P.H. PAUL MANOJ PANDIANversusMR. P. VELDURAI

                         [2011] 5 S.C.R. 254


A                   P.H. PAUL MANOJ PANDIAN
                                   v.
                           MR. P. VELDURAI
                   (Civil Appeal No. 4129 of 2009)
                           APRIL 13, 2011
B
         [J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.]

         REPRESENTATION OF THE PEOPLE ACT, 1951

c         s. 9-A read with G.O. No. 4682 (PWD) dated 16.11.1951
    issued by the Government of Tamil Nadu - Disqualification
    for Government contracts - Election to Legislative Assembly
    - Candidate filing nomination papers - Objections that the
    candidate had subsisting contracts with the government, thus,
D   disqualified for filing nomination papers and contesting
    election - Overruled by Returning Officer - Candidate
    declared elected - Writ petition challenging the election on
    the ground of the said disqualification - Dismissed by High
    Court - Held : On true interpretation of the Government Order
    dated 16.11.1951 only the Chief Engineer was competent to
E   terminate the contracts and, therefore, the termination of the
    contracts by the Divisional Engineer, which was subsequently
    ratified by the Superintending Engineer, cannot be treated
    as valid termination of contracts - On the date of submission
    of nomination papers as well as on the date of scrutiny thereof,
F   the contracts entered into by the returned candidate with the
    Government were subsisting and, therefore, he was
    disqualified from filing the nomination papers and contesting
    the election - The returned candidate having incurred
    disqualification under the provisions of s. 9A of the Act, his
G   election will have to be declared as illegal - Accordingly, it is
    declared that the returned candidate had incurred
    disqualification uls. 9A of the Act and, therefore, his election
    from the Constituency in question is declared to be illegal,
    null and void - Constitution of India, 1950.
H                                  254
 P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI               255


    CONSTITUTION OF /NOIA, 1950                                  A
     Article 162 - Issuance of Government Orders/Circulars
- Extent of executive power of State - Explained - Held : In
the instant case, there was neither any enactment nor any
statutory rule nor any constitutional provision as to how the
                                                                 8
contractor, who has entered ·into contracts with the
Government, should be permitted to contest election, more
particularly, when a request is made by the contractor to
terminate his contracts so as to enable him to contest the
election - There is no manner of doubt that in this branch of
jurisdiction there was absence of statutory enactment,
                                                                 c
regulations and rules and, therefore, the Government had all
authority to issue Government Order dated November 16,
 1951 to fill up the gaps - Government of Tamil Nadu, public
 Works Department GO No. 4682 dated 16.11.1951 -
Representation of the People Act, 1951 - s.9-A                   D

     The appellant filed an election petition challenging
the election of the returned candidate, the respondent,
to the State Legislative Assembly, on the ground that on
the date of filing of nomination papers i.e. on 17.4.2006,       E
the respondent had subsisting contracts with the
Government and in the absence of termination of the said
contract in accordance with the Government Order dated
16.11.1951, he was disqualified for submitting nomination
papers and consequently, contesting the election. It was         F
the case of the election petitioner that he had filed
objection before Returning Officer, but he overruled the
same and accepted the nomination papers of the
respondent. The High Court dismissed the election
petition. Aggrieved, the election petitioner filed the appeal.   G

    Allowing the appeal, the Court

   HELD: 1.1 Normally, the Superintending Engineer
would be competent to terminate the contracts when
                                                                 H
    256     SUPREME COURT REPORTS           [2011] 5 S.C.R.


A breach of the terms and conditions is committed by a
  contractor. However, in the instant case, the Court finds
  that the contracts were to be brought to an abrupt end
  because the respondent was intending to contest the
  election. Such an eventuality was never contemplated
B under the contracts and the contracts entered into by
  the respondent with the Government could have been
  terminated only as per the terms and conditions
  stipulated in Government Order dated November 16, 1951.
  A reasonable reading of the stipulations and conditions
C mentioned in the said Government Order makes it evident
  that only the Chief Engineer was competent to terminate
  the_ existing contracts where the contractor was desirous
  of contesting election. It is wrong to say that an
  instruction had been issued to the Chief Engineer to see
D that another contractor was available as substitute to
  perform the remaining part of the contract without any
  loss to the Government and that the Order dated
  November 16, 1951 did not provide that an order of
  termination of a subsisting contract should be issued
E only when the Chief Engineer had accepted a person,
  who was available and was willing to enter into a contract
  on the same terms and conditions to which the existing
  contractor had agreed. [para 12 and 21] [277-B-D; 287-F-
    G]
F
      1.2 The evidence of the witnesses clearly indicates
  that the power to terminate the contract in terms of
  Government Order dated November 16, 1951 was only
  with the Chief Engineer and neither the Divisional
G Engineer was competent to terminate the contracts
  awarded to the respondent nor was the Superintending
  Engineer competent to ratify an order passed by the
  Divisional Engineer cancelling the contracts awarded to
  the respondent. The record nowhere shows that the
H contracts entered into between the respondent and the
  P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI          257


Superintending Engineer, were ever terminated by the         A
Chief Engineer in terms of Government Order dated
November 16, 1951 by passing an order. On a true
interpretation of the Government Order dated November
16, 1951, only the Chief Engineer was competent to
terminate the contracts and, therefore, the termination of   B
the contracts by the Divisional Engineer, which was
subsequently ratified by the Superintending Engineer,
cannot be treated as valid termination of contracts.
Therefore, the assertion made by the respondent that his
contracts were terminated by the Divisional Engineer by      C
passing an order, which was subsequently ratified by the
Superintending Engineer is of no avail. There is no
manner of doubt that the contracts entered into between
the Superintending Engineer, and the respondent were
not terminated as required by Government Order dated         D
November 16, 1951 and, therefore, it will have to be held
that they were subsisting on the date of filing of the
nomination papers by the respondent as well as on the
date on which those papers were scrutinized. [para 15]
[280-F-H; 281-A-B]                                           E

    ·1.3 One of the conditions to be fulfilled before
termination of the contract of a contractor, who was
desirous to contest election, was that he must offer a
substitute, who was willing to undertake unfinished work F
on the same terms and conditions but without causing
any loss to the Government. The former Chief Engineer,
who was examined in this case as PW-2, has, without,
mincing the words, stated that the contractor offered by
the respondent as substitute contractor was substituted G
in place of the respondent on June 1, 2006. It means that
the contracts could not have been terminated earlier than
June 1, 2006 and were subsisting at least as on June 1,
2006, which was the date beyond the last date of filing
                                                             H


                                           •
    258      SUPREME COURT REPORTS            [2011] 5 S.C.R.


