D.P. Gupta, J.
1. I have already expressed the view, in my order dated August 12, 1977 that the Governor of a State does not hold an employment under the Government of India or under the Government of a State within the meaning of Article 319 of the Constitution of India, and I now proceed to give my reasons for the aforesaid decision.
2. The Rajasthan State Legislature passed an enactment called 'The Rajasthan Municipalities (Amendment) Act, 1977', substituting Section 23 A in the Rajasthan Municipalities Act, 1959. The aforesaid Act was published in the Rajasthan Gazette dated August 5, 1977 after it received the assent of the Governor of Rajasthan Shri Raghukul Tilak under Article 200 of the Constitution. As a result of the provisions of the amended Section 23-A, the term of all Municipal Boards, elections to which took place during the period of emergency, stood expired on the date of the commencement of the Rajasthan Municipalities (Amendment) Act, 1977. The petitioner, who was the Chairman of the Municipal Board, Sadul Sahar, election to which were held in August 1975, has filed this writ petition mainly challenging the appointment of Shri Raghukul Tilak as Governor of Rajasthan. It has been argued by the learned Counsel for the petitioner that Shri Tilak having held the office of a Member of the Rajasthan Public Service Commission in the year 1959, was not eligible for appointment to the office of the Governor of the State of Rajasthan, on account of the provisions of Article 319 of the Constitution and consequently Shri Tilak could not have given his assent to the Rajasthan Municipalities (Amendment) Bill which was passed by the Rajasthan State Legislative Assembly on July 27, 1977. Clause (d) of Article 319 of the Constitution, on which reliance has been placed by the learned Counsel for the petitioner, runs as under:
319. On ceasing to hold office:
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(d) a member other than the Chairman of a State Public Service Commission shall be eligible for appointment 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.
3. A bare reading of Clause (d) of Article 319 of the Constitution shows that a person who has earlier held the office of a Member of a State Public Service Commission on ceasing to hold the office as such Member of a State Public Service Commission, does not remain eligible for any other employment either under the Government of India or under the Government of a State, except those enumerated in Clause (d) of Article 319. There is no doubt that the Governor of a State is appointed by the President of India under Article 155 of the Constitution by a warrant under his hand and seal and further under Article 156 the Governor of a State holds the said office during the pleasure of the President, although ordinarily he holds the office for a term of five years from the date on which he enters upon his office. learned Counsel contended that as the power of appointment and removal of the Governor of a State is vested in the President of India and as such it should be held that the Governor of a State holds an employment under the Government of India. In support of this contention learned Counsel relied upon the decisions in Dattatraya v. State of Bombay : AIR1953Bom311 and Sukhnandan v. State of Bihar AIR 1957 Patna 617.
4. Both the decisions relied upon by the learned Counsel for the petitioner relate to the interpretation of Article 16(1) of the Constitution. Clause (1) of A. 16 provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office' under the State. Similarly Clause (3) of Article 16 refers to a class or classes of employment or appointment to an office under the Government'. In Dattatraya's case (supra) Chagla, Chief Justice, as he then was, held that:
The expression 'office' by itself is rather a colourless expression. When a person holds office, he is given certain rights; he has to discharge certain duties and obligations and responsibilities; but from the mere fact that he holds office it is not clear whether the office is a paid office, whether he stands in any relationship of subordination to any higher person, or whether there is a relationship of master and servant between him and some one else. The language used in Article 16(1) is employment or appointment to any office under the State', and in our opinion 'appointment' must be read 'ejusdem generis' with 'employment' Further, the expression 'under the State' makes it clear that the person holding office to which Article 16(1) applies is a person who stands to the State as a subordinate to a higher officer, or, in other words, there must be a relationship of employer and employee between the person holding office and the State or at least there must be an element of subordination to the State in the office contemplated by Article 16(1).
