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Judgment
T.NK Singh, J.—Being aggrieved by the judgment and order of the learned Single Judge dated 12.11.2008 passed in WP(C) No.741 of 2008 filed by the respondents/writ petitioners wherein and whereunder the impugned order/communication of the State Government, Manipur being No.2/8(33)/2003H (Security) Imphal 4th September, 2008 directing the Director General of Police (DGP) Manipur to remove all the family lines from "Kangla" immediately, etc., had been quashed, the appellants/respondents in WP(C) No.741 of 2008 filed the present writ appeal.
Heard Mr. N. Kotishwar, learned Advocate General Manipur assisted by Mr. Rajkishore Singh, learned counsel appearing for the appellants as well as Mr. Kh. Mani, learned counsel appearing for the respondents/writ petitioners.
The short factual matrix, leading to the filing of WP(C) No.741 of 2008, sufficient for deciding the present appeal is recapitulated. The writ petitioners, 126 in number, are the wives of the personnel of 1st Indian Reserve Battalion (''1st I.R.B.''). 11 Indian Reserve Battalion was redesignated as 1st I.R.B. In 1996, August the DGP Manipur passed an order dated 21.8.1996 for shifting the erstwhile 11th I.R.B. (later on redesignated as 1st I.R.B.) temporarily to Kangla until further orders and that the Commandant will be responsible for the security of the area handed over to the Government of Manipur by the Assam Rifles from 7.8.1996. Pursuant to the said order of the D.G.P. dated 21.8.1996, 1st I.R.B. was temporarily shifted to Kangla and Commandant 1st I.R.B. allowed the personnel of the 1st I.R.B. to occupy family quarters inside the Kangla.
The respondents/writ petitioners, who are the wives of the personnel of 1st I.R.B. and their children, were allowed to reside inside the Kangla under different orders of the Commandant for allotment of the family quarters issued in between 24.4.2001 and 1.8.2005. It is the clear case of the respondents/writ petitioners that they were occupying the family quarters of the 1st I.R.B. temporarily inside the Kangla, until further orders and they themselves admit that allotment of the family quarters to their husbands located inside the Kangla was only temporary arrangement until further orders inasmuch as shifting of the HQs of 11 I.R.B. (1st I.R.B.) to Kangla under the said order of the D.G.P. dated 21.8.1996 was only temporary arrangement.
A quick curiosity of the said order of the D.G.P. dated 21.8.1996 is required for deciding the matter in issue in the present writ petition and for convenience it is reproduced hereunder :
"Orders by the Director General of Police, Manipur Imphal, the 21st August, 1996.
No.: The Head Quarters of the Commandant, 11 Indian Reserve Battalion is temporarily shifted to KANGLA till further orders. Commandant, 11 I.R.B. will be responsible for the security of the areas handed over to the Government of Manipur by Assam Rifles from 17th August, 1996. Commandant, 11 I.R.B. to take immediate action and to report compliance immediately.
Sd/
Director General of Police,
Manipur, Imphal."
It is the further case of the respondents/writ petitioners that the writ petitioners occupying the family quarters inside the Kangla have their children studying in the educational institutions located near the Kangla, that personnel of the 1st I.R.B. attached to the police Commando had been used by the Government of Manipur in maintaining law and order as well as counter insurgency operations and that they were not ordinary persons who can stay or live along with their families at any place where there is no security coverage; and that their quarters inside the Kangla is very safe and also that the inconvenience may be caused to the respondents/writ petitioners as regards education of their school going children when they vacate their family quarters located inside the Kangla for any other place outside Kangla in the middle of year before the end of academic sessions of the schools.