A of the nomination papers and scrutiny thereof. Therefore,
   the finding recorded by the High Court that on the date
   of filing of the nomination the contractor was already
   substituted in place of the respondent is not borne out
   from the record of the case nor does the record show
B "that before June 1, 2006 the contracts were terminated
   by the authority contemplated under Government Order
   dated November 16, 1951. [para 16] [281-C-F]

         1.4 The Divisional Engineer at the relevant point of
c   time, has, in terms, mentioned that under Ext. C-12 it was
    noted that a sum of Rs.98,227/- payable to the
    respondent should be kept in the deposit and the
    contract should be permanently terminated seeking
    orders from the Superintending Engineer.. The record
0   further shows that on April 19, 2006 the Divisional
    Engineer had forwarded a letter to the Superintending
    Engineer mentioning inter alia that since the contract of
    the respondent was cancelled, the fourth and final list of
    approval was given to him and deposit amount of
E   Rs.2,02,341 was kept in kind-IV deposit. The Government
    Order dated November 16, 1951, clearly requires that no
    sum of money should remain payable to the contractor
    and nothing should remain liable to be supplied or done
    by the contractor. Keeping the amount of more than two
F   lakhs in kind-IV deposit can hardly be said to be
    compliance of clause 1 of the Government Order dated
    November 16, 1951. In fact, everything was required to
    be done by the Chief Engineer himself. There is nothing
    on record to show that the steps and/or actions, which
G   were taken by the Divisional Engineer, were ever ratified
    by the Chief Engineer except that the Chief Engineer had
    accepted the proposal of the Superintending Engineer
    to accept the substitute contractor. Thus, this Court finds
    that on the date of filing of nomination papers and
H
  P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI          259


scrutiny of the same, the respondent had not validly        A
terminated the contracts entered into by him with the
Government. [para 17] [282-A-F]
       2.1 The High Court has brushed aside the
  Government Order dated November 16, 1951 by stating 8
  that it was only an administrative instruction circulated
  to the Engineers (Highways) NABARD and Rural Roads
  for information and guidance, forgetting the important fact
  that in the last clause of the Government Order it is
  specifically mentioned that the instructions issued by the c
  said Government Order would also apply to the
  termination of the contracts under sjmilar circumstances
  entered into with the Public Works and Electricity
  Departments. Therefore, the High Court was wrong in
, holding that though Government Order dated November 0
  16, 1951 was an order by the Government, at best it must
  be construed as an administrative order for the guidance
  of the Engineers (Highways) NABARD and Rural Roads
  in various hierarchies. [para 18] [282-G-H; 283-A-B]
      2.2 Departmental circulars are a common form of E
 administrative document by which instructions are
 disseminated. Many such circulars are identified by serial
 numbers and published, and many of them contain
 general statement of policy. They are, therefore, of great
 importance to the public, giving much guidance about F
 governmental organization and the exercise of
 discretionary powers. In themselves they have no legal
 effect whatever, having no statutory authority. But they
 may be used as a vehicle in conveying instructions to
 which some statute gives legal force. It is now the G ·
 practice to publish circulars which are of any importance
 to the public and for a long time there has been no judicial
 criticism of the use made of them. [para 19] [283-C-E]

     2.3 Under Article 162 of the Constitution, the         H
   260      SUPREME COURT REPORTS             (2011] 5 S.C.R.


A executive power of the State extends to matters. with
  respect to which the State Legislature has power to make
  laws. Yet the limitations of the exercise of such executive
  power by the Government are two fold; first, if any Act
  or Law has been made by the State Legislature
B conferring any function on any other authority - in that
  case the Governor is not empowered to make any order
  in regard to that matter in exercise of his executive power
  nor can the Governor exercise such power in regard to
  that matter through officers subordinate to him. Secondly,
C the vesting in the Governor with the executive power of
  the State Government does not create any embargo for
  the Legislature of the State from making and/or enacting
  any law conferring functions on any authority
  subordinate to the Governor. Once a law occupies the
D field, it will not be open to the State Government in
  exercise of its executive power under Article 162 of the
  Constitution to prescribe in the same field by an
  executive order. However, it is well recognized that in
  matters relating to a particular subject in absence of any
E parliamentary legislation on the said subject, the State
  Government has the jurisdiction to act and to make
  executive orders. The executive power of the State
  would, in the absence of legislation, extend to making
  rules or orders regulating the action of the Executive. But,
F such orders cannot offend the provisions of the
  Constitution and should not be repugnant to any
  enactment of the appropriate Legislature. Subject to
  these limitations, such rules or orders may relate to
  matters of policy, may make classification and may
G determine the conditions of eligibility for receiving any
  advantage, privilege or aid from the State. [para 19] [283-
  E-H; 284-A-D]
     2.4 The powers of the executive are not limited
H merely to the carrying out of the laws. In a welfare state
  P.H. PAUL MANOfl PANDIAN v. MR. P. VELDURAI            261


 the functions of Executive are ever widening, which cover      A
 within their ambit various aspects of social.and economic
 activities. Therefore, the executive exercises power to fill
  gaps by issuing various departmental orders. The
  executive power of the· State is co-terminus with the
  legislative power of the State Legislature. Thus, if the      B
  State Legislature has jurisdiction to make law with
  respect to a subject, the State Executive can make
  regulations and issue Government Orders with respect
  to it, subject, however, to the constitutional limitations.
  Such administrative rules and/or orders shall be              C
  inoperative if the Legislature has enacted a law with
  respect to the subject. Thus, the High Court was not
  justified in brushing aside the Government Order dated
  November 16, 1951 on the ground that it contained
. administrative instructions. The respondent could not         D
  point out that the said order was repugnant to any
  legislation enacted by the State Government or the
  Central Government or to any statutory rules or the
  Constitution. [para 19] [284-D-H]
                                                                E
     2.5 In fact, there was neither any enactment nor any
statutory rule nor any constitutional provision as to how
the contractor, who has entered into contracts with the
Government, should be permitted to contest election,
more particularly, when a request is made by the
                                                                F
contractor to terminate his contracts so as to enable him
to contest the election. There is no manner of doubt that
in this branch of jurisdiction there was absence of
statutory enactment, regulations and rules and, therefore,
this Court is of the firm opinion that the Government had       G
all authority to issue Government Order dated November
16, 1951 to fill up the gaps. Thus, the case of the
respondent that his three contracts were terminated
before he filed nomination papers will have to be judged
in the light of the contents of Government Order dated
                                                                H
    262       SUPREME COURT REPORTS            [2011] 5 S.C.R.


A November 16, 1951. There is no manner of doubt that
  there was no valid termination of the contracts by the
  Government and those contracts were subsisting on the
  date when the respondent had filed his nomination
  papers and also on the date when the nomination papers
B of the respondent with other candidates were scrutinized
  by the Returning Officer. [para 19] (284-H; 285-A-D]

      2.6 In the circumstances and facts of the case, on
  the date of submission of nomination papers by the
c respondent as well. as on the date of scrutiny of the
  nomination papers, the contracts entered into by the
  respondent with the Government were subsisting and,
  therefore, the respondent was disqualified from filil1g the
  nomination papers and contesting the election. The
0 respondent having incurred disqualification under the
  provisions of s. 9A of the Act, his election will have to be
  declared to be illegal. Accordingly, it is declared that the
  respondent had incurred disqualification u/s. 9A of the
  Act and, therefore, his election from the Constituency in
E question is declared to be illegal, null and void. [para 22]
  [288-8-C]

          Competent Authority vs. Bangalore Jute Factor and Ors.
    (2005) 13 sec 477 - cited.
F                        Case Law Reference:
          (2005) 13 sec 477       cited               para 5
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4129 of 2009.
G
        From the Judgment & Order dated 2.12.2008 of the High -
    Court of Judicature at Madras in Election Petition No. 2 of
    2006.

