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CONSTITUTIONAL ROLE OF
THE GOVERNOR
Article
153. Governors
of States
There
shall be a Governor for each State provided that nothing in this article
shall prevent the appointment of the same person as Governor for two
or more States.
Article
154. Executive power of State
(1)
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 this Constitution.
(2) Nothing
in this article shall
(a) be
deemed to transfer to the Governor any functions conferred by any
existing law on any other
authority;
or
(b) prevent
Parliament or the Legislature of the State from conferring by law
functions on any authority subordinate to the Governor.
Article
155. Appointment of Governor.
The Governor
of a State shall be appointed by the President by warrant under his
hand and seal.
Article
156. Tenure of office of Governor
(1)The
Governor shall hold office during the pleasure of the President.
(2) The
Governor may by writing under his hand addressed to the President
resign his office.
(3) Subject
to the foregoing provisions of this article a Governor shall hold
for a term of five years from the date on which he enters upon his
office Provided that a Governor shall not withstanding the expiration
of his term continue to hold office until his successor enters upon
his office.
Article
157. Qualifications for appointment as Governor: No
person shall be eligible for appointment as Governor unless he is
a citizen of India and has completed the age of thirty-five years.
Article
158. Conditions of Governor's office:
The 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 the Legislature of any 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.
(2)
The Governor shall not hold any other office of profit.
(3) The
Governor shall be entitled without payment of rent to the use of his
official residences and shall be also entitled to such emolument allowances
and privileges as may be determined by Parliament by law and. until
provision in that behalf is so made such emoluments allowances and
privileges as are specified in the Second Schedule.
(3A)
Where the same person is appointed as Governor of two or more States,
the emoluments and allowances payable to the Governor shall be allocated
among the States in such proportion as the President may by order
determine.
(4)
The emoluments and allowances of the Governor shall not be diminished
during his term of office.
Article
159. Oath or affirmation by Governor: Every
Governor and every person discharging the functions of the Governor
shall, before entering upon his office, make and subscribe in the
presence of the Chief Justice of the High Court exercising jurisdiction
in relation to the State or in his absence the senior most Judge of
that court available, an oath or affirmation in the following form,
that is to say-"I,A.B., do swear in the name of God 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)."
Article
160. Discharge of the functions of the Governor In certain contingencies
.The President
may make such provision as he thinks fit for the discharge of the
functions of the Governor of a State in any contingency not provided
for in this Chapter.
Article
161. Power of Governor to grant pardons, etc., and to suspend,
remit or commute sentences in certain cases. The
Governor of a State shall have the power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute
I the sentence of any person convicted of any offence against any
law relating to a matter to which the executive power of the State
extends.
The Power
under article 161 is a statutory power which cannot be fettered by
position such as sections 432,433,433A of the Indian Penal Code, 1960;
State of Punjab v. Joginder, AIR 1990 SC 1396.
Article
162. Extent of executive power of State:
Subject to the provisions of this Constitution the executive power
of a State shall extend to the matters with respect to which the Legislature
of the State has power to make laws Provided that in any matter with
respect to which the Legislature of a State and Parliament have power
to make laws, the executive power of the State shall be subject to,
and limited by, the executive power expressly conferred by the Constitution
or by any law made by Parliament upon the Union or authorities thereof.
Since
the executive power of the State Executive is co-extensive with that
of the State Legislature, it follows that the State Executive may
make rules regulating any matter within the legislative competence
of the Slate Legislature, without prior legislative authority, except
where a law is required because the Rules so framed would violate
any provision of the Constitution, which requires legislation, e.g.,
articles 265 and 302; Pratibha v. State,
AIR
1991 Kant 205, paragraph 10. In general, the court, would not exercise
its power of judicial review to interfere with a policy made by the
Government in exercise of its power under article 162, particularly
where it involves technical, scientific or economic expertise; Shri
Sitaram Sugar Co. Ltd. v. Union of India. AIR 1990SC
1277, paragraph 56.
In case
of any deviation, particularly when it has been done repeatedly, the
presumption would be that the Authority has exercised his power of
relaxation or the policy has been changed (without Formal amendment),
and the later entrants cannot claim the benefit of the original instructions:
The Direct Recnlit Class-11 Engineering Officers. Association v.
State of Maharashtra, AIR 1990 SC 1607 (CB) paragraph 44.
Duty
of high officers:
Proper
functioning of State administration should not be jeopardised owing
to ego clashes between high officers. Such officers should be aware
that power should be exercised for public good and not for personal
benefit; State of Assam v.
P.C Misra, AIR 1996 SC 430, paragraph II.
The Government
is entitled to lay down policies and is empowered to refuse approval
for setting 11P Katha industry: State of Himachal Pradesh v.
Ganesh Wood Products, AIR 1996 SC 149,
Article
163. Council of Ministers to aid and advise Governor
(I) 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, except
in so far as he is by or under this Constitution required to exercise
his functions or any of them in his discretion.
(2) If
any question arises whether any matter is or is not a matter as respects
which the Governor is by or under this Constitution required to act
in his discretion the decision of the Governor in his discretion shall
be final, and the validity of anything done by the Governor shall
not be called in question on the ground that he ought or ought not
to have acted in his discretion.
(3) The
question whether any, and if so what, advice was tendered by Ministers
to the Governor shall not be inquired into in any court.
Where
an entry in the State list, is expressly made subject to Parliamentary
legislation (State list entry 23) the State ceases to have both legislative
and executive power in respect of the matter to which the Parliamentary
law relates; Bharat Coal v. State of Bihar, (1990) 4
SCC 557.
Governor
and the Cabinet
The Governor
is required to act in his discretion in the following cases the powers
of the Governor of Assam under paragraph 9 of the 6th Schedule;
(a)the
functions of a Governor appointed to be administrator of a Union Territory,
under article 239(2);
(i)the
functions under articles 371(2), 371 A (I) (b); 371 C (I); 371 F (g).
In other cases the Governor is to act on the advice of ministers.
(i) Kapoor v. Slate of Punjab, ( 1955) I SCR 577, 587.
(ii)
Sanjeevi v. State of Madras, (1970) II SC 672677.
The function
of hearing appeal against Public Service Commission is also to be
exercised on cabinet advice; U.P.PS.C. v. Suresh, AIR
1987 SC 1953.
Because
of its very nature, the report of the Governor, under article 356
(I), cannot be given on the advice of the Council of Ministers when
such a report may lead to the fall of that body.
Existing
Ministers to continue.
A Council
of Ministers must always exist to advise the Governor. (even after
dissolution of the Legislature or resignation of a Council of Ministers).
Hence, the existing ministry may continue in the office until its
successor assumes charge of office; Rao v.lndira, AIR 1971
SC 1002.
Classification
of orders.
The orders
passed by the Governor of a State (article 163) fall in four broad
categories:
(i)The
exercise of executive power in accordance with the provisions of the
Constitution, by or under the order of the Governor, wherein full
judicial review is available;
(ii)
Orders passed by the Governor, on the aid and advice of the Council
of Ministers headed by the Chief Minister, wherein full judicial review
is available; (iii) Orders like the grant of pardon under article
161 and the orders passed by the President on the report submitted
by the Governor under article 356, on account of which limited judicial
review is available; and
(iv)
Where the Governor acts without the aid and advice of the Council
of Ministers (headed by the Chief Minister)and acts in his own discretion.