To the utter surprise of the respondents/writ petitioners, the Commandant 1st I.R.B. issued an order dated 5.9.2010 directing the personnel of 1st I.R.B. occupying the family quarters to vacate their respective quarters within 10.9.2008 with the warning that disciplinary action well be taken, against them if they fail to vacate their family quarters within the stipulated period. The respondents/writ petitioners came to know on further enquiry that the order for vacating of family quarters of Kangla issued by the Commandant 1st I.R.B. was because of the order/letter of the Government of Manipur, i.e., the letter of the Under Secretary (Home) Government of Manipur dated 4.9.2008 to the D.G.P. Manipur pursuant to a direction of the hon''ble Chief Minister of Manipur to (i) remove all the Family Lines from Kangla; (ii) Sanitization of Bapupara Mahabali and old Lambulane at regular intervals, (iii) Frequent conduct of search/combing operation in Greater Imphal area and in the two jails namely, Sajiwa and Central Jail, (iv) Maintenance of 100% foolproof security in Imphal Municipal area. Being aggrieved by the said order of the Commandant, 1st I.R.B. dated 5.9.2008 and the said order/letter of the Government of Manipur dated 4.9.2008, the respondents/writ petitioners filed writ petition, i.e., WP(C) No.74l of 2008 for quashing the same only on the, inter alia, grounds that (i) their children were studying in the Educational Institutes located near Kangla; (ii) their husbands, i.e. personnel of the 1st I.R.B. have security problem and the Kangla is a very safe area; (iii) their children would face problem if the petitioners were to vacate family quarters located inside the Kangla; (iv) their husbands would face inevitable grave danger if they shift their quarters to other place where there is no adequate security arrangement.
The appellants/respondents in the writ petition filed affidavit inopposition wherein it is stated that after handing over of the entire Kangla Fort (where the HQs of the 1st I.R.B. was temporarily located) by the Government of India to the Government of Manipur and vacation of the same by the Assam Rifles, the Kangla Fort was placed under the administrative control of the Kangla Board which was constituted by the Government of Manipur under the provisions of the Kangla Fort Ordinance, 2004 (later enacted as Kangla Fort Act, 2004) vide Notification No.2/44/04LEG/L dated 20.11.2004. Section 12 of the Act 2004 (Kangla Fort Act, 2004) provides that Kangla Fort Board shall make necessary arrangement for preservation and protection of Kangla Fort in recognition of sanctity of the historical Monument within the Kangla Fort. After constitution of the Kangla Fort Board, the Board in its meeting held on 27.11.2004 had decided to relocate the 1st I.R.B. earlier posted in the eastern side of the Kangla temporarily to the southern part of the western side of Kangla. There was no decision by the Kangla Fort Board to allow the personnel of the 1st I.R.B. to keep their family members at the security barrack inside the Kangla.
It is also stated in the affidavitinopposition that the State Government, who is competent and appropriate authority had decided shifting of the HQs of the 1st I.R.B. temporarily located inside the Kangla to Churachandpur District located at Old CRPF campus measuring an area of 157 acres vide order of the Government of Manipur dated 8.6.2006. As the HQs of 1st I.R.B. had been shifted to the Churachandpur District located at Old CRPF campus, the honb''le Chief Minister, who is also Minister incharge of Home Department, in substantial compliance with the provisions of article 166 of the Constitution of India and the Rules of Business of the Government of Manipur had taken a decision to remove all the Family lines of the 1st I.R.B. located at Kangla immediately.
Pursuant to the said decision of the hon''ble Chief Minister of the Government of Manipur the impugned order/letter of the Government of Manipur dated 4.9.2008 had been issued directing the D.G.P. Manipur to remove all the Family Lines of the 1st I.R.B. from Kangla. Pursuant to the said order/letter of the Government of Manipur dated 4.9.2008, the Commandant 1st I.R.B. issued the impugned order dated 5.9.2008 directing the husbands of the writ petitioners, who were occupying the family lines inside the Kangla to vacate family lines within 10th September, 2008 failing which disciplinary action will be taken up against the husbands of the writ petitioners. In para 13 of the affidavitinopposition, the appellants/respondents had taken a specific plea that the respondents/writ petitioners, who are the wives of the personnel of the 1st I.R.B. on their own do not have the locus standi to file the writ petition inasmuch as the family quarters inside the Family Lines of the 1st I.R.B. temporarily located at Kangla were allotted to their husbands and their husbands who had been asked to vacate the family quarters under the impugned order have not approached this court for assailing the impugned order.
The learned Single Judge vide impugned judgment and order dated 12.11.2008, after making out a new case for the respondents/writ petitioners which was neither pleaded nor raised in the writ petition, held that the impugned order of the Government of Manipur, communication dated 4.9.2008 is only on intradepartmental communication and under any circumstance it cannot be treated as an order of the Government of Manipur so as to attract article 166 of the Constitution of India and on this score writ petition was allowed by quashing the impugned order of the Commandant, 1st I.R.B. dated 5.9.2008 and the impugned order/communication of the Government of Manipur dated 4.9.2008. Hence, the present writ appeal filed by the appellants/respondents in the writ petition.