          Gurukrishna Kumar, Shweta Mazumdar, Shyam D. Nanda,
H
 P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                263


Rajat Khaltry, Subramonium Prasad for the Appellant.              A

     R. Balasubramanian, S. Nanda Kumar, R. Satish Kumar,
Anjali Chauhan, V.N. Raghupathy for the Respondent.

    The Judgment of the Court was delivered by
                                                                  8
      J.M. PANCHAL, J. 1. This appeal, under Section 116A
of the Representation of People Act, 1951, is directed against
judgment dated December 2, 2008, rendered by the learned
Single Judge of the High Court of Judicature at Madras in
Election Petition No. 2 of 2006 by which the prayer of the        c
appellant to declare the election of the Returned Candidate,
viz., the respondent, from 220 - Cheranmahadevi Assembly
Constituency of the Tamil Nadu Legislative Assembly as null
and void, is refused,

     2. The relevant facts emerging from the record of the case   D
are as under: -

     The Election Commission notified election schedule for
the Thirteenth Tamil Nadu Legislative Assembly on March 3,
2006. Pursuant to the said notification, the Returning Officer, E
Cheranmahadevi called for nominations for Cheranmahadevi
Assembly Constituency. The last date for filing the nomination
papers was April 20, 2006. The date of scrutiny of the
nomination papers was April 21, 2006 and the election was to
be held on May 8, 2006. The appellant filed his nomination F
papers on April 17, 2006. So also the respondent filed his
nomination papers on April 17, 2006. The nomination papers,
filed by both, i.e., the appellant and the respondent were
accepted by the Returning Officer. During the scrutiny of the.
nomination papers on April 21, 2006, the appellant raised an G
objection that since the respondent had subsisting contracts
with the Government, his nomination papers should not be
accepted. The respondent filed his counter stating that the
contracts entered into by him with the Government were

                                                                  H
    264      SUPREME COURT REPORTS               [2011) 5 S.C.R.


A terminated before filing of the nomination papers and,
  therefore, his nomination papers were not liable to be rejected.
  The Returning Officer passed an order dated June 26, 2006
  over-ruling the objections filed by the appellant.

          The election for the Tamil Nadu Legislative Assembly took
8   place on the scheduled date, i.e., on May 8, 2006. The results
    were declared on May 11, 2006 and the respondent was
    declared elected. Therefore, feeling aggrieved, the appellant
    filed Election Petition No. 2 of 2006 under Sections 80 to 84
    read with Section 100(1 )(a) and Section 9A of the
C   Representation of People Act, 1951 ("the Act" for short) read
    with Rule 2 of the Rules of Madras High Court - Election
    Petition, 1967, challenging the election of the respondent on
    the ground that the respondent was disqualified from submitting
    nomination papers and consequently from contesting the
D   election as he had subsisting contracts with the Government.
    The appellant made reference to G.O.Ms. No. 4682 of Public
    Works Department dated November 16, 1951 and stated that
    in the light of the contents of the said G.O. a contractor would
    be entitled to terminate a subsisting contract only if other
E   contractor acceptable to the Chief Engineer was available and
    that another contractor was willing to enter into a contract to
    execute the works under the existing terms and conditions so
    that no loss was suffered by the Government. The case of the
    appellant was that as per the said G.O. dated November 16,
F   1951, termination of a subsisting contract would take place
    only after settlement of the rights and liabilities between the
    Government and the existing contractor, but in the present case
    no such settlement had taken place between the respondent
    and the Government and, therefore, the election of the
G   respondent was liable to be set aside. What was maintained
    in the Election Petition was that the respondent had not ·
    terminated his subsisting contracts in terms of G.O. dated
    November 16, 1951 and mere removal of the name of the
    respondent from the list of approved contractors should not be
H
  P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                     265
               [J.M. PANCHAL, J.]
construed as termination of the contracts as long as the                      A
contracts were not specifically terminated in terms of the
aforesaid G.O. The main prayer in the Election Petition of the
appellant was to set aside the election of the respondent.

      3. On service of notice, the respondent contested the                   8
Election Petition by filing reply affidavit. In the reply it was stated
that the respondent was not having any subsisting contract with
the Government on the date of filing of his nomination papers
as well as on the date of the scrutiny of the nomination papers.
According to the respondent it was not necessary to follow the                C
procedure contemplated under the G.O. dated November 16,
1951 before termination of contracts for contesting the election.
What was maintained by the respondent was that even if it
was assumed that the conditions enumerated in the G.O. were
not followed, that would not nullify the termination of the contracts
if made. According to the respondentthe Divisional Engineer                   D
(Highways) NABARD and Rural Roads, Nagercoil had
terminated the contract on April 17, 2006 and had freezed as
well as forfeited the deposits of the amount made by him for
crediting the same into Government account. Thus, according
to the respondent, it was not correct to say that any contract                E
was subsisting as far as the works relating to Tirunelveli Division
was concerned. After mentioning that only a procedure as
mentioned in G.O. dated November 16, 1951, was left to be
followed by the subordinate officials of the Government, it was
stated that non-observance of the said G.O. would not nullify                 F
the order terminating the contract issued by the Divisional
Engineer on April 17, 2006. The respondent maintained that
he was no longer a registered contractor with the Tamil Nadu
State Highways Department nor was he having any subsisting
contract in respect of the works referred to in the Election·                 G
Petition and, therefore, his election was not liable to be set
aside. It was further stated in the reply that balance work hot
executed by him was completed by the substitute contractor                0


S. Rajagopalan on the same terms and conditions, which were
agreed upon by him with the Government to execute the works                   H
     266      SUPREME COURT REPORTS                [2011] 5 S.C.R.


·A concerned and thus no loss was suffered by the Government.
   The averment made in the Election Petition that the respondent
   had not made any alternative arrangement for another.
   contractor was emphatically denied by him. By filing reply, the
   respondent had demanded the dismissal of the Election
 B Petition.

        4. Having regard to the pleadings of the parties, the learned
   Single Judge of the High Court, framed necessary issues for
   determination. In order to prove his case, the appellant
   examined four witnesses including himself and produced
 C documentary evidence at Exhibits P-1 to P-21. The respondent
   examined himself as RW-1 and one another witness as RW-2
   and also produced· documents at Exhibits R-1 to R-21 in
   support of his case pleaded in his written statement. The record
   further shows that Exhibits C-1 to C-32 were marked as
 D Exhibits at the instance of the learned Single Judge.

