CASE ANALYSIS OF

SHAMSHER SINGH AND ANOTHER v. STATE OF PUNJAB

AIR 1974 SC 2192

By:

APOORVA BHANGLA

3RD YR., BBA.LLB.

KIRIT P. MEHTA SCHOOL OF LAW

EMAIL: apoorvabhangla@gmail.com

www.probono-india.in

December 25, 2020

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ABSTRACT

The following is a case analysis of the case Samsher Singh v. State of Punjab. This is one of the
landmark judgments on the concept of discretionary powers of the Governor. This case has been
decided by the 7 judge bench of the Supreme Court. The two appellants in this case had joined
the Punjab Civil Service (Judicial Branch) and were on probation. The probation of both of them
was terminated by orders of concerned Ministers / Chief Minister in conformity with the
recommendations of the High Court under different provisions of relevant rules. The orders of
termination were issued in the name of the Governor of Punjab without seeking or obtaining his
personal satisfaction. The appellants contended that the Governor as the constitutional or the
formal head of the State can exercise powers and functions of appointment and removal of
members of the Subordinate Judicial Service only personally. This case has been read,
summarized and analyzed broadly under the following headings: Facts of the case, issues at
hand, arguments from both sides, legal aspects involved and overview of the judgement.

KEYWORDS

Governor, Council of Ministers, President, constitutional head

INTRODUCTION

The case is based upon the two appeals from the judgment of the Punjab and Haryana High
Court. The Appellants has joint the Punjab Civil Service however both of them were terminated
without any proper reason.

BRIEF FACTS ABOUT THE CASE

 The present case is based on the two appeals from the judgment of the Punjab and Haryana
High Court.
 The appellants in the present case had joined the Public Civil Service.
 However, both of them were kept in probation
 On 27 April 1967, by an order made by the Government of Punjab n the name of the
Governor Shamsher Singh was terminated without any reason.

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 On 15 December, 1969 the other appellant Ishwar Chand Aggarwal was terminated from his
services due to the suggestions made by the High Court by the Government in the name of
the Governor.

ISSUE RAISED

 Whether the Governor can exercise discretion on appointment and removal of members of
the Subordinate Judicial Service.

ARGUMENTS FROM THE APPELLANT

The appellant contends that the Governor should not use his discretion in the appointment and
removal of members of the Subordinate Judicial Service. They contend that under Article 234,
the governor can exercise the power discreetly. Under Article 163 the Governor can exercise his
powers without any aid and advice of the ministers. The governor is vested with executive
powers of the State under Article 154(1). The Ministers are not given the powers to appoint and
remove a Subordinate Judge under Article 234 as mentioned under the Rule of Business of the
State of Punjab. 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 one of the exceptions 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.

ARGUMENTS FROM THE RESPONDENT

The State contends that the Governor exercises his powers on the aid and advice of the council of
ministers and not in his own discretion. The state further contends that like the President who is
the constitutional head of the Union, the Governor is also the constitutional head of the state and
both of them exercises their powers and functions on the aid and advice of the council of
Ministers.

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LEGAL ASPECTS

Article 163 of the Constitution of India: “Council of Ministers to aid and advice Governor. (1)
There shall be a Council of Ministers with the Chief Minister as the head to aid and advice the
Governor in the exercise of his functions, except in so far as he is by or under this Constitution
required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor
is by or under this Constitution required to act in his discretion, the decision of the Governor in
his discretion shall be final, and the validity of anything done by the Governor shall not be called
in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor
shall not be inquired into in any Court.”

Article 234: “Appointment of persons other than district judges to the judicial service of a State
shall be made by the Governor of the State in accordance with rules made by him in that behalf
after consultation with the State Public Service Commission and with the High Court exercising
jurisdiction in relation to such State.”

Article 235: “The control over district courts and courts subordinate thereto including the
posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a
State and holding any post inferior to the post of district judge shall be vested in the High Court,
but nothing in this article shall be construed as taking away from any such person any right of
appeal which he may under the law regulating the conditions of his service or as authorizing the
High Court to deal with him otherwise than in accordance with the conditions of his service
prescribed under such law.”

