1. The writ petition is preferred by the Panchayat, being aggrieved by the interference of the 2nd respondent with the powers conferred under Article 243G of the Constitution of India pursuant to the 73rd amendment to the Constitution in year 1992, by issuing Exts.P6 and P7.

2. It is the case of the petitioner that, as part of decentralisation of powers pursuant to the 73rd amendment to the Constitution in the year 1992, vast powers were transferred to the local bodies. The Kerala Panchayat Raj Act, 1994 (for short ‘the Act’) was also amended to that tune. As per Article 243G, Panchayats were endowed with such powers and authority as may be necessary to enable them to function as institutions of self government. For that purpose, laws were enacted for the devolution of powers and responsibilities upon the Panchayats at the appropriate level.

3. Accordingly, Ext.P1 was enacted and the provisions were incorporated by Amendment in the Act to enable the Government to lend the services of staffs and other paraphernalia of various departments to the local bodies for the better administration and governance. One of the major reforms was introduced by the incorporation of Section 181 of the Act.

4. As per the said provision, particularly, sub clause (1), the Government is empowered to lend the service of their officers and employees to the Panchayat. The full control and supervision over such employees were given to the Panchayat. As per sub clause (2) of Section 181, the Panchayat has been given powers to the extent of even taking disciplinary proceedings, including the imposition of minor punishment by the President of the Panchayat. Sub clauses (4) & (5) further stipulate that the employees whose services were lent to the Government by the Panchayat shall, in addition to their normal function, perform other related functions delegated to them by the Panchayat and shall be responsible for executing works, including the implementation of any scheme, project, or plan of the Government which are not assigned or delegated to the Panchayat under the Act or any other law.

5. As this is the mandate of the Statute, it is contended that consequential orders were passed by the Government. This is evident from Appendix V of Ext.P1, wherein the details of the institutions handed over under Article 243G are mentioned. The first Department so handed over is the Krishi Bhavan under the Agriculture Department of the particular place.

6. In the present case, the Government formulated a scheme named the “Life Mission Scheme”, aimed at providing residential houses to the homeless and landless. The said scheme is an integrated one intended to be implemented through the Grama Panchayats. In the case of Panchayats, the last date provided for the implementation of the scheme was 20.08.2017 for the finalisation of the beneficiary list.

7. Accordingly, a preliminary survey was conducted through Kudumbasree units and, based on the same, a draft list was published. For the purpose of scrutinising the said list, a scrutiny/appellate committee was constituted under the leadership of the President and the members of the Panchayat. For the purpose of scrutiny, field visits were essential and, for that purpose, the clerical staff of the Panchayat along with the staff of other departments were deployed. In this regard, the District Collector issued an order dated 07.06.2017, as evident from Ext.P2, wherein the third person mentioned is the Agricultural Assistant.

8. In tune with the said order, the Panchayat issued an order dated 27.07.2017 deputing ten employees and assigning work to be undertaken in the 23 wards of the Panchayat, as seen from Ext.P3, since there were 557 applications. However, the issue arose when the 7th respondent, who was the Agricultural Assistant of Krishi Bhavan, Kanjirappally, refused to carry out the functions assigned to him. The same was intimated to the District Collector as per Ext.P4.

9. Simultaneously, by invoking the powers under Section 181(2) of the Act, a show cause notice was issued to the 7th respondent. The same was replied to by the 6th respondent by way of a covering letter stating that, by orders dated 29.04.2017 and 14.08.2017 issued by the 2nd respondent, the officers of the Agriculture Department need not comply with the directions of the Panchayat in connection with non- agricultural duties. It is under these circumstances that the present writ petition has been preferred challenging the same, contending that it violates Articles 162 and 243G of the Constitution of India and Section 181(1), (4) and (5) of the Act, and thereby challenging Exts. P6 and P7 orders issued by the 2nd respondent.

10. Moreover, it is contended that Exts.P6 and P7 orders are ultravires of the powers exercised by the Governor as per Ext.P1. It is also contended that the issuance of Ext.P6 and P7 by an authority subordinate to the authority that issued Ext.P1 has prevented the Panchayat from exercising the functions and powers endowed upon it by the Constitution.