        5. On perusal of the election petition filed by the appellant,
   the learned Judge held that it was pertinent to note that the
   appellant had never set up a plea that the Divisional Engineer,
 E Nagercoil had no authority to terminate the contract entered
   into with the respondent nor any plea was raised to the effect
   that there was collusion between the respondent and the
   Divisional Engineer, who was examined as RW-2 nor was it
   averred in the Election Petition that the respondent had
 F mounted pressure on the Divisional Engineer, Nagercoil to
   terminate the contract and the Divisional Engineer had yielded
   to such pressure. Having noticed the above mentioned defects
   in the pleadings, the learned Judge observed that in view of
   the failure of the appellant to plead necessary facts and raise
 G contentions, it was not necessary for him to decide the issues
   regarding which no averments were made in the Election
   Petition. The learned Judge took into consideration the
   evidence adduced by the parties and the principle laid down
   by this Court in Competent Authority vs. Bangalore Jute
   Factory and others (2005) 13 SCC 477, wherein it is held that
 H
 P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                  267
              [J.M. PANCHAL, J.]
where a statute requires a particular act to be done in a            A
particular manner, the act has to be done in that manner alone
and in no other manner and concluded that the G.O. dated
November 16, 1951, issued by the Government of Tamil Nadu,
was or,1ly an administrative instruction but not a statute enacted
by the Legislature and, therefore, the ratio laid down in the        B
above mentioned decision was not applicable to the facts of
the case. The learned. Judge held that it was rightly pointed
out that the Government Order dated November 16, 1951
contained only administrative instructions and while
communicating the said Government Order to the                       C
Superintending Engineers and Divisional Engineers, it was
           •
specifically mentioned that the said administrative instruction
was for information and guidance. What was deduced by the
learned Single Judge was that the Government Order did not
say that the Chief Engineer was the authority to terminate the
contract of a contractor, entered into with the Government, nor      0
the Government Order stated that an order of termination could
be issued only when Chief Engineer had accepted a person,
who was available and was willing to enter into a contract on
the same terms and conditions. The learned Judge was of the
opinion that a contractor, who wanted to terminate his contract,     E
had nothing to do with the administrative instructions issued
by the Government Order dated November 16, 1951. After
referring to Exhibit C-11 it was held by the learned Judge that
the agreements were entered into between the Governor of
Tamil Nadu on the one hand and the respondent on the other           F
and on behalf of the Governor, Superintending Engineer,
 NABARD had signed the agreement. The learned Judge found
that when the Sub-Division was brought under the direct domain
of the Superintending Engineer, the clause in agreement
entered into between the parties that in the event of transfer of    G
work to another circle/division/sub-division/ Superintending
 Engineer/Divisional Engineer/Assistant Divisional Engineer,
who was in charge of the circle/ division/sub-division having
the jurisdiction over the works would be competent to exercise
all the powers and privileges reserved in favour of the              H
    268       SUPREME COURT REPORTS                [2011] 5 S.C.R.


A   Government, would not be applicable. According to the learned
    Judge, the record produced showed that the Divisional
    Engineer had terminated the contract only under the blessings
    of the Superintending Engineer, NABARD, which order was
    subsequently ratified by the Superintending Engineer by his
8   proceedings dated April 26, 2006 and, therefore, it was wrong
    to say that the contracts were not terminated as required by
    G.O. dated November 16, 1951. The learned Judge referred
    to Exhibit P-17 dated April 17, 2006 and concluded that the
    contract with the respondent was already terminated by the
C   Divisional Engineer whereas Exhibit C-12, the office note, was
    wrongly prepared on the footing that the order of termination
    was yet to be passed. The learned Judge found that the order
    of ratification passed by the Superintending Engineer PW-4
    being Exhibit P-19 dated April 26, 2006 validated the order of
    termination of contracts passed by the Divisional Engineer on
D   April 17, 2006 and the contracts stood validly terminated as
    on the date of filing of nomination papers by the appellant.
    According to the learned Judge the substitute contractor S.
    Rajagopalan was a registered contractor as on April 17, 2006
    and at the time when the contract with the respondent was
E   terminated by the D_ivisional Engineer, a substitute contractor,
    who was willing to perform the remaining work left behind by
    the respondent, was made available and having made available
    a substitute contractor to step into his shoes to perform the
    remaining part of the contract, the respondent had got the
F   contract validly terminated. The learned Judge interpreted the
    Government Order dated November 16, 1951 to mean that
    the Chief Engineer was not vested with the power to terminate
    the contract. According to the learned Judge the said G.O. did
    not say that only after the Chief Engineer had accepted such a
G   substitute contractor, an order terminating contracts should be
    passed. The learned Judge noticed that the Chief Engineer
    was not a party to the contract and even if it was assumed for
    the sake of argument that there was a breach of the conditions
    laid down in the Government Order dated November 16, 1951,
H   failure to follow the procedure or breach of the said Order would
  P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                 269
               [J.M. PANCHAL, J.)
not nullify the order terminating the contracts passed by the . A
Divisional Engineer and subsequently ratified by the
Superintending Engineer.

     6. In view of the above mentioned conclusions and findings,
the learned Judge has dismissed the Electioit Petition by
                                                                    8
judgment dated December 2, 2008, which has given rise to
the instant appeal.

     7. This Court has heard the learned counsel for the parties
at length and in great detail. This Court has also considered
the documents forming part of the appeal.                           C

     8. From the pleadings of the parties, it is evident that the
controversy centres around the Government Order dated
November 16, 1951 and, therefore, i.t would be advantageous
to reproduce the said Government Order, which reads as              D
under: -

                      "Government of Madras
                             Abstract

    Contracts - Highways Department - Ensuing General               E
    Elections to Legislature - Request of Contractors for
    withdrawal from Subsisting Contracts and ·removal of the
    name from list of approved contractors - instructions -
    issued.
                                                                    F
                            @@@@@
                     Public Works Department

    G.O.Ms. No. 4682

                                  Dated 16th November, 1951         G

                        Read the following:

    From the Chief Engineer (Highways) Lr. No. 56703/D2/
    51-1 dated 8th November, 1951.                                  H
     270         SUPREME COURT REPORTS               [2011] 5 S.C.R.


A          From the Chief Engineer (Highways) Lr. No. 55865/02/
           51-2 dated 13th November, 1951.

                                   @@@@@
           Order:
B
                 In his letter first cited the Chief Engineer (Highways)
           has reported that several contractors in the State who have
           got subsisting contracts under Government and District
           Boards have applied for closing their accounts and for
c          removal of their names from the list of approved
           contractors in order to enable them to stand for election
           as a candidate. As the existing provisions in the
           preliminary specification to Madras Detailed Standard
           Specifications do not permit the contractors to withdraw
~o         from their existing contracts for the reasons now given by
           them, the Chief Engineer has requested instructions on
           the general policy to be adopted in .such cases.

           2. After careful examination His Excellency the Governor
           hereby directs that the contractors who desire to stand for
E          election as candidates for the Legislatures be permitted
           to terminate their subsisting contracts and also get their
           names deleted from the list of approved contractors
           provided other persons acceptable to the Chief Engineer
           are available and are willing to enter into a contract to
F          execute the works under the existing terms and conditions
           without any loss to the Government.

           3. The Chief Engineer is informed in this connection that
           the following points should be considered in the termination
G          of contracts referred to in para 2 above.

            1.      There should be a final and complete settlement of
                    rights and liabilities between the Government and
                    the existing contractor. No sum of money should
                    remain payable to him and nothing should remain
H
P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI               271
             [J.M. PANCHAL, J.]
         liable to be supplied or done by him;                  A .

   2.    Substitution of a fresh contract in regard to the
         unfinished part of the work should not involve the
         Government in loss or extra expenditure with a view
         to enabling any particular person to stand for
                                                                8
         election as a candidate; and

   3.    The contractor who is allowed to back out of his
         contract should do so at his own risk and should
         be made liable to make good any loss to the
         Government arising out of the necessity to enter       C
         into a fresh contract.

  4. The instructions now issued will apply also to the
  termination of contracts under similar circumstances in the       ~
  Public Works and Electricity Departments.                     D

                                         M. Gopal Menon
                          Deputy Secretary to Government

  To
                                                                E
  The Chief Engineer (Highways)

  /True Copy/

  Copy of Endt. No. 55868/02/51 HR dated 16.11.1951
  from the Chief Engineer (Highways and Rural Works)            F
  Madras.;5 to the Superintending Engineers and Divisional
  Engineers (H)

                       @@@@@
  Copy communicated to the Superintending Engineers (H)         G
  and Divisional Engineers (H) for information and guidance.

  K.K. Nambiar
                                Chief Engineer (Highways)"
                                                                H
    272          SUPREME COURT REPORTS              [2011) 5 S.C.R.