This court, in order to enquire as to how the Government of Manipur had issued the said impugned order/communication dated 4.9.2008, directed the learned Advocate General Manipur to produce the relevant file of the Government of Manipur, Home Department. Accordingly, the learned Advocate General placed the file No.2/8(33)/2008H (Security) Government of Manipur, Home Department before this court for perusal. We also had carefully perused the file and clear that the hon''ble Chief Minister, who is incharge of the Home Department, Government of Manipur, in substantial compliance of the rules of business of the Government of Manipur had taken the decision to remove the Family Lines of the 1st I.R.B. from Kangla where it was located temporarily vide note/decision dated 2.9.2008 of the hon''ble Chief Minister in the said file. After taking the said decision by the Minister incharge of the Home Department, the Government of Manipur vide impugned order/letter dated 4.9.2008 directed the D.G.P. Manipur to remove all the family lines from Kangla immediately; and pursuant to the said order/communication of the Government of Manipur dated 4.9.2008, the Commandant 1st I.R.B. issued the impugned order dated 5.9.2008 directing the husbands (personnel of the 1st I.R.B.) of the writ petitioners to vacate the family quarters inside the Kangla.
At the very outset of hearing of the present appeal, the learned Advocate General appearing for the appellants strenuously contended that the writ petition, i.e., WP(C) No.741/2008 would have been dismissed by the learned Single Judge only on the score that the writ petitioners had no locus standi to file writ petition and also that the learned Single Judge while allowing the Writ Petition (C) No.741 of 2008, had not decided the important issue as to whether the respondents/writ petitioners have the locus standi to file writ petition having regards the specific plea raised by the appellants/respondents in the writ petition in para 13 of the affidavitinopposition filed by the appellants. Learned Advocate General, further, reiterated that the Family Lines of the 1st I.R.B. temporarily located at Kangla were allotted to the husbands of the writ petitioners and not to the writ petitioners and that the impugned order had been issued directing the husbands of the writ petitioners to vacate the Family Lines or the family quarters located inside the Kangla temporarily. In support of his contention the learned Advocate General had placed heavy reliance on the decision of the Apex court in Chairman & M.D., BPL WF Ltd. v. S.P. Gururaja, (2003) 8 SCC 567 (para 33) wherein the Apex Court held that locus standi of the respondent (of that case) ought to have been taken into consideration having regards to the specific plea raised in this behalf by the appellant herein. Since the present writ appeal is a continuation of the writ petition, point as to whether the writ petitioners had locus standi to file the writ petition could be considered at time of hearing the present appeal; and this point would have been decided by the learned Single Judge before entering into the merits of the writ petition, i.e., WP(C) No. 741 of 2008.
In the admitted fact discussed hereinabove, it would be clear, for which citation of case law is not required, that the writ petitioners had no locus standi to file the WP(C) No.741 of 2008 inasmuch as the family quarters and the family lines of the 1st I.R.B. located temporarily at Kangla were allotted to their husbands and the impugned orders were issued directing their husbands to vacate the Family quarters located inside the Kangla, but their husbands had not approached this court for assailing the impugned orders.
It is not the case of the respondents/writ petitioners in the writ petition that the impugned order of the Government of Manipur dated 4.9.2008 was not issued in compliance with the provisions of clauses (1) and (2) of article 166 of the Constitution of India inasmuch as the impugned order was not made and executed in the name of the Governor of Manipur nor raised this point in the course of hearing of WP(C) No.741 of 2008. This point as to whether the impugned order of the Government of Manipur was issued in compliance with the provisions of article 166 of the Constitution of India, was the one made out by the learned Single Judge in deciding the writ petition. It is well settled law that High Court cannot make out a case for adjudicating which was not even part of the pleading. It is not required to burden this court by citing several decisions of the Apex Court in this regard. But, it would be suffice to refer to a decision of the Apex Court in Secretary to the Government and Anr. v. M. Senthil Kumar, (2005) 3 SCC 451 wherein the Apex Court vide para 9 of the SCC held, obviously, the High Court could not have made out a case for adjudication which was not even part of the pleadings. In V.K. Majotra v. Union of India, (2003) 8 SCC 40 the Apex Court observed (SCC page 45 para 8) :
".....The counsel for the parties are right in submitting that the point on which the writ petition has been disposed of was not raised by the parties in their pleadings. The parties were not at issue on the point decided by the High Court."