5. In Sukhnandan Thakur's case (supra) Ramaswami J., considered the question relating to the interpretation of Article 16(1) of the Constitution, on a different between Das C.J., and Ahmed J., Ramaswami J., observed as under in the aforesaid context:
Article 16 expressly makes a distinction between 'appointment' & 'employment'. These two words occur not only in Article 16(2) but also in Article 16(3). Article 16(2) uses the expressions 'employment' and 'office under the State'. Article 16(4) refers to 'appointment' or 'posts' & to 'the services under the State'. In my opinion, the words 'employment' & 'appointment' connote two different conceptions. 'Appointment' obviously refers to appointment to an office. The term 'appointment' therefore implies the conception of tenure, duration, emolument & duties and obligations fixed by law or by some rule having the force of law.
Neither Chagla C.J., nor Ramaswami J. have accepted the contention which the learned Counsel for the petitioner has advanced before me that 'appointment' and 'employment' are synonymous terms. While Chagla C.J., has observed that the words 'appointment' and 'employment' are to read ejusdem generis to one another, meaning thereby that they are of the same kind or class, Ramaswami J., has expressed the opinion that 'employment' and 'appointment' connote two different conceptions. Employment 'under the State' or 'under the Government of India' clearly implies that such a person should stand as a subordinate in relation to the Government of India, as the case may be, and it is implicit therein that there should be a relationship of an employee and an employer between the person concerned and the State Govt. or the Government of India. learned Counsel did not contend that an appointment to the office of a Governor of a State is an employment under the Government of that State. But his sole contention was that an appointment to the office of Governor of a State in India is 'an employment under the Government of India.
6. 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 of subordination 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 of a State appointed under Article 155 of the Constitution and the Government of India? It is not in dispute that the emoluments and the allowances payable to the Governor of a State during the tenure of his office has to be determined by the Parliament by law and until such provision is made by an Act of the Parliament he is entitled to such emoluments & allowances as are specified in the second schedule appended to the Constitution, in accordance with the provisions made in Clause (3) of Article 158 of the Constitution. It is also not in dispute that the Governor of State receives his emoluments and allowances from the Consolidated Fund of the State concerned, and not from the 'Consolidated Fund of India'. Under Article 266 of the Constitution, all revenues and others public money received by the Government of India form one consolidated fund called the 'Consolidated Fund of India', while all revenues etc. received by the Government of a State form 'the Consolidated Fund of the State'. It has been provided in Article 153 of the Constitution that there shall be a Governor for each State but the same person can be appointed as a Governor for two or more States at the same time. Clause (3A) of Article 158 provides that where the same person is appointed as the Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as may be determined by the President by an order made by him. There can thus be no doubt that the Governor of a State is paid the emoluments and allowances of his office from the exchequer of the concerned State of States.
7. The test of subordination or the existence of master and servant relationship is that the employer should have a right to control the discharge of duties and functions by the employee 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 an authority to supervise the actions of the employee is one of the important attributes of a master and servant relationship. learned Counsel was unable to show that ordinarily the Governor of a State is subjected to any such control or that a supervisory authority is exercised by the Government of India in regard to the discharge of his duties and functions as Governor of the State, except the provisions contained in Article 356 of the Constitution, which are applicable only on the occurrence of an emergency, viz. the failure of the constitutional machinery in the State.
8. Under the Constitution of India, the Governor of a State is the Constitutional Head of the State and although the power of appointment and removal of the Governor vests in the President of India, yet the Government of India does not ordinarily enjoy the power under the Constitution to control the discharge of his duties and functions by the Governor of a State except perhaps in the case of an emergency. The executive power of the State vests in the Governor under Clause (1) of Article 154 of the Constitution and in accordance with the provisions of Article 163(1) the Governor has to act in accordance with the aid and advice of the Council of Ministers in exercise of his functions, except in so far as he is required by or under the Constitution to exercise any of his functions in his discretion. It cannot by any stretch of imagination he held that merely because the Governor of a State has to act according to the aid and advice of the Council of Ministers of that State in the discharge of his functions as such he holds an employment under the State Government, nor on account of the aforesaid reason it could be said that the Governor of a State holds an employment under the Government of India. As a matter of fact, the office of the Governor is a creature of the Constitution and except in certain matters in which the Governor is required to act in the exercise of his own discretion, he is ordinarily required to act according to the aid and advice of the Council of Ministers of the State, as provided in Clause (1) of Article 163 of the Constitution. In this respect the position of a Governor under the Indian Constitution is very much different from that under the Government of India Act, 1935. Under the Government of India Act, 1935 the Governor General exercised the power of general superintendence over the State Administration and in that manner the Governor-General exercised general control over the day to day administration of a State through the agency of the Governor. But under the Constitution of India, the President does not exercise any such power of general superintendence or control over State Administration as was possessed by the Governor General under the provisions of the Government of India Act, 1935 and the Governor is required discharge his duties and functions in accordance with the provisions of the Constitution. Even the matters in which the Governor of a State is required by or under the Constitution to act in his discretion are extremely limited and by and large the Governor of a State is required to exercise his functions with the aid and on the advice of the Council of Ministers of the State.