A According to the appellant the respondent was disqualified
  because the contracts entered into by him in the course of his
  trade or business with the appropriate Government, were
  subsisting at the time when he filed his nomination papers on
  April 17, 2006 and, therefore, his Election Petition should have
B been allowed. Therefore, it would be relevant to notice statutory
  provision which deals with disqualification of a candidate having
  subsisting contracts with the Government. Section 9-A of the
  Act, which deals with disqualification for Government contracts
  etc., reads as under: -
c         "9A. Disqualification for Government contracts, etc. - A
          person shall be disqualified if, and for so long as, there
          subsists a contract entered into by him in the course of
          his trade or business with the appropriate Government for
          the supply of goods to, or for the execution of any works
D         undertaken by that Government.

                Explanation. - For the purposes of this section,
          where a contract has been fully performed by the person
          by whom it has been entered into with the appropriate
E         Government, the contract shall be deemed not to subsist
          by reason only of the fact that the Government has not
          performed its part of the contract either wholly or in part."

          9. According to the appellant, the respondent had following
    three contracts subsisting with the Government on the date of
F   his filing of the nomination papers, which was quite evident
    from communication dated April 17, 2006 addressed by the
    Divisional Engineer (Highways) NABARD and Rural Roads,
    Nagercoil to Mr. S. Madasamy, the learned advocate of the
    appellant: -
G
           (a)    Strengthening Pothaiyadi Road Km 0/0-2/2

                                     Estimate Rs.14.50 lakhs;

           (b)    Strengthening Bethaniya Road Km 0/0-3/0
H
   P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                 273
                [J.M. PA~CHAL, J.)
      Estimate Rs.19.00 lakhs;                                      A
       (c)   Strengthening Eruvadi - Donavoor Road to Kattalai
             Road, Km 0/0-1/4 estimate Rs.9.50 lakhs.

         10. Before considering the effect of abovementioned
   contracts entered into between the respondent and the B
   Government, it would be essential to analyze the Government
   Order dated November 16, 1951. The Chief Engineer
   (Highways) had reported to the State Government that several
   contractors in the State, who had got subsisting contracts under
   the Government and District Boards, had applied for closing C
   their accounts and for removal of their names from the list of
   approved contractors in order to enable them to stand for
   election as a candidate. However, the then existing provisions
   in the preliminary specification to Madras Detailed Standard
   Specifications did not permit the contractors to withdraw from D
   their existing contracts so as to enable them to contest the
   election. Therefore, the Chief Engineer by letter dated
   November 13, 1951 requested the Government to issue
   instructions and general policy to be adopted in such cases.
· The Government considered the proposal made by the Chief . E
   Engineer and provisions of Madras Detailed Standard
   Specifications. After careful examination, His Excellency the
   Governor of Madras issued directions that the contractors, who
   desired to stand for election as candidates for the Legislature,
   be permitted to terminate their subsisting contracts and also F
   get their names deleted from the list of approved contractors,
   provided other persons acceptable to the Chief Engineer were
   available and were willing to enter into a contract to execute
   the works under the existing terms and conditions so that no
    loss was suffered by the Government. In view of the directions. G
   given by His Excellency the Governor of Madras, the
 . Government issued G.O. dated November 16, 1951. By the
   said G.O. the Chief Engineer was informed that while
   terminating subsisting contracts of the contractors the facts and/
   or following points mentioned~o~sidered: -                         H
                                              --.....
            274           SUPREME COURT REPORTS              (2011) 5 S.C.R.


        A         (i)      There should be a final and complete settlement of
                           rights and liabilities between the Government and
                           the existing contractor. No sum of money should
                           remain payable to the contractor and nothing
                           should remain liable to be supplied or done by the
        B                  contractor;

                  (ii)     The substitution of a fresh contract in regard to the
                           unfinished part of the work should not result into
                           loss to the Government or extra expenditure merely
                           because a particular contractor was to stand for
        c                  election as a candidate; and

                  (iii)    The contractor, who was allowed to back out of his
                           contract, should do so at his own risk and should
' •·.                      be made liable to make good any loss to the
        D                  Government arising out of the necessity to enter
                           into a fresh contract with another contractor only
                           because the existing contractor was to stand for
                           election as a candidate.

        E      11. Normally, a contract entered into between two parties
          would come to an end (1) by performance, (2) by express
          agreement, (3) under the doctrine of frustration, (4) by breach
          and (5) by novation. Such contingencies and eventualities are
          always contemplated while entering into an agreement between
          the two persons and a contract can be brought to an end in
        F any of the aforementioned methods. However, in view of the
          fact that several contractors had applied for closing their
          accounts and for removal of their names from the list of
          approved contractors in order to enable them to stand for the
          election, a recommendation was made by the Chief Engineer
        G (Highways) to the Government to issue instructions and lay
          down general policy to be adopted in such cases. When a ·
          contract was brought to an end because contractor was
          desirous of contesting election, it was not a case of either

        H
  P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                  275
               [J.M. PANCHAL, J.]                                         I ,
                                                                          '
 breach of the contract or performance of the same or novation        A
 of the same or frustration of the same and, therefore, a special
  method was required to be devised by the Government before
 terminating the existing contract to enable the contractor to
  contest t,he election. The method devised was that the G.O.
  dated November 16, 1951 was issued/addressed only to the            B
  Chief Engineer (Highways). In order to see that the unfinished
  work of the Government did not suffer nor Government suffered
  any loss, a special care was required to be taken and, therefore,
  the Chief Engineer was directed that the contractors, who
  desired to stand for election as candidates for the Legislature,    C
  should be permitted to terminate their subsisting contracts and
  also get their names deleted from the list of approved
  contractors only if other contractor acceptable to the Chief
  Engineer was available and was willing. to enter into contract
  to execute the works under the existing terms and conditions
. so that no loss was suffered by the Government. The                 D
  Government specifically mentioned in paragraph 3 of the said
  Government Order that the Chief Engineer should consider the
  following three points before terminating the contracts existing:

                                                                      E
       (a)   that there should be final and complete settlement
             of rights and liabilities between the Government and
             the existing contractor;

       (b)   the Chief Engineer must ensure that no sum of            F
             money remained payable to the contractor; and

       (c)   nothing remained liable to be supplied or done by
             the contractor.

 The G.O. further required the Chief Engineer to ensure that the      G
 substitution of a fresh contract In regard to the unfinished part
 of work should not cause any loss to the Government nor the
 Government should be made to incur extra expenditure merely
 to enable a particular contractor to stand for election as a
 candidate. What was highlighted in the said Order was that           H
     276      SUPREME COURT REPORTS               (2011) 5 S.C.R.


 A the contractor, who was allowed to back out of his contract,
   was to do so at his own risk and was liable to make good any
   loss that may be suffered by the Government out of necessity
   to enter into a fresh contract.

         12. A reasonable reading of the above mentioned
 8 stipulations and conditions mentioned in the Government Order
   dated November 16, 1951 makes it evident that only the Chief
   Engineer was competent to terminate the existing contracts
   where the contractor was desirous of contesting election. It is
   wrong to say that an instruction had been issued to the Chief
 C Engineer to see that another contractor was available as
   substitute to perform the remaining part of the contract without
   any loss to the Government and that the Order dated November
   16, 1951 did not provide that an order of termination of a
   subsisting contract should be issued only when the Chief
 D Engineer had accepted a person, who was available and was
   willing to enter into a contract on the same terms and conditions
   to which the existing contractor had agreed.

