B.D. Agrawal, J. - (1.) THE short question at this stage is whether prima facie the order of the State Government dated June 30, 1984 which is Annexure '8' to the Writ Petition is under the authority of law and, if not, its effect. The dispute pertains to the management of Sakaldiha L.T., Training College, which is admittedly privately owned and run. It is recognised by the State Government in the Education Department, but is unaided. Sakaldiha L.T. Training College (which is the petitioner No. 1) Samiti was, it appears, registered under the Societies Registration Act. The registration was got renewed for certain period. The Sakaldiha L.T. Training College Shiksha Samiti, Sakaldiha came in between and this was registered under the Societies Registration Act. Against this there was dispute raised by the Sakaldiha L.T. Training College Samiti which was referred by the Registrar to the Prescribed Authority, under Section 25 of the Societies Registration Act. That is under challenge at the instance of petitioner No. 1 in another writ petition. According to petitioner No. 1, they are in effective control over the affairs of the management of the institution concerned. This is refuted for the respondents No. 5 to 12. On June 30, 1984 the State Government issued a letter addressed to the Director of Education, whereby approval was accorded to the appointment of respondents Nos. 5 to 12 as selected by the Sakaldiha L.T. Training College Samiti as teachers; it also provides that the construction of the Selection Committee be and the selection of teachers shall in future be made in accordance with the departmental rules. The validity of this direction of the State Government is under challenge in the present. I have heard Sri S.P. Gupta assisted by Sri V.M. Sahai appearing for the petitioners and Sri R.N. Singh, who appeared for the respondents.
(2.) THE contention for the petitioners primarily is that Article 162 of the Constitution does not, in the absence of any Act, Rules or Regulations, cover the directions contained in the impugned order which tend to operate to their prejudice. The submission on the other side is that the order falls within the executive powers of the State Government under Article 162. The executive power connotes ordinarily, it has been said, the residue of governmental functions that remain after legislative and judicial functions are taken away. The executive may function despite there being no law already in existence. It would not be correct to say that the powers of the executive are limited merely to the carrying out of the laws. In a welfare State the function of executive are ever widening which cover within their ambit various aspects of social and economic activities. This however is equally settled that all executive action which operates to the prejudice of any person must have the authority of law to support it. If the executive action is such, in other words, that it encroaches upon private rights, the support of law is essential. Mere reference in that event to Article 162 of the Constitution does not help as Articles 73 and 162 are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other rather than with the validity of the executive action vide Ram Jawaya Kanpur, and others v. State of Punjab : A.I.R. 1955 S.C. 549. The executive action therein was found not to infringe any fundamental right of the petitioners and therefore it was upheld even though there was no law on the subject pre -existing.
(3.) THE principle enunciated in the case of J. Cajee : (1961) 1 S.C.R. 750 also was that "where executive power infringes upon the rights of citizens it will have to be backed by an appropriate law". The right concerned need not necessarily be fundamental right; it may even be a common law right. This is made clearer still in State of M.P. and another v. Thakur Bharat Singh : A.I.R. 1967 S.C. 1170. At page 1174 it was observed: Every act done by the Government or by its Officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.;