Case: Hargovlnd Pant Vs. Dr. Raghukul Tilak and Others

in Bal dev Raj Guliani &ors. v. The Punjab &Haryana High Court &ors. was a similar one and it related to the applicability of Article 320(3) (c) to Judicial officers in the State. Here, in this case also the Court took the same view and, after referring to the earlier decision in Pradyat Kumar Boses case with approval, held that "just as the High Court staff are not serving under the Government of the State, the Judicial officers are also not serving under the State Government", because the y are "entirely under the jurisdiction of the High Court for the purpose of control and discipline". It will, therefore, be seen that the employment can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment. Now, if one applies this test to the office of Governor, it is impossible to hold that the Governor is under the control of the Government of India. His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the le gislative power of the State. There can, therefore, be no doubt that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of clause (d) of Article 319.We may point out that t he Governor of a State is not the only constitutional functionary whose employment is not under the Government. There are under the Constitution many other high functionaries, such as Judges of the Supreme Court and the High Courts, who do not h old any employment under the Government of India, although they exercise State power. This Court, while examining the constitutional position of a High Court Judge, pointed out in the Union of India v. S. H. Sheth &Anr.(1) that a High Court Ju dge is not a Government servant: there is no relationship of employee and employer subsisting between him and the Government. He is a holder of a constitutional office which has important constitutional functions and duties. One of us (Bhag wati, J.) pointed out in that case at page 463 of the Report that a High Court Judge:"..... is as much part of the State as the executive Government. The State has in fact three organs, one exercising executive power, another exercising legislative power and the third exercising judicial power. Each is independent and supreme within its allotted sphere and it is not possible to say that one is superior to the other. The High Court, constituted of the Chief Justice and other Judges, exercising the judicial power of the State and is coordinate in position and status with the Governor aided and advised by the council of Ministers, who exercises the executive power and the Lgislative Assembly together with t he Legislative Council, if any, which exercises the legislative power of the State. Plainly and unquestionably, therefore, a High Court Judge is not subordinate either to the executive or to the legislature. It would, indeed, be a constitution al heresy to so regard him. He has a constitutional function to discharge, which includes adjudication of the question whether the executive or the legislature has over-stepped the limits of its power under the Constitution. No doubt Article 217 , cl. (1) provides for appointment of a person to the office of a High Court Judge by the President, which means in effect and substance the Central Government, but that is only laying down a mode, of appointment and it does not make the Central Government an employer of a High Court Judge. In fact a High Court Judge has no employer: he occupies a high constitutional office which is coordinate with the executive and the legislative."7. These observations apply equally to the off ice of a Judge of the Supreme Court. We are mentioning this merely to bring home, through comparable constitutional functionaries, the validity of the proposition that holders of high constitutional offices exercising State power and drawing salaries from State coffers may nevertheless be not employees or servants or holders of employment under the Government.8. We are, therefore, of the view that the office of Governor of a State is not an employment under the Government of India and it does not, therefore, come within the prohibition of clause (d) of Article 319 and on this view, the appointment of the 1st respondent as the Governor of Rajasthan cannot be held to be invalid.9. We may point out that in the course of the argument there was much discussion about the paramount public policy underlying the need to ban appointment of holders of public offices after retirement to higher offices and posts under the Government. We do not wish to expand o n this policy or to say more on the merits of this contention, but we think it would be appropriate to sound a note of caution that Ceasers wife must be above suspicion, that purity of public offices of high status is a constitutional value in its elf, that nothing should be done which may create an impression that a holder of a public office can look forward to a higher appointment after retirement if he pleases the Government of the day and that no appointments should be made which may lend support to the criticism of favourtism or patronage and consequential weakening of credibility. The confidence of the community in the key instrumentalities is of considerable significance in the maintenance of the rule of law.10.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is, therefore, clear that the Constitution makers were anxious to insulate the Chairman and members of the Union and State Public Service Commissions from executive or political pressures or influences and to place them beyond the reach of any allurement or temptation which may cloud their judgment and deflect them from doing their duty. The Constitution makers were keen to ensure that the Chairmen and members of t he Union and State Public Service Commissions were above reproach, free from coercion and political influence and they could, if necessary, stand up against the executive and defy any political pressure. It was with this end in view tha t the Constitution makers enacted clauses (a) to (d) of Article 319 prohibiting future employment under the Government of India or under the Government of a State for the Chairmen and members of the Union and State Public Service Commissions.We are concerned in this special leave petition only with clause (d) of Article 319 since the 1st respondent was a member of the Rajasthan Public Service Commission and it is on account of that fact that it is claimed that he was ineligible to be appointed Governor of Rajasthan. Clause (d) of Article 319 provides: "on ceasing to holdmember other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State". It