        13. One of the accepted principles of interpretation is as
'E to how those, who are conversant with the Government Order
   and are expected to deal with the same, construe and
   understand the Order. The opinion expressed by the
   Government officials, who are expected to have sufficient
   knowledge and experience as to how a Government Order
   should be operated and/or implemented, may be relied upon.
 F In order to ascertain this, it would be necessary to refer to the
   evidence on record. Though the High Court has concluded that
   the Chief Engineer had no power to terminate contracts in terms
   of Government Order dated November 16, 1951, this Court
   finds that the High Court has not adverted to the evidence on
 G record at all. In this case evidence of G. Shanmuganandhan
   was recorded as PW-3. His evidence indicates that in April, '
   2006, he was Superintending Engineer, Highways Projects,
   Madurai. According to him, Tirunelveli Division Projects were
   under his jurisdiction. It is mentioned by him that he had issued
 H
   P.H. PAUL MANQJ PANDIAN v. MR. P. VELDURAI                 277
                [J.M. PANCHAL, J.]
 Exhibit P-12 by which name of the respondent was deleted             A
 from the list of contractors. After looking at Exhibit P-13 it was
 stated by htm that it was an erratum and he had marked copy
 of Exhibit P-13 to the Superintending Engineer, Tirunelveli with
  instructions to take appropriate action. He explained to the
  Court that appropriate action meant cancelling of ongoing           B
  contract works of the respondent. He further stated that the
  Superintending Engineer, NABARD and Rural Roads,
  Tirunelveli, had entered into the contracts. In cross-examination
  this witness clarified that there was no connection between the
  act of removal of name of contractor from the list and              c
  termination of the contract and the two issues were different.
  In his further examination-in-chief by the learned counsel for
  the appellant, he was put a question as to who was the
  competent authority for approving the substitute contract as per
  G.O.Ms. 4682. In answer to the said question he replied that        0
· the Chief Engineer, NABARD and Rural Roads, was competent
  authority for approving the substitute contract. Again, Mr. P.
  Velusamy, who was Superintending Engineer, NABARD and
  Rural Roads, Tirunelveli, was examined by the appellant as
  PW-4. He stated in his testimony that between September,
  2005 and August, 2006, he was Superintending Engineer,              E
  NABARD and Rural Roads, Tirunelveli and was working under
  Chief Engineer, NABARD and Rural Roads, Chennai.
  According to him, three divisions were under his control and
  they were (1) Nagercoil, (2) Tirunelveli and (3) Paramakudi.
  He further mentioned in his testimony that the Divisional           F
  Engineer, NABARD and Rural Roads, Nagercoil was under
  his control. He was shown Exhibit C-11 and after looking to
  the same, he stated that it was the original agreement in
  respect of three works awarded to the respondent in respect
  of Nagercoil Division. After looking to Exhibit C-12, he            G
  mentioned that they were the proceedings of the Divisional
  Engineer, NABARD and Rural Roads, Nagercoil wherein the
  Divisional Engineer had sought his orders. According to him,
  Exhibit C~13 was a letter dated April 18, 2006 addressed by
                                                                      H
    278      SUPREME COURT REPORTS                [2011] 5 S.C.R.

                                            ,,
A the Divisional Engineer to him informing about the order of
  termination of contracts passed by him in respect of the
  contracts entered into by the respondent and by the said letter
  the Divisional Engineer had also sought ratification from him
  of the order terminating the contract. According to him, the
s ratification sought for under Exhibit C-13 was granted by him
  vide Exhibit P-19 letter dated April 26, 2006. He further stated
  that he had the power either to ratify or to refuse the ratification
  of any orders of the Divisional Engineer. The witness stated
  that Exhibit C-9 was the proceeding issued by him making
c recommendation that the term of Rajagopal as a contractor
  be renewed. According to him Mr. Rajagopal had made an
  application on April 18, 2006 with a request to mention his
  name in the list of contractors again and under Exhibit C-14
  dated June 1, 2006, his requested was granted. According to
  him by Exhibit C-6 dated May 2, 2005 he had requested the
0
  Chief Engineer to ratify the action of the Divisional Engineer
  to substitute Rajagopal in place of the respondent to do the
  balance work whereas Exhibit C-15 were the proceedings
  dated June 19, 2006 forwarded by him to the Chief Engineer
  recommending the name of Rajagopal as a substitute for the
E respondent. According to him, pursuant to the Order dated June
  26, 2006 issued by the Chief Engineer, he had imposed certain
  conditions for accepting Rajagopal as substituted contractor.
  The witness further explained that Exhibit C-8 were his
  proceedings dated June 26, 2006 pursuant to the orders of
F the Chief Engineer contained in Exhibit C-7 whereas Exhibit
  C-16 dated July 4, 2006 was the original agreement entered
  into with Rajagopal with respect to three balance works to be
  completed in Nagercoil Division. The witness stated that under
  Exhibit C-7 the Chief Engineer had required him to send his
G acknowledgement for having received the ratification order
  passed by him. In his examination-in-chief the witness had ·
  mentioned that every contractor was required to take steps to
  bring his name on the list of approved contractor from 1st April
  of every year within a period of three months therefrom and if
H
  P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                279
               [J.M. PANCHAL, J.]

a criminal case was pending against any contractor, his name        A
would not be included in the list of approved contractors. The
witness in no uncertain terms admitted that from the file he
was able to say that in the year 2000 Rajagopal was involved
in a criminal case of assault but there was no data available in
the records showing that pursuant to the said criminal case         B
his name was ever removed from the list of contractors. He
denied the suggestion that on April 17, 2006 Rajagopal was
not a registered contractor.

      14. Mr. Y. Christdhas, who was Divisional Engineer at the     C·
relevant time, was examined on behalf of the respondent as
RW-2. According to him, the respondent was working as a
contractor in his Division and was nominated as a contractor
for the works mentioned by him in his examination-in-chief.
According to this witness, the respondent had addressed a           D
letter dated April 1·0, 2006 and another letter dated April 17,
2006 to him with the request to terminate his subsisting
contracts and both the letters of the respondent were forwarded
by him to the Superintending Engineer by forwarding letter
dated April 17, 2006,. with his endorsement that order
terminating contracts passed by him be ratified. The witness        E
stated in his testimony that the respondent wanted to contest
the election and, therefore, he had addressed a letter dated
April 10, 2006 to him for termination of contracts. The witness
further mentioned that pursuant to his letters the Superintending
Engineer had instructed him to pass the order terminating the       F
contract and to get ratification. The witness stated that
accordingly he : ~ad terminated the contracts awarded to the
respondent. He also stated that he had sent a letter Exhibit C-
13 seeking ratification of the order terminating the contracts
awarded to the respondent. The witness mentioned in his             G
testimony that the Superintending Engineer accorded
ratification through Exhibit P-19 whereas under Exhibit C-21
Rajagopal was appointed as substituted contractor. According
to him by letter dated April 19, 2006 he had recommended
Rajagopal's appointment as substituted contractor and along         H
    280      SUPREME COURT REPORTS               [2011] 5 S.C.R.


