister."
19. Learned counsel for the appellant further argued that Roop Narayan has not objected to the
jurisdiction of the Principal Secretary, Urban Development and Housing Department, Government
of Bihar, Patna, to pass an order of removal in response to the show- cause notice issued nor was
such a plea raised in the writ application. It is only at the stage of argument that such an argument
was raised and, therefore, the appellant is estopped from challenging his removal on the ground that
it was not passed by the competent authority.
20. Mr. Jitendra Singh, learned Senior Counsel appearing for Roop Narayan, controverted the
argument raised by Sri Binod Kanth and asserted that the Rules of Executive Business, framed by
the Governor in terms of Article 166 of the Constitution of India, relates to executive business of the
State, which include all Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 13 /22 activities
excluding only legislative or judicial functions and, therefore, according to Mr. Jitendra Singh, the
quasi-judicial function, while exercising the power under Section 25(5) of the Act, is required to be
discharged only in terms of the rules of Executive Business framed and in no other manner. The
rules of Executive Business contemplate such power shall be exercised by the Minister-in-Charge or
in terms of the standing orders issued. He refers to the following provisions of the Rules of
Executive Business, 1979, framed under Article 166(3) of the Constitution:-
"5. The business of the Government shall be transacted in the departments specified
in the First Schedule and shall be classified and distributed between those
departments as laid down therein.
9. The Council shall be collectively responsible for all advice tendered to the
Governor and all executive orders issued in the name of the Governor in accordance
with these rules whether such advice is tendered or such order are authorised by an
individual Minister on a matter appertaining to his portfolio or as the result of
discussion at a meeting of the Council or however otherwise.
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11. Without prejudice to the provisions of rule 9, the Minister-in-Charge of
department shall be primarily responsible for the disposal of the business
appertaining to the department.
21. 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 thinks fit for the disposal of cases in the department.
Copies of such standing orders shall be sent to the Governor and the Chief Minister.
Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 14 /22
22. (1) Each Minister shall by means of standing orders arrange with the Principal
Secretary/Secretary of the department concerned what matters or classes of matters are to be
brought to its personal notice. Copies of such standing orders shall be sent to the Governor and the
Chief Minister.
(2) xxxx xxxx
21. After hearing learned counsel for the parties, we find that the issues raised are required to be
examined in two parts; first part being whether the powers of the State Government in terms of
Section 25(5) read with Section 2(106) of the Act means the Minister- in-Charge or the Principal
Secretary to the Government. This question needs to be examined in order to determine whether the
quasi-judicial order of removal falls within the realm of Executive Business required to be
performed in the manner prescribed therein or it can be exercised by the Principal Secretary to the
Government. The second part being that if the powers of the State Government have to be exercised
by the Minister-in-Charge, whether such power can be exercised only by virtue of a standing order
issued under Clause (22) of the Rules or whether approval by the Minister-in-Charge of the order
passed by the Principal Secretary to the Government is sufficient delegation in terms of Clause (22)
of the Rules.
22. The argument of Mr. Jitendra Singh, learned Senior Counsel for the respondent, is that the
executive business of the State excludes legislative and judicial functions and all other functions
Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 15 /22 including quasi-judicial functions will
fall within the executive business of the State and, therefore, it is required to be performed strictly in
accordance with the provisions of the Rules. Reliance was placed upon Gullapalli Nageswara Rao
and others Vs. Andhra Pradesh State Road Transport Corporation and another, (A.I.R. 1959
Supreme Court 308), wherein it has been held as follows:-
"28. At this stage, the argument hinted at but not seriously pressed, may be noticed.
The Rules the Governor is authorised to make, the argument proceeds, are only to
regulate the acts of the Governor or his subordinates in discharge of the executive
power of the State Government, and, therefore, will not govern the quasi- judicial
functions entrusted to it. There is a fallacy in this argument. The concept of a
quasi-judicial act implies that the act is not wholly judicial; it describes only a duty
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cast on the executive body or authority to conform to norms of judicial procedure in
performing some acts in exercise of its executive power. The procedural rules made
by the Governor for the convenient transaction of business of the State Government
apply also to quasi-judicial acts, provided those Rules conform to the principles of
judicial procedure."
