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Har Govind Pant Vs. Chancellor, University of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 311 of 1977
Judge
Reported inAIR1978Raj72
ActsConstitution of India - Articles 157, 226, 311, 319 and 356(1); University of Rajasthan Act, 1946 - Sections 12, 12(1), 12(4), 12(6), 12(7) and 13(4)
AppellantHar Govind Pant
RespondentChancellor, University of Rajasthan and ors.
Appellant Advocate C.N. Sharma, Adv. for Union of India (Intervenor) and; M. Mridul, Adv. for the Intervenor Gulam Musta
Respondent Advocate S.K. Tewari, Adv. General
DispositionPetition dismissed
Cases ReferredIn The King v. Dame Juliettee Carroll
Excerpt:
- - incidentally, shri raghukal tilak was a member of the rajasthan public service commission during the year l'958-59. 4. affairs of the university were in a complete mess and therefore the chancellor addressed a letter dated june 24, 1977 to the then vice-chancellor stating that he was receiving complaints about the manner of appointmerits of teaching and non-teaching staff during the period of emergency and that as he would need some time to decide as to what was to be done about these complaints, he would, in the meanwhile, like him not to confirm the appointments made in the last two years, and accordingly directed him not to confirm such appointments. though the governor is the head of the state under article 154(1), he is to act with the aid and advice of the council of.....a.p. sen, j. 1. this writ petition has been referred to a full bench at the instance of the state government because it involves a question as to the validity of the appointment of shri raghukul tilak as governor of rajasthan.2. the relevant facts giving rise to the writ petition, shortly stated, are that during the period of emergency, the petitioner, who holds a substantive rank of a reader in political science in university of rajasthan, was appointed as officiating director, institute of correspondence studies, on sept. 29, 1975 by the then vice-chancellor dr. g.c. pande, respondent no. 2. his services were placed on deputation from the department of political science and in due course the post was advertised. on the recommendation of the selection committee constituted for the.....
Judgment:

A.P. Sen, J.

1. This writ petition has been referred to a Full Bench at the instance of the State Government because it involves a question as to the validity of the appointment of Shri Raghukul Tilak as Governor of Rajasthan.

2. The relevant facts giving rise to the writ petition, shortly stated, are that during the period of Emergency, the petitioner, who holds a substantive rank of a Reader in Political Science in University of Rajasthan, was appointed as Officiating Director, Institute of Correspondence Studies, on Sept. 29, 1975 by the then Vice-Chancellor Dr. G.C. Pande, respondent No. 2. His services were placed on deputation from the Department of Political Science and in due course the post was advertised. On the recommendation of the Selection Committee constituted for the purpose, which was duly approved by the Syndicate, the petitioner was appointed as Director, Institute of Correspondence Studies, on probation, for a period of one year in the pay-scale of Professor in the University i.e., in the grade of Rs. 1100-1600.

3. Shri Raghukal Tilak assumed charge of the office of the Governor of Rajasthan on May 12, 1977. Under Section 10 (1) of the University of Rajputana Act, 1946 (hereinafter to be referred to as 'the Act'), he became the Chancellor of the University of Rajasthan by virtue of his office as Governor. Incidentally, Shri Raghukal Tilak was a Member of the Rajasthan Public Service Commission during the year l'958-59.

4. Affairs of the University were in a complete mess and therefore the Chancellor addressed a letter dated June 24, 1977 to the then Vice-Chancellor stating that he was receiving complaints about the manner of appointmerits of teaching and non-teaching staff during the period of Emergency and that as he would need some time to decide as to what was to be done about these complaints, he would, in the meanwhile, like him not to confirm the appointments made in the last two years, and accordingly directed him not to confirm such appointments.

5. There was an open clash between the then Vice-Chancellor Dr. G.C. Pande, and the Chancellor. In response to the Chancellor's letter, the then Vice-Chancellor, in this reply stated,--

'May I submit that 'the manner of appointment of teaching and non-teaching staff in the University of Rajasthan' is regulated by statutory provisions and has nothing to do with the emergency period'.

As for confirmation, I am duty bound to point out that under the rules in force a University employee on probation is entitled to confirmation on completion of one year's satisfactory work.' This was nothing but an open defiance of the Chancellor's order. Thereafter, the Chancellor and the Vice-Chancellor appear to have met several times to discuss the University affairs.

6. Eventually, the then Vice-Chancellor Dr. G.C. Pande, addressed a letter dated July 13, 1977 submitting his resignation from the post of Vice-Chancellor with immediate effect seeking permission to revert to his substantive post of Professor in the University, Department of History and Indian Culture.

7. On July 14, 1977, the then Vice-Chancellor Dr. G.C. Pande, after submitting his resignation, called an emergency meeting of the Syndicate over which he presided. The minutes of the proceedings record that he had submitted the resignation from the office of the Vice-Chancellor to the Chancellor on July 13, 1977, with a request to accept the same with immediate effect. The Syndicate then recorded its appreciation of the services of Dr. G.C. Pande as Vice-Chancellor of the University and resolved that on his being relieved from the office of the Vice-Chancellor he be reverted to the post of Professor in the Department of History. The Syndicate further resolved that a seniority list of the University Professor be sent to the Chancellor so as to facilitate him in taking a decision about the arrangements for carrying on the office of the Vice-Chancellor till his successor-in-office is duly appointed, as required under Section 12 (7) of the Act.

8. On receipt of the report of the Syndicate, the Chancellor accepted the resignation of the then Vice-Chancellor Dr. G.C. Pande with effect from July 14, 1977. In the vacancy thus caused, the Chancellor appointed Dr. Om Prakash, University Professor of Economic Administration and Financial Management, University of Rajasthan, to be the Acting Vice-Chancellor under Section 12 (7) of the University of Rajputana Act, till further orders.

9. It further appears that before relinquishing his office as Vice-Chancellor, Dr. G.C. Pande, respondent No. 2, left a note dated July 13, 1977 for the Registrar of the University, stating that he found that the petitioner and two others, who had been appointed on probation for a period of one year from Aug. 1, 1976, had directly worked under him and that their work was satisfactory and in his opinion, they deserved to be confirmed. On July 30, 1977, the Acting Vice-Chancellor, in exercise of the powers vested in him under Section 13 (4) of the Act, dispensed with the service of the petitioner as Director, University of Correspondence Studies and reverted him to his substantive post of Reader in Political Science with effect from Aug. 1, 1977. It appears that before taking the step, the Acting Vice-Chancellor postponed the meeting of the Syndicate scheduled to be held on July 18, 1977. The next date for the meeting of the Syndicate, as and when fixed, was to be notified to the Members.

10. The petitioner seeks the issuance of a writ of mandamus to quash the order of the Acting Vice-Chancellor dated July 30, 1977, terminating his appointment as Director, Institute of Correspondence Studies at the end of the period of probation and reverting him to his substantive post of Reader in the University Department of Political Science with immediate effect, and for a direction to the respondents to restore the petitioner to the rank of Professor in the Department of Political Science.

11. The most cardinal point, on which Shri R.V. Agarwal, learned counsel for the petitioner, assails the order of reversion is that Shri Raghukul Tilak, having been a Member of the Rajasthan Public Service Commission in the year 1958-59, was ineligible, by reason of Article 319(d) of the Constitution, from being appointed to the post of Governor and there-lore, was not competent to accept, as ex officio Chancellor, the resignation of the then Vice-Chancellor Dr. G.C. Pande, on July 14, 1977, and consequently, the appointment of Dr. Om Prakash, University Professor of Economic Administration and Financial Management, as the Acting Vice-Chancellor of the University, was invalid and therefore, the Acting Vice-Chancellor could not have passed the impugned order of reversion. Shri Agarwal concedes that Shri Raghukul Tilak, being the Governor and thus head of the State under Article 154(1), does not hold an employment under the State Government, but he contends that Shri Raghukul Tilak holds on employment under the Government of India. The whole controversy turns on the applicability of Article 319(d) to the office of Governor, and particularly, on the meaning of the word 'employment' occurring therein. He contends that the Governor is nothing but an employee of the Government of India. His appointment is by the President under Article 155 of the Constitution. The word 'President' there means the President acting on the aid and advice of the Council of Ministers and therefore, according to him, the appointment is by the Central Government, and under Article 156 (1), Governor holds his office during the pleasure of the President. Though the Governor is the head of the State under Article 154(1), he is to act with the aid and advice of the council of Ministers under Article 161. The Governor is an employee of the Government of India because he is appointed as such and he draws his emoluments like any other employee and he is also subject to control of the Union in service matters. What is the nature of the control, it is said, must necessarily depend on the nature of the office. There may be complete control or partial control. Shri Agarwal further contends that the concept of the constitutional role of Governor is fast changing. With the recent proclamation of Emergency under Article 352, the Governor, for all intents and purposes, acted as a mere agent of the Central Government carrying out the behest of the then Prime Minister. That apart, he contends that under Article 356, the Governor has to report in certain circumstances, to the President that there is failure of Constitutional machinery in the State and upon such report, there is imposition of the Presidential rule in a State.

12. Shri Agarwal draws a distinction between the elective and non-elective posts. His contention is that the Governor does not hold an elective post like the President. According to him, all, who do not hold elective posts, are in the employment either of the Government of India or the Government of a State. The office of the Governor is an office of profit and one of the conditions of his service is that he will not hold any other office of profit but the one which he has held as the Governor. It is submitted that as regards matters on which the Governor is empowered to act in his discretion or on his special responsibility, the Governor is under the complete control of the President except as regards the making of a report to the President under Article 356. On the basis of his submission, Shri Agarwal contends that the post of a Governor is an employment under the Government of India inasmuch as the relationship of master and servant or employer and employee exists between the Government of India and the Governor. He refers to the debates of the Constituent Assembly for the purpose of showing that an ex-Member of a State Public Service Commission is disqualified under Article 319(d) from further employment under the Government of India or under the Government of a State, except as the Chairman of any other Members of the Union Public Service Commission or as the Chairman with any other State Public Service Commission. It therefore debars him from being appointed as a Governor.

13. Shri M. Mridul, learned counsel for the Intervenor Gulam Mustafa, supported the petitioner. He contends that the President is the constitutional head of the Union. In all the articles which speak of powers and functions of the President, the word 'President' means the Council of Ministers : Samsher Singh v. State of Punjab, AIR 1974 SC 2192. He referred to Section 3 (8) (b) of the General Clauses Act for the submission that the Central Government is the President. He drew a distinction between elective and non-elective posts. When asked whether election is a mode of appointment, he conceded that it is so, but the contended that while the President is the head of the Union, he is elected to that office, but the Governor is appointed by the President, meaning the Union Government, and therefore, he is an employee of the Government of India. The three cognate terms 'office', 'service' and'employment' cannot be tautologous. The word 'employment' in Article 319 cannot be read as 'service'. He referred to Maxwell's Interpretation of Statutes, 12th Edition, p. 218. 'Employment' within the meaning of Article 319(d) cannot, therefore, be synonymous with 'service'. They are two words of different connotation and they cannot be given the same meaning. He also referred to the meaning of the word 'employment' as given in Saunder's 'Words and Phrases', Vol. 2, pp. 157-58.

14. Next, he contends that the law regulating the relationship between employer and employee has changed as social relationship between employer and employee has changed and the test as to whether an employer possessed the right not only to control of the work the employee was to do, but also the manner in which the work was to be done, was not of universal application. He referred to Halsbury's Laws of England, 4th Edition, Vol. 16, p. 313. It was pointed out that one test which emerges from the recent authorities is whether on the one hand the employee is employed as part of the business and his work is an integral part of the business, or whether, on the other hand, his work is not integrated into the business but is only accessory to it or it is done by him on his own account. The learned counsel then contended that control may be in various ways. The Governor holds office during the pleasure of the President under Article 156. The right of removability is part of control : Emperor v. Sibnath Banerji, AIR 1945 PC 156. He then referred to Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52, where it is laid down that the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and payment from out of Government revenues, are important factors in determining whether that person is holding an office of profit under the Government, though the payment from a source other than the Government revenue, is not always a decisive factor. The right of removability brings in subordination. In support of the contentions, the learned counsel referred to Wade's Administrative Law, 3rd Volume, p. 24, Bernard Sohwartz and Wade's Legal Control of Government, p. 20-1, Basu's Introduction to the Constitution of India, 6th Edition, pp. 204-5. He also referred to Humphrey's Executor v. United States, (1934) 295 US 602-633, and certain other decisions.

15. Mr. Mridul then contends that the Governor acts in his discretion under 2nd proviso to. Article 200, proviso to Article 213, Articles 256, 340, 341, 342 and 356. Special responsibilities of the Governor are those enumerated in Articles 371, 371A(1)(b). 371A(1)(d), 371A(2)(f), Sixth Schedule, paragraphs 9 (2) and 18 (2), where the words 'in his discretion' are used in relation to certain powers of the Governor. In all these matters, the learned counsel contends that the Governor acts subject to the remote-control of the Union Government. It is a case of control and therefore a case of subordination.