A with the said recommendation he had also sent Exhibit R-4,
  which was a letter of the respondent for agreeing to
  compensate the Government for the loss, if any, which might
  take place. This witness also mentioned that Exhibit C-7 wer.e
  the proceedings drawn by the Chief Engineer approving the ·
B substitution of Rajagopal in the place of the respondent. It was
  also stated by the witness that Exhibit R-18 dated September
  21, 2006 was the reply given by him to the letter of the appellant
  Exhibit R-17 dated September 16, 2006, wherein he had
  mentioned that the account with the respondent was settled
c and no cash payment was made to the respondent. In his cross-
  examination this witness in no uncertain terms admitted that
  the power to terminate the contract awarded to a contractor,
  who proposed to contest the election, was only with the Chief
  Engineer and since he had no power to terminate the contract,
D he had forwarded the papers to his superior officers. The
  witness stated that Exhibit C-13 was forwarded to the
  Superintending Engineer only after he passed order Exhibit
  P-17 cancelling the contracts awarded to the respondent.
  According to him the urgency of the situation was also the
  reason for making Exhibit P-17 order. He further clarified that
E in Exhibit P-17 he had not mentioned that his order was subject
  to ratification by the Superintending Engineer.

       15. The evidence of the above mentioned witnesses clearly
  indicates that the power to terminate the contract in terms of
F Government Order dated November 16, 1951 was only with
  the Chief Engineer and neither the Divisional Engineer was
  competent to terminate the contracts awarded to the
  respondent nor the Superintending Engineer was competent
  to ratify an order passed by the Divisional Engineer cancelling
G the contracts awarded to the respondent. The record nowhere
  shows that the contracts entered into between the respondent
  and the Superintending Engineer, Tirunelveli were ever
  terminated by the Chief Engineer in terms of Government Order
  dated November 16, 1951 by passing an order. Therefore, the
H assertion made by the respondent that his contracts were
  P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                 281
               [J.M. PANCHAL, J.]
  terminated by the Divisional Engineer by passing an order,         A
. which was subsequently ratified by the Superintending Engineer
  is of no avail. There is no manner of doubt that the contracts
  entered into between the Superintending Engineer, Tirunelveli
  and the respondent were not terminated as required by
  Government Order dated November 16, 1951 and, therefore,           B
  it will have to be held that they were subsistjng on the date of
  filing of the nomination papers by the respondent as well as
  on the date on which those papers were scrutinized.

      16. As noticed earlier, one of the conditions to be fulfilled C
 before termination of the contract of a contractor, who was
 desirous to contest election, was that he must offer a substitute,
 who was willing to undertake unfinished work on the same terms ·
 and conditions but without causing any loss to the Government.
 The former Chief Engineer, who was examined in this case as
 PW-2, has, without mincing the words, stated that Mr. Rajagopal D
 offered by the respondent as substitute contractor was
 substituted in place of the respondent on June 1, 2006. It means
 that the contract could not have been terminated earlier than
 June 1, 2006 and were subsisting at least as on June 1, 2006,
 which was the date beyond the. last date of filing of the E
 nomination papers and scrutiny thereof. Therefore, the finding
 recorded by the learned Judge of the High Court that on the
 date of filing of the nomination Mr. Rajagopal was already
 substituted in place of the respondent is not born out from the
 record of the case nor the record shows that after June 1, 2006 F
 the contracts were terminated by the authority contemplated
 under Government Order dated November 16, 1951.

      17. At this stage, it would be relevant to again reproduce
 clause 1 of Government Order dated November 16, 1951, which         G
 is as under: -

       "1.   There should be a final and complete settlement of
             rights and liabilities between the Government and
             the existing contractor. No sum of money should
             remain payable to him and nothing should remain         H
    282       SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A               liable to be supplied or done by him."

    Mr. Y. Christdhas, who was the Divisional Engineer at the
    relevant point of time, has, in terms, mentioned that under Exhibit
    C-12 it was noted that a sum of Rs.98,227/- payable to the
8   respondent should be kept in the deposit and the contract
    should be permanently terminated seeking orders from the
    Superintending Engineer. The record further shows that on April
    19, 2006 the Divisional Engineer had forwarded a letter to the
    Superintending Engineer, Tirunelveli mentioning inter alia that
C   since the contract of the respondent was cancelled, the fourth
    and final list of approval was given to him and deposit amount
    of Rs.2,02,341 was kept in kind-IV deposit. The Government
    Order dated November 16, 1951, which is quoted above,
    clearly requires that no sum of money should remain payable
    to the contractor and nothing should remain liable to be supplied
D   or done by the contractor. Keeping the amount of more than
    two lakhs in kind-IV deposit can hardly be said to be
    compliance of clause 1 of the Government Order dated
    November 16, 1951. In fact as held earlier, everything was
    required to be done by the Chief Engineer himself. There is
E   nothing on record to show that the steps and/or actions, which
    were taken by the Divisional Engineer, were ever ratified by
    the Chief Engineer except that the Chief Engineer had accepted
    the proposal of the Superintending Engineer to accept
    Rajagopal as substitute of the respondent. Thus, this Court finds
F   that on the date of filing of nomination papers and scrutiny of
    the same, the respondent had not validly terminated the
    contracts entered into by him with the Government and was
    disqualified not only to file his nomination papers but also to
    contest the election in question.
G
        18. The learned Single Judge has brushed aside the
   Government Order dated November 16, 1951 by stating that it
   was only an administrative instruction circulated to the
   Engineers (Highways) NABARD and Rural Roads for
H information and guidance, forgetting the important fact that in
 . the last clause of the Government Order it is specifically
   P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI                  283
                [J.M. PANCHAL, J.]
   mentioned that the instructions issued by the said Government      A
.. Order would also apply to the termination of the contracts under
   similar circumstances entered into with the Public Works and
   Electricity Departments. Therefore, the High Court was wrong
   in holding that though Government Order dated November 16,
   1951 was an order by the Government, at best it must be            B
   construed as an administrative order for the guidance of the
   Engineers (Highways) NABARD and Rural Roads in various
   hierarchies.

        19. Departmental circulars are a common form of
  administrative document by which instructions are C
  disseminated. Many such circulars are identified by serial
  numbers and published, and many of them contain general
  statement of policy. They are, therefore, of great importance
  to the public, giving much guidance about governmental
  organization and the exercise of discretionary powers. In D
  themselves they have no legal effect whatever, having no
  statutory authority. But they may be used as a vehicle in
  conveying instructions to which some statute. gives legal force .
. It is now the practice to publish circulars which are of any
  importance to the public and for a long time there has been no E
  judicial criticism of the use made of them. Under Article 162 of
  the Constitution, the executive power of the State extends to
  matters with respect to which the State Legislature has power
  to make laws. Yet the limitations of the exercise of such
  executive power by the Government are two fold; first, if any F
  Act or Law has been made by the State Legislature conferring
   any function on any other authority - in that case the Governor
   is not empowered to make any order in regard to that matter
   in exercise of his executive power nor can the Governor
   exercise such power in regard to that matter through officers G
   subordinate to him. Secondly, the vesting in the Governor with
   the executive power of the State Government does not create
   any embargo for the Legislature of the State from making and/
   or enacting any law conferring functions on any authority
   subordinate to the Governor. Once a law occupies the field, it H
    284       SUPREME COURT REPORTS                [2011) 5 S.C.R.


