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TMI Blog1970 (2) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 s. 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 23(A) 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. Section 68(C) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have allocated any business to a Secretary. Hence in making rule 23(A), the Governor exceeded the powers -conferred on him under Art. 166(3). 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 D.M.K. 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 D.M.K. 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 23(A) for the more convenient discharge of the business. On behalf of the government, it was further urged that Art. 166(3) has two, parts namely (1) rules for the more convenient transaction of the business of the government of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions 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 23(A) to which reference has already been made. The first question that has to be decided is whether the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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-Art. (3) of Art. 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 v. State of U.P.( [1962] Sup. (2) S. C. R. p .76.) : this Court repelling the contention that the opinion formed by an official of the government does not -fulfil the requirements of s. 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 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 s. 68 (C) of the Act, and that, there was nothing illegal in ..... 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