16. In reply, Shri F.S. Nariman, appearing for the State of Rajasthan contends that the Governor is a high constitutional functionary and he is nobody's employee. The concept of employer and employee relationship does not exist between a Governor and the Union Government. In the federal structure of ours, he plays a very important role. Under the Constitution, the Governor is invested with various functions and duties. It would be an anathema to say that Governor of a State is under the employment of the Government of India. Shri Nariman next points out that Article 319 finds place in Part XIV of the Constitution, which relates to 'services'. The bar against future employment contained in Article 319 is to ensure the independence of the Public Service Commission, which is the watch-dog of services. The bar is against employment. The word 'employment' in Article 319 must be construed, in the context and setting, and can mean nothing than service i.e., employment under the Government of India or any other State. It relates to 'Service and posts in connection with the affairs of the Union or of any State'. The bar contained in Article 319 (d) does not relate to a constitutional office like that of Governor.

17. The whole thing turns, as Shri Nariman puts it, on eligibility. He points out that the appointment of Shri Raghukul Tilak as Governor of Rajasthan is challenged by the petitioner solely on the ground of the disqualification mentioned in Article 319(d). According to him, Article 319 cannot be projected into Article 157. Nor is Article 157 controlled by Article 319. Article 157 provides the qualifications for appointment as Governor. No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed his age of 35 years. The eligibility of a person, therefore, depends on citizenship and age. It bars a person at the very threshold unless he possesses these two qualifications. Article 158 of the Constitution provides for conditions of Governor's office. It lays down, inter alia, certain limitations, i.e., what follows from his office. Article 158(1) provides that a Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a Member of either House of Parliament or of a House of Legislature of such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor. Articles 157 and 158 should be read together. Shri Nariman contends that the eligibility of a Governor's office is laid down in Article 157. Article 157 is not subject to the other provisions of the Constitution. There are no words like 'subject to other provisions of the Constitution' or 'not otherwise disqualified'. That is a legal common device to indicate that the Article does not stand by itself. The absence of such words is rather significant. Article 319(d) cannot, therefore, be read into, Article 157.

18. Shri Nariman then contended that our Constitution provides for a Federal Government having separate systems of administration in the Union and its units, namely, the States. A Governor, just as the President, stands at the head of the Executive power of a State. Executive power of the State is vested in the Governor and all executive actions have to be taken in the name of the Governor. The Constitution must be interpreted in a reasonable manner. According to him, Governor is the fountain-head or the very structure on which the edifice of the State rests. The Governor is nobody's employee. He only serves the Constitution. Shri Nariman drew our attention to the form of Governor's oath or affirmation in Article 159. The form of oath or affirmation that a Governor subscribes under Article 159 is identically the same as the form of oath subscribed by the President under Article 60. Before the President or the Governor enter upon their offices, they have to make and subscribe an oath stating that they will 'preserve, protect and defend the Constitution'. A Governor is, therefore, a protector of the Constitution. Heis not in the service of the Government of India or of Government of a State. Nor is he an agent of the Central Government. He drew a distinction between the functions of a Governor under the Constitution and those of a Colonial Governor, who was a representative of the Crown. Whereas a Constitutional functionary like the Governor is nobody's employee, a Colonial Governor was the Crown's representative. He drew our attention also to Seervai's Constitutional Law of India, 1st Edn., Appendix A-139. It is only in regard to Article 239(2) and Schedule VI, para. 18 (2) that the Governor acts as an agent, but that is as a Constitutional instrumentality. Outside these areas, he acts on his own. Nobody can give him any direction as to the manner in which the work is to be done, The word 'employment' denotes the relationship of master and servant. It would be the very antithesis of the Constitution to say that he is an employee of the Central Government. He is the Chief Executive of the State. He appoints the Chief Minister. In Federal Structure, there is no subservience. Each of the Constitutional Functionaries performs his own functions and duties. With regard to Articles 256 and 257, Shri Nariman contends that Centre's direction would no doubt prevail. In the event of conflict, the State follows the mandate of the Centre. In federal polity, the Centre is always strong. This does not show that the Governor is subordinate to Centre, nor does it show that he is in the employment of the Central Government. Second proviso to Article 200 illustrates that the Governor is a protector of the Constitution. Shri Nariman further contends that there is no subordination of the Governor under the Constitution merely because he is appointed by the President. He drew our attention to the various functions of the Governor, his power to grant pardon or reprieve under Article 161', which is a Sovereign function. He points out that Article 163(2) is not controlled by Article 163(1) i.e., by the advice of the Council of Ministers and that Article 108 makes the Governor a component part of the State Legislature. He also drew our attention to Articles 167, 175 and 176, second proviso to Article 200, Articles 200, 333 and 356, which relate to the various constitutional functions of a Governor.

19. The crux of the matter, therefore, is whether an office of a Governor of a State is an employment under the Government of India within the meaning of Article 319(d) of the Constitution? Article 319 finds place in Part XIV of the Constitution, which relates to 'Services' under the Union, and the States. The bar against employment under Article 319 is obviously against 'services and posts in connection with the affairs of the Union or of any State'. The word 'employment' must take its colour and content from its context, and cannot be read in isolation. The constitutional bar contained in Article 319(d), therefore, is against future Government employment and does not relate, to a Constitutional office like that of a Governor.

20. The object of Article 319, evidently, was to, secure the independence of the Members of the Public Service Commission, for the Union as well as for the States. While Article 316(3) makes them ineligible for re-appointment to their office, on the expiry of their terms. Article 319 imposes a wider ban--once they cease to hold their, office either by expiry of the term or by resignation or removal, as provided in Article 316(2), they cannot be given a new appointment elsewhere under the Government of India or of a State. The only exceptions to those bars are those laid down in the Article. In short, the bar against employment under the Government is absolute in the case of the Chairman of the Union Public Service Commission; while in the case of a Chairman of the State Public Service Commission or of the other Members of the Union or State Public Service Commissions, there is scope for employment in a higher post within the Public Service Commission, but not outside.

21. It would thus appear that Article 319(d) has no reference to an office like that of the Governor. It has reference to a post in organized civil service and ex cadre post under direct contract of service as referred to in Part XIV of the Constitution relating to service under the Union and the States. It has reference to a post in organized civil services, and what is prohibited is employment under the Government of India or under the Government of State. The object is to make an incumbent to these offices free from the allurement of getting any favour from the executive after the termination of his office, which might otherwise have influenced his action by the office.

22. It is to be noticed that Article 148(4) disqualifies a Controller and AuditorGeneral from 'further office'. Article 319(a) disqualifies a Chairman of the Union Public Service Commission from 'further employment'. Article 319(d) disqualifies a Member of a State Public Service Commission from 'any other employment' except those provided therein. The word 'employment' is, of course, of wider connotation and includes an office; but, in the context in which it appears, the word 'employment' in Article 319 must and ought to mean 'service'. Thus, there is a bar from any other employment under the Government of India or under the Government of a State i.e., it relates to services and posts in connection with the affairs of the Union or any other State. It must, accordingly, be held that the office of the Governor of a State is not an employment within the meaning of Article 319 (d) of the Constitution, In that view, it is not necessary to refer to the various authorities referred to, by the learned counsel for the petitioner and the intervenor.

23. Eligibility to a Governor's office is laid down in Article 157. No person shall be eligible for appointment as Governor unless he has completed the age of 35 years. The eligibility, therefore, depends on citizenship and age Article 319(d) cannot, in my view, be projected into Article 157. Article 157 is not controlled by Article 319(d). There are no words like 'subject to other provisions of the Constitution' or 'not otherwise disqualified' in Article 157. That is a common legal device to indicate that the Article does not stand by itself. The absence of such words is rather significant. Article 319(d) cannot, therefore, be read into Article 157.

24. The word 'employment' denotes the relationship of master and servant. The test is whether an employer possessed the right not only to control what work the employee was to do, but also the manner in which the work was to be done: Halsbury's Laws of England, 4th Edition, Vol. 16, p. 313. That test is clearly not fulfilled in the case of a Governor. The Governor is not under the employment of the Government of India. In fact, a Governor has no employer : he occupies a high constitutional office invested with certain constitutional functions and duties. Our Constitution provides for a federal Government, having separate systems of administration for the Union and its units. The Constitution contains provisions for the governance of both. Broadly speaking, the pattern of Government in the States is the same as that for Union, namely, a parliamentary system and the executive Head being a Constitutional functionary, who is to act according to the advice of the Ministers responsible to the State Legislature except in matters In respect of which he is empowered by the Constitution to act 'in his discretion'. At the head of the executive power of the State is the Governor just as the President stands at the head of the executive power of the Union. In Ram Jawaya Kappor v. State of Punjab, AIR 1955 SC 549, Mukherjea, C. J. observed at p. 556,--

'Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. In India, as in England, the executive has to act subject to the control of the legislature, but in what way is this control exercised by the Legislature? Under Article 53(1) ... ... ... the executive power of the Union is vested in the President but under Article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtained in regard to the Government of States; the Governor ... ... ... ... occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government, In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England.'

25. It would be an anathema to say that a Governor of a State is under the employment of the Government of India. In the context of the federal structure of our Constitution, the Governor has a pivotal role to play in the Indian polity and it will be completely subversive and totally destructive of the federal framework of the Constitution and the autonomy of States contemplated thereto, to describe the Governor as anemployee of the Central Government. If he were to be so regarded, the character of the Union as a quasi-federation will be totally destroyed.

26. Under Article 155 of the Constitution, the Governor of a State shall be appointed by the President by warrant under his hand and seal. Under Article 156(1) a Governor holds office during the pleasure of the President. Under Article 159, the oath taken by a Governor is practically the same as that taken by the President under Article 60. He swears or solemnly affirms that he will faithfully execute the office of the Governor of the particular State and will do to the best of his ability 'to preserve, protect and defend the Constitution and the law' and that he will devote himself to the service and well-being of the particular State, Consequently, he has to function only within the four corners of the Constitution, There is absolutely nothing in the Constitution to make the Governor of a State an employee of the Central Government. The relations between the Union and the States have been described and dealt with in detail in Part XI of the Constitution and there is no justification whatsoever to travel beyond the provisions contained therein and to make the Governor an employee of the Central Government, A Governor, both by nature of his office as contemplated by the Constitution and by virtue of the oath he takes has to function as the Head of the State, exercising those powers and discharging those functions which are attached to his office,

27. There are several Constitutional functions, powers and duties of the Governor. These are conferred on him eo nomine the Governor, The Governor is, by and under the Constitution required to act in his discretion in several matters, These Constitutional functions and powers of the Governor where he acts 'in his discretion' are not executive powers of the State within the meaning of Article 154.

28. I may first briefly deal with the various Constitutional provisions setting out the entire range of the functions, powers and duties of the Governor, which are conferred on him eo nomine the Governor.

29. There shall be a Governor for each State (Article 153) and he shall be appointed by the President (Article 155). The executive power of the State isvested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution (Article 154). This Article read literally and by itself will mean that the Governor's executive power is absolute and untrammelled, and without any restriction except what is indicated in Sub-Article (2) of that Article. But it has been well settled that this is not the meaning. Article 163(1) is the real repository and source, in fact and substance, of the executive power of the State and the manner in which it should, or can be exercised. The sub-Article says that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions.

30. Taking Articles 154(1), 162, 163(1), 164(1) and (2) together, it is clear that though the executive power of the State is vested in the Governor, and it shall be exercised by him either directly or through officers subordinate to him, that he can do only in accordance with the Constitution, that is to say, with the aid and advice of the Council of Ministers, and this is so in respect of all his functions as Governor, subject to the exception in Article 163(1). In spite of the fact that the Chief Minister and the other Ministers are appointed by the Governor, which is one of his functions under the Constitution and they hold office during his pleasure, neither the Council of Ministers is responsible to the Governor, nor is the Governor responsible to the Legislature. The Council of Ministers is made collectively responsible to the Legislature of the State, These matters are clear from Article 164(1) and (2). The Governor is thus made the Head of the Administration in whom the executive power of the. State is formally vested, and consistently with it, all executive actions of the Government of the State are required by Article 166(1) to be expressed to be taken in the name of the Governor. The executive power is, in substance, and factually, exercised by the Council of Ministers which, as I said, is collectively made responsible to the Legislature, and not the Governor.

31. It is evident from the provisions of the Constitution that in establishing a Democratic Republic it has, with suitable modifications modelled and established its pattern of Government at the Centre and in the States on the British Modelof Parliamentary responsible Government with the Crown as the formal head and with the Constitutional and political as well as Parliamentary conventions and developments. Thus the Governor is the constitutional head of the State to which he is appointed and in that capacity he is bound by the advice of the Council of Ministers of the State except in the sphere where he is required by the Constitution, expressly or impliedly, to exercise his discretion. In the sphere in which he is bound by the advice of the Council of Ministers, for obvious reasons, he must be independent of the Centre, There may be cases where the advice of the Centre may clash with the advice of the State Council of Ministers. In the sphere in which he is required by the Constitution to exercise his discretion, it is obvious again that it is his discretion and not that of any other authority and therefore his discretion cannot be controlled or interfered with by the Centre.