11. In contravention of these contentions, the 1st respondent has filed a counter affidavit wherein it is contended that, as per Section 181, the Government is empowered to lend the services of Government officers and employees to the Panchayat. Sub clause (1) of Section 181 provides that, subject to such terms and conditions as may be prescribed the Government shall lend the services of Government officers and employees to the Panchayat as may be necessary for the implementation of any scheme, project or plan assigned or delegated to the Panchayats under the Act. It is admitted that full control and supervision over the institutions and employees so transferred to the Panchayat rest with the Panchayat concerned. Even sub-clause (2) provides for disciplinary proceedings against such employees by the President of the Panachyat for minor punishments. Sub-clauses (4) and (5) confer the duties of such Government servants whose services are lent to the Panchayat.

12. Ext.P1 was issued in conformity with the powers conferred on the Government under Sections 166 (6), 167(1), 172(5) and 173(5) of the Act. It is also clarified in Ext.P1 that further orders would be issued in that regard with respect to the terms and conditions for lending the services of Government  officers  and  employees  to  the  Panchayat.

13. Accordingly, Ext.R1(a) was issued, whereby a total of 1302 posts of clerks were deployed to the Local Self- Government Institutions in various departments, out of which 337 were from the Agriculture Department. Accordingly, one post of clerk was allotted as an additional post to the Village Panchayats. With respect to such staff, it was clarified that the Panchayat would have disciplinary control over them, as well as the authority to sanction casual leave, and that applications for other kinds of leave would be routed through the Panchayat.

14. It is further clarified in Ext.R1(a) that the staff so deployed to the said posts would be selected based on the options exercised by such staff of the Agriculture Department, and that the tenure of such deployment would be for three years. In this regard, further notification would be issued for the deployment of clerks so identified. After completion of the said three-year period, they would be returned to their original cadre in the parent department. However, as evident from Ext.R1(b), it is contended that the deployment of the staff of the Agriculture Department was for a period of two years.

15. It is further contended that only ministerial employees, such as clerks, were deployed from the Agriculture Department, and that the technical employees of the department, namely Agricultural Assistants and Agricultural Officers, have not so far been deployed by the Government to the Local Self Government Institutions. As per the provisions of Section 181 of the Act, subject to the terms and conditions prescribed, the Government shall lend the services of Government officers and employees to the Panchayat for the implementation of any scheme, project, or plan assigned or delegated to the Panchayat under the Act.

16. In the present case, no Agricultural Assistants or Agricultural Officers of the Agriculture Department were lent to the Panchayat for utilising their services. The officers whose services were lent to the Local Self Government Institutions have been specifically mentioned by name. Only the ministerial staff of the Agriculture Department were lent to the service of the Panchayat.

17. It is further contended that, subject to certain terms and conditions, the services of certain staff were lent to the Panchayat, over whom the Panchayat was given full control and supervision. Such employees shall, in addition to their normal functions, perform other functions delegated by the Panchayat under Section 184 of the Act.

 18. By Ext.R1(c), the Secretary to Government, Agriculture Department and Parliamentary Affairs, issued a communication to all District Collectors, on the direction of the Minister for Agriculture, Animal Husbandry, and Parliamentary Affairs, stating that the staff of the Agriculture Department should not be diverted for any work other than election and census duties, and directing strict compliance with the said instruction.

19. The counsel appearing for the 7th respondent also contended in tune with the submissions made by the learned Government Pleader. Moreover, by I.A. No. 19458 of 2017, the Agricultural Assistants’ Association as well as the President of the said Association sought to be impleaded as additional respondents, which was allowed on the date of hearing. However, the contentions raised by them need not be addressed at this stage, though an attempt was made to justify the action of the 2nd respondent.

20. I have heard Sri.C.S.Manilal, the learned counsel appearing for the petitioner, Sri.Y. Jaffer Khan, the learned Senior Government Pleader for the Official respondents, Sri. M.Jayakrishnan, the learned counsel appearing for the 7th respondent, and also Smt. N.Deepa, the learned counsel appearing for the additional respondents impleaded.

21. It is an undisputed fact that, by the 73rd Amendment to the Constitution, vast powers were endowed upon the Panchayats for the purpose of decentralisation of powers. For the devolution of such powers and responsibilities upon the Panchayats at the appropriate level, additional manpower is required. For that purpose, Section 181 of the Act provides power to the Government to lend the services of its officers and employees to the Panchayat. In this regard, Ext.P1 was issued, wherein the Agriculture Department is also mentioned in Appendix V to Ext.P1.