(Here no judicial review is permissible) Pratap Singh Rane v.
Government of Goa AIR 1999 Born 53, 91, paragraphs 29, 36 (OB).
Article
164. Other
provisions as to Ministers: (I) The Chief Minister shall be appointed
by the Governor and the other Ministers shall be appointed by the
Governor on the advice of the Chief Minister, and the Ministers shall
hold office during the pleasure of the Governor:
Provided
that in the State of Bihar, Madhya Pradesh and Orissa, there shall
be a Minister in charge of tribal welfare who may in addition be in
charge of the welfare of the Scheduled Castes and backward classes
or any other work.
(2) The
Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State.
(3) Before
a Minister enters upon his office, the Governor shall administer to
him the oaths of office and of secrecy according to the forms set
out for the purpose in the Third Schedule.
(4) A
Minister who for any period of six consecutive months is not a member
of the " Legislature of the State shall at the expiration of
that period cease to be a Minister-
(5)
The salaries and allowances of Ministers shall be such as the Legislature
of the State may from time to him by law determine and, until the
Legislature of the State so, determines, shall be as specified in
the Second Schedule.
Article
165. The Advocate-General for the State:
(I) The Governor of each State shall appoint a person who is qualified
to be appointed a Judge of a High Court to be Advocate- General for
the State.
(2) It
shall be the duty of the Advocate-General to give advice to the Government
of the State upon such legal matters, and to perform such other duties
of a legal character, as may from time to time be referred or assigned
to him by the Governor, and to discharge the functions conferred on
him by or under this Constitution or any other law for the time being
in force.
(3) The
Advocate-General shall hold office during the pleasure of the Governor,
and shall receive such remuneration as the Governor may determine.
While
ordinarily a concession made by Government pleader in a trial court
does not bind the Government unless it is in writing on instruction
from a responsible officer, that principle would not apply to a concession
made by the Advocate-General because he is assumed to make a. statement
with
responsibility;
Periyar v State of Kerala, AIR 1990 SC 2192, paragraph
9.
Article
166. Conduct or business of the Government of a State:
(I) All
executive action of the Government of a State shall be expressed to
be taken in the name of the Governor.
(2) Orders
and other instruments made and executed in the name of the Governor
shall be authenticated in such manner as may be specified in rules
to be made by the Governor, and the validity of an order or instrument
which is so authenticated shall not be called in question on the ground
that it is not an order or instrument made or executed by the Governor.
(3) The
Governor shall make rules for the more convenient transaction of the
business of the Government of the State and for the allocation among
Ministers of the said business in so far as it is not business with
respect to which the Governor is by or under this Constitution required
to act in his discretion.
General
Article
168. Constitution of Legislatures In States.
(l) For every State there shall be a Legislature which shall consist
of the Governor, and
a)in
the States of Maharashtra,Kamataka and Uttar Pradesh, two houses:
(b) in
other States, one House.
(2) Where
there are two Houses of the Legislature of a State, one shall be known
as the Legislative Council
and the
other as the Legislative Assembly, and where there is ~; only one
House, it shall be known as the Legislative Assembly.
Article
171. Composition of the Legislative Councils.
(I)
The total number of members in the Legislative Council of a State
having such a Council shall not exceed one-third of the total number
of members in the Legislative Assembly of that State:
Provided
that the total number of members in the Legislative Council of a State
shall in no case be less than forty.
(2) Until
Parliament by law otherwise provides, the composition of the Legislative,Council
of a State shall be as provided in clause (3).
(3) Of
the total number of members of the Legislative Council of a State-
(a) as
nearly as may be, one-third shall be elected by electorates consisting
of members of municipalities, district boards and such other local
authorities in the State as Parliament may by law specify;
(b) as
nearly as may be, one-twelfth shall be elected by electorates consisting
of persons residing in the State who have been for at least three
years graduates of any university in the territory of India or have
been for at least three years in possession of qualifications prescribed
by or under any law made by Parliament as equivalent to that of a
graduate of any such university;
(c) as
nearly as may be, one-twelfth shall be elected by electorates consisting
of persons who have been for at least three years engaged in teaching
in such educational institutions within the State, not lower in standard
than that of secondary school as may be prescribed by or under any
law made by Parliament;
(d) as
nearly as may be one-third shall be elected by the members of the
Legislative Assembly of the State from amongst persons who are not
members of the Assembly;
(e) the
remainder shall be nominated by the Governor in accordance with the
provisions of clause
(4) The
members to be elected under sub-clauses (a), (b) and (c) of clause
(3) shall be chosen in such territorial constituencies as may be prescribed
by or under any law made by Parliament and the election under the
said sub-clauses and under sub-clause (d) of the said clause shall
be held in accordance with the system of proportional representation
by means of the single transferable vote.
(5) The
members to be nominated by the Governor under sub-clause (e) of clause
(3) shall consist of persons having special knowledge or practical
experience in respect of such matters as the following. namely: Literature
,science ,art ,co-operative movement and social service.
Article
174. Sessions of the State Legislature, prorogation and dissolution:
(I) The
Governor shall from time to time summon the House or each House of
the Legislature of the State to meet at such time and place as he
thinks fit, but six months shall not intervene between its last sitting
in one session and the date appointed for its first sitting in the
next session.
(2) The
Governor may from time to time -
(a) prorogue the House or either House;
(b) dissolve the Legislative
Assembly.
Dissolution
of Assembly
On the
7th December 1988, the High Court of Gauhati pronounced an important
judgement in the case relating to dissolution of the Nagaland Assembly
and held that the report of the Governor recommending dissolution
of the Assembly was not acceptable. The writ petition had been filed
by Mr.Vamuzo, leader of the Joint Regional Legislative Party, challenging
the validity of the Presidential Proclamation of 17th August,1988
dissolving the Assembly and taking over the Government of the State.
Contention of the petitioner was that the petitioner was enjoying
support of the majority of 35 members in the 60 members House, and
should have been invited to foffi1 the Ministry after the split in
the Congress-l. His grievance was that in spite of the Speaker's decision
that it was a split, the Governor took into account extraneous and
irrelevant aspects .Three points were submitted by the Attorney-General
opposing the writ petition; First, the President acted on the
aid and advice of the Council of Ministers and no court could determine
what information was made available to the President under article
74(2) of the Constitution;
Secondly,
the Governor was protected under article 361 of the Constitution;
Thirdly as the Proclamation had been approved by Parliament,
no relief could be granted to the petitioner. It appears that the
second contention was not approved by the Division Bench (Chief Justice
A. Raghuvir and Mr. Justice B.L. Hansaria), in view of [he allegation
that the Governor had acted on Irrelevant material In a sense, this
judgement qualifies article 361, by holding that action of the Governor
based on collateral material is justifiable, notwithstanding the wide
protection given by article 361.