32. While the Constitution does not empower the President to exercise any function 'in his discretion', it authorises the Governor to exercise some functions 'in his discretion'. In this respect, the principle of cabinet responsibility in the States differs from that in Union. In the exercise of the functions which the Governor is empowered to exercise in his discretion, he will not be required to act according to the advice of his Ministers or even seek such advice, Again, if any question arises whether any matter is or is not a matter as regards with the Governor is not required by the Constitution to act in his discretion, the decision of the Governor shall be final, and the validity of anything done by the Governor shall not be called into question on the ground that he ought or ought not to have acted in his discretion (Article 163(2)),

33. The functions which are specially required by the Constitution to be exercised by the Governor in his discretion are those specified in Schedule VI, para 9 (2) and Article 239(2). Para 9 (2) of the Sixth Schedule provides that until a notification is issued under this paragraph, the Governor of Assam shall, in his discretion, determine the amount payable by the State of Assam to the District Council, as royalty accruing from leases from minerals, Article 239 (2) authorises the resident to appoint the Governor of a State as an Administrator of an adjoining Union Territory andprovides that where a Governor is so appointed, he shall exercise his functions as such administrator 'independently of his Council of Ministers.'

34. Besides the above functions to be exercised by the Governor 'in his discretion', there are certain functions under the Amended Constitution which are to be exercised by the Governor 'on his special responsibility', which practically mean the same thing as 'in his discretion', because though in cases of special responsibility, he is to consult his Council of Ministers, the final decision shall be 'in his individual judgment', which no Court can question. These functions enumerated under Article 371, Article 371A(1)(b), Article 371C and Article 371F(g). Under Article 371, the President may direct that the Governor of Maharashtra or Gujarat shall have special responsibility for taking steps for the development of certain areas in the State, such as Vidarbha, Saurashtra. The Governor of Nagaland has under Article 371A(1) (b) similar responsibility with respect to law and order in that State. Similarly, Article 371C empowers the President to direct that the Governor of Manipur shall have special responsibility to secure the proper functioning of the Committee of Legislative Council of the State. Article 371F(g), imposes special responsibility upon the Governor of Sikkim for peace and equitable arrangement etc. In discharge of such special responsibility, the Governor has to act according to the directions issued by the President from time to time, and subject thereto he is to act 'in his discretion'. In these matters, the Governor acts as an agent of the Central Government, but that is only as a Constitutional instrumentality.

35. In view of the responsibility of the Governor to the President and of the fact that the Governor's decision as to whether he should act in his discretion in any particular matter is final, it would be possible for a Governor to act without ministerial advice in certain other matters, according to the circumstances, even though they are not specifically mentioned in the Constitution as discretionary functions.

36. As regards matters on which the Governor is empowered to act in his discretion or on a 'special responsibility', the Governor will be under the control of the President. As regards other matters, it does not seem that the President will be entitled to exercise anyeffective control over the State Government against the wishes of a Chief Minister, who enjoys the confidence of the State Legislature, though of course, the President may keep himself informed of the affairs in the State through the reports of the Governor, which may lead to the removal of the ministry, under Article 356.

37. These Constitutional provisions regarding the powers and functions of the Governor further reveal the importance of the Governor's role in Centre-State relations. The concept of discretionary exercise of functions by the Governor is important, because the Governor might face situations in the State which call for subjective evaluation and immediate action, and also there may be situations in which in the wider interests of the country the advice of the Council of Ministers might have to be rejected by the Governor.

38. Although, the Constitution provides for the exercise by the Governor all his functions in his discretion only in two specific cases i.e., in carrying on the administration of tribal areas as an agent of the President, and while acting as administrator of an adjoining Union Territory while so appointed by the President, but the Constitution envisages a greater scope of discretion for the Governor under Article 163(1) and (2). which has been considered necessary for keeping the Centre's eye on the State's functioning. Situations may arise in which the Governor may actually have to exercise his discretion in the choice of the Chief Minister, in dissolving the State Legislative Assembly or in dismissing the Ministry.

39. Hence, the Governor is not under any compulsion to follow the advice of the Council of Ministers in a given case. His power to exercise his functions in his discretion is subject to one limitation and there is also one sanction on its reasonable exercise. The limitation is that he has to exercise his discretion only for the purpose of preserving, protecting and defending the Constitution, which he is under oath to do, and one sanction against unreasonable exercise of discretion is the withdrawal of pleasure by the President.

40. Article 161 confers power on the Governor to grant pardons, reprieves etc., which is a sovereign function,

41. Article 168 makes the Governor a component part of the State Legislature.By Article 167, it is the duty of the Chief Minister of a State to communicate the Governor of the decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation, to furnish such information in that behalf as the Governor may call for, and if the Governor so requires, to submit for consideration of the Council of Ministers any matter on which a decision has been taken by a Minister, but which has not been considered by the Council.

42. Article 174(2)(a) which enables the Governor to prorogue the Legislature, does not indicate any restrictions on this power. Hence, the Governor can exercise this constitutional power in his discretion and to the full, if it is necessary for the preservation of the Constitution and for the purposes of upholding the democratic process and parliamentary system of Government.

43. Similarly, the Governor has absolute unrestricted power under Article 174(2)(b) to dissolve the Legislative Assembly for the State, if he has reason to believe that the Legislative Assembly is not representing the electorate.

44. Under Article 175(1), he may address the Legislative Assembly or both Houses, as the case may be. and also send messages to the House or Houses, which is pending in the Legislature or otherwise. The Governor under Article 176(1), shall address the Legislative Assembly, at its first session after each general election and of each year. Where there are two Houses, the Governor shall address in that manner both the Houses, assembled together.

45. Where a Bill has been passed by the State Legislature, it is presented to the Governor for his assent under Article 200 of the Constitution. The Governor has power to reserve the Bill for the consideration of the President. This he will do by using his discretion. The Legislative measure which, in the opinion of the Governor, must have the approval of the Central Government, will be reserved by the Governor for the President's consideration. In exercise of this power the Governor has to play a constructive role in federal relations.

46. Further, the Governor is bound by by virtue of second proviso to Article 200 to reserve a Bill for the consideration of the President 'which, in the opinion of the Governor, would, if it became law, so derogate from the powers of the HighCourt as to endanger the position which that Court is by this Constitution designed to fill'.

47. There is vet another area in which the Governor plays an important role. In case of situation in which the Government of a State cannot be carried on in accordance with the constitutional provisions, the Governor's report under Article 356 generally forms the basis -for the President's action, although the President can act independently of the Governor's report.

48. From an enumeration of the functions, powers and duties of the Governor, it is obvious that he is not under the employment of the Government of India, but is a constitutional functionary. In Union of India v. Sankalchand Himmatmal Sheth (Civil Appeal No. 1486 of 1976, decided on Sept. 19, 1977) : (reported in AIR 1977 SC 2328), though there was a difference of opinion between their Lordships as to whether a Judge of a High Court cannot be transferred under Article 222(1) of the Constitution without his consent, there was complete unanimity on the question that the relationship of a master and servant does not exist between a Judge of the High Court and the Government of India. Their Lordships held that a High Court Judge has no employer and he occupies a high Constitutional Office, which is coordinate with the executive and the legislature, Chandrachud J. observed (at pp. 2344-45),--

'In general, the relationship of a master and servant imports the existence of power in the employer not only to direct what work the servant is to, do, but also the manner in which the work is to be done (see Halsbury's Laws of England, Third Edition, Volume 25, page 447, paragraph 871 and the cases cited in footnote (b)). A servant undertakes to serve his master and to obey his reasonable orders within the scope of the duty undertaken. The Government has no power or authority to direct what particular work a High Court Judge must do and it can certainly not regulate the manner in which he must do his work in the discharge of his official functions...' Thus, there is a fundamental distinction between the master and servant relationship as is generally understood and the relationship between the Government and High Court Judges. They, the Judges of the High Court, are not Government servants in the ordinary signification of that expression.'

Bhagwati J. observed (at p. 2354),--

'There is no All India cadre of High Court Judges. Secondly, a Judge of the High Court is not Government servant, but he is the holder of a constitutional office. He is as much part of the State as the executive Government. The State has in fact three organs, one exercising executive power, another exercising legislative power and the third exercising judicial power. Each is independent and supreme within its allotted sphere and it is not possible to say that one is superior to the other. The High Court, constituted of the Chief Justice and others Judges, exercises the judicial power of the State and is co-ordinate in position and status with the Governor aided and advised by the council of Ministers, who exercises the executive power and Legislative Assembly together with the Legislative Council, if any, which exercises the legislative power of the State.'

49. These observations would apply with greater force to a Governor of a State, who is a constitutional functionary. It must accordingly be held that the office of a Governor of a State is not an employment under the Government of India within the meaning of Article 319(d) of the Constitution.

50. The terms of appointment of a Governor under Article 155 of the Constitution are identically the same as those of a Lieutenant-Governor under Section 58 of the British North America Act, 1867, which has been the subject of judicial Interpretation. Section 58 of the Act provides for the appointment of a Lieutenant-Governor by the Governor-General in Council under the great seal. Under Section 59, the Lieutenant-Governor holds office during the pleasure of the Governor-General in Council. By Section 60, the salary is to be fixed and provided by the Parliament, i.e., paid out of moneys forming part of the consolidated revenue fund of Canada. Lieutenant-Governor receives instructions from the Governor General from time to time, and he is obligated to follow them rather than the advice of the Provincial Ministers. He may reserve a bill for the signification of the Governor-General's pleasure and an act that he has sanctioned may be disallowed by the Governor-General in council. The expression 'Government of Canada' means the Governor General in Council.

51. The object of the Act was neither to weld the Provinces into one, nor thesubordinate Provincial Governments to a central authority, but to create a Federal Government in which they should all be represented; entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy. The object was accomplished by distributing, between the Dominion and the provinces, all powers, executive and legislative. Lieutenant-Governor when appointed, is as such the representative of the Crown for all purposes of Provincial Government, as the Governor-General himself, is, for all purposes of Dominion Government; Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, (1892) AC 437; Bonanza Creek Gold Mining v. R., (1916) 1 AC 566; In re : Initiative and Referendum Act case (1919) AC 935.

52. In The King v. Dame Juliette Carrol, (1948) SCR 126, the Supreme Court of Canada had to consider whether the office of the Lieutenant Governor was a public office under the Governor-General in Council. The Court, after referring to these authorities observed,--

'... ... ... ... it is not possible to describe the office of Lieutenant-Governor as an office under the Governor General in Council. By reason of Section 71 the Lieutenant-Governor is a part of the Legislature for Quebec and that Legislature was to retain its independence and autonomy and to be directly under the Crown as its head'. '

This decision clearly supports my conclusion that the Governor of a State does not hold an employment under the Government of India.

53. The impugned order of reversion has also been challenged by the petitioner on several other grounds, but we are not impressed with any of the submissions.

54. The contention, firstly, is that the resignation of the outgoing Vice-Chancellor was not voluntary act but was a forced resignation under threat of dismissal and therefore, it was not valid in the eye of law. The outgoing Vice-Chancellor Dr. G.C. Pande, therefore, did not cease, it is said, to be the Vice-Chancellor. Thus, there was, in law, no vacancy much less temporary vacancy in the office of the Vice-Chancellor and, there fore, the Chancellor could not have acted under Section 12 (7) of the Act; and secondly, the act of the Chancellor in forcing resignation by the then Vice-Chancellorwas a mala fide act brought under the pressure of Shri Bhairon Singh Shekhawat, Chief Minister, Shri Lalit Kishore Chaturvedi, Education Minister and the new Janta Government, which had come into power. I am afraid, none of these contentions are well founded.

55. The contention regarding the alleged invalidity of the resignation by the outgoing Vice-Chancellor, cannot be accepted for two reasons : First of all, the petitioner has no locus standi to challenge the validity or otherwise of the resignation. The outgoing Vice-Chancellor Dr. G.C. Pande has made no grievance about it. There is no petition filed by him seeking any relief that he still continues in the office of the Vice-Chancellor. On the contrary, he has relinquished that office and resumed his duties on the post of Professor in the Department of History. Secondly, the contention that the resignation of the outgoing Vice-Chancellor was not a voluntary act, is clearly devoid of substance. The letter of resignation dated July 13, 1977 addressed by the then Vice-Chancellor Dr. G.C. Pande to the Chancellor submitting his resignation from the post of Vice-Chancellor with immediate effect seeking permission to revert to his substantive post of Professor in the University, Department of History and Indian Culture, speaks for itself. The letter of resignation reads,--

'This is to formally request you to kindly accept my resignation from the post of Vice-Chancellor of the University of Rajasthan with immediate effect and to rejoin my post of Professor in the Department of History and Indian Culture. You would recall that I had made this request to you informally early in June. As you are aware, the circumstances since then have reached such a pitch that it is no longer possible for me to function as Vice-Chancellor effectively or honourably.

It is not necessary for me to dispute the legal opinion you referred to on the telephone. Since the days of Emergency we have all learnt that law is no protection against the law-maker.

I am happy, however, that I am addressing this letter to an ex-Vice-Chancellor who does not need to be informed about the dignity of the Vice-Chancellor's office and the meaning of University autonomy. I would be happier still if my departure were to enable you to extend a healing touch to the University, Hiving it peace and restraining thespirit of factional vindictiveness and Government intervention which may otherwise be unleashed.'