Article 311(2): “No such person as aforesaid shall be dismissed or removed or reduced in rank
except after an inquiry in which he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges Provided that where it is
proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed
on the basis of the evidence adduced during such inquiry and it shall not be necessary to give

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such person any opportunity of making representation on the penalty proposed: Provided further
that this clause shall not apply.

a. where a person is dismissed or removed or reduced in rank on the ground of conduct which
has led to his conviction on a criminal charge; or

b. where the authority empowered to dismiss or remove a person or to reduce him in rank ins
satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or

c. where the President or the Governor, as the case may be, is satisfied that in the interest of the
security of the State, it is not expedient to hold such inquiry.”

VIEWS OF THE COURT

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) likewise 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).
Further 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.

In situations where the Governor perform his functions with the help of ministers he does so by
making rule for convenient transaction of the business of the Government of the State or by
allocating business to the said Ministers under Article 166(3). The actions of the ministers under
the abovementioned article are the decision of the Governor itself. The courts have always taken
the view that the powers of the President and the Governor are similar to that of the Crown under
the British parliamentary System.

The crux of a Cabinet system of government is that an individual Minister is responsible for
every action and inaction taken in its ministry and it is a Civil servant who takes certain
decisions. The decisions taken by a civil servant is in the behalf of the government.

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The Governor as a constitutional head of the state appoints or removes persons on the aid and
advice of the ministers. The court in the present case has held that the President and the
Governor acts on the aid and advice of the ministers in all the matters whether those functions
are executive or legislative in character. In case the Governor acts on his own he does so with the
harmony of the Council of Ministers. The appointment and removal of the Subordinate Judicial
Service should be done with the aid and advice of the Ministers by the Governor as it is an
executive action. Sometimes the authority is in the view that the conduct of the probationary
might result in dismissal but in such cases the authority might not conduct any enquiry. However
in case the probationer is faced with an enquiry on charges of misconduct or corruption and his
services are terminated without following the provisions of Article 311(2) then he can claim
protection.

According to the appellant the High Court has failed to act in accordance to the provisions of the
Constitution. Under Article 235 the Governor is required to act on the recommendation of the
High Court. The High Court was required to conduct an enquiry through District Judges but it
did not do so. The Enquiry Officer gave the report on the allegations of misconduct. Therefore it
violated Article 311. The court held that the order of termination was violative and the
authorities have to find out the suitability of the appellant. Ishwar Chand’s order of termination
was set aside.

OVERVIEW OF THE JUDGMENT

The appellant Shamsher Singh was a Subordinate Judge on probation. His services were
terminated by the Government of Punjab in the name of Governor of Punjab by an order which
did not give any reasons for the termination. Likewise, the services of Ishwar Chand Agarwal
were also terminated by the Government of Punjab in the name of Governor on the
recommendation of the High Court. The issue in this case was whether the constitutional
requirement of the satisfaction of the President/Governor means his personal satisfaction. The
Court unequivocally reiterated the settled legal position that the President/Governor is only the
constitutional head, the real power being vested in the Council of Ministers on whose aid and
advice the President/Governor exercises his powers and functions. The satisfaction required by
the Constitution is not the personal satisfaction of the President or Governor but the satisfaction
of the President or Governor in the constitutional sense in the cabinet system of government, that
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is, the satisfaction of his Council of Ministers. In Constitutional Law, the ‘functions’ of the
President and Governor and the ‘business’ of Government belong to the Ministers and not to the
Head of State, that ‘aid and advise’ of Ministers are terms of art which in law mean, in the
Cabinet context of our constitutional scheme, that the aider acts and the advisor decides in his
own authority and not subject to the power of President to accept or reject such action or
decision, except, in the case of Governors, to the limited extent that Article 163 permits and his
discretion, remote controlled by the Centre has play. The judgment overruled the case of Sardari
lal v. Union of India.

REFERENCES

 Sardari Lal v. Union of India, (1971) 3 SCR 461

 Constitution of India, 1949
 Rajkumar, “A framework to Reform the Appointment Procedure and Discretionary
Authority of the Governor”, (2020) 4(4) Comparative const. L. Administrative l.
Quarterly, 34

BRIEF ABOUT AUTHOR

Apoorva Bhangla is a 3rd year BBA LLB (Hons.) student at Kirit P. Mehta School of Law,
NMIMS University, Mumbai. She has an interest in Corporate Law and Family Law.