There
seems to have been a difference of opinion amongst the two Judges
on the question of material supporting the President's satisfaction.
The Chief Justice accepted the Attorney-General's contention, to the
extent that the court could not call for the material on the basis
of which the President had foffi1ed his satisfaction. But, according
to Mr. Justice Hansaria, the proclamation could not have been issued
within the parameters of law, relying solely on the report of the
Governor, in as much as a very relevant material had not found place
in the report. As such, the satisfaction of the president arrived
at would be a 'fraud on the power'. Political trick could not bar
the court from the judiciability, the judge observed.
Endorsement
of Bill
Where
a Bill is duly endorsed by the Speaker as passed, it cannot be questioned
in the courts on, the ground that certain members were prevented from
attendance owing to detention under I Emergency laws; Indira v.
Raj Narain, AIR 1957 SC 2299.
Article
175. Right
of Governor to address and send messages to the House or Houses:
(1) The
Governor may address the Legislative Assembly or, in the case of a
State having a Legislative Council, either House of the Legislature
of the State, or both Houses assembled together, and may for that
purpose require the attendance of members.
(2) The
Governor may send messages to the House or Houses of the Legislature
of the State ,whether with respect to a Bill then pending in the Legislature
or otherwise, and a House to which any message is so sent shall with
all convenient dispatch consider any matter required by the message
to be taken into consideration.
Article
176. Special
address by the Governor.
(I) At
the commencement of '[the first session after each general election
to the Legislative Assembly and at the commencement of the first session
of each year, the Governor shall address the Legislative Assembly
or, in the case of a State having a
Legislative
Council, both Houses assembled together and inform the Legislature
of the causes of its summons.
(2) Provision
shall be made by the rules regulating the procedure of the House or
either House for
the allotment
of time for discussion of the matters referred to in such address.
Article
188. Oath or affirmation by members.
Every
member of the Legislative Assembly or the Legislative Council of a
State shall, before taking his seat, make and subscribe before the
Governor, or some person appointed in that behalf by him, an oath
or according to the form set out for the purpose in the Third Schedule.
Article
192. Decision
on questions as to disqualification’s of members.
(I) If
any question arises as to whether a member of a House of the Legislature
of a State has become subject to any of the disqualification’s mentioned
in clause (1) of article 191, the question shall be referred for the
decision of the Governor and his decision shall be final.
(2) Before
giving any decision on any such question, the Governor shall obtain
the opinion of the Election Commission and shall act according to
such opinion.
Election
Commission.
Where
two Election Commissioners, do not reach a unanimous decision
out of 'necessity' the Chief Election Commissioner has to express
his opinion. Majority view would be sent to the Governor; Election
Commission v. Subramaniam Swamy, AIR 1996 SC 810.
Article
200. Assent to Bills.
When
a Bill has been passed by the Legislative Assembly of a State or,
in the case of a State having a Legislative Council, has been passed
by both Houses of the Legislature of the State, it shall be presented
by the Governor and the Governor shall declare either that he assents
to the Bill or that he withholds assent, therefrom that he reserves
the Bill for the consideration of the President: Provided that the
Governor may, as soon as possible after the presentation to him of
the Bill for assent, return the Bill if it is not a Money Bill together
with a message requesting that the House or Houses will reconsider
the Bill or any specified provisions thereof and, in particular, will
consider the desirability of introducing any such amendments as he
may recommend in his message and, when a Bill is so returned, the
House or Houses shall reconsider the Bill accordingly, and if the
Bill is passed again by the House or Houses with or without amendment
and presented to the Governor for assent, the Governor shall not withhold
assent there from.
Provided
further that the Governor shall not assent to, but shall reserve for
the consideration of the President, any Bill 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.
Governor's
Assent to Bills.
There
are four courses open to a Governor to whom a Bill passed by the State
Legislature is presented for assent The Governor-
(i) assents,
or
(ii)
withholds assent, or
(iii)
reserves the Bill for the consideration of the President, or
(iv)
returns the Bill (If not a Money Bill), for re-consideration, with
his message. This is to be done ''as soon as possible after the presentation"
of the Bill (First Proviso) The Governor's action in this regard has
been held to be non-justifiable. See the under mentioned cases.
(i) Purushotham
v. State of Keralo, AIR 1962 SC 694.
(ii)
Hoechst v. State of Bihar, AIR 1983 SC 1019.
(iii)
Bharot Sevo Ashram v. State of Gujarot, AIR 1987 SC 494.
Article
201. Bills reserved for consideration .When
a Bill is reserved by a Governor for the consideration of the President,
the President shall declare either that he assents to the Bill or
that he withholds assent there from:
Provided
that, where the Bill is not a Money Bill, the President may direct
the Governor to return the Bill to the House or, as the case may be,
the Houses of the Legislature of the State together with such a message
as it mentioned in the first proviso to article 200 and, when a Bill
is so returned, the House or Houses shall reconsider it accordingly
within a period of six months from the date of receipt of such message
and, if it is again passed by the House or Houses with or without
amendment, it shall be presented again to the President for his consideration.
Procedure
in Financial Matters
Article
202. Annual financial statement.
(I) The
Governor shall in respect of every financial year cause to be laid
before the House or Houses of the Legislature of the State a statement
of the estimated receipts and expenditure of the State for that year,
in this Part referred to as the "annual financial statement".
(2) The
estimates of expenditure embodied in the annual financial statement
shall show separately-
(a) the
sums required to meet expenditure described by this Constitution as
expenditure charged upon the Consolidated Fund of the State; and
(b) the
sums required to meet other expenditure proposed to be made from the
Consolidated Fund of the State; and shall distinguish expenditure
on revenue account from other expenditure.
(3) The
following expenditure shall be expenditure charged on the Consolidated
Fund of each State-
(a) the
emoluments and allowances of the Governor and other expenditure relating
to his office;
(b) the
salaries and allowances of the Speaker and the Deputy Speaker of the
Legislative Assembly and, in the case of State having a Legislative
Council, also of the Chairman and the Deputy Chairman of the Legislative
Council;
(c) debt
charges for which the State is liable including interest, sinking
fund charges and redemption charges, and other expenditure relating
to the raising of loans and the service and redemption of debt;
(d) expenditure
in respect of the salaries and allowances of Judges of any High Court;
(e) any
sums required to satisfy any judgement, decree or award of any court
or arbitral tribunal;
(f) any
other expenditure declared by this constitution, or by the Legislature
of the State by law, to be so charged
Article
205. Supplementary, additional or excess grants:
(1) The
Governor shall (a) if the amount authorized by any law made in accordance
with the provisions of article 204 to be expended for a particular
service for the current financial year is found to be insufficient
for the purposes of that year or when a need has arisen during the
current financial year for supplementary or additional expenditure
upon some new service not contemplated in the annual financial statement
for that year, or
(b) if
any money has been spent on any service during a financial year in
excess of the amount granted for that service and for that year, cause
to be laid before the House or the Houses of the Legislature of the
State another statement showing the estimated amount of that expenditure
or cause to be presented to the Legislative Assembly of the State
a demand for such excess, as the case may be.