The Apex Court in State of Maharashtra v. Jalgaon Municipal Council, (2003) 9 SCC 731 held, "in the absence of any challenge having been laid, the constitutional validity of the amendment cannot be gone into". This being the settled position of law, we are constrained to observe that the learned Single Judge had committed an error in taking up the said point which was neither raised by the parties nor pleaded by the respondents/writ petitioners in the writ petition while deciding the WP(C) No.741 of 2008 by passing the impugned order dated 12.11.2010. Since thelearned Single Judge had decided the issue as to whether the impugned order of the Government of Manipur dated 4.9.2008 is illegal only because of noncompliance with the requirement as provided in clauses (1) and (2) of article 166 of the Constitution of India even though not pleaded nor raised by the respondents/writ petitioners in the writ petition, we are constrained to decide this point.
On bare perusal of the impugned order of the Government of Manipur dated 4.9.2008, it is clear that the impugned order was not made and executed in the name of the Governor of Manipur. As early as 1952 the Apex Court had clearly held that when an order of the Government in question is defective in form, it is open to the Government to prove that such an order is an order which had been validly made.
In Dattatraya Moreshwar v. State of Bombay, AIR 1952 SCC 181 and others it is the case of the petitioner that the order of confirmation of the detention order is not proper and legal. In that it is not expressed to be made in the name of the Governor as required by article 166(1) of the Constitution of India. The Apex Court (Constitution Bench) in Dattatraya Moreshswar''s case (supra) held that strict compliance with the requirement of article 166 gives immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. However, noncompliance of the requirement of article 166 in issuing the order does not vitiate the order itself. The Government concerned may amply prove that such an order is a decision which has, in fact, been taken by the appropriate Government by producing the records. Relevant portion of para 7 of the AIR in Dattatraya Moreshwar''s case (supra) read as follows :
"7..............................................Strict compliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. The position, therefore, is that while the Preventive Detention Act requires an executive decision; call it an order or an executive action, for the confirmation of an order of detention under section 11(1) that Act does not itself prescribe any particular form of expression of that executive decision. Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under section 11(1). That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circumstances of this case, no breach of the procedure established by law and the present detention of the petitioner cannot be called in question " (emphasis supplied)
The Constitution Bench of the Apex Court in Gullapali Naresrao. and Ors. v. Andhra Pradesh Road Transport Corporation and Anr., AIR 1959 SC 308 (para 28 of the AIR) held that rule of business of the Government prescribes only a duty cast on the executive body and authority to conform the norms of procedure in performing some acts in exercise of its executive power. The procedural rules made by the Governor for the convenience transaction of business of the State Government apply also to quasijudicial acts, provided those rules conform to the principles of judicial procedures.
The Apex Court in Major E. G. Barsay v. Harnam Singh Ram Singh Kochhar and Anr., AIR 1961 SC 1762 held that article 77(1) or article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of article 77(1) it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the President, it only authenticated in the manner prescribed in article 22(2) there is an irrefutable presumption that order is made by the President. Para 25 of the AIR in Major E.G. Barsay''s case (supra) read as under :
"25...........Adverting to this contention, Bose, J, speaking for the court, said at p.678 (of SCR): (at p.318 of AIR):
"In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there."
This judgment lays down that we must look at the substance of the order. On a construction of the order that was in question in that case, having regard to the definition of "State Government" in the General Clauses Act and the concluding words, "By order of the Governor of Bombay", the court came to the conclusion that the order was expressed to have been taken in the name of the Governor. In Dattatraya Moreshwar v. State of Bombay, 1952 SCR 612, AIR 1952 SC 181 an order made under the Preventive Detention Act, 1950 was questioned on the ground that it did not comply with the provisions of article 166(1) of the Constitution. There the order was made in the name of the Government and was signed by the Kharkar for the Secretary to the Government of Bombay, Home Department, Das, J, as he then was, after referring to the decision of the Federal Court in J.K. Gas Plant Manufacturing Co. (Rampur)Ltd. v. Emperor, 1947FCR 141; AIR 1947FC 38 observed at p. 625 (of SCR): (at p. 185 of AIR), thus :
"Strict compliance with the requirements of article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This however, does not vitiate the order itself."