9. Although the Government of India is empowered to give directions to the Government of a State in India under the provisions of Articles 256 and 257 of the Constitution, but those powers are such as are required to maintain and ensure the federal nature of our Constitution and the Government of India has no right to interfere in the day to day administration of the State Government, so far as it is carried on in accordance with the provisions of the Constitution. However, even a non-compliance with the directions given by the Government of India under Articles 256 and 257 would not affect the position of the Governor of the State, because in such an event under Article 365 the President is entitled to hold that a situation has arisen in which the Government of the State can not be carried on in accordance with the provisions of Constitution and on the failure of the Constitutional machinery in the State, the emergency provisions contained in Article 356 can be invoked and the President can assume to himself all or any of the powers and functions of the State Government.
10. In Article 16, the framers of the Constitution have employed the words 'employment' and 'appointment', but as held by Ramaswami J., in Sukhnandan Thakur's case (supra) these words have two different conceptions. Article 155 of the Constitution, in my view, only provides for the appointments to a Constitutional office and it cannot be held that the Governor of a State holds an employment under the Government of India merely because he holds an office or is appointed thereto. It is difficult to conceive that there is a master and servant or an employer and an employee relationship between the Government of a State & the Government of India. The submission of the learned Counsel for the petitioner is that under Article 319 the words 'appointment' and 'employment' have been used to denote identical conceptions. That may or may not be so, but I am not called upon to consider this question in the present case because what is really of substance in this case is as to whether the word 'appointment' as used in Article 155 of the Constitution connote the same concept as the word 'employment' used in Clause (d) of Article 319 of the Constitution. As I have already held above, the appointment to the office of a Governor of a State under Article 155 of the Constitution is an appointment to a public office created by the Constitution, the duties and functions of which are regulated by the Constitution itself and as such it can not be held that the Governor of a State holds an employment under the Government of India. As a matter of fact, Article 319 occurs in part XIV of the Constitution which deals with 'Services under the Union and the States' and the expression 'employment under the Government of India' which finds place in the various clauses of Article 319 must be construed with reference to the provisions of Part XIV of the Constitution relating to Public Services and posts in connection with the affairs of the Union and the States. and has no reference to public offices created by the Constitution itself I am, therefore, firmly of the view that the appointment of a person as a Governor of a State under Article 155 of the Constitution can not be barred merely because such person has earlier held the office either of a Chairman or a Member of the Public Service Commission. The contention of the learned Counsel in this respect is, therefore, repelled
11. Another submission which was feebly addressed by the learned Counsel was that the newly substituted Section 23 A of the Rajasthan Municipalities Act was inconsistent with the provisions of Section 11 there of. Section 23 A itself begins with a non obstante clause and provides that notwithstanding any thing contained in Section 11 or Section 23 of the parent Act, the term of the Municipal Boards to which elections were held during the period when the proclamation of emergency was in force shall be deemed to expire on the date of the commencement of the Rajasthan Municipalities (Amendment Act 1977. It is not disputed by the learned Counsel for the petitioner that the State legislature enjoys plenary powers of legislation in its sphere and within the four-corners of the Constitution it has legislative competence to make prospective laws as well as retrospective laws. There could not, therefore, be any doubt that the provisions of Section 23-A as introduced by the Rajasthan Municipalities (Amendment) Act, 1977 are within the legislative competence of the State Legislature.
12. No other point was argued before me. In view of the fore-going discussion, there is no force in this writ petition and the same is dismissed.