(2) The
provisions of articles 202, 203 and 204 shall have effect in relation
to any such statement and expenditure or demand and also to any law
to be made authorising the appropriation of moneys out of the Consolidated
Fund of the State to meet such expenditure or the grant in respect
of such demand as they have effect in relation to the annual financial
statement and the expenditure mentioned therein or to a demand for
a grant and the law to be made for the authorisation of appropriation
of moneys out of the consolidated fund of the state to meet such expenditure
or grant.
Procedure
Generally
Article
208 Rules or procedure
(1)
A House of the Legislature of a State may make rules for regulating
subject to the provisions of this Constitution, its procedure and
the conduct of its business.
(2) Until
rules are made under clause (1), the rules of procedure and standing
orders in force immediately before the commencement of this Constitution
with respect to the Legislature for the corresponding Province shall
have effect in relation to the Legislature of the State subject to
such modifications and adaptations as may be made therein by the Speaker
of the Legislative Assembly, or the Chairman of the Legislative Council,
as the case may be.
(3) In
a State haying a Legislative Council the Governor, after consultation
with the Speaker of the Legislative Assembly and the Chairman of the
Legislative Council, may make rules as to the procedure with respect
to communications between the two Houses.
Article
213. Power of Governor to promulgate Ordinances during recess
legislature:
(I) If
at any time except when the Legislative Assembly of a State in, session,
or where there is a Legislative Council in a State, except when both
House n the Legislature are in session, the Governor is satisfied
that circumstances exist which render it necessary for him to take
immediate action, he may promulgate such Ordinances as the circumstances
appear to him to require:
Provided
that the Governor shall not, without instructions from the President
promulgate any such Ordinance if-
(a) a
Bill containing the same provisions would under this Constitution
1 required the previous sanction of the President for the introduction
thereof the Legislature; or
(b) he
would have deemed it necessary to reserve a Bill containing the provisions
for the consideration of the President; or
(c) an
Act of the Legislature of the State containing the same provisions
under this Constitution have been invalid unless, having been reserved
for consideration of the President, it had received the assent of
the President.
(2) An
Ordinance promulgated under this article shall have the same force
effect as an Act of Legislature of the State assented to by the Governor,
but every Ordinance-
(a) shall
be laid before the Legislative Assembly of the State, or where there
Legislative Council in the State, before both the Houses, and shall
cease operate at the expiration of six weeks from the reassembly of
the Legislature or if before the expiration of that period a resolution
disapproving it is pa by the Legislative Assembly and agreed to by
the Legislative Council, if upon the passing of the resolution or,
as the case may be, on the resolution being agreed to by the Council;
and
(b) may
be withdrawn at any time by the Governor. Explanation: Where the
Houses of the Legislature of a State having a Legislature Council
are summoned to reassemble on different dates, the period of six weeks
shall reckoned from the later of those dates for the purposes of this
clause.
(3) If
and so far as an Ordinance under this article makes any provision
w would not be valid if enacted in an Act of the Legislature of the
State assented to be Governor, it shall be void:
Provided
that, for the purposes of the provisions of this Constitution relating
to effect of an Act of the Legislature of a State which is repugnant
to an Act of Parliament existing law with respect to a matter enumerated
in the Concurrent List, an Ordinance promulgated under this article
in the Concurrent List, an Ordinance promulgated under this article
in pursuance of instructions from the President shall be deemed to
be an Act of the Legislature of the State which has been reserved
for the consideration of the President and assigned by him.
(Ordinances
issued by the President). The most important case 00 article 213 is
D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579. Dr.
Wadhwa's book Repromulgation of Ordinances (Orient Longman, 1985)
traces history of the Ordinances "making power in a comprehensive
manner. Earlier decisions-such as State of Punjab v. Satya
Pal, AIR 1969 C 903 should now he read subject to D.C. Wadhwa
v. State of Bihar, AIR 1987 SC 579.
An Ordinance
can he challenged if the Governor-
(a) directly
violated a constitutional provision, or
(b) exceeded
his constitutional power to make an Ordinance, or
(c) has
made a colourable use of such power (e.g by successive repromulgation
of an Ordinance without getting an Act of the Legislature passed to
replace an expiring Ordinance) the court would strike down the Ordinance;
D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579, paragraphs
6-8.
Article
219.
Oath or affirmation by Judges or High Courts: Every person
appointed to be a Judge of a High Court shall, before he enters upon
his office, make and subscribe before the Governor of the State, or
some person appointed in that behalf by him, an oath or affirmation
according to the form set out for the purpose in the Third Schedule.
Article
233 Appointment of district judges:
(l)
Appointments of persons to be, and the posting and promotion of, district
judges in any State shall be made by the Governor of the State in
consultation with the High Court exercising jurisdiction in relation
to such State.
(2) A
person not already in the service of the Union or of the State shall
only be eligible to be appointed a district. Judge if he has been
for not less than seven years an advocate or a pleader and is recommended
by the High Court for appointment [233A, Validation of appointments
of and judgements, etc., delivered by, certain district judges
.Notwithstanding any judgement ,decree or order of any court,-
(a) (i)
no appointment of any person already in the judicial service of a
State or of any person who has been for not less than seven years
an advocate or a pleader, to be a district judge in that State ,and
(ii)
no posting, promotion or transfer of any such person as a district
judge, made at any time before the commencement of the Constitution
(Seventieth Amendment) Act, 1966, otherwise than in accordance with
the provisions of article 233 or article 235 shall be deemed to be
illegal or void or ever to have become illegal or void by reason only
of the fact that such appointment, posting, promotion or transfer
was not made in accordance with the said provisions;
(b) no
jurisdiction exercised, no judgement, decree, sentence or order passed
or made, and no other act or proceeding done or taken, before the
commencement of the Constitution (Twentieth Amendment) Act, 1966 by,
or before, any person appointed, posted, promoted or transferred as
a district judge in any State otherwise than in accordance with the
provisions of article 233 or article 235 shall be deemed to be illegal
or invalid or ever to have become illegal or invalid by reason only
of the fact that such appointment, posting, promotion or transfer
was not made in accordance with the said provisions.
Article
234. Recruitment of persons other than district judges to the
judicial service:
Appointment of persons other than district judges to the judicial
service of a State shall be made by the Governor of the State in accordance
with rules made by him in that behalf after consultation with the
State Public Service Commission and with the High Court exercising
jurisdiction in relation to such State.
Article
237. Application or the provisions or this Chapter to certain
class or classes or of magistrates.
The Governor
may by public notification direct that the foregoing provisions of
this Chapter and any rules made thereunder shall with effect from
such date as may be fixed by him in that behalf apply in relation
to any class or classes of magistrates in the State as they apply
in relation to persons appointed to the judicial service of the State
subject to such exceptions and modifications as may be specified in
the notification.