23. Reference was also made to the judgment in Samsher Singh's case (supra), the relevant extract is
reproduced hereinbelow:-
"29. The executive power is generally described as the residue which does not fall
within the legislative or judicial power. But executive power may also partake of
legislative or judicial actions. All powers and functions of the President except his
legislative powers as for example in Article 123, viz., ordinance making power and all
powers and functions of the Governor Patna High Court LPA No.2294 of 2015 dt.
22-06-2016 16 /22 except his legislative power as for example in Article 213 being
ordinance making powers are executive powers of the Union vested in the President
under Art. 53(1) in one case and are executive powers of the State vested in the
Governor under Article 154 (1) in the other case. Clause (2) or clause (3) of Article 77
is not limited in its operation to the executive action of the Government of India
under Cl. (1) of Article 77. Similarly, clause (2) or clause (3) of Article 166 is not
limited in its operation to the executive action of the Government of the State under
clause (1) of Article 166. The expression "Business of the Government of India" in
clause (3) of Article 77, and the expression, "Business of the Government of the State"
in Cl. (3) of Article 166 includes all executive business."
24. Article 166 of the Constitution of India provides that all executive action of the Government of a
State shall be expressed to be taken in the name of the Governor; whereas sub-clause (3) of Article
166 of the Constitution of India provides that the Governor shall make rules for the more convenient
transaction of the executive 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. We find that the executive actions of the
Government, appearing in Article 166, have to be given contextual interpretation. The executive
actions, in terms of sub-clause (1) of Article 166 of the Constitution, will exclude only legislative and
judicial functions or quasi-judicial functions having larger Patna High Court LPA No.2294 of 2015
dt. 22-06-2016 17 /22 implications in the State, such as, framing of scheme including policy
decisions after seeking objections from the parties concerned. It may not include action against an
individual person as it has no semblance of any policy decision binding on the entire State, a
hallmark of parliamentary form of democracy.
25. In Gullapalli Nageswara Rao's case (supra), the Supreme Court was considering Section 68-C of
the Motor Vehicles Act, as amended in State of Andhra Pradesh, dealing with preparation of a
transport scheme. Such a scheme was required to be given wide publication and after considering
the objections, the scheme was to be finalized by the State Government applicable to the entire
State. It was while considering such provisions that the Court held, in Gullapalli Nageswara Rao
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(supra), that the act of the State Government, in approving the scheme, was in discharge of a
quasi-judicial function and, therefore, the Government should have given personal hearing to the
objectors. Minister-in-Charge was held to be personally responsible in terms of the rules.
26. In Samsher Singh's case (supra), one of the arguments was that power of the Governor to
remove sub-ordinate Judge, under Article 134 read with Punjab Civil Service Rules, cannot be
allocated to a Minister as it was incapable of allocation to a Minister. In Samsher Singh's case
(supra), the Court held that it is Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 18 /22
fundamental principle of English Constitutional Law that Minister must accept the responsibility for
every executive act. In Shamser Singh's case (supra), the Supreme Court, after considering the
judgment in Sanjeevi Naidus case (supra), has observed as follows:-
"35. The Scheme was upheld for these reasons. The Governor makes rules under
Article 166 (3) for the more convenient transaction of business of the Government of
the State. The Governor 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 that could be done on the advice of the Council of Minister.
The essence of Cabinet System of Government responsible to the Legislature is that
an individual Minister is responsible for every action taken or omitted to be taken in
his Ministry. In every administration, decisions are taken by the civil servants. The
Minister lays down the policies. The Council of Ministers settle the major policies.
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. The officers are the limbs of the Government
and not its delegates. Where functions are entrusted to a Minister and these are
performed by an official employed in the Ministrys department, there is in law no
delegation because constitutionally the act or decision of the official is that of the
Minister."
27. The question is : whether an order of removal of a member of a Municipal Corporation is an
executive act of the State, which binds the Council of Ministers. If it is so, only then, the
Minister-in-Charge will come into picture.