A will not be open to the State Government in exercise of its
  executive power under Article 162 of the Constitution to
  prescribe in the same field by an executive order. However, it
  is well recognized that in matters relating to a particular subject
  in absence of any parliamentary legislation on the said subject,
B the State Government has the jurisdiction to act and to make
  executive orders. The executive power of the State would, in
  the absence of legislation, extend to making rules or orders
  regulating the action of the Executive. But, such orders cannot
  offend the provisions of the Constitution and should not be
c repugnant to any enactment of the appropriate Legislature.
  Subject to these limitations, such rules or orders may relate to
  matters of policy, may make classification and may determine
  the conditions of eligibility for receiving any advantage, privilege
  or aid from the State. The powers of the executive are not .
  limited merely to the carrying out of the laws. In a welfare state
0
  the functions of Executive are ever widening, which cover within
  their ambit various aspects of social and economic activities.
  Therefore, the executive exercises power to fill gaps by issuing
  various departmental orders. The executive power of the State
  is co-terminus with the legislative power of the State
E Legislature. In other words, if the State Legislature has
  jurisdiction to make law with respect to a subject, the State
  Executive can make regulations and issue Government Orders
  with respect to it, subject, however, to the constitutional
  limitations. Such administrative rules and/or orders shall be
F inoperative if the Legislature has enacted a law with respect
  to the subject. Thus, the High Court was not justified in brushing
  aside the Government Order dated November 16, 1951 on
  the ground that it contained administrative instructions. The·
  respondent could not point out that the said order was
G repugnant to any legislation enacted by the State Government
  or the Central Government nor could he point out that the
  instructions contained in the said Government Order dated
  November 16, 1951 were repugnant to any statutory rules or
  the Constitution. In fact, there was neither any enactment nor
H any statutory rule nor any constitutional provision as to how the
  P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI               285
               [J.M. PANCHAL, J.]

contractor, who has entered into contracts with the               A
Government, should be permitted to contest election, more
particularly, when a request is made by the contractor to
terminate his contracts so as to enable him to contest the
election. There is no manner of doubt that in this branch of
jurisdiction there was absence of statutory enactment,            8
regulations and rules and, therefore, this Court is of the firm
opinion that the Government had all authority to issue
Government Order dated November 16, 1951 to fill up the gaps.
Thus the case of the respondent that his three contracts were
terminated before he filed nomination papers will have to be      c
judged in the light of the contents of Government Order dated
November 16, 1951. Viewed in the light of the contents of the
Government Order dated November 16, 1951, there is no
manner of doubt that there was no valid termination of the
contracts by the Government and those contracts were              D
subsisting on the date when the respondent had filed his
nomination papers and also on the date when the nomination
papers of the respondent with other candidates were
scrutinized by the Returning Officer.

       20. The argument that the contracts were validly terminated E
by the Divisional Engineer, which action was subsequently
ratified by the Superintending Engineer and, therefore, it should
be held that there were no subsisting contracts on the date of
submission of the nomination papers, has no merits and cannot
be accepted. On true interpretation of the Government Order F
dated November 16, 1951 this Court has held that only the
Chief Engineer was competent to terminate the contracts and,
therefore, the termination of the contracts by the Divisional
Engineer, which was subsequently ratified by the
Superintending Engineer, cannot be treated as valid G
termination of contracts. The record of the case shows that on
April 10, 2006, the respondent had addressed a letter to the
Divisional Engineer, NABARD informing him about his
intention to contest the Assembly election and requesting him
to cancel the contracts immediately. In the said letter a request H
    286      SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A   was made to issue a certificate indicating that the contracts
    entered into by the respondent with the Government were
    cancelled. Obviously, the Divisional Engineer had no authority
    to cancel the contracts and, therefore, he had forwarded the
    letter of the respondent to the Superintending Engineer
B   immediately for necessary action. The record shows that in
    view of the request made by the respondent, an orders was
    passed by the Office of Superintending Engineer cancelling
    the registration of the respondent as a contractor permanently
    and the respondent was informed that if any work was pending
c   on his side, he should obtain a separate work cancellation
    order for the work pending from the concerned Highways
    Division. It was also informed to the respondent that the
    cancellation of registration of contractor would be final only
    after obtaining such separate work cancellation order from the
D   concerned Division and the order passed for cancellation of
    registration as contractor from the Register would not be
    treated as work cancellation order for any pending work. The
    proceedings of the Divisional Engineer (H) NABARD and Rural
    Roads, Nagercoil dated April 17, 2006 mention that the
    contracts were absolutely terminated as per Government Order
E
    dated November 16, 1951 and the respondent was informed
    that the works entrusted to him would be got executed at his
    risk and cost and that orders for entrustment of the works to
    the new contractor would be issued separately. It was also
    mentioned in the said letter that the deposits available in favour
F   of the respondent for the works, which were determined, were
    freezed and forfeited for crediting the same into Government
    account. Thereafter, the Divisional Engineer had addressed
    a communication dated April 18, 2006 to the Superintending
    Engineer informing that as the respondent was desirous to
G   contest Assembly election and had requested to cancel the
    contracts in the present position and issue termination
    certificate for the said works, he had conducted proceedings
    for cancelling the contract on April 17, 2006. By the said letter
    the Divisional Engineer had requested the Superintending
H
 P.H. PAUL MANOJ PANDIAN v. MR. P. VELDURAI               287
              [J.M. PANCHAL, J.]

Engineer to accord ratification to the order dated April 17, 2006 A
for cancelling the contracts. The record shows that thereafter
by an order dated April 26, 2006 the Superintending Engineer
(N) NABARD and Rural. Roads, Tirunelveli had ratified the order
dated April 17, 2006 by which the Divisional Engineer (H)
NABARD had terminated the contracts entered into by the . B
respondent with the Government. The Superintending Enginee.r
had informed the respondent that the Divisional Engineer was
competent to terminate the contracts. However, _it is an
admitted position that the contracts were entered into by the
respondent with the Superintending Engineer and under the c
terms and conditions of the contracts, the Superintending
Engineer was competent to terminate the contracts. The
Government Order dated November 16, 1951 nowhere
provides that the Divisional Engineer was competent to
terminate the contracts. Having noticed the Government Order D
 dated November 16, 1951 the Superintending Engineer could
 not have informed the respondent that the Divisional Engineer
 was competent to terminate the contracts entered into by him
with the Government nor the Divisional Engineer was competent
 to terminate the contracts entered into by the respondent with E
 the Government.

      21. Normally, the Superintending Engineer would be
competent to terminate the contracts when breach of the terms
and conditions is committed by a contractor. However, in the
present case the court finds that the contracts were to be F
brought to an abrupt end because the respondent was
intending to contest the election. Such an eventuality was never
contemplated under the contracts and the contracts entered
into by the respondent with the Government could have been
terminated only as per the terms and conditions stipulated in G
Government Order dated November 16, 1951. Therefore,
 neither the Divisional Engineer had authority to terminate the
contracts nor the Superintending Engineer had any authority
to terminate the contracts. Thus, the action of the
 Superintending Engineer in ratifying the cancellation of ttie H
    288      SUPREME COURT REPORTS               [2011] 5 S.C.R.

A contracts made by the Divisional Engineer is of no
  consequence.

       22. The net result of the above discussion is that on the
  date of submission of nomination papers by the respondent
  as well as on the date of scrutiny of the nomination papers, the
B contracts entered into by the respondent with the Government
  were subsisting and, therefore, the respondent was disqualified
  from filing the nomination papers and contesting the election.
  The respondent having incurred disqualification under the
  provisions of Section 9A of the Act, his election will have to be
C declared to be illegal. Accordingly, it is declared that the
  respondent had incurred disqualification under Section 9A of
  the Act and, therefore, his election from the Constituency in
  question is declared to be illegal, null and void.

o       23. The appeal is accordingly allowed. There shall be no
    order as to costs.

    R.P.                                         Appeal allowed.