Article
243(I) Constitution of Finance Commission to review the Financial
Position of Panchayats
Definitions:
In this Part, unless the context otherwise requires:
(a) 'district'
means a district in a State;
(b) Gram
Sabha means a body consisting of persons registered in the electoral
rolls relating to a village comprised within the area of Panchayat
at the village level;
(c) 'Intermediate
level' means a level between the village and district levels specified
by the Governor of a State by public notification to be the intermediate
level for the purposes of this Part;
(d) 'Panchayat'
means an institution (by whatever name called) of self-government
constituted under article 243b for the rural areas.
(e) 'Panchayat
area' means the territorial area of a Panchayat;
(f) 'population'
means the population as ascertained at the last preceding census of
which the relevant figures have been published;
(g) 'village'
means a village specified by the Governor by public notification to
be a village for the purposes of this Part and includes a group of
villages so specified-
Article
243(Y). Finance
Commission. (l) The Finance Commission constituted under article
243-1
shall also review the financial position of the Municipalities and
make;
recommendations
to the Governor as to —
-
The
principles which should govern-
-
(i)
The distribution between the State and the Municipalities of the
net proceeds of the taxes, duties,tolls and fees leviable by the
State, which may be divided between them under this Part and the
allocation between the Municipalities at all levels of their respective
shares of such proceeds;
(ii)
The determination of the taxes, duties, tolls and fees which may be
assigned to, or appropriated by, the Municipalities.
(iii)
The grants-in-aid to the Municipalities from the Consolidated Fund
of the State;
(b) The
measures needed to improve the financial position of the Municipalities;
(c) Any
other matter referred to the Finance Commission by the Governor in
the interests of sound finance of the Municipalities.
Article
309. Recruitment and Conditions of Service of Persons of Appointed
to K.P.S.C.
Subject
to the provisions of this Constitution, Acts of the appropriate Legislature
may regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the affairs
of the Union or of any State:
Provided
that it shall be competent for the President or such person as he
may direct in the case of services and posts in connection with the
affairs of the Union, and for the Governor of a State or such person
as he may direct in the case of services and posts in connection With
the affairs of the State to make 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 an Act
of the appropriate Legislature under this article, and any rules so
made shall have effect subject to the provisions of any such Act.
Administrative
instructions
Though
non-statutory Rules cannot modify statutory Rules, there is nothing
to prevent the Government from issuing administrative instructions
on matters upon which the statutory Rules are silent; Comptroller
v. Mohan, (1992) I SC 20.
Adverse
remarks
Adverse
remarks against which a representation is pending should not be taken
into account when considering an employee's case for selection to
the Selection Grade, etc.; State of M P.V Bani, (1990)
Supp SCC 736, paragraph 6.
If an
adverse order is challenged in a court of law, it is always open to
the competent authority to place before the court the reasons which
may have led to the rejection of the representation Union of India
v. E.G Nambudri , AIR 1991 SC 1216.
A copy
of the adverse entry is to be supplied to the employee within a reasonable
time This obligation to communicate does not extend to any observation
in the entry which is not adverse to the employee; Baikuntha v
C.DMO, (1992) 2 SCC 299, paragraph 33 (3 Judges).
The remarks
in a Confidential Report are used as data of comparative merit when
questions of promotion, confirmation, crossing of efficiency bar,
termination of service, etc, of the employee in question arise;
Union of India v. Nambudri, ( 1991) 3 SCC 38, paragraph
6.
Application
under section 19 of the Administrative Tribunals Act lies for expunction
of adverse remarks; State of MP. v. Bani, (1990) SCC
738, paragraph 5.
Appointment
Though
a person, by making an application for a post pursuant to an advertisement,
doesn’t acquire any vested right to be appointed to that post, he
acquires a right to be considered for selection according to
the terms of that advertisement. The eligibility of a candidate for
selection for a post depends upon whether he is qualified in accordance
with the relevant Rules as they existed at the date of the advertisement
for recruitment; N.7: Bevin Kalti v. Karnataka Public Service
Commission, (1990) 3 SCC 157.
Armed
forces
As regards
retirees from the Armed forces, the Supreme Court has not accepted
the demand of retirees of armed forces for "one rank one pension";
Indian Ex-Service League v. Union of India. AIR 1991
SC 1182, paragraphs 8, 10 and 18.
It is
legitimate for the State Government to announce special benefits of
pension, increase etc. to persons enrolled in the armed forces
during emergency as contrasted with those enrolled before emergency.
Older men, by joining the military service, lost the chance of joining
other Government departments. The discrimination is reasonable; Dhan
Singh v. State of Haryana, AIR 1991 SC 1047
Compulsory
retirement
Compulsory
retirement does not contain any stigma and is based on the subjective
satisfaction of the authority. However, an order of compulsory retirement
cannot be quashed under article 226 on the ground that the adverse
entry was not communicated to the petitioner or that rules of natural
justice or the requirements of article 21 of the Constitution have
not been complied with; Union of India v. Reddy,
AIR 1990 SC 563, paragraph 27; State of Sikkim v. Sonam,
(1991) Supp I SCC 179, paragraphs 4 and 5
Criminal
proceedings
Since
article 20(2) has been held to be applicable only to punishment in
judicial proceedings, there is no question of its applications where
a prosecution or acquittal in a criminal proceeding is followed by
a departmental proceeding against a Government servant and vice
versa. Conversely, recovery of embezzled or other recovery due
to the Government by departmental proceeding cannot bar a criminal
prosecution for the offence, if any; Bishwanath v. Union
of India, (1991) 16 ATC 912 (Cal), paragraphs 14-16 (FB).
Discrimination
Even
as between employees of the same class of service, it would be permissible
to give weightage to those who acquire a relevant higher qualification,
which is reasonable, e.g., giving accelerated promotion to
the most meritorious in order to attract brilliant candidates to the
public service; Biswas v. State Bank of lndia, (1991)
2 UJSC 567, paragraph 4. If the Rule be applicable to all classes
of Government servants, it cannot be challenged as discriminatory,
but if it is mala fide, or arbitrary or perverse, the order
may be struck down; Baikuntha v. C.D.M.O., (1992) 2
SCC 299, paragraphs 32 and 34 (3 Judges).
Exploitation
The State
should not exploit its employees nor should it take advantage of the
helplessness of either the employees or the unemployed persons. The
State should act as a model employer and give equal pay for equal
work. It should not keep a person in temporary or ad hoc status
for long, and take steps for their regularisation; State
of Haryana v. Piara, (1992) 4 SCC 18.
The rule
of equality of pay cannot be so applied as to give to an employee
the higher emoluments of a post in which he has never worked; Virenderv.
Avinash, AIR 1991 SC 958.
In general,
the grant of higher pay to a junior in the same cadre would be violative
of the rule of "equal pay for equal work". But to this there
are exceptions founded on justifiable grounds or intelligible differential,
e.g." where the higher pay offered to a junior is personal
to him, say, on account of additional duties; Chief Engineer v.
Jagdish, AIR 1991 SC 200 paragraph 5.
Examination
The court
would not interfere with the comparative merits of candidates as assessed
by the examining body, in the absence of bias or mala fides or
material irregularity in the Constitution of the examining body or
the procedure adopted by it-because these are matters requiring an
expertise which the courts do not possess; Dalpat v. Mahajan,
(1990) I SCC 305, paragraph 12 (3 Judges), Jaswantv. State
ofPunjab, (1990) Supp. 1 SCC 313, paragraph 6.