22. As stated in Ext.P1, consequential orders were issued as per Ext.R1(a), whereby the services of 1302 posts of clerks were offered to the Panchayats, out of which 337 were from the Agriculture Department. Further orders were to be issued for the deployment of such staff based on the options exercised by them. However, on a detailed examination of Ext.R1(b), it could not be found that any such deployment was made to the petitioner Panchayat. That itself indicates that the Panchayat was denied the benefit of the constitutional provisions as well as the provisions of the Act.

23. Moreover, it appears from Ext.R1(c) that the said action was taken on the dictate of the political masters. Furthermore, though Ext.P1 was issued by the Governor, Exts.P6 and P7 were issued by Secretaries who are subordinate authorities, with an overriding effect over Ext.P1, which cannot be permitted under any circumstances.

24. Though a detailed counter affidavit has been filed, it goes far beyond the explanations given in the impugned orders, namely Exts.P6 and P7. This is contrary to the settled principles laid down by the Apex Court in Mohinder Singh Gill v. The Chief Election Commissioner (AIR 1978 SC 851), wherein it has been held that an authority cannot supplement or improve the reasons stated in the impugned order through affidavits.

25. Article 166 of the Constitution of India is not a mere procedural formality; it is a fundamental requirement of the Rule of Law. Clause (1) mandates that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Clause (2) further stipulates that orders and instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules made by the Governor. When an order is so issued and authenticated, it represents the collective decision of the State Government. It is the final, crystallized expression of executive will, intended to have binding legal effect on both the administration and the citizen.

26. It is a settled principle of administrative jurisprudence that “what is done by a formal Government Order can only be undone or modified by another formal Government Order.” Where an order has been passed under the authority of Article 166, it acquires a character of finality and public trust. If such an order is sought to be varied, modified, or diluted by way of a mere inter-departmental communication—such as a letter or memorandum between a Secretary to the Government and a Departmental Head as evident in Exts.P6 and P7—such an action is a Constitutional Anathema for the following reasons:

                  1. Lack of Competence: A Secretary, acting in a departmental capacity, lacks the constitutional competence to override an order issued in the name of the Governor.

                  2. Violation of the Mirror Image Rule: Any modification of a statutory or constitutional instrument must satisfy the same rigorous procedural requirements (authentication and expression in the Governor's name) as the original instrument.

                  3. Subversion of Transparency: An Article 166 order is a public document; an inter-departmental note is a "hidden" administrative act. Allowing the latter to supersede the former invites arbitrariness and maladministration, both of which are "anathema" to Article 14 of the Constitution.

                  The attempt to vary a formal Government Order through informal correspondence is a legal nullity. It bypasses the Council of Ministers, ignores the Governor's constitutional role, and replaces the "Rule of Law" with the "Rule of Personnel." Such a practice is, in the strictest sense, a constitutional anathema and must be struck down as void ab initio.

27. The term "Constitutional Anathema" denotes a practice or act that is so fundamentally repugnant to the constitutional  scheme  that  it  cannot  be  tolerated  in  a democratic society governed by a written Constitution. It refers to an existential violation of the "Basic Structure" of administrative law—specifically, the principle that the government must act through authorized channels and not through the whims of individual officers. To permit a subordinate authority to bypass the formal, solemn mandates of the Constitution is not merely a "procedural irregularity"; it is a subversion of the constitutional order itself.

28. In view of the above observations on the legal position, I find no reason to sustain Exts.P6 and P7. Accordingly, the impugned orders are set aside. However, the setting aside of the said orders will not preclude the 1st respondent from issuing appropriate orders for deployment in tune with the requirements of the Grama Panchayats as a follow-up to Ext.P1, particularly in view of the lacuna pointed out in Ext.R1(b).

                  Furthermore, there will be a strict direction to the 1st respondent to issue a mandate that the orders passed under Article 166 of the Constitution shall not be overturned or altered in any manner not contemplated under Article 166. For that purpose, fresh orders shall be passed cautioning the officials to desist from such practices. The compliance shall be reported. Accordingly, the writ petition is disposed of.