56. A plain reading of this letter leads to no other conclusion than that the submission of resignation by the outgoing Vice-Chancellor Dr. G.C. Pande was a purely voluntary act. It shows the taking of deliberate step of cool and calculated reflection of the circumstances prevailing. This conclusion of mine is further reinforced by the fact that the outgoing Vice-Chancellor Dr. G.C. Pande called a meeting of the Syndicate held on July 14, 1977, who presided over the meeting. It seems that he placed the copy of the letter of resignation before the meeting of the Syndicate expressing his desire to be relieved from the office of the Vice-Chancellor forthwith. The Syndicate, after due deliberations, sent a report to the Chancellor requesting him to make the necessary arrangements for carrying on the office of the Vice-Chancellor. Thus, it cannot be said that the resignation of the outgoing Vice-Chancellor was not a voluntary act, but was a forced resignation under threat of dismissal and therefore not valid in law.

57. Shri Agarwal, learned counsel for the petitioner, relying upon the decision of the Supreme Court in State of Haryana v. Rajendra Sareen, AIR 1972 SC 1004, contends that (at p. 1016):

'When in a writ petition a Government order is challenged on more than one allegation of mala fides, the proper approach of the High Court should be to consider all the allegations together and find out whether those allegations when established, are sufficient to prove malica or ill-will on the part of the official concerned, and whether impugned order is the result of such malice or ill-will.'

58. There can be no controversy about the test to be applied in judging mala fides. The difficulty in accepting the contention regarding mala fides is that there is nothing to show that the Chancellor or the Chief Minister or the Education Minister, had any axe to grind against the petitioner. Shri Raghukul Tilak, who is an eminent educationist in his own right and was the Vice-Chancellor of Kashi Vidyapeeth, assumed charge of his office as the Governor of Rajasthan on May 12, 1977. The Chancellor is but a complete stranger insofar as the petitioner is concerned, and there is no suggestion anywhere in the writ petition that the Acting Vice-Chancellorterminated the appointment of the petitioner under the directions of the Chancellor. For ought we know, the Chancellor did not even know that the period of probation of the petitioner was to terminate on July 31, 1977. There is also no averment in the petition showing that the Acting Vice-Chancellor passed the order dated July 30, 1977 under Section 13 (4) of the Act, at the behest of the Chancellor. Similarly, there is nothing to show that either the Chief Minister or the Education Minister bore any ill-will against the petitioner or that the Chancellor acted under their directions in appointing the Acting Vice-Chancellor or in accepting the resignation of the outgoing Vice-Chancellor Dr. G.C. Pande, The acceptance of resignation by the Chancellor was an act done in the larger interest of the University.

59. In my view, the allegations in the petition are not sufficient to constitute an averment of mala fides sufficient to vitiate the action of the Acting Vice-Chancellor. Our attention was drawn to the allegations made in paras. Nos. 4, 6, 7 and 8 of the petition. The allegations in para. No. 4 of the petition against Shri Lalit Kishore Chaturvedi, Education Minister, relates to the affairs of the University and not to the petitioner. Similarly, the allegations made in para. No. 6 of the petition regarding the change of the political situation in the State, are too vague and indefinite and do not necessarily lead to an inference of mala fides on the part of the Acting Vice-Chancellor. The allegations in paragraph No. 7 of the petition are that, even before he assumed the reins of office as Chief Minister of Rajasthan or immediately thereafter, Shri Bhairon Singh Shekhawat, the Chief Minister, met the Chancellor and discussed the affairs of the three Universities functioning in Rajasthan. Even if this be true, it is of no avail to the petitioner.

60. There is nothing wrong for the Chief Minister of a State meeting the Governor as ex officio Chancellor to discuss matters relating to education in the State. A meeting between them obviously brought about the University of Rajasthan (Amendment) Act, which was passed by the State Legislature on July 29, 1977, and also led to the appointment of three commissions of Enquiries into affairs of the three Universities. I can find nothing wrong in the Chief Minister meeting the Governor in regard to the taking of these steps. In S. PratapSingh v. State of Punjab, AIR 1964 SC 72, the Supreme Court has laid down that he who seeks to invalidate or nullify, any act or order must establish the charge of bad faith, and abuse or misuse of Government of its powers. In the present case, there are no allegations of a personal nature. Further, the allegations are wholly irrelevant and even if true, would not afford a basis upon which the petitioner would be entitled to any relief. Somewhat in similar circumstances, the Supreme Court in Tara Chand Khatri v. Municipal Corporation of Delhi, AIR 1977 SC 567, upheld the order of the High Court dismissing a writ petition in limine though it contained allegations of mala fides. It was held that the Court would be justified in refusing to carry on investigation into the allegations of mala fides if necessary particulars of the charge making out a prima facie case are not given in the writ petition. The burden of establishing mala fides lies very heavily on the person who alleges and (sic) consideration of the allegations made by the petitioner, in regard thereto, I do not think that they, could be considered as sufficient to establish any mala fides. I may here advert to the affidavit filed by the petitioner. The verification clause does not disclose the source of knowledge of the petitioner nor does it specify which of the allegations are true to his personal knowledge and which are true to his belifef. The charge of mala fides must therefore fail.

61. The next contention is that there is no recital in the impugned order saying that the Acting Vice-Chancellor had applied his mind or was satisfied as to the existence of emergency. Shri Agarwal, learned counsel for the petitioner, urges that the recording of reasons is a sine qua non to the exercise of powers under Section 13 (41 (a) of the Act. In support of the contention, he relies upon the decision in Hukam Chand Shyam Lal v. Union of India, AIR 1976 SC 789. There is, in my opinion, no substance in the contention. Section 13 (4) (a) of the Act reads,--

'13 (4) (a). He may take action in any emergency which, in his opinion, calls for immediate action. He shall, in such a case, and as soon as may be thereafter, report his action to the officer, authority or other body who or which would ordinarily have dealt with the matter.'

The decision in Hukam Chand Shyam Lal v. Union of India (supra) turned onthe construction of the words of Section 53 (1) of the Telegraph Act, 1885, which were entirely different and therefore the decision is clearly distinguishable. The observation of the Supreme Court that the recording of reasons by the Government or the authority concerned was a condition precedent, must be read in the context in which it was made. When a certain matter is left to the subjective satisfaction of the Government or an authority 'hedged in with conditions', the exercise of power by Government or such authority is subject to the fulfilment of the conditions precedent to exercise such powers : Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 and Rohtas Industries Ltd. v. S.D. Agarwal, AIR 1969 SC 707. The decision of the Supreme Court in Hukam Chand Shyamlal v. Union of India (supra) is only an application of the doctrine to the facts of that case. In contrast, Section 13 (4) (a) of the Act puts no limitations on the powers of the Vice-Chancellor. On the contrary, by the use of the words 'in his opinion', leaves the matter to the subjective satisfaction of the Vice-Chancellor. His satisfaction that there was emergency in fact, which called for immediate action, cannot be called in question.

62. There can be no doubt that the Acting Vice-chancellor was fully satisfied that there was immediate need to take recourse to his emergency powers under Section 13 (4) (a) of the Act. The University has placed on record the order of the Acting Vice-Chancellor dated July 30, 1977. From a bare perusal thereof, it is quite clear that the Acting Vice-Chancellor applied his mind to the circumstances prevailing and was satisfied that there was need to invoke his powers under Section 13 (4) (a) of the Act. The Acting Vice-Chancellor upon assuming his office on July 14, 1977, had postponed the meeting of the Syndicate scheduled to be held on July 18, 1977. The next date for the meeting of the Syndicate, as and when fixed, was to be notified to the Members. The meeting of the Syndicate had to be adjourned because the Acting Vice-Chancellor wanted to appraise himself of the situation prevailing in the University. The Acting Vice-Chancellor has recorded that due to the urgent and pressing demands from alt quarters, which required his immediate attention, he could not look into these matters. When the papers relating to the petitioner were placed before him. he personally looked into the affairs of the Institute of Correspondence Studies. He recorded a detailed order giving reasons why he felt it necessary to terminate the appointment of the petitioner as the Director.

63. Furthermore, the State Legislature had, in the meanwhile, passed the University of Rajasthan (Amendment) Act, 1977, on July 29, 1977. By Section 3 of the Amendment Act, the then existing Syndicate was abolished and a new Syndicate was to be constituted. Though the Act received the assent of the Governor on Aug. 19, 1977, the Acting Vice-Chancellor was, in my view, perfectly justified in exercising his powers under Section 13 (4) (a) of the Act as there was an emergency in fact.

64. The challenge to the impugned order on the ground that factually there was no emergency and therefore it was bad under Section 13 (4) (a) of the Act, must also fail because the newly constituted Syndicate at its meeting held on Oct. 9, 1977, has accorded approval to the action of the Acting Vice-Chancellor, in terminating the services of the petitioner (sic) to the post of a Reader. By the act of ratification, the Syndicate has adopted the act of the Vice-Chancellor as its own. That apart, the order of the Acting Vice-Chancellor under Section 13 (4) (a) of the Act was subject to the appeal to the Syndicate under Clause (b) thereof. The petitioner, on his own showing, has not filed any appeal and he cannot be permitted to challenge the order of termination by this writ petition.

65. The next contention that the reversion of the petitioner from the post of Director, Institution of Correspondence Studies to that of a Reader in Political Science was reduction in rank by way of punishment, as it attaches a stigma or that, at any rate, the appointment of the petitioner to the post of Professor as a substantive one and he could not be reduced in rank to that of a Reader and that he should, therefore, have been transferred as a Professor, cannot be accepted. The argument proceeds on the assumption that the petitioner was appointed as Professor inasmuch as the post of Director, Institution of Correspondence Studies, was at the rank of a Professor. The advertisement dated April 17, 1976, issued by the University shows that the post of the Director was to be in the Professor's grade i.e. carrying the pay-scale of a Professor. It did not have the rank of a Professor. The order of appointment dated August 1, 1976 states in clear terms that the petitioner had been appointed as Director, Institute of Correspondence Studies, in the pay-scale and rank of Professor viz., Rs. 1100-1600 on probation for one year. The order of appointment must be read in the context of the advertisement. The University, obviously, could not make an appointment by going beyond the terms of the advertisement. Moreover, the appointment to the post of Professor could only be made by a Selection Committee constituted under Item 2 of the Schedule to the Rajasthan University Teachers and Officers (Special Conditions of Service) Act, 1974. There is thus no merit in the contention that the petitioner held the rank of a Professor. The petitioner could not have straightway been appointed in a substantive capacity. Ordinance 357-A framed by the University under Section 19 of the Act laying down the conditions of services etc. of the employees of the University, provides that no person in University service will ordinarily be eligible for appointment as a permanent member of the University service without being on probation for a period of not less than one year. Thus, the petitioner was nothing but a probationer. The petitioner had no right to the post. In Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, S. R. Das, C. J., while speaking for their Lordships stated in the majority judgment, (at p. 42):--

'It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time.'

His Lordship then continued (at p 48):--

'... ... ... Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to set theemoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post.'

Applying that test, there can be no doubt that the petitioner being a probationer, had no right to the post and therefore, the termination of his services was not by way of punishment, I am not impressed with the submission that the Acting Vice-Chancellor should have, on termination of his services as Director, Institute of Correspondence Studies, transferred the petitioner to the post of a Professor or should have extended the period of probation. As already stated, the petitioner had not been appointed to the post of Director in a substantive capacity. He had only been appointed to that post on probation. It has also been held that the post of Director had not the rank of a Professor. The order of appointment dated Aug. 1, 19713 itself showed that the petitioner was to have lien in the Department of Political Science. As direct consequence of the order of reversion, the petitioner had necessarily to revert as Reader in Political Science. There was no question of transferring him to the post of a Professor. It is, however, stated that under Ordinance 357-A, the initial appointment on probation could be for more than one year. The question really does not arise as the appointment was for one year on probation. It was open to the University to lay down the period. It was also no doubt, open to the University to extend the period. The Acting Vice-Chancellor was the best judge of the situation i.e., whether the probationary period of the petitioner should be extended or not. Merely because the period of probation of some others had been extended, it gave no corresponding right to the petitioner. The order of termination passed by the Acting Vice-Chancellor dated July 30, 1977 shows that there were valid reasons for not extending the period of probation. Obviously, the Court cannot interfere in a matter like this and issue a direction to the University to extend the period of probation.

66. The learned counsel for the petitioner further contended that this was a case where Section 12 (6) of the Act applies and not Section 12 (7). When the Chancellor came to know that a vacancy in the office of the Vice-Chancellor was likely to occur by resignation of the outgoing Vice-Chancellor, it is said, he should have followed the procedure laid down by Section 12 (1), i.e., appointed a Selection Committee of the Members named therein. Further that the Chancellor could not have appointed the Acting Vice-Chancellor under Section 12 (7) because 'resignation' is not covered by the word 'otherwise'. A temporary vacancy occurs in cases where the Vice-Chancellor proceeds on leave or is sick or otherwise. The words 'or otherwise' have to be read ejusdem generis i.e., in the context of the foregoing words, having the same shade of meaning. The Act nowhere contemplates the appointment of a person as an Acting Vice-Chancellor. The Chancellor could only have made such arrangement under Section 12 (7) for carrying on the office of the Vice-Chancellor as he deems fit i.e., by appointment of a Committee or otherwise. I am afraid, none of these contentions can prevail.