Gratuity
Government
has no longer any discretion to forfeit gratuity on any ground; Jesuratnanl
v. Union of India, (1990) Supp. SCC 640, paragraph 2.
High
Court
In regard
to making appointments to clerical posts in the subordinate courts,the
Chief Justice of the High Court cannot depart from the constitutional
and statutory provisions on the subject. If the Chief Justice takes
upon himself the power of both the authorities mentioned above to
make selections for, as well as appointments in, the establishments
of the subordinate courts, such appointments shall be void; Puttaswamy
v. Chief Justice, AIR 1991 SC 295
Interpretation
Subject
to certain limitations, Government's interpretation of its own rules
and the policy decisions made thereunder should be respected by the
courts; Ajeet Singh Singhvi v State of Rajasthan. (1991)
Supp I SCC 343 paragraph 12.
Interview
There
is nothing contrary in preparing a select list based on the results
of the written test alone and then to call for interview out of that
list, depending upon the number of vacancies available; Biswasv.
State Bank of lndia, (1991) 2 UJSC 567, paragraphs 4.
Where
the Rules relating to recruitment do not require that both written
and viva voce tests should be adopted, selection by interview
alone cannot be held to be illegal. There is no inflexible standard
as to the duration of an interview. A candidate cannot complain that
the interview was loo short, except in the case of a selection post,
i.e., of a higher category; Sardara Singh v. State
of Punjab, AIR 1991 SC 2248, paragraphs 6 and 7.
The court
would not interfere where, in the absence of the Rules fixing
any pass marks for 118 interview test, the examining body fixes a
40% pass marks for the interview as for the written tell; Manjee1
v E.S.I.C., AIR 1990 SC 1104, paragraph 6 (3 Judge
Bench)
Lien
When
a Government servant's lien is suspended under the Rules, e.g.,
while he is appointed to a deputation post, he loses all chances
of being considered for promotion during the period of such suspension
of lien. His lien in the patent cadre is revived only when he reverts
to the parent cadre either on his own option, or on release from the
deputation; Ram Saran v. State of Punjab, (1991) 2 SCC253,
paragraphs 14,19-21.
The lien
on post is acquired only when the employee has been confirmed and
made permanent on that post and not earlier; Triveni v. State
of uttar Pradesh, AIR 1992 SC 496, paragraphs 21.22.
Mandamus
Mandamus
would issue
to give the petitioner the same pay scale as has been given to employ
of the same cadre, without any rational justification; State of
Wes1 Bengal v. Debdas, (1991)-I SCC 138, paragraph 15;
State ofRajas1han v. Gurcharan, (1990) Supp SCC 778, paragraphs
10-11.
Mandate
to Government
In an
appeal from a judgement of the Andorra Prudish High Court, the Supreme
Court has held that the High Court or the Administrative Tribunal
cannot issue a mandate to the State Government to make service rules
under article 309 of the Constitution. "The courts cannot usurp
the functions assigned to the executive under the Constitution and
cannot even indirectly require the executive to exercise its rule-making
power in any manner .The court cannot assume to itself a supervisory
power over the rule-making power of the executive under article 309
of the Constitution" The Constitution does not permit the court
to direct or advise the executive in matters of policy or to sermonise
regarding any matter which, under the Constitution, lies within the
sphere of legislature or executive; Mallikarjuna Rao v. State
of Andhra Pradesh, AIR 1990 SC 1251, 1255, paragraphs 10-12.
Officiating
Post
Where
an officer, substantively holding a post, is ordered merely to discharge
the duties of a higher post in the exigencies of public service, he
is not entitled to the emoluments of the higher post. He can claim
only what is called the "charge allowance"; Ramakan1
v. Union of India, AIR 1991 SC 1145, paragraph 4.
Privacy
The LIC
cannot terminate the service of a lady employee who refuses to give
particulars about her menstrual periods. To demand such information
compulsorily violates the right of privacy flowing from article 21
of the Constitution. The L.I.C. can (if it so chooses) get the employee
medically examined, if the information in question is required to
check pregnancy, etc; Neera v L.I.C., (1992) I SCC 286.
Promissory
Estoppel
A change
of policy is also controlled by the doctrines of promissory estoppel;
Am'i1 v. Sra1e of Punjab, (1992) 2 SCC 411, paragraphs
4-6.
A rule
made in exercise of the power under the proviso to article 309 constitutes
law within the meaning of article 235. For the same reason, such rule
may be struck down only on such ground as may invalidate a legislative
measure, e.g. violation of articles 14 and 16 of the Constitution,
and not because the court considers it to be unreasonable; Bansal
v Union of India, AIR 1993 SC 978, paragraph 21.
If the
Rules are amended and the Government withdraws the requisition, before
the candidates are called for interview pursuant to the advertisement,
but the Service Commission goes on with the selection in terms of
the original Rules, a candidate so selected acquires no vested right;
Jaiswal v Debi, (1992) I UJSC 731, paragraph 5.
A question
of conflict arises where a service has got two sets of Rules made
under article 309 e.g. General Recruitment Rules and Special
Recruitment Rules (applicable to a particular Department such as the
Motor Vehicles Branch); Raghunath v. State of Karnataka,
AIR 1992 SC 81, paragraph 7.
Rule-making
power
Rules
as to service matters may be made- (a) under article 309, proviso,
or
(b) subject
to law made by competent legislation) by executive orders; State
of Haryana v Piara, (1992) 4SCC 118, paragraph 21.
Salary
It has
been laid down by a Constitution Bench, that the salary drawn on the
date of retirement cannot be re-opened as a result of any enhancement
made at a later date for persons retiring subsequently; India Ex-Services
League v. Union of India, AIR 1991 SC 1182, paragraphs
21 and 22.
Seniority
Even
where the order of appointment may have stated that the appointment
was temporary or stop gap, etc., yet,
where it is established that the appointee has been working in that
post for along period (number of years) without break, the court may
apply the principle of "continuous officiation" and hold
that the appointee be deemed to have been regularised; Nayar v
Union of India, AIR 1993 SC 1574; State of Haryana v.
Piara, AIR 1992 SC 2130, paragraph 12 (3 Judges)
A subsequent
restructuring of the service or delay in holding the selection for
which the employee was not responsible cannot take away his seniority
for promotion which he had acquired prior to the date of restructure;
Nirmol v Union of India, ( 1991) Supp 2 SCC 263, paragraphs
4-6.
It is
open to the State to lay down any criteria which it thinks appropriate,
for determining seniority in service and it is not competent for the
court to strike down such Rule except on the ground that it is arbitrary
or it results in inequality of opportunity amongst employees belonging
to the same class, which would offend article 14 or 16 of the Constitution;
Dhan Singh v. State of Haryana, (1991) 2 Supp SCC 190,
paragraph 10.