The learned Judge came to the above conclusion on the ground that the provisions of the said article are only directory and not mandatory. This decision was followed by this court in Joseph John v. State of TravancoreCochin, (1955) 1 SCR 1011, AIR 1955 SC 160. There the "showcause notice" issued under article 311 of the Constitution was impugned on the ground that it was contrary to the provisions of article 166 thereof. The notice was issued on behalf of the Government and was signed by the Chief Secretary to the Government, who had under the rules of business framed by the Rajpramukh the charge of the portfolio of "service and appointments" at the Secretariat level in the State. This court held that the said notice was issued in substantial compliance with the directory provisions of article 166 of the Constitution. The latest decision on the point is that in Ghaio Mali & Sons v. State of Delhi, 1959 SCR 1424; AIR 1959 SC 65. There the question was whether the communication issued by the Under Secretary, Finance, Government of Delhi State, had complied with the provisions of article 166 of the Constitution. This court held that it did not comply with the provisions of article 166 of the Constitution and also found that the said order was not, as a matter of fact, made by the Chief Commissioner. When the decision in Dattatraya Moreshwar Pangarkar''s case (supra) was cited this court observed at p. 1439 (of SCR): at p. 71 of AIR, thus :
"In that case there was ample evidence on the record to prove that a decision had in fact been taken by the appropriate authority and the infirmity in the form of the authentication did not. vitiate the order but only meant that the presumption could not be availed of by the State."
The foregoing decisions authoritatively settled the true interpretation of the provisions of article 166 of the Constitution. Shortly stated, the legal position is this. Article 166(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of article 166(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the Governor and is duly authenticated in the manner prescribed in rule (2) of the said article, there is an irrebuttable presumption that the order or instrument is made or executed by the Governor. Any noncompliance with the provisions of the said rule does not invalidate the order, but it precludes the drawing of any such irrebutable presumption. This does not prevent any party from proving by other evidence that as a matter of fact the order has been made by the appropriate authority. Article 77 which relates to conduct of business of the Government of India is couched in terms similar to those in article 166 and the same principles must Govern the interpretation of that provision." (emphasis supplied)
The Constitution Bench of the Apex Court in Bachihittar Singh v. State of Punjab, AIR 1963 SC 395 through Justice Modholkar, J held that before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of article 166 of the Constitution, it has to be communicated. The Constitution requires that action must be taken by the authority concerned in the name of the Governor. Till this formality is observed, it is not that the action can be regarded as that of the State. The decision of the Constitution Bench in. Bachihittar Singh''s case (supra) had been considered by the subsequent Constitution Bench of the Apex Court in R. Chitralekha and Anr. v. State of Mysore, AIR 1964 SC 1823. There is a clear distinction between "decision" of the executive and "expression" of the decision so taken. Usually executive decision is taken on the office file by way of rioting or endorsement made by the appropriate Minister or Officers. If every executive decision has to be given a formal expression, the whole machinery, learned Attorney General contends, will be brought to a standstill. The Constitution Bench in Dattatraya Moreshwar''s case (supra) held that every executive decision needs not be formally expressed and this is particularly so when one superior officer directs the subordinate to act or forebear from acting in a particular way; but when executive decision affects the outsider is required to be officially notified or to be communicated so normally to be expressed in the form mentioned in article 166(1) of the Constitution.
In the present case the impugned order/communication dated 4.9.2008, is the direction to D.G. P. Manipur to remove all the Family lines/quarters of the 1st I.R.B. temporarily located at Kangla. The direction so made by the Chief Minister to the D.G.P. Manipur was made known or communicated to the husbands of the writ petitioners through the impugned order dated 5.9.2008 issued by the Commandant 1st I.R.B.
The Constitution Bench of the Apex Court in R. Chitralekha''s case (supra), as per majority, held that the provisions of article 166 of the Constitution of India are only directory not mandatory in character and if they were not complied with it could still be established as a question of fact that the impugned order was issued in fact by the State Government. In Chitralekha''s case (supra) the petitioner did not deny the clear averments in the counter affidavit that the Government gave the direction in question. The concerned order of the Government alleged to be invalid because of the noncompliance of the provisions of article 166 in Chitralekha''s case (supra) which read as follows :
"Sir,
Sub. : Award of marks for the "interview" of the candidates seeking admission to Engineering Colleges and Technical Institutes.
