Shamsher Singh and Anr. vs. State of Punjab 

Citation- 1974 AIR 2192, 1975 SCR (1) 814 

Date of Judgement- 23^rd August, 1974  

Court- Supreme Court of India  

Appellant- Shamsher Singh  

Respondent- State of Punjab  

Bench- A.N. Ray, D.G. Palekar, Kuttyil Kurien Mathew, Y.V. Chandrachud,  A. Alagiriswami, P.N. Bhagwati, V.R. Krishnaiyer  

FACTS:  

The appellant Shamsher Singh was a Subordinate Judge on probation and his services  were terminated on 27 April, 1967, by the Government of Punjab, by an order, in the  name of the Governor which did not state the reasons for termination. 

Correspondingly, the services of Ishwar Chand Aggarwal were also terminated on 15  December, 1969 by an order of the Government of Punjab, in the name of the Governor,  on the recommendation of the High Court.  

ISSUES:  

1. Whether the formal head of the State, the Governor, can exercise powers and  functions of appointment and removal of members of the subordinate judicial  service as per his discretion?  

 ARGUMENTS:  

The appellants contended that the Governor, as the formal head of the state can exercise  powers of appointment and removal of members of the subordinate judicial service only  personally.  

The appellants placed reliance on the decision of the Supreme Court in Sardari Lal’s  case, where it was held that the satisfaction for making an order under Article 311 is  the personal satisfaction of the President or the Governor. 

They asserted that under Article 234, the governor can wield power discreetly. According to Article 163, the Governor can exercise his powers without any aid and advice of the ministers.  The Executive powers of the State are vested in the Governor under Article 154(1). The  provisions of Article 234 of the Rules of Business of the Government of Punjab do not  empower the Ministers to appoint or dismiss a Subordinate Judge.  

The appellants contended that the Governor as per Rule 7(2) in Part D of the Punjab civil Rules  may, on the recommendation of the High Court remove any Subordinate Judge without giving  any reason or revert him to his previous post during his probation period. Rule 7(2) is viewed as an exception to the Rule 18 of the Rules of Business.  

Therefore, they contend that the Governor has the power to remove and appoint Subordinate  judges under Article 234 read with Rule 7(2) of the Service Rules and it cannot be allocated to  a Minister. 

JUDGEMENT:  

The majority opinion was given by Justice A. N. Ray. The executive power of the Union and  the State is given to the President and the Governor respectively. The actions taken by the  Union in exercise of the power vested in the President under Article 53(1) is taken by the  Government in the name of the President as mentioned under Article 77(1). Similarly, the  actions done in the exercise of the executive powers of the State vested in the governor as  mentioned under Article 154(1) is taken by the Government of the state in the name of the  Governor as per Article 166(1). Furthermore, as stated under Article 300 and 361, neither the  President nor the Governor can be sued for the executive actions of the government as the  executive functions are not taken by them personally.  

When the Governor carries out his duties with the help of the ministers, he does so by  establishing rules for the smooth operation of the State Government’s business or by assigning  tasks to those ministers, as outlined in Article 166(3). The decisions made by the ministers  under this article are considered to be the Governor’s own decisions. Courts have consistently  regarded the powers of the President and the Governor as being akin to those of the Crown 

under the British parliamentary system. 

The Governor, as the constitutional head of state, appoints and removes individuals on the basis  of the aid and recommendation of the Ministers. In the case under consideration, the court had  ruled that the President of the State and the Governor act on the recommendation of the Minister 

in all matters whether they are of an executive or legislative nature. In cases where the  Governor acts independently, he acts in harmony with the Council of Ministers. Appointment  and removal of a Subordinate Judge by the Governor should be done on the basis of the aid  and recommendation by the Ministers as this is an executive act.  

In cases where the authority is of the opinion that the behaviour of a probationary may lead to  dismissal, it may not conduct an enquiry. In such cases, the probationer may apply for  protection. However, in the event that an enquiry is opened against the probationer on the basis  of allegations of maladministration or corruption and he is terminated without adhering to the  provisions of Rule 311(2), then he can claim for protection. 

According to the appellant, the High Court did not act in accordance with the Constitution.  According to Article 235 of the Constitution, the Governor has to act on the recommendations  made by the High Court. The High Court was supposed to conduct an inquiry through the  District Judges, but it did not, instead, the Enquiry Officer submitted the report on the alleged  misconduct. Hence, the High Court violated Article 311.The court held the order of termination  to be violative and that the authorities have to ascertain whether the applicant is suitable.  Therefore, the order of termination of Ishwar Chand was annulled.  

The Court reaffirmed the established legal principle that the President and Governor are only  the constitutional heads, with the powers and functions of the Council of Ministers being  exercised by them. The President and Governor are not required to satisfy themselves, but  rather the satisfaction of their Council of Ministers in the constitutional sense of the cabinet  system. In accordance with Constitutional Law, the ‘functions’ of the President and the  Governor and the ‘business’ of Government are the responsibility of the Ministers and not of  the Head of State. The ‘aid and advice’ of Ministers is a term of art, which in law means, in the  context of the Cabinet system of our constitutional system, that the Aider acts and the Advisor  decides in his own capacity and is not subject to the President’s power to accept or reject any  such action or decision, except in the case of the Governors, to the limited extent permitted by  Article 163. The judgment overruled the case of Sardari Lal v. Union of India.  

REFRENCE:  

i. https://indiankanoon.org/doc/1382698/ 

ii. https://probono-india.in/research-paper-detail.php?id=739 

Written by Tanisha Singh an intern under legal vidhiya.