Where
promotees have acquired a higher qualification or are selected by
the Public Service Commission, Government can give them some
weightage in seniority. There is no improper discrimination and court cannot
interfere with such a policy decision of the Government; State
of Andhra Pradesh v Muralidhar, AIR 1992 SC 922.
Where
a person has been denied seniority by a wrong application of the rules
or without any reasonable ground, the court may direct the competent
authority to place him in the higher grade with effect from the date
when his junior was placed therein, with consequential monetary benefits;
Dharam v Administrator, (1991) 17 ATC 925, paragraph
4.
In general,
the court would not interfere with rules, or even executive instructions
laying do with the principles of seniority if they are 'reasonable,
just and equitable, Devdu"a v. State of Madh.11 Pradesh,
(1992) 19 ATC 154 (SC), paragraph 17.
As between
employees serving in the same service or cadre, seniority shall be
detemlined by 110 Rules made under article 309. If there is
no unconstitutionality in such Rules, the seniority inter it
must be determined according to the criteria laid down in such rules,
e.g., rank and merit (where selected by the P.S.C.); the court
cannot lay down any other criteria; State of Tanlil ,Vada v.
pan, (1991) 3 SCJ 302, paragraph 10 (3 Judges).
The interpretation
of Rules as to quota consistent with the Constitution, may be a difficult
task No question of seniority arises till a person is appointed substantively
to a cadre post under The Rules; Chopra v. State of Haryana,
(1992) 19 ATC 493 (SC), paragraphs 10-17.
When
a person is appointed to a post according to the Rules, his seniority
is to be counted from the date of his appointment and not according
to the date of his confirmation: The Direct Recruit, Class-
Engineering Officers. Association v. State of Maharashtra,
(1990) 2 SCJ 377, paragraph 13 (CB).
If Rules
have been made fixing a quota or ratio for appointment from the two
sources, then inter, se seniority has to be guided by the quota
rules; Saxena v. State of Uttar Pradesh, (1992) 19 ATC
96 (SC), paragraphs 6-7; The Direct Recruit Crass-ll Engineering
Officers. Association v. State 0f Maharashra, (1990)
2 SCC 715, paragraph 47.
Government
can make rules laying down that persons recruited on a regular basis
shall be placed (in seniority) below persons regularised. There is
no illegality calling for court intervention The former came into
service after passing a competitive examination; Bharnagar v.
Union of India, (1991) I SCC 544, paragraphs 8, 9 and 12 (Judges).
Where
the Rules themselves make a distinction between persons appointed
in the Directol1lle and the subordinate services as separate cadres,
and such Rules are not held to be unconstitutional, a claim that common
seniority should be maintained between the two cadres, is untenable;
Sonl Ruj v. State of Haryana, (1990) 2 SCJ I, paragraphs 5-6.
"
Service
matters: Judicial interference
Judicial
interference in service matters is called for only in order to examine
that the action challenged before the court is from the point of-
-
fundamental
rights,
-
statutory
provisions,
-
rules
and instructions,
-
fairness.
State
of Haryana v
Piara, (1992)4 SCC 118, paragraph 21.
Temporary
service
The State
should not keep a person in temporary or ad hoc service for
a long period. It should take steps for his regularisation; Dharwad
District PWD Literate Daily). Wage Employees Association v. Stare
of Kamataka, ( 1990) 2 SCC 396, paragraph 23.
Termination
If the
temlination (of an employee) is arbitrary, it will be violative of
article 16, even though the employee is of an ad hac, temporary
or officiating status, or even casual employee; Shrilekha v.
State of Uttar Pradesh, (1991) 1 SCC 212.
Transfer
When
a person belongs to a service or cadre which is transferable, then,
in the absence of any statutory restrictions, a person appointed to
the cadre or service is transferable from one post to another, in
the interests of public service. In such a case, transfer is an incident
of the service and the employee cannot complain except where (a) it
is ordered in violation of some mandatory statutory rule, (b) if it
is actuated by mala fide." that is, some collateral purpose
other than the interests of the administration. The court cannot,
therefore, interfere on the mere ground that the transfer was made
at the request of the employee and the competent authority granted
it to avoid hardship; Shilpi v. State of Bihar, (1991)
Supp 2 SCC 659, paragraphs 3-4.
Where
employees are transferred from a Government Department to a statutory
corporation and provision is made in the statute (or in the directions
issued thereunder) that their existing conditions of service would
not be adversely affected by the transfer, the court would interfere
if the corporation frames regulations to change the conditions of
service to the disadvantage of the employees, e.g., in the
matter of the age for retirement; Dubey v. M.PS.R.7:C.,
(1991) Supp I SCC 426. paragraph II.
Vacancies
State
is not bound to fill up a vacancy. But the decision not to fill up
a vacancy has to be taken bona fide for good reasons. The mere
fact that a person's name appears in the merit list does not give
him aright to be appointed. But if the vacancy is filled up, the comparative
merit (as reflected in the recruitment test) has to be respected and
no discrimination is permissible; Shankaran v. Union of
India, (1991) 3 SCC 47, paragraph 7a.
Article.
316. Appointment
of K.P.S.C Chairman and Members:
(I) The
Chairman and other embers of a Public Service Commission shall be
appointed, in the case of the Union Commission or a Joint Commission,
by the President, and in the case of a State Commission, by the Governor
of the State;
Provided
that as nearly as may be one-half of the members of every Public Service
Commission shall be persons who at the dates of their respective appointments
have held office for at least ten years either under the Government
of India or under the Government of a State, and in computing the
said period of ten years any period before the commencement of this
Constitution during which a person has held office under the Crown
in India or under the Government of an Indian State shall be included.
(lA)
If the office of the Chairman of the Commission becomes vacant or
if any such Chairman is by reason of absence or for any other reason
unable to perform the duties of his office, those duties shall, until
some persons appointed under clause ( I) to the vacant office has
entered on the duties thereof or, as the case may be, until the Chairman
has resumed his duties, be performed by such one of the other members
of the Commission as the President, in the case of the Union Commission
or a Joint Commission, and the Governor of the State in the case of
a State in the case of a State Commission, may appoint for the purpose.
(2) A
member of a Public Service Commission shall hold office for a term
of six years from the date on which he enters upon his office or until
he attains, in the case of the Union Commission, the age of sixty-five
years, and in the case of a State Commission or a Joint Commission,
the age of 3[sixty-two years], whichever is earlier;
Provided
that-
(a) a
member of a Public Service Commission may, by writing under his hand
addressed, in the case of the Union Commission or a Joint Commission,
to the President, and in the case of a State Commission, to the Governor
of the State, resign his office;
(b) a
member of a Public Service Commission may be removed from his office
in the manner provided in clause (I) or clause (3) of article 317,
(3) A
person who holds office, as a member of a Public Service Commission
shall, on the expiration of his term of office, be ineligible for
re-appointment to that office.
The requirement
in article 316(1) proviso, as to one half members being persons who
have held office under the Government is directory. Hence in a State
Public Service Commission comprising eleven members. a challenge to
the seventh member (who belongs to the non-service category) not sustainable
in law; Jai Shankar Prasadv. State of Bihar, (1993) 2 SCC 597.