With reference to your letter No.AAS.4.ADW/63/2491, dated the 25th June, 1963, on the subject mentioned above, I am directed to state that Government have decided that 25% of the maximum marks.......
Yours faithfully,
Sd/
S. Narasappa,
Under secretary to the Government
Education Department."
The Apex Court held that the said order cannot be invalid only because it was not complied with all the requirements as provided in article 166 of the Constitution of India. In Chitralekha''s case (supra) the view of Justice Mudholkar, who authored the decision of the Constitution Bench in Bachhittar Singh''s case (supra) is the minority view. According to Justice Madholkar, J the said letter/order communicated to the Selection Board without compliance with the provisions as contemplated in clauses (1) and (2) of article 166 of the Constitution of India is not an order of the Government inasmuch as essence of article 166 were that executive action of a State shall be expressed to be taken in the name of the Governor. The majority view in Chitralekha''s case (supra) read as follows (para 26):
"26. This is nothing more than a communication emanating from a Secretary to the Government of Mysore to the Chairman, and addressed to the Selection Committee and Dean, Medical College, Mysore. It is, thus, not an order of the kind contemplated by article 166 of the Constitution. That article lays down that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor and that the orders made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules made by the Governor. It further provides that where an order is authenticated in the manner prescribed in the rules made by the Governor, its validity shall not be called in question on the ground that it is not an order made by the Governor. The essence of article 166, however, is that executive action of the Government of a State shall be expressed to be taken in the name of the Governor. The document placed before us does not show the action, to wit, prescribing an interview, allotting marks for it and laying down the criteria to be observed by the Selection Committee in allotting marks even purports to emanate from the Governor. All that the Secretary, on whose behalf some Under Secretary has signed; says is that he is "directed to state" that the Government has taken a certain decision. This document, thus, is not that decision. What that decision is how it is worded, when it was taken and whether it is expressed in the name of the Governor, we do not know. The cases in which it has been held by this court that the provisions of article 166(2) are directory and not mandatory are of no help because here what we are concerned with is about the actual existence of an order made by the Governor. No doubt, where there is merely noncompliance with the provisions of article 166(1) or of the rules framed by the Governor in the matter of authentication of an order, evidence aliunde could be led to establish that in fact an order was made by the Governor. This, clearly, does not mean that the existence of a Government Order need not be established."
The Apex Court in M.V. Srinivasa and Others v. State of Andhra Pradesh, (1997) 6 589 agreed with the finding of the State Administrative tribunal after examining the original file that "decision relating to withdrawal of immunity was taken by the Minister of the Department who was empowered under the rules of business to such order. As such even if the order/letter is not expressed in the name of the Governor, it cannot be invalid for it was not expressed in the name of the Governor".
In the instant case, on perusal of the file No.2/8(33)/2008H(Security) Government of Manipur, Home Department, it is crystal clear that the impugned order/letter of the Government of Manipur dated 4.9.2008 is the decision taken by the hon''ble Minister, who is incharge of the Home Department and also empowered under the rules of business of the Government of Manipur to issue such order. After having careful discussion of the decisions of the Apex Court hereinabove and also on perusal of the file, we are of the considered view that the impugned order dated 4.9.2008 is the order of the Government of Manipur and it cannot be invalid only the ground that it was not expressed in the name of the Governor in the given case more particularly the said order/letter is a direction by the hon''ble Chief Minister to his subordinate officer for which normally it is not even required to express or make in the name of the Governor more particularly in the fact of the present case. Accordingly, we are unable to persuade ourselves to accept the decision of the learned Single Judge in the impugned order and judgment dated 12.11.2008 that the said order/letter of the Government of Manipur dated 4.9.2008 is invalid for noncompliance of the requirement as provided under clauses (1) and (2) of article 166 of the Constitution of India.
For the foregoing discussion, we are constrained to interfere with the judgment and order of the learned Single Judge dated 12.11.2008 passed in WP(C) No.741 of 2008; accordingly, same is set aside. The writ appeal is allowed and in the result writ petition, i.e., WP(C) No.741 of 2008 is dismissed.