28. We find that removal of an office-bearer of a Municipal Corporation is not an act, which is
required to be approved Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 19 /22 by the
Council of Ministers inasmuch as it is an act, which does not deal with the concept of collective
responsibility of the ministers. It is an act for non-performance of his functions of an individual
member of the Municipal Corporation. The Rules are framed for convenient transaction of the
business of the Government of the State. Such expression will include only those functions, which
are required to be performed by Council of Ministers, such as, policy decisions having large
ramification. The policy decisions, which will bind the State on account of the principle of collective
responsibility alone require approval of the Minister-in- Charge. The order of removal is not an
order required to be authenticated in the name of the Governor. As held in the judgments referred to
above, the Minister cannot possibly discharge all functions. A Minister is responsible for preparing
and giving effect to the policy decisions, which binds not only his Ministry, but the entire Council of
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Ministers. Therefore, it will be required to be examined in each case whether a quasi-judicial act,
required to be performed by the State, would be in exercise of the executive power of the State or it
deals with individual cases not relating to any policy decision and, therefore, outside the purview of
the executive power of the State.
29. The removal of a member has civil consequences. Therefore, a member cannot be removed
unless he is served with a Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 20 /22 show cause
notice giving opportunity to defend himself. It cannot be a function assigned to a Minister inasmuch
as office of the Minister is political in nature and that of the Secretary to the State Government is
apolitical. Since the issue is of removal of an elected representative and not leading to any policy
decision, the same is required to be exercised by apolitical person, who is free from all bias and
prejudices. Therefore, in the context of Section 25(5) of the Act, the powers of the Government are
not required to be exercised by the Minister-in-Charge as the Rules have no applicability in relation
to removal of a member inasmuch as it does not deal with executive power of the State.
30. In respect of the second question, this Court, in a writ application, had directed the Principal
Secretary, Urban Development and Housing Department, Government of Bihar, to consider the
petition filed by the complainant and dispose of the same in accordance with law. It is in pursuance
of this direction that the Principal Secretary has passed an order after granting opportunity of
hearing to the appellant. But before issuing the order, he has sought the approval from the
Minister-in-Charge on 19.10.2015. The Minister-in-Charge approved proposal to issue orders on
29.10.2015. It is thereafter that the impugned order has been issued.
31. Rule 22 of the Rules empowers the Minister to Patna High Court LPA No.2294 of 2015 dt.
22-06-2016 21 /22 arrange, by way of standing order, with the Principal Secretary concerned as to
what matters or classes of matters are to be brought to his notice. Therefore, even if the decision was
required to be taken by the Minister in terms of Rules 21 and 22 of the Rules, the fact remains that
once the Minister had approved the decision of the Principal Secretary, it was an approval in terms
of Rule 22 of the Rules. The standing orders are required to be issued in a class of cases to bring
certainty to the affairs of the Department; but in an individual case, the approval of the Minister
would mean delegation to the Principal Secretary and, thus, there is compliance of the Rules as well.
Though the Rules have been held to be mandatory, the fact remains that the decision approving an
order passed by the Principal Secretary by the Minister does not contradict any of the provisions of
the Rules; rather, it supplements such Rules. It is well settled that there cannot be any action
contradictory to the Rules, but the action can always be supplemented. Therefore, approval by the
Minister of an order passed by the Principal Secretary complies with the rigours of the Rules as well
and. therefore, in either situation, we find that the order of the learned Single Bench is not
sustainable.
32. Another argument, which needs to be noticed is that Roop Narayan has not objected to the
consideration of the show cause notice by the Principal Secretary. He has consented to the exercise
of Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 22 /22 jurisdiction by him. Had he
objected at that time, the Principal Secretary, who was acting in terms of the orders of this Court,
could have taken a decision to refer the complaint to Minister-in-Charge. Having failed to raise
Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016
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objection at the time of hearing of the show- cause notice before the Principal Secretary, Roop
Narayan is estopped to dispute the jurisdiction of the Principal Secretary in passing the order of
appellant's removal from the post of Deputy Chief Councillor-cum-Deputy Mayor of the Patna
Municipal Corporation.
33. Consequently, the Letters Patent Appeal is allowed and the order, under appeal, passed by the
learned Single Bench, is hereby set aside and the writ application is dismissed.
(Hemant Gupta, J) I. A. Ansari, ACJ :
I agree.
(I. A. Ansari, ACJ) P.K.P.
N.A.F.R.
U
Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016
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