67. The contention then is that the resignation of the then Vice-Chancellor Dr. G.C. Pande could not be accepted before the expiry of 60 days from the date of its submission by reason of Section 12 (4) of the Act, that is, till 11-9-1977 and till then the Chancellor could not have appointed Dr. Om Prakash to be the Acting Vice-Chancellor under Section 12 (7) of the Act. The contention does not appear to be well founded. Section 12 (4) of the Act reads:--

'(4). The Vice-Chancellor may, at any time, relinquish office by submitting, not less than 60 days in advance of the date on which he wishes to be relieved, his resignation to the Chancellor.'

The provision has been enacted with a definite purpose, namely, to enable the Chancellor to have sufficient time to make the necessary arrangement under Section 12 (7) of the Act so that the duties of the office of the Vice-Chancellor may be carried on, in the event of his resignation. It is not meant to give the outgoing Vice-Chancellor time to withdraw' his resignation i.e., any locus poenitentiae as is suggested. In the instant case, the then Vice-Chancellor Dr. G.C. Pande, in his letter of resignation dated July 13, 1977, desired that his resignation be accepted with immediate effect. There was nothing to prevent the Chancellor from acceding to his request. The resignation had to take effect from the date determined by the Chancellor. This is obvious from the provisions of Section 12 (5) of the Act, which reads,--

'(5). Such resignation shall take effect from the date determined by the Chancellor and conveyed to the Vice-Chancellor.'

The ultimate authority to, determine the date when the resignation would take effect under this provision, is the Chancellor. Where the resignation is accepted with immediate effect, the office of the Vice-Chancellor falls vacant forthwith. The appointment of the Vice-Chancellor was thus not invalid merely by reason of the fact that the period of 60 days mentioned in Section 12 (4) of the Act had not elapsed.

68. The next contention is that when the Chancellor comes to know that vacancy in the office of the Vice-Chancellor was likely the occur by reason of the resignation of the outgoing Vice-Chancellor, it should have followed the procedure laid down in Section 12 (1) i.e., by appointment of a Selection Committee of three persons specified therein. This was a case, it is said, where Section 12 (6) of the Act applies and not Section 12 (7). These provisions are quoted below,--

'(6) When a vacancy occurs or is likely to occur in the office of the Vice-Chancellor by reason of leave or any other cause, not being the expiry of term of the incumbent, such vacancy shall be filled as far as may be, in accordance with the provisions of Sub-section (1).

(7) When a temporary vacancy in the office of the Vice-Chancellor occurs by reason of leave, illness or otherwise, the Syndicate shall forthwith report the same to the Chancellor who shall make such arrangement for carrying on the office of Vice-Chancellor as he may deem fit.'

There are many eventualities where a vacancy in the office of the Vice-Chancellor may occur viz., by reason of death, resignation or removal or otherwise. Such vacancy is likely to occur when the Vice-Chancellor notifies his intention to demit his office. There can be no doubt that in the event of his resignation, a vacancy in the office is likely to occur within the meaning of Section 12 (6), and therefore, the Chancellor is bound to take necessary steps for filling in the vacancy in accordance with the provisions of Sub-section (1). The taking of steps, however, is bound to take time. Till a new Vice-Chancellor is appointed, the Chancellor must, of necessity, take recourse to Section 12 (7) and make a temporary arrangement for carrying on the office of the Vice-Chancellor. Eventually, a Vice-Chancellor will have to be appointed but till then the Chancellor was competent to appoint an Acting Vice-Chancellor.

69. There is no merit in the contention that the Chancellor could not have appointed the Acting Vice-Chancellor under Section 12 (7) of the Act because 'resignation' is not covered by the word otherwise' in Section 12 (7). The provision under Section 12 (7) envisages a temporary vacancy in the office of the Vice-Chancellor by reason of leave, illness or otherwise and vests the Chancellor with authority to make such arrangement, as he may deem fit. The words 'or otherwise' in the context, in which it appears, cannot be read as ejusdem generis. A temporary vacancy may occur by reason of leave or illness or of various other reasons. The matter is, therefore, left at large by the use of the word 'otherwise' and it is futile to contend that 'resignation' is not covered by it. It is then said that the Chancellor could only have appointed a Committee of Management under Section 12 (7), but could not have appointed an Acting Vice-Chancellor. Even if there was such a practice the practice is not of universal application. At any rate, the practice followed previously could not control or limit the operation of Section 1'2 (7) which leaves the matter to the discretion of the Chancellor. The Chancellor is empowered to make such arrangement for carrying on the office of the Vice-Chancellor, as he may deem fit. The words 'as he may deem fit' in Section 12 (7) are of wide import. My attention was drawn to the Minutes of the University meeting dated Aug. 12, 1968. This, no doubt, shows that a Committee of Management was appointed but the practice was not universally followed. The Minutes of the University of Rajasthan dated Aug. 12, 1968 showed that earlier, an Acting Vice-Chancellor had been appointed. It all depends on thecircumstances that prevail for the time being. Section 12 (1) relates to substantive appointment. Until a substantive appointment is made under Section 12 (6), there is a temporary vacancy and, therefore. Section 12 (7) comes into play.

70. The result, therefore, is that the writ petition fails and is dismissed. There shall, however, be no order as to costs.

M.L. Joshi, J.

71. I have perused the judgment of my learned brother Sen J. I am in agreement with him on all the points and entirely agree with the order passed by him. I would, however, like to deal with the question of the eligibility of Shri Raghukul Tilak to the office of the Governor and record my own reasons separately as the point has been argued at considerable length at the bar.

72. The principal attack of the petitioner, which according to him, goes at the root of the matter is that Shri Raghukul Tilak having served as the member of the Rajasthan Public Service Commission (which fact is admitted even on behalf of Shri Raghukul Tilak) is not eligible for the office of the Governor. The contention of the petitioner is that the Governor holds employment under the Central Government and is, therefore, debarred under Article 319 of the Constitution to hold the office of a Governor. The submission of the petitioner in this behalf is that the member of the Public Service Commission on ceasing to hold office is debarred from accepting any employment either under the State Government or under the Central Government except those saved in Article 319 of the Constitution. It is said that the office of the Governor is not covered by any exception laid down in Article 319 of the Constitution.

73. The question that arises for consideration is whether the Governor is under the employment of Central Government as envisaged in Article 319 of the Constitution. This in its turn calls for consideration of true signification of the term 'employment' used in Article 319 of the Constitution. The term 'employment' is a term of general import. Ordinarily, the language employed in a statute is the determining factor of the legislative intent. The words used by the legislature may not bear the plain meaning. Judges could often differ on the issue whether certain words are plain but difference of opinion may result on thequestion as to what the real meaning is. In this connection Mukherjee J. observed that :

'Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself.' (AIR 1953 SC 274 at page 276).

A bare mechanical interpretation of the words 'devoid of concept of purpose' will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole. This rule is referred to 'as a settled rule' by Mukherjee J. vide Poppat Lal Shah v. State of Madras, AIR 1953 SC 274. Again if the provision, if read literally, is patently incompatible with other provisions of the statute, the court would be justified in construing the words in a manner which will make a particular provision purposeful. In M. Pantish v. Veeramallappa. AIR 1961 SC 1107 at page 1115, the Supreme Court has observed:

'Where the language of a statute in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship, or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence............'

74. Now the term 'employment' postulates relationship of master and servant or subordination of the employee to the master. Seemingly the term 'Employment' occurring in Article 319 is of wider amplitude and of general import. It has to be construed in the light of general purpose and context and setting in which it finds place in the Constitution. The question whether conditions of employment can be regarded falling within the relationship of master and servant is whether the alleged employee is under the control and bound to obey the directions of the alleged master. In Yewons v. Nokos, (1880) 6 QBD 330, Bramwell J. denned a servant as one who is subject to the command of his master, as to the manner in which he should do his work. See also Halsbury's Laws of England, 3rd Edition, Volume 25, Page 447, wherein it has been observed that the relationship of master and servant imports the existence of power in the employer not only to direct what the servant is to do but also the manner in which the work is to be done. This dictum has also received the approval of the Supreme Court in Union of India v. Sankalchand Himatmal Sheth, (Civil Appeal No. 1486/1976 decided on September 19, 1977) (reported in AIR 1977 SC 2328). In that case Hon'ble Chandrachud J. has observed (at pp. 2344-45);

'In general relationship of master and servant imports the existence of power in the employer not only to direct what work the servant is to do but also the manner in which the work is to be done.'

75. Learned counsel for the petitioner contends that Shri Raghukul Tilak holds office under the Central Government end is, under the employment of the Central Government. He is, therefore, debarred to hold office of the Governor under Article 319 of the Constitution. His argument is like this. The term 'employment' is wide enough to cover all the cases of employment, may they be in respect of civil post or constitutional office. The argument though attractive does not stand scrutiny if it is scrutinised with some depth. It is true that the term 'employment' is of a wider amplitude and is a general word. In Prince Ernest Augustus of Hanover, Viscount Simonds in his speech said that words and particularly general words, cannot be read in isolation; their colour and content are derived from their context. (1957 A.C. 436).

76. Now Article 319 finds place in Chapter II of Part XIV of the Constitution, Its true signification has to be arrived at in the light of purpose and with reference to context and setting in which it finds place in the Constitution. Chapter II Part XIV in which Article 319 finds place deals with the services under the States and the Central Government. The object behind part XIV of the Constitution is to lay down the provisions governing the recruitment, conditions of service of persons serving under the Union or the State in connection with the affairs of Union or of any State, Article 309 provides that the legislature may regulate recruitment and conditions of service of persons appointed to public services and post in connection with the affairs of the Union or of any State. Proviso to Article authorises the President and the Governor respectively to make rules regulating the recruitment and conditions of service of persons appointed to such services and post in theUnion or the State. Article 310 deals with tenure of office of persons serving the Union or the State and lays down that except as otherwise provided by the Constitution every person, who is a member of defence services or civil services of the Union or of All India Service or holds any post connected with defence or any civil services under the Union holds office during the pleasure of the President and every person who is a member of civil post under a State holds office during the pleasure of the Governor of the State. The last clause of this Article authorises the President and the Governor, as the case may be, to appoint a person not being a member of defence service or All India Services or of a Civil Service of the Union or a State to appoint on such post as the President or the Governor deems it necessary in order to secure the service of the person having special qualification. Article 311 deals with the dismissal, removal or reduction in rank of persons employed in civil capacity under the Union or the State. Article 312 makes provision under the creation of All India Services -- Administrative, Judicial and Police. Chapter II Part XIV of the Constitution relates to Public Service Commission and deals with the appointment, terms of office, removal and suspension of a member of Public Service Commission, functions of Public Service Commission and prohibition as to holding of the office by the Members of the Public Service Commission on ceasing to be such members. Article 320 throws light on the matters with which we are concerned. In this Article the Public Service Commission is concerned with the matter relating to methods of recruitment, civil services and civil posts. From the broad conspectus of part XIV it will appear that part XIV deals with the service under the State and the Central Government. The object and purpose behind part XIV is to lay down the provisions governing the recruitment, conditions of service and allied matters in respect of civil posts, may that be cadre or ex-cadre posts. The term 'employment' occurring in Article 319 is the Constitution, therefore, cannot be construed in isolation and it shall be so construed as to take colour and contents from its context. If so construed, I am of the opinion that the term 'employment' occurring in Article 319 is confined to the cadre and ex-cadre civil posts as covered by Arts, 309, 310 and311 and its connotation cannot be extended to cover office of constitutional functionary which in our opinion is not at all the underlying object of the Article 319.

77. This brings me to the question whether Shri Raghukul Talak holds employment either under the State Government or under the Central Government and is, therefore, debarred under Article 319 to hold office of the Governor? It is admitted on both sides that the Governor is certainly not under the employment of the State Government. It is, however, urged both by Mr. Agrawal and Mr. Mridul, the counsel for the petitioner and the intervener respectively, that the Governor is holding employment under the Central Government. The question raised by the learned counsel for the petitioner and the intervener necessitates the examination of the nature of the office of the Governor, his functions, duties and powers contained in part VI Chapter II of the Constitution of India and other relevant provisions of the Constitution. Article 154 of the Constitution provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. He is thus executive head of the State and is integral part of the Constitution. The Governor is appointed by the President by warrant under his hand and seal under Article 156 and he holds office during the pleasure of the President for a term of five years, from the date on which he enters upon his office under Article 156. The proviso to Article 156, however, lays down that the Governor shall notwithstanding the expiration of his term continue to hold office until his successor enters upon his office. Article 157 relates to the qualifications for appointment as Governor and lays down that no person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of 35 years. No further conditions have been laid down in regard to the eligibility for the office of the Governor. Article 158 deals with the conditions of Governor's office and attached certain consequential disability and disqualification by reason of holding office of a Governor, There is no provision dealing with the disqualification in regard to eligibility of a person for the office of a Governor as is usually designed by legislature if at allit chooses to put certain disqualifications in the matter of eligibility for a particular office. Such provisions are conspicuously missing in the Constitution. If the Constitution makers had ever intended to incorporate other conditions as to the eligibility for the office of a Governor nothing could have prevented them to have incorporated words or expressions such as 'if otherwise not disqualified under the provisions of any other enactment or the provisions of the Constitution.' Usually such design is adopted by the law makers if they at all intend to incorporate a particular condition for qualification or eligibility for a particular office. In the absence of such provision it is very difficult to import additional conditions for eligibility. The contention of Mr. Agarwal is that Articles 157 and 158 should be read subject to the provisions of Article 319 of the Constitution as these Articles are controlled by Article 319. There is no merit in this contention. Articles 157 and 158 are independent and self-contained and have no reference to Article 319 as the scope of Article 319 is confined to civil posts envisaged under Articles 309, 310 and 311 of the Constitution. If we were to read Articles 157 and 158 subject to the provisions of Article 319 then it will be adding something in these Articles which is wholly alien to them. Article 319 cannot be projected by any rule of interpretation into Articles 157 and 158 of the Constitution. In my opinion, therefore, Articles 157 and 158 are in no way subject to or controlled by the Article 319 of the Constitution. The emoluments of the Governor are protected by Article 158. He is entitled under Clause (3) of Article 158 to such emoluments, allowances and privileges as may be determined by Parliament by law and such emoluments are guaranteed during the tenure of his office.