is, therefore, obvious that the 1st respondent could be appointed Chairman or any other member of the Union Public Service Commission or Chairman of the Rajasthan or any other State Public Service Commission, but he was ineligible for any other employment either under th e Government of India or under the Government of a State. Now, it was not the case of the petitioner that the office of Governor was an employment under the Government of a State and the only question which, therefore, requires to be considered is whethe r the office of Governor can be said to be an employment under the Government of India. If it is, then undoubtedly the 1st respondent could not be appointed Governor of Rajasthan and his appointment would be invalid. But we are of the view that howsoever wide and expansive a meaning we may give to the words "employment . . under the Government of India", the office of Governor cannot comeis the sense in which that word has been used in this Article? Semantically, the word employment is not a word with a single fixed meaning but it has many connotations. On the one side it may bear the narrow meaning of relationship of employer and employee and on the other, it may mean in its widest connotation any engagement or any work in which one is engaged. If the former be the sense in which the word employment is used in clause (d) of Article 319, the office of Governor would certainly not be an employment, because the Governor of a State is not an employee or servant of any one. He occupies a high constitutional office with important constitutional functions and duties. The executive power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in hi s name. He constitutes an integral part of the legislature of the State though not in the fullest sense, and is also vested with the legislative power to promulgate ordinances while the Houses of the Legislature are not in session. He also exercises the sovereign power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute 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. He is vested with the power to summon each House of the Legislature or to prorogue either House or to dissolve the legislative assembly and this power may be exercised by him from time to time. He is also e ntitled to address either House of the Legislature or both Houses assembled together and he may send messages to the House or Houses of the Legislature with respect to a bill then pending in the legislature or otherwise. No bill passed by the Houses of the Legislature can become law unless it is assented to by him and before assenting to the bill he may return the bill, provided it is not a money bill to the Houses of the Legislature for reconsideration. He has also the power to reserve for consideration of the President any bill which in his opinion would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by the Constitution designed to fill. There is also one highly significant role which he has to play under the Constitution and that is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Co nstitution. It is the Governors report which generally forms the basis for the President taking action under Article 356 of the Constitution. It will be seen from this enumeration of the constitutional powers and functions of the Governor that he is not an employee or servant in any sense of the term. It is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not ma ke the Governor an employee or servant of the Government of India. Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleas ure of the President: it is a constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, even by stretching the language to a breaking point, be regarded as an employee or servant of the Government of India. If, therefore, the word employment were construed to mean relationship of employer and employee, the office of Governor would certainly not be an employment within the meaning of clause (d) of Article 319.But if we accept the wider mea ning of the word employment as connoting any engagement or any work in which one is engaged as in the expressionthe office of Governor would clearly be an employment within the meaning of clause (d) of Art. 319. That, h owever, would not be enough to attract the applicability of this provision. There is a further requirement which is necessary and that is that the employment must be under the Government of India. Now, what is the meaning of this expression "under the Government of India"? Fortunately, there are two decisions of this Court which throw some light on this question. The first is the decision in Pradyat Kumar Bose v. The Honble the Chief Justice of Calcutta High Court where the question wa s as to whether the officers and members of the staff of the High Court could be said to be persons "serving under the Government of India or the Government of a State, in a civil capacity" so as to be within the scope of Article 320(3) (c) which requires consultation with the appropriate Public Service Commission in disciplinary matters. This Court speaking through Jagannadhadas, J., pointedphrase a person serving under the Government of India or the Government o f a State it seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chiefare, therefore, of the view that the office of Governor of a State is not an employment under the Government of India and it does not, therefore, come within the prohibition of clause (d) of Article 319 and on this view, the appointment of the 1st respondent as the Governor of Rajasthan cannot be held to bemay point out that in the course of the argument there was much discussion about the paramount public policy underlying the need to ban appointment of holders of public offices after retirement to higher offices and posts under the Government. We do not wish to expand o n this policy or to say more on the merits of this contention, but we think it would be appropriate to sound a note of caution that Ceasers wife must be above suspicion, that purity of public offices of high status is a constitutional value in its elf, that nothing should be done which may create an impression that a holder of a public office can look forward to a higher appointment after retirement if he pleases the Government of the day and that no appointments should be made which may lend support to the criticism of favourtism or patronage and consequential weakening of credibility. The confidence of the community in the key instrumentalities is of considerable significance in the maintenance of the rule of law.