CONSTITUTIONAL ROLE OF THE GOVERNOR
Notes on  Article 161 Notes on  Article 162
Notes on  Article 163 Notes on  Article 165
Notes on  Article 213 THE STATE LEGISLATURE
Notes on Article 174 Notes on Article 192
SERVICES UNDER THE UNION AND THE STATES Notes on  Article 317

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.

Notes on  Article 161

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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.

Notes on Article 162

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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,

Council of Ministers

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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.

Notes on article 163

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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.

Notes on Article 165

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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.

THE STATE LEGISLATURE

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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.

Notes on Article 174

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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.

Notes on Article 192

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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.

Notes on Article 200

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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.

Notes on article 213

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(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

  1. The principles which should govern-

  2. (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.

SERVICES UNDER THE UNION AND THE STATES

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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-

  1. fundamental rights,

  2. statutory provisions,

  3. rules and instructions,

  4. 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.

Notes on Article 316

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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.

Notes on Article 317

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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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