78. Article 159 relates to the oath and affirmation by the Governor before taking charge of the office. It reads as follows:

Swear in the name of God : 'I, A.B., do solemnly affirm that I will faithfully execute the office of Governor (or discharge the functions of the Governor) of..................(Name of the State) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well being of the people of............ (name of the State).' The prescribed oath which the Governor takes, he is under an obligation to faithfully execute the office of the Governor and to discharge the functions and duties of his office to the best of his ability and preserve, protest or defend the Constitution and to devote himself to the services and the well being of the people of the State. The oath which the Governor takes is identical to the one which is taken by the President. Under Article 161 the Governor exercises some of prerogative powers in the matter of suspension, remissions or commutation of sentence in certain cases. In that article the Governor has power to grant pardon, commute sentence in the person convicted of any offence against any law relating to a matter of which the executive power of the State exists. Under Article 162, the executive power of the State shall extend to the matters with respect to which the legislature of the State has power to make laws. Under Article 164 of the Constitution the Governor has power to appoint the Chief Minister who shall hold office during his pleasure. Under Article 165 he has power to appoint Advocate General. Article 168 provides that the legislature of State shall consist of the Governor. Article 213 empowers the Governor to promulgate ordinances during the recess of the legislatures. Under Article 200 he has power to withhold assent to the bills, which in his opinion, would, if they become law adversely affect the powers of the High Court conferred on it by the Constitution. Under Article 309 the Governor is empowered to frame rules, regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under the Act of the appropriate legislature.

79. Under Article 246(1) of the Constitution the Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the list I in the 7th Schedule referred to Union list. Under Article 246(2) both the Parliament and the State Legislature have power to make laws with respect to any of the matters enumerated in list III in the 7th Schedule referred to as concurrent list and under Article 246(3) subject to Clauses (1) and (2) of Article 246 the legislature has exclusive powers to make laws for such State or any part thereof with respect to any of the matters enumerated in list II in the 7th Schedule, referred to as the State list, UnderClause (4) of Article 246 the Parliament has residuary power to make laws with respect to any matters for any part of the territory not included in the State notwithstanding that such matter is a matter enumerated in the list. Article 246 shows that both the State Government and the Central Government are coordinate entities in their own sphere assigned to them in the Constitution and each work independently in their own sphere.

80. From the survey of the above provisions it will appear that the Governor is a creature of the Constitution. He owes his appointment to the Constitution and holds the position of privilege under it. Under the oath he has to uphold the Constitution and perform his duties of office as prescribed by the Constitution and preserve and protect the same. Looking to the oath which the Governor takes the Central Government has no power or authority to direct him to discharge his functions in a particular manner. He is not bound nor does he undertake to obey the order of the Central Government or the President with the scope of his functions and duties. Ours is a Constitution where there is a combination of Federal structure with unitary features while in a Unitary State there is only one Government; Federal State involves multi-governments namely; national or federal government and the Government of component States. A Federal State, in short, is a fusion of several States into a single State in regard to the matters affecting common interest leaving each component State to enjoy autonomy in regard to other matters. Under our Constitution certain powers vest in the Central Government leaving certain powers to its component units to exercise autonomy in spheres assigned to them in the Constitution itself. The component States are not merely delegates or agents of the federal government. Both federal and State Governments draw their authority from the same source, the Constitution. Looking to the nature of the office, his functions and duties and powers it will appear that the Governor has been given a positive role and place in the Constitution. He is high constitutional functionary and is one of the principal organs of the State namely, the executive as well as the legislature. The source and powers, functions and duties of both the President and the Governor are laid down in the Constitution and both are bound by it. Both of them independently work in their own sphere. He is the defender of the Constitution and the law and the watch-dog of the interest and well being of the people of the State. In particular, the Governor is vested with certain discretionary powers in the exercise of which he can act independently. One of his independent functions is the making of the report to the Union Government on the strength of which the Presidential powers under Article 356(1) of the Constitution could be exercised so far as the acts in the larger interest of the people 'to defend the Constitution and the law.' Undoubtedly, the Governor is not bound by the directions either of the President or of the Central Government in the matter of discharge of his functions which falls within the sphere of the State. The very oath which he takes before entering upon office clearly establishes that he is not at all the servant of the President or the Central Government.

81. In the framework of the Constitution there is no power vested in any authority to issue any directions or instructions to the Governor nor any rule can be made to lay down code of his conduct for his guidance. The question whether instrument of instructions can be issued to the Governor, as were issued under the Government of India Act, 1935, was considered by the Constituent Assembly; but the proposal was subsequently given up. The reason for giving up the proposal was that unlike the position previously obtaining under the Government of India Act, 1935, the Governor in our Constitution of India functioning as the executive head of the State, would not be subject to control by anyone. It will be useful here to extract a portion of Dr. Ambedkar's speech made in the Constituent Assembly, it is as follows :

'The purpose of instrument of instructions was originally devised in the British Constitution for the Government of the Colonies so as to give certain directions to the heads of the States as to how they should exercise their discretionary powers that were vested in them. Now the instrument of instructions was effective in so far as the particular Governor or Viceroy to whom these instructions were given, was subject to the authority of the Secretary of the State. If in any particular matter which was of a seriouscharacter the Governor, for instance, persistently refuse to carry out the instrument of instructions issued to him, it was open to the Secretary of State to remove him and appoint another and thereby secure the effective carrying out the instruments of instructions. So far as our Constitution is concerned there Is no functionary created by it, who can see that the instrument of instructions is carried out faithfully by the Governor.'

It will thus appear that the Governor has to act according to the provisions of the Constitution and his oath of office in the light of circumstances obtaining at any time when a question comes up for his decision.

82. In Union of India v. Sankalchand Himatlal Sheth, (Civil Appeal No. 1486/ 1976--Supra) (reported in AIR 1977 SC 2328), the nature of the office of the High Court Judge came for consideration of the Supreme Court. In that case Chandrachud J. has observed that (at p. 2345):

'The Judges of the High Courts owe their appointment to the Constitution and hold a position of privilege under it and are not Government servants in the ordinary signification of that expression.'

In the same case Bhagwati J. has observed that (at p. 2354):

'A Judge of a High Court is not a Government servant but he is the holder of a Constitutional office. He is as much part of the State as the executive government. The State has in fact three organs, one exercising executive power, another exercising legislative power, and the third exercising judicial power. Each is independent and is supreme within its allotted sphere and it is not possible to say that one is superior to another. The High Court constituted of the Chief Justice and other judges exerciser a judicial power of the State and co-ordinate in position and status with the Governor aided and advised by the Council of Ministers ............Plainly and unquestionably, therefore, a High Court Judge is not subordinate either to the executive or to the legislature.'

From the observations extracted above it is abundantly clear that the Governor is executive head of the State and at least co-ordinate in position and status with the High Court Judge, who, according to the decision of the Supreme Court, is not a government servant but is theholder of constitutional office. The Governor, therefore, cannot be taken to be under the employment of the Central Government or the President or subordinate to the President.

83. Mr. Agrawal and Mr. Mridul learned counsel for the petitioner and intervener, however, vehemently argued that as the Governor is appointee of the President under Article 156 and as he holds office during the pleasure of the President, he is subordinate to the President or the Central Government. Their submission is that the power to dismiss or terminate the services is nothing but the power of control over the holder of the office. In this connection Mr. Mridul has referred to a paragraph from Administrative Law by S.W.R. Wade. 3rd Edition, to the following effect:

'The legal power of control over the civil service is nothing more than the power to employ and dismiss servants.'

On the strength of the above it has been urged that the Governor is under the control of the President as he is liable to be removed by the President. I find myself unable to agree with this contention. The observation extracted above relates merely to civil posts and has no relation to the office of a high constitutional functionary. Though under Article 156 Governor holds office during the pleasure of the President and is removable by him but this does not necessarily imply that the Governor is subordinate to the President or under his obligation to work under his directions. As already stated, the Governor has to abide by the oath and is not bound by the directions of the President in the matter of discharging his duties. Once the Governor is appointed he is clothed with the functions, duties and obligations attached to the office of the Governor and he is independent of all control. He, thereafter, becomes nothing but a constitutional functionary, who is subordinate to none and is nobody's employee. The power of appointment is nothing but a mode of appointment. The power of removal in face of specific constitutional provisions and more particularly the oath which he undertakes, do not connote that the Governor is the subordinate to the President. I am fortified in this conclusion of mine by a decision of Supreme Court of Canada in The King v. Dame Juliette Carroll, Et. A1. reported in 1948 SCR Canada 126. In that case the provisions of Section 58 of the British North America Act, 1867, came up for consideration. There also the provision relating to appointment, conditions of service, removal of the Lieutenant Governor were just similar to the one that of the Governor in our Constitution. Under Section 58 of the aforesaid Act the power to appoint a Lieutenant Governor vested in the Governor General in Council by an instrument under the great seal of Canada and the Lieutenant Governor under that Act holds office during the pleasure of the Governor General. His salary is also fixed and provided by the Parliament of Canada. It was contended in that case that the office of the Lieutenant Governor is a public office under His Majesty. This contention was repelled by the Supreme Court of Canada and it was held that a Lieutenant Governor of a province is constitutional head of the executive of his province as the Governor General is the head of the Dominion and each province has been assigned rights and obligations and in the fulfilment of these obligations they are sovereign in their respective fields and have their own government empowered to enact and enforce laws.

In Re The Initiative and Referendum Act, 1919 AC 935 at page 942, it has been held :

'The scheme of the Act passed in 1'867 was thus, not to weld the Province into one, nor to subordinate Provincial Governments to a Central Authority, but to establish a Central Government in which these Provinces should be represented with exclusive authority only in force of which they had common interest. Subject to this each province was to retain its independence and autonomy and to be directly under the Crown as its head.'

These cases lend support to the view that the Governor is in no way subordinate Or the employee of the Central Government.

84. The next contention of the learned counsel for the petitioner and the intervenor is based on Articles 256 and 257 of the Constitution. Article 256 provides that the executive power of every State shall be exercised as to ensure compliance with the laws made by Parliament and in existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to State as may appear to the Government of India to be necessary for that purpose. This article says nothing more than that the executivepower of the State has to be exercised in consonance to the laws made by the Parliament and the existing laws applicable to that State. Article 257 deals with the control of the Union over the State. It provides that the executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union and the Union may issue such directions for that purpose. Both these articles show the federal polity leaning towards a Centre stronger than its component States. They in no way suggest that the Governor is subordinate to the President or the Central Government in sphere of his functions, rights, duties and obligations. These provisions are simply designed for maintaining the federal structure or co-ordination between the Union of India and its component States and it cannot be said with any amount of justification on the basis of these Articles that the State or Governor is subservient or subordinate to the Central Government or the President. The component States of the Union enjoy autonomy in their respective spheres under the framework of federal structure of our Constitution. Thus Articles 256 and 257 in no way impinge upon the extent of autonomy conferred in the Constitution so as to make the Governor of the State subservient to the President or the Central Government.

85. It was next urged on behalf of the petitioner and the intervenor that the President in case of failure of constitutional machinery in the State on the receipt of the report of the Governor of a State or otherwise, on being satisfied that the Government of a particular State cannot be carried on, he may himself assume all or any of the functions of the State Government. In the circumstances it is said that the Governor should be taken to be subordinate to the President or the Central Government. In my view there is no merit in this contention either. When the President takes over the administration of the State under Article 356 the ministry ceases to function and the Governor is required to carry on the administration of the State on behalf of the President. He in fact, in such circumstances, becomes the Government and Ministry rolled in one and his work and duties increase considerably. For legislative purpose during the President Rule resort has to be taken either to the issue of ordinances by the President or the legislation through theParliament. The Governor is neither the agent of the President nor is subordinate to the Central Government. The situation does not change even during the President's Rule. During the President's Rule the Central Government is answerable to the Parliament for the Government of a State, but for that reason the Governor does not lose his constitutional status and becomes subservient to the Ministry at the Centre. Even when the State is under the President's Rule Governor is in no way subservient or subordinate to the Centre or the Central Government, in the view which I have taken in respect to the constitutional status of the Governor, Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52; Chintaman Rao v. State of Madhya Pradesh, AIR 1958 SC 388 and The State of Assam v. Kanak Chandra Dutta, AIR 1967 SC 884 and other cases cited by Mr. Mridul and Mr. Agrawal being not to the point are of no avail to the petitioner and they need not be discussed in detail.

