Samsher Singh v State of Punjab (1974)

It settles what the President and the Governor actually are: constitutional or formal heads who act on ministerial advice, not functionaries with a personal will. It does so by overruling Sardari Lal v Union of India, which had held that where the Constitution requires the satisfaction of the President or Governor, that satisfaction must be personal. Everything later said about Art. 74 and Art. 163 — including the Delhi Lieutenant-Governor litigation — starts here.

The two appellants had joined the Punjab Civil Service (Judicial Branch) and were on probation.

By an order of 27 April 1967, the services of Samsher Singh, Subordinate Judge on probation, were terminated under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules 1952, the order being expressed to be made by the Governor of Punjab.

By an order of 15 December 1969, the services of Ishwar Chand Agarwal were dispensed with, on the recommendation of the High Court of Punjab and Haryana, under Rule 7(3) in Part D of the Punjab Civil Services (Judicial Branch) Rules 1951, again expressed to be made by the Governor.

The appellants argued that the Governor, as the constitutional or formal head of the State, can exercise the powers of appointment and removal of members of the Subordinate Judicial Service only personally. Their argument had four steps:

1. Several constitutional functions, powers and duties are conferred on the Governor eo nomine — by name — and the Constitution requires him to act in his discretion in several matters. Neither class is an executive power of the State within Art. 154 read with Art. 162.
2. Under Art. 163 the Governor takes the aid and advice of his Council of Ministers when exercising the executive power of the State, but acts without it where the Constitution requires him to act in his discretion or where a function is conferred on him eo nomine.
3. Aid and advice under Art. 163 is different from the allocation of business under Art. 166(3). Allocation is the exercise of executive power by the Governor through his Council; aid and advice is a constitutional restriction on his exercise of executive power, without which he is not constitutionally competent to exercise it.
4. The power of appointment and removal of Subordinate Judges under Art. 234 had not been allocated to any Minister under the Punjab Rules of Business, and Rule 7(2) of the Service Rules — under which the Governor may, on the recommendation of the High Court, remove a probationer Subordinate Judge without assigning any cause — is incapable of allocation to a Minister.

They relied on Sardari Lal v Union of India, where it had been held that where the President or Governor is to be satisfied — for example that in the interest of the security of the State it is not expedient to hold an inquiry before dismissal under Art. 311 — the satisfaction is his personal satisfaction. The appeals were placed before a larger Bench precisely to consider whether Sardari Lal correctly stated the law.

The Attorney-General, the Additional Solicitor-General for Punjab and counsel for Haryana contended the opposite: that the President is the constitutional head of the Union and the Governor the constitutional head of the State, and each exercises all powers and functions conferred on him by or under the Constitution on the aid and advice of the Council of Ministers.

The Court noticed the difference students are expected to spot. Art. 74 says there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions — and contains no clause comparable to Art. 163 excepting functions the President is required to exercise in his discretion. Art. 163(1) does contain that exception, and Art. 163(2) makes the Governor's own view of whether a matter is discretionary final.

So the discretion the appellants were asserting exists for the Governor only where the Constitution says so, and does not exist for the President at all.

Sardari Lal is not the correct statement of the law and is against the established and uniform view of the Court from 1955 to 1971, in decisions — Rai Sahib Ram Jawaya Kapur v State of Punjab, A. Sanjeevi Naidu v State of Madras and U. N. R. Rao v Indira Gandhi — which were neither referred to nor considered in Sardari Lal.

The propositions established are these.

1. Formal heads. The President as well as the Governor is the constitutional or formal head. Each exercises the powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in the spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.

2. Satisfaction means Cabinet satisfaction. Wherever the Constitution requires the satisfaction of the President or the Governor, the satisfaction required is not his personal satisfaction but his satisfaction in the constitutional sense in the Cabinet system of government — that is, the satisfaction of the Council of Ministers on whose aid and advice he generally exercises all his powers and functions.

3. Rules of Business are not delegation. The decision of any Minister or officer under Rules of Business made under Art. 77(3) or Art. 166(3) is the decision of the President or the Governor. Those Articles do not provide for delegation; they distribute the business of a single constitutional office.

4. The discretion that remains. Where the Governor has a discretion he acts on his own judgment, and he exercises that discretion in harmony with his Council of Ministers. The appointment and removal of members of the Subordinate Judicial Service is executive action of the Governor to be exercised on aid and advice.

5. On the facts. The Court found that a mountain had been made out of a mole hill. The grounds against Samsher Singh included his correcting a warrant of possession in his own hand so that it conformed to the plaint and the decree — a correction the Court held there was nothing wrong in making — and matters for which he had already been warned. Rule 9 made it incumbent on the authority to terminate a probationer only on a specific fault or an unsatisfactory record implying unsuitability. The order was in substance one of punishment, made in infraction of Rule 9, and was set aside.

The President and the Governor are constitutional heads who exercise their powers and functions on the aid and advice of their Councils of Ministers; the satisfaction the Constitution requires of them is the satisfaction of the Council of Ministers, not personal satisfaction; and a decision taken by a Minister or officer under Rules of Business is in law the decision of the President or the Governor.

• On Art. 74: the President has no reserve of personal discretion. After the Forty-second and Forty-fourth Amendments the text says so; Samsher Singh had already said so as a matter of the Cabinet system.
• On Art. 163: the Governor's position is different only because Art. 163(1) contains the discretion exception and Art. 163(2) makes his view of its scope final. Every Governor problem turns on identifying whether the function in question is one the Constitution requires him to exercise in his discretion.
• On Rules of Business: use proposition 3 whenever an order is challenged on the ground that a Minister, not the Governor, made it. The answer is that under Arts. 77 and 166 it is the Governor's order.
• Read it with M. P. Special Police Establishment v State of M. P., where the Governor was held right to act in his own discretion, and with State (NCT of Delhi) v Union of India, where the same framework was applied to the Lieutenant-Governor under Art. 239AA.