Article
317. Removal and suspension of a member of a K.P.S.C.
(1) Subject
to the provisions of clause (3), the Chairman or any other member
of a Pub Service Commission shall only be removed from his office
by order of the President the ground of misbehaviour after the Supreme
Court, on reference being made to it by President, has, on inquiry
held in accordance with the procedure prescribed in that be under
article 145, reported that the Chairman or such other member, as the
case may ought on any such ground to be removed.
(2) The
President, in the case of the Union Commission or a Joint Commission,
the Governor in the case of a State Commission, may suspend from office
Chairman or any other member of the Commission in respect of whom
a reference been made to the Supreme Court under clause (l) until
the President has passed orders receipt of the report of the Supreme
Court on such reference.
(3) Notwithstanding
anything in clause (I), the President may by order remove from office
the Chairman or any other member of a Public Service Commission if
Chairman or such other member, as the case may be, -.
(a) Is
adjudged an insolvent; or
(b) engages
during his term of office in any paid employment outside the duties
his office; or
(c) Is,
in the opinion of the President, unfit to continue in office by reason
infirmity of mind or body.
(4) If
the Chairman or any other member of a Public Service Commission is
becomes in any way concerned or interested in any contract or agreement
made by or behalf of the Government of India or the Government of
a State or participates in an way in the profit thereof or in any
benefit or emolument arising therefrom otherwise as a member and in
common with the other members of an incorporated company, he; shall,
for the purposes of clause (1), be deemed to be guilty of
misbehaviour.
Important
judgements as to Public Service Commissions are the following:
(i) Reference
under article 317( 1 ), AIR 1983 SC 996.
(ii)
UP Public Service Commission v. Suresh, AIR 1987 SC
1953.
(iii)
K.P Sen v. State of West Bengal, AIR 1966 Cal356.
(iv)
Hargovindv.Raghukul,AIR 1979SC 1109.
Proportion
The validity
of the appointment of a particular member cannot be challenged on
the ground that he did not belong to the category which was required
to make up the 50% proportion; Jai v. Srutt of Bihar, (1993)
2 SCC 597, paragraphs 9-12.
Misconduct
In article
124(4) the word 'proved' qualifies the word 'misconduct' while that
qualification is absent in article 317(1).
Such
proof in the case of a Supreme Court Judge, comes from [the law enacted
by Parliament under clause (5) of article 124], the inquiry under
the Judges (Inquiry) Act, 1968, which is absent in the case of a member
of a Public Service Commission In the case of a member of the Public
Service Commission, the inquiry and proof of misbehaviour shall be
made by the Supreme Court, while in the case of a Supreme Court Judge,
that is to be done by the Committee set up under the Judges (Inquiry)
Act, 1968; subcommittee v. Union of India, AIR 1992
SC 320, paragraph 45
If the
Chairman of a State Public Service Commission is slapped on the face
by another, it is a case of misbehaviour under article 317(1) and
renders the latter member liable to be removal infirmities under article
317(3)(c) must be such as to disable the member from the efficient
discharge of his functions and must be of post-appointment origin.
Where a university professor is appointed a member of State Public
Service Commission and is known to be blind, he cannot be removed
on the ground of infirmity; Jai Shankar Prasad v State ofBihar,
(1993) 2 SCC 597.
The provisions
of proviso (b) to article 316 and the word 'only' in article 317(a)
make it clear that the power to remove a Public Service Commission
has been vested exclusively in the
President.
Hence, no court can exercise this power even by means of the writ
of quo warranto. The determination as to whether a member should
be removed on the ground of infirmity is left to the subjective satisfaction
of the President as to whether the infirmity is such that it incapacitates
the particular member for discharging the functions of his office;
Jai v. State of Bihar, (1993) 2 SCC 597, paragraphs
13, 15 and 18.
In a
reference under article 317 regulating enquiry and report on the allegations
made against the Chairman Manipur State Public Service Commission,
the Supreme Court directed that direct evidence in relation to the
reference should be recorded by a sitting Judge of. High Court; JT
(1994) 2 SC 63.
Members
of State Public Service Commission are not equal to the Chairman and
cannot claim the same facilities as the Chairman; Bihar Public
Service Commission v Dr Shiv Jatan Thakur, JT(1994) SC
681.
Article
318. Power to make regulations as to conditions of service or
members and staff of the K.P.S.C.
In
the case of the Union Commission or a Joint Commission, the President
and, in the case of a State Commission, the Governor of the State
may by regulations-
(a) determine
the, number of members of the Commission and their conditions of service;
and
(b) make
provision with respect to the number of members of the staff of the
Commission and their conditions of service.
Provided
that the conditions of service of a member of a Public Service Commission
shall not be varied to his disadvantage after his appointment.
Article
333. Representation or the Anglo-Indian community In the Legislative
Assemblies Nomination:
Notwithstanding
anything in article 170, the Governor of a State may, if he is of
opinion that the Anglo-Indian community needs representation in the
Legislative Assembly of the State and is not adequately represented
therein, nominate one member of that community to the Assembly.
Article
361. Protection of President and Governors and Rajpramukhs:
(l)
President, or the Governor or Rajpramukh of a State, shall not be
answerable to any court for the exercise and performance of the powers
and duties of his office or for any act done or purporting to be done
by him in the exercise and performance of those powers and duties
:
Provided
that the conduct of the President may be brought under review by any
court, tribunal or body appointed or designated by either House of
Parliament for ~ investigation of a charge under article 61:
Provided
further that nothing in this clause shall be construed as restricting
the right of any person to bring appropriate proceedings against the
Government of India or Government of a State.
(2) No
criminal proceedings whatsoever shall be instituted or continued against
President, or the Governor of a State, in any court during his term
of office.
(3) No
process for the arrest or imprisonment of the President, or the Governor
of a State, shall be issued from any court during his term of office.
(4) No
civil proceedings in which relief is claimed against the President,
or the Governor of a State, shall be instituted during his term of
office in any court in respect of any act done or purporting to be
done by him in his personal capacity, whether before or after he entered
upon his office as President, or as Governor of such State, until
the expiration of two months next after notice in writing has been
delivered to the President or the Governor, as the case may be, or
left at his office stating the nature of the proceedings, the cause
of action therefor, the name, description and place of residence of
the party by whom such proceedings are to be instituted and the relief
which he claims.
Protection
or publication or proceedings or Parliament and State Legislature:
(I) No
person shall be liable to any proceedings, civil or criminal, in any
court in respect of the publication in a newspaper of a substantially
true report of any proceedings of either House of Parliament or the
Legislative Assembly, or, as the case may be, either House of the
Legislature of a State, unless the publication is proved to have been
made with malice:
Provided
that nothing in this clause shall apply to the publication of any
report of the proceedings of a secret sitting of either House of Parliament
or the Legislative Assembly, or, as the case may be, either House
of the Legislature, of a State.
(2) Clause
(I) shall apply in relation to reports or matters broadcast, by means
of wireless telegraphy as part of any programme or service provided
by means of a broadcasting station as it applies in relation to reports
or matters published in a newspaper.
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