I, accordingly, hold that Shri Raghukul Tilak is not under the employment of the Central Government and so he is eligible for the office of the Governor.

M.L. Shrimal, J.

86. I have had the advantage of reading the judgments, which their Lordships A.P. Sen J. and M.L. Joshi J. have delivered. I entirely agree with the reasoning and the conclusions arrived at by their Lordships. For the reasons they give, I agree that this writ petition should be dismissed and add a few words, since the question has been argued at length.

87. Whether Shri Raghukul Tilak, respondent No. 1, who was in past a Member of the Rajasthan Public Service Commission, is disqualified to hold the office of the Governor of Rajasthan by reason of the bar imposed by Article 319(d) of the Constitution

88. Before dealing with the rival contentions of the parties, it will be profitable to read Article 319(d) of the Constitution, which runs as follows:---

'319. On ceasing to hold office--

(d) a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State,'

89. The crucial words in the above Article are 'employment either under the Government of India or under the Government of a State' and the two words 'employment' and 'under the Government of India' appearing therein are of great significance for the decision of this case.

90. The learned counsel appearing on behalf of the petitioner and the intervenor contended that the word 'employment' appearing in Article 319 of Constitution is of wider connotation and cannot be confined to service and it should be understood in the sense in which it is commonly used. The terms cognate to appointment used in the Constitution are office-cum-service and employment. Offices are of two types one which are filled in by election and the other which are filled in by appointment. The bar against the employment referred to in Article 319 applies not only to services but to all employments, which are not regarding elective office. Part XIV of the Constitution is regarding the services under the Union and the States. Chapter I of this part deals with services and Chap. II of this part deals with Public Service Commissions. The Article in which the term 'employment' occurs is Article 319. The term 'service' was very well known to the founding fathers. If they wanted to debar a Member of the Public Service Commission from seeking any service only, there was no difficulty in their using the word 'service' in Article 319 instead of the word 'employment'. The use of the two different words in Article 309 and Article 319 contra-distinguished with Article 319 must be deemed to have been used in two different senses with different intents. The anxiety of the founding fathers was to make the Chairman and Members of the Public Service Commission above all temptations. To serve this purpose the word 'employment' was used in Article 319 and it need not be interpreted in a narrower sense. The learned counsel for the petitioner urged that a Member of the Public Service Commission after his retirement could be appointed as Chairman of the Public Service Commission or Member of the Union Public Service Commission and to no other post or employment. Article 319 appears as an absolute bar. It is argued, he cannot be engaged by the Government even as a professional adviser, consultant in the capacity of a lawyer, doctor or an expert. The learned counsel for the respondents Mr. Nariman and the Advocate General Dr. S.K. Tewari have vehemently controverted the above contentions.

91. We have given a careful thought and consideration to the rival contentions of the parties. We find ourselves unable to agree with the contention of the learned counsel for the petitioner. Article 319 forms part of Part XIV of the Constitution, which is captioned as 'Services under the Union and the States'. Chapter I (Arts. 308 to 314), of this Part deals with services and Chapter II (Articles 315 to 323) deals with Public Service Commissions. The use of the expression 'any other employment either under the Government of India or under the Government of a State' in Article 319(d) could only mean service under the Union and States covered in Chap. I of Part XIV of the Constitution. The expression used in Art, 309 'persons appointed to public services and posts in connection with the affairs of the Union or of any State' and the words 'every person who is a member of a defence service or of a civil service of the Union or of an All India Service or holds any post connected with defence or any civil post under the Union' appearing in Article 310 are wide enough to include the word 'employment' appearing in Article 319. They exhaust the categories of service or employment under the Union or States. In short, what is not covered by Chap. I of Part XIV is not a service or employment under the Government of a State or under the Government of India. A bare look at Article 316 reveals that the appointing authority of a Chairman or member of the Public Service Commission in a State is the Governor. The appointment of a Governor is to a State and there is no all India cadre of Governors. A Governor of a State can neither be termed to be a servant of the State nor of the Union. He is the holder of a constitutional office. The Members of the Public Service Commission in a State function regarding the appointment of the State services and by no stretch of imagination can it be said that any dignitary holding office in a State could have given an allurement to a Member of a Public Service Commission of getting him appointed as a Governor, for doing a job for the former. The founding fathers wanted disqualifications operating under Article 319 to be confinedto only services enumerated in Part XIV and not to the appointment to any constitutional office. A close reading of Chapters I and II of Part XIV of the Constitution shows that Article 319 has its closest relation or nexus to service.

92. The intention of the Legislature can be inferred only after directing the attention not merely to the particular word or clause to be construed but to the setting or context in which a clause to be interpreted occurs. The marginal notes appended to an Article and the caption of the Chapter in which it appears, does provide a clue as to the meaning and the purpose of the Article. The qualifications and eligibility for appointment of a person as Governor have been provided in Article 157. The eligibility has not been made subject to the provisions of Article 319. As noted by Mr. Seervai in his book, 'Constitutional Law of India' Volume I Second Edition at page 43, it is a relevant consideration in interpreting two Articles of the Constitution that they are in two different parts. There is ample authority that one is entitled to have regard to indicia afforded by the arrangement of sections and from other indication. The arrangement of sections into parts and their headings are substantive parts of the Act and they are gradually winning recognition as a kind of preamble to the enactments, which they precede limiting or explaining their operation.

93. For the reasons mentioned above, we hold that the word 'employment' appearing in Article 319 relates to services under the State and not to the appointment of the constitutional functionary like Governor, Judges of the Supreme Court and others.

94. Viewed from whatever angle even if it is held that the word 'employment' appearing in Article 319 is of wider connotation, then also it cannot be said that the appointment of a person to the office of a Governor is an employment under the Government of a State. It has been rightly conceded by the parties appearing before us that the Governor being the head of the State cannot be said to be under the employment of the State Government. The State Government has been denned in Section 3 (60) of the General Clauses Act as Governor. The State Government as personified in the Governor cannot function as subordinate to or under the Government of State. The Governor being the Government itselfcannot be said to be employed under the State.

95. The Governor is the executive head of the State and this position he does not share with the Chief Minister. He allocates the executive duties to various Ministers under Article 166(3) of the Constitution. He appoints a Minister on the advice of the Chief Minister and Minister holds office during his pleasure. It is also open to the Governor under the Constitution to dismiss any individual Minister at his pleasure. The language of Section 51 of the Government of India Act, 1935 came up for interpretation before their Lordships of the Privy Council in Emperor v. Sibnath Banerjee (AIR 1945 PC 156), and their Lordships of the Privy Council held that the Minister is to be considered as an office subordinate to the Governor. The Constitution makers have reproduced the same language in our Constitution regarding appointment of the Ministers in Article 164 and thus it must be taken that the Constitution makers accepted the correctness of the decision and adopted it. Thus it can be safely said that by no stretch of imagination the Governor of a State can be termed to be an employee under the State Government.

96. Now the question which, therefore, arises for consideration in the present case is as to whether the Governor of a State stands in a position subordinate to the Government of India as an employee stands in relation to his employer or in other words, is there a master and servant relationship between the Governor appointed under Article 154 of the Constitution and the Government of India.

97. Employment under the Union Government means, the person employed stands to the Union Government as subordinate. The concept of 'employment' involves three ingredients of employer, employee and the contract of employment. An employee is required to work under and subject to the control and supervision of the employer. The test of the existence of master and servant relationship is that the employer should have a right to control the discharge of duties and the functions by the employer and to regulate his activities and to give such directions to the employee as the employer may consider proper. Thus the power of superintendence or the existence of authority to supervise theaction of the employee is one of the important attributes of master and servant relationship.

98. The learned counsel for the petitioner and the intervenor urged that the word 'employed' appearing in Article 319 does not necessarily imply that there should be a relationship of master and servant, The concept of master and servant relationship has undergone a vast change in recent years. The degree of control becomes less and less as we so high up in the hierarchy of service. Holder of each office is required to perform certain functions in his own discretion, In technical posts as that of doctors, Chairman of the Atomic Research Institute, the masters do not have any control over the manner of the conduct of the business by the employee, but that never means that the persons appointed to the technical posts cannot be said to be under the employment of their respective set of masters. In support of this contention, reliance was placed on pp. 313-314 in Vol. 16 of Halsbury's Laws of England IVth Edition, Maxwell's Interpretation of Statutes, 12th Edition page 218. It was further urged that even if control is held necessary for making or for bringing about an employment either by virtue of the term 'employment' or by virtue of the word appearing in Article 319 such a control was very much there in the case of the Governor, because the President is the appointing authority of the Governor and the latter remains in the office during the pleasure of the former, It was also urged that as the tenure of the office of the Governor is at the pleasure of the President, it is a case of control plain and simple. In support of the above contentions, reliance was placed on Abdul Shakur v. Rikhab Chand (AIR 1958 SC 52); Board of Revenue v. A.P. Benthall (AIR 1956 SC 35); Yugal Kishore v. B.N. Rahtogi (AIR 1958 Pat 154); Umraon Singh v. Chakauri Singh (AIR 1958 Pat 302) (FB); K.U. Kulkarni v. Ganpat Hiraji Teli (AIR 1942 Bom 191); Emperor v. Sibnath Banerji (AIR 1945 PC 156) and Amalgamated Engineering Union v. Minister of Pensions & National Insurance ((1963) 1 All ER 864). Reference was also made to meaning of the word 'employment' given in 'Words & Phrases' by Saunder Volume 2 pages 157-158. Wade's Administrative Law, 3rd Volume, page 24 and Schwartz & Wade's Legal Control of Government page 21.

99. It was further urged that a perusal of Articles 200, 213, 256, 340, 341, 342, 356, 371, 371A, 371C (1) & (2), and 371F, VIth Schedule paras. 9 (2) and 18 (2) also indicate that the Governor while exercising the discretionary powers acts under the control and supervision of the President i.e. the Government of India, because as far as the President is concerned, he is required to act on the advice of the Council of Ministers as provided by Article 74 of the Constitution. The learned counsel went to the extent of arguing that the position of the Governor was even worse than that of a civil servant. A civil servant is entitled to the protection of Article 311 and all statutory provisions in regard to disciplinary actions to be taken against him, but the Governor does not have such a portection.

100. As regards the first limb of the argument advanced by the learned counsel for the petitioner and the intervenor, it would be profitable to read Pauley v. Kenaldo Ltd., ((1953) 1 All ER 226) wherein Birkett, L. J. observed that the observations made in Stroud's Judicial Dictionary, 3rd Ed., Vol. 2, pp. 943-949 regarding construction of the word 'employment' were a bewildering array of decisions on various statutes,

101. After considering a number of authorities on the point, his Lordship observed as under :--

'It is clear that the real question is one of the degree of control exercised by the person employing the artist, and this, as I see it, means not only the amount of control but the nature of that control and the direction in which it is exercised. In Short v. Henderson Ltd. a case in the House of Lords under the Workmen's Compensation Act, Lord Thankerton ((1946) 115 LJ PC 41) recapitulates with approval the four indicia of a contract of service derived by the Lord Justice-Clerk from the authorities referred to by him. These are : (a) the master's power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master's right to control the method of doing the work; and (d) the master's right of suspension or dismissal. He goes on to say that the particular requirement of a contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of the relationship.'

102. Their Lordships of the Supreme Court have approved the decision of Short v. Handerson Ltd. (1946-115 LJ PC 41) in (AIR 1970 SC 66). This point should not detain us more, as it stands conclusively determined by an authoritative pronouncement made by their Lordships of the Supreme Court in Appeal No. 1486 of 1976, decided on September 19, 1977 : (reported in AIR 1977 SC 2328) (Union of India v. Sankalchand Himmatlal Sheth), wherein while deciding the question whether Judges of the High Court are Government servants or not, the Court observed as under (at pp. 2344-45):--

'In general, the relationship of master and servant imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done (see Halsbury's Laws of England, Third Edition, Vol. 25, page 447, para 871 and the cases cited in foot-note (b). A servant undertakes to serve his master and to obey his reasonable orders within the scope of the duty undertaken. The Government has no power or authority to direct what particular work a High Court Judge must do and it can certainly not regulate the manner in which he must do his work in the discharge of his official functions.'

These observations amply apply to the appointment of a Governor for a State. In view of this, it is needless for me to deal with the decisions relied upon by the learned counsel for the petitioner and the intervenor. The Union Government cannot regulate the manner in which a Governor should discharge his power and functions. Once the appointment is made by the President, the Governor acts as the head of the State, just as the President acts as the head of the Union.

103. As regards the second limb of the argument, it would suffice to say that the executive power of the State vests in the Governor and is to be exercised by him either directly or through the officers subordinate to him in accordance with the Constitution. The Governor has to act in dual capacity i.e. as a constitutional head of the State. In that capacity the powers of the Governor can only be exercised with the aid and advice of the Council of Ministers. Reference may be made to Shamsher Singh v. State of Punjab (AIR 1974 SC 2192). While exercising the executive power of a State the Governor acts as the StateGovernment personified in the Governor and as a co-ordinate entity cannot be termed to be acting as employee under the Central Government or the President. H.M. Seervai in his book 'Constitutional Law of India' 2nd Edn. Vol. II page 1073 has noted as under :--

'It is equally clear from our Constitution that the Governor is entrusted with the discharge of constitutional duties. In matters on which he must act on the advice of his Ministers--and they constitute an overwhelming part of his executive power -- the question of his being the President's agent cannot arise. In the few matters in which the Governor has a discretion, he may seek advice and assistance from any quarter, but he must discharge his duties to the best of his own judgment and ability.'

