Case Law Details
The Constitution contemplates various scenarios in which a Governor can exercise his discretion dehors the aid and advice of the Council of Ministers, as for example, the powers under Article 174(2): dissolution of legislative assembly; Article 356: advising the President for proclamation of emergency; Article 167: calling for information from the Chief Minister etc, Article 317 is not one such case. In the light of the decision of the Supreme Court of India in Samsher Singh (supra), it i clear that the power under Article 317(2) is not one such power, which the Governor can exercise at his absolute discretion. In the instant case, admittedly the Governor had not received the aid and advice of the Council of Ministers prior to issuing an order of suspension on May 14, 2014.
Relevant Extract of the Judgment
2. The short point that arises for consideration in this writ appeal pertains to the power of the Hon’ble Governor to suspend a member of a State Public Service Commission under Article 317(2) of the Constitution of India.
3. The appellant, Dr.Mangala Sridhar, was appointed as a Member of the Karnataka Public Service Commission (hereinafter referred to as PSC’ in short) under Article 316(1) of the Constitution of India by an order issued by the Governor of Karnataka on November 24, 2012. There were various allegations and counter allegations pertaining to corruption, which led to an investigation by Criminal Investigation Department in short) and, also, the annulment of evaluations of the written examinations pertaining to certain Group-A and Group-B posts intended to be filled upon in accordance with the Karnataka Gazetted Probationers Appointment (Competitive Examination) Rules, 19’77. On August 14, 2014, the State Government ordered closure of the recruitment process, which was challenged before the Karnataka State Administrative Tribunal, ultimately leading to the order dated October 19, 2016 of the Karnataka_ State Administrative Tribunal discarding the investigation report of CID and quashing the Government Order of August 14, 2014.
4. In the meantime, on May 14, 2014, the Governor of Karnataka issued an order under Article 317(2) of the Constitution of India suspending the appellant from the membership of KPSC with immediate effect. It is this order of suspension that was challenged in the writ petition.
5. While various contentions were raised in the writ petition by either side, including contentions regarding maintainability, the crucial question pertained to whether the Governor can suspend a member of the State Public Service Commission under Article 317(2) even prior to a reference being made to the Supreme Court of India under Article 317(1, by the Hon’ble President.
6. It is the case of the appellant that under Article 317(1), a member of the State Public Service Commission can only be removed from his/her office by order of the President of India, on the ground of misbehaviour, only after Supreme Court of India, on a reference being made to it by the President, on enquiry, holds that such a member ought to be removed. It is the, further, case of the appellant that under Article 317(2), the Governor, in the case of the State Public Service Commission, may suspend a member from the Commission only after a reference has been made to the Supreme Court of India by the President under Article 317(1).
7. The appellant contends that factually, in the instant case, the Governor of Karnataka had made a request to the President on May 14, 2014 and on the very day, the Appellant’s membership of KPSC was suspended by the Governor. It is not in dispute that the President had not made a reference to the Supreme Couit of India under Article 317(1) on May 14, 2014. In fact, no reference has been made by the President of India to the Supreme Court of India, in the case pertaining to the appellant till date. The appellant, therefore, contends that in the absence of a reference by the President to the Supreme Court of India under Article 31’7(1), the Governor did not had the power to suspend the appellant from the membership of KPSC under Article 317(2) and, inter alia, on that ground, she challenged the order of suspension dated May 14, 2014, which was upheld by the Hon’ble Single Judge, by the order impugned.
8. We have heard Mr.Sajan Poovayya, learned senior advocate for the appellant; and Mr.A.S.Pon.narina, Additional Advocate General for the respondent State.
9. The points for our consideration are:
(a) Whether the Governor while exeicising powers under Article 317(2) can act at his discretion or is he bound by the aid and advice of the Council o1 Ministers under Article 163 of the Constitution;
(b) Whether the Governor has the power to suspend a member of a State Public Service Commission under Article 317(2), even prior to a reference being made by the President to the Supreme Court under Article 317(1) of the Constitution.
10. Member of a Public Service Commission is held under the Constitution of India as a constitutional functionary and it is not a post that is held at the pleasure of the Governor. Therefore, the power of suspension exercised by the Governor under Article 317(2) cannot be a power that is exercised at his absolute discretion or pleasure. The Supreme Court of India in B.R.Kapur -versus- State of Tamil Nadu and another reported in 2001(7) SCC 231 has held that the Governor while exercising his discretion or otherwise, cannot do anything that is contrary to the Constitution of India. In Meirurain ‑versus- Union of India reported in AIR 1980 SC 2147,the Supreme Court of India held that the expression `Governor’ is a short hand expression for the State Government.
11. The question that arises for our .onsideration in the context of Article 317 is squarely covered by a decision of the Supreme Court of India in Samsher Singh -versus- State of kanjah and another reported in 1974 (2) SCC 831. The Supreme Court of India held that: –
“30. In all cases in which the President or the Governor exercises his functions conferred on him by ur under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocution among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions.”
[Emphasis supplied]
12. Therefore, pursuant to the decision in the case of Samsher Singh (supra), there can be no doubt that the Governor, whilst exercising powers under Article 317(2) will have to do so, not in his absolute discretion, but in accordance with the aid and advice of the Council of Ministers. This decision has, further, been referred to Meher Singh Soin, In Pe. reported in 2010(13) SCC 586 and Nabom labia and Bamang Felix -versus- Deputy Speaker, Arunachal Pradesh Legislative Assembly and othek-s reported in (2016) 8 SCC 1.
13. The Constitution contemplates various scenarios in which a Governor can exercise his discretion dehors the aid and advice of the Council of Ministers, as for example, the powers under Article 174(2): dissolution of legislative assembly; Article 356: advising the President for proclamation of emergency; Article 167: calling for information from the Chief Minister etc, Article 317 is not one such case. In the light of the decision of the Supreme Court of India in Samsher Singh (supra), it i clear that the power under Article 317(2) is not one such power, which the Governor can exercise at his absolute discretion. In the instant case, admittedly the Governor had not received the aid and advice of the Council of Ministers prior to issuing an order of suspension on May 14, 2014.