Besides the exercise of the executive powers, there are several constitutional functions, powers and duties of the Governor. These are conferred on him as eo nomine -- the Governor. These constitutional powers and functions of the Governor as well as those in the discretion of the Governor are not executive powers of the State within the meaning of Article 162. The executive power is generally described as residue which does not fall within the legislative or judicial powers. Besides the executive powers, the Governor exercises certain constitutional powers. In the first instance, there are powers which are to be exercised by the Governor in consultation with the persons and agencies other than the Council of Ministers. Secondly, there are general discretionary powers, which are quite implicit, for instance (i) summoning and proroguing the assembly. In Punjab, when Speaker Jogender Singh Man adjourned the assembly on March 7, 1968 for a period of two months during budget sessions, the adjournment of Legislative Assembly in the month of March would have meant that the budget would not have been passed. In order to solve this problem, the Governor prorogued the assembly on March 11, 1968 under Article 174(2) of the Constitution and re-summoned the assembly. This prorogation was held to be valid by Hon'ble the Supreme Court in State of Punjab v. Satyapal (AIR 1969 SC 903); (ii) reservation of the Bill for the consideration of the President The second proviso to Article 200 of the Constitution empowers the Governor to reserve the Bill for the consideration ofthe President, which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill. Besides reserving the Bill for the consideration of the President under the second proviso to Article 200 the Governor can also reserve the Bill for the consideration of the President under Articles 254(2), 31(3) and 31A. The Governor can in his discretion also issue Ordinance when he is satisfied that circumstances exist which render it necessary for him to take immediate action. In Haran Chandra v. State of West Bengal (AIR 1952 Cal 907) their Lordships of the Calcutta High Court held, that 'it is the satisfaction of the Governor as to the existence of the circumstances for promulgating an Ordinance that is necessary and such satisfaction is conclusive.' The Allahabad High Court and the Madhya Pradesh High Court have also concurred to this view; (iii) sometimes situation may arise where there is no clear majority on the election in favour of a particular party or a group of parties that they are in position to command the majority in the Legislature and would form the Government. In such cases, it becomes the duty of the Governor to form a judgment as to which of the various parties or group who have sent intimation to him of their ability to form a Government does really command a majority. There could be no fixed rules to guide the Governor as to how he should proceed in such a situation. In West Bengal, the Governor had reasons to believe that the first United Front Ministry had lost confidence of the House and he desired the Chief Minister to call a session of the Assembly within a certain time and establish that he still commanded the confidence of the House. The Chief Minister declined to take such a step. Thereupon, the Governor in exercise of his powers under Article 164(1) dismissed the Ministry. The correctness of the Governor's action was challenged before the Calcutta High Court and the single Judge of that Court in M.P. Sharma v. P. C. Ghosh (AIR 1969 Cal 198) took the view that the exercise o his pleasure by the Governor under Article 164(1) had not been fettered by any condition or restriction. As already mentioned above, the powers under Article 200 arc discretionary powers. If the Governor feels some doubt about the validity or advisability of the course of actionoutlined in the Bill, he can ask the Legislature to reconsider the Bill or a particular part of it. The Governor is also Ex-Officio a Chancellor in most of the Universities. He also exercises powers to grant pardon. While exercising the above noted discretionary powers, the Governor cannot be said to be acting as an employee under the Government of India. The Governor functions for most purposes as a part of the State apparatus, but is meant at the same time to be link with the Centre. The official emblem of the unity of the country is the Governor,

104. It will not be out of place to mention that Governor is not obliged to allow the imposition of a President's rule if an alternative Council of Ministers commanding the confidence of the Legislative Assembly is available (page 1073 Seervai's Constitutional Law of India 2nd Edition Vol. II point 18.38). The learned author has further observed that while dismissing the ministry or in dissolving the Legislature he does not act as an agent of the President. Where a Cabinet resigns and declines to stay in office till another Cabinet is formed or President's rule is imposed, the Governor would be within his right under Article 163(2) in deciding that in the situation thus created, the Constitution requires him to exercise the executive powers vested in him in his discretion, because the Constitution could not have intended a paralysis of the executive Government. The decision of the Governor is not open to question.

105. The Governor is the fountain-head on which edifice of the structure of the State rests. He is not only head of the executive, but component part of the legislature and therefore an integral part of the State. In our federal structure he plays a very important role. The importance of the role of the Governor lies in keeping the Centre and his State together and making each of them understand the point of view of the other.

106. As observed by the Supreme Court in State of Rajasthan v. Union of India (AIR 1977 SC 1361), the Governor is 'the defender of the Constitution and Law' and the watch-dog of the interests of the whole country and well-being of the people of his State in particular. The Governor is vested with certain discretionary powers in the exercise of which he can act independently. The Governor has a pivotal role to play inthe Indian polity and it will be completely subversive and totally destructive of the federal framework of the Constitution and the autonomy of States contemplated therein, to describe a Governor as an employee of the Central Government.

107. The office of the Governor is an office created by the Constitution (Article 153). The very nature of the office and functions suggest that it is not an employment under the Government of India. He has been given a constitutional status as being the executive head of the State and has been assigned functions to be discharged according to the dictates of the Constitution.

108. The appointment of a person to the office of Governor is appointment to a constitutional office, which is co-ordinate with the post of a High Court Judge. In Union of India v. Sankalchand Himmatlal Sheth, (AIR 1977 SC 2328) (supra), Bhagwati J. observed that a High Court Judge has no employer. He occupies a high constitutional office, which is co-ordinate with the executive and the legislature. In the same judgment it has also been observed that the High Court constituted of the Chief Justice and other Judges exercises the judicial powers of the State and is coordinate in position and status with the Governor aided and advised by the Council of Ministers, who exercise the executive powers. On the parity of reasoning, it can also be said that the appointment of a person as a Governor for a State by the President and holding of his office during the pleasure of the President is only a mode of appointment and the holder of this constitutional office cannot be termed to be the employee under the Central Government. He is the creature of the Constitution clothed with functions and obligations created by it. He is bound by the oath prescribed under Article 159 to 'preserve-, project and defend the Constitution and the law'. This oath casts a Constitutional obligation in him. It is his duty to see that the Government of the State is carried on in accordance with the Constitution. In the discharge of his duty, he has to exercise his influence and persuasion, It is also the duty of the Centre to ensure that the Government of the State is carried on in accordance with the Constitution, and in order to enable the Centre to perform its duty, the Governor is obliged to inform the Centre about matters relevant to this Constitutional obligation. In the discharge of his functions, the Governor derives his authority from the Constitution alone.

109. The oath and affirmation required to be made and subscribed by the President before entering into the office has been prescribed in Article 60. The significant words 'preserve, protect and defend the Constitution' also appear in the oath required to be made by the President. It will be pertinent to note here that none of the other functionaries under the Constitution including the ministers in the service of State or the Judges of the Supreme Court or the High Courts are required to make and subscribe oath or affirmation to preserve, protect and defend the Constitution. The essential idea in administering similar oath to the President and the Governor is that the Governor enjoys the same position in respect of the affairs of the State with its limited sphere provided in the Constitution as the President enjoys in affairs of the Union, and the former cannot be termed to be subordinate or employee under the control of the latter.

110. Prof. Alexandrowicz in his 'Constitutional Developments in India' observed : 'India is undoubtedly a federation in which the attributes of statehood are shared between Centre and Local State.'

111. Dicey observes in his 'Law of the Constitution': 'The essential characteristics of federalism--the supremacy of the Constitution, the distribution of powers, the authority of the judiciary--reappear though no doubt with modifications, in every true federal State'.

112. The founding fathers have created an indissoluble union without any right of secession for the States, the States are by no means indestructible.

113. The process of bargaining which was absent in the formation of the federation of our country has now assumed increasing dimensions. The status of the State Governments vis-a-vis the Centre has been strengthened by the reorganisation of States and the establishment of stable and viable units. According to Prof. Alexandrowicz, all this conduces to sound federalism. The supremacy of the Constitution which is essential in federalism is present in the Indian Constitution. Article 246 and the Seventh Schedule divides legislative powers between the Union and the States. The Union can legislate on subjects mentioned in the Union List. The Stateshave exclusive power in regard to the items in the State List. There is also a concurrent list. The residuary power is given by Article 248 to the Centre and in this the Indian Constitution resembles the Canadian Constitution. Commenting on the division of Legislative powers, Prof. Alan Gledhill observes: 'The Indian Constitution is federal in form', There can be no doubt that the federal character of our Constitution is basic structure of our Constitution, as held by their Lordships of the Supreme Court in Kesavananda Bharati v. State of Kerala, (AIR 1973 SC 1461).

114. In State of West Bengal v. Union of India, (AIR 1963 SC 1241, at page 1252, para 27) a contention was raised that the States constituting India were fully sovereign States. The Court examined at considerable length the nature and effect of the provisions of the Indian Constitution and whether sovereignty is vested in it. The majority expressed the view as under:--

'Legal sovereignty of the Indian nation is vested in the people of India who as stated by the preamble have solemnly resolved to constitute India into a Sovereign Democratic Republic for the objects specified therein. The political sovereignty is distributed between, as we will presently demonstrate, the Union of India and the States with greater weightage in favour of the Union.'

115. Our Constitution recognises rights of State or States against Government. In dispute between the Government of India and the States or between State and State, the Supreme Court has been invested original jurisdiction to decide such a dispute under Article 131 of the Constitution. Each State of the Union is treated as a juristic entity. Thus the political sovereignty and the right to hold property against each other within the four corners of the Constitution has been recognised.

116. The functions of a Governor who is constitutionally head of the executive are in respect of the Government of a State and not in respect of the Union. A Governor is the executive head of the Government of a State. He carries on the Government of the State. All the functions he carries on and performs are directed to the affairs of the State and are in no way concerned with the affairs of the Union. This nature of his office must be judged from the functions he performs. It has been argued by the learned counsel for the petitioner and the intervenor that a Governor is appointed by the President. He holds office during the pleasure of the President and as the power to appoint and remove lay with the President, the office of a Governor should be considered as an employment under the Government of India,

117. This argument, though attractive at the first sight, is devoid of merit as already discussed above. Further it fails to keep in view the fact that the power to appoint and remove cannot affect the nature of the functions performed. A Governor is appointed and can be removed by the President or indirectly made to do certain act as already discussed or reserve the Bill for the consideration of the President or in the days of emergency he is required to perform certain duties as directed by the President, does not alter the essential character of his office, which is to carry on the Government of a State, The founding fathers have reserved to the President the necessary authority to interfere in certain way In State matters to maintain the unity of the country but he works for most purposes as part of the State affairs. The exercise of those powers is contemplated to be for the better Government of the State and does not modify the legal status of the State executives and does not purport to make him to act as an employee. It may limit the power of the Governor and in certain cases prevents him-from exercising them, but his jurisdiction nonetheless remains entirely within the State field. While exercising emergency powers the President acts on the advice of Central Ministry, but it cannot be said that the office of Governor changes its character in the days of emergency.

118. Article 168 which deals with the constitution of Legislatures in States provides that 'there shall be a Legislature which shall consist of the Governor and one house or two.' Thus he is a part of the Legislature which is required to maintain its authority and independence regarding the subject-matters enumerated in list II. By no stretch of imagination, it can be said that the Legislature of a State is under the employment of the Government of India,

119. The provisions regarding appointment, conditions of service, removal etc., relating to Governor in our Constitution are similar to that regarding the appointment, removal and conditions of service of Lieutenant Governor under the British North America Act, 1867.

120. The power to appoint a Lieutenant Governor vests in the Governor General in Council by an instrument under the Great seal of Canada (Section 58). He holds office during the pleasure of the Governor General, The salary is fixed and provided by Parliament of Canada. The Legislature of each unit consists of Lieutenant Governor of one House or two Houses as the case may be.

121. In The King v. Dame Juliettee Carroll, (1948) SCR 126 (Canada), the question which came up for decision before the Supreme Court of Canada was 'whether the office of Lieutenant Governor is or not a public office under His Majesty in respect of the Government of Canada?' Their Lordships of the Supreme Court of Canada after considering a number of decisions on the point, observed:--

'It is not possible to describe the office of Lieutenant Governor as an office under the Governor General in Council. By reason of Section 71 the Lieutenant Governor is a part of the Legislature for Quebec and that Legislature 'was to retain its independence and autonomy' and to be directly under the Crown as its head.'

122. On a parity of reasoning, it must be held that the office of the Governor under the Constitution of India cannot be considered as an employment under the Government of India.

123. In our federal system, the State Government and the Central Government are coordinate entities. The State Government as personified in the Governor does not function as employee of the Central Government or the President. The Governor as integral part of the Legislature can also not be termed to be an employee under the Central Government or the President. Nor he can be said to be the employee under the Government of India while discharging constitutional functions in the discretion vested in him by the Constitution.


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