# HARGOVIND PANT v. DR. RAGHUKUL TILAK & ORS

- **Citation:** [1979] 3 S.C.R. 972
- **Court:** Supreme Court of India
- **Decided:** 1979-05-04
- **Bench:** Y. V. Ciiandrachud, P. N. Bhagwati, N. L. Untwau, S. Murtaza Fazal Ali, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hargovind-pant-v-dr-raghukul-tilak-ors-7831
- **Pages:** 12

## Headnote

Constitution of India, 1950-Art.
319(d)-Scope
of-G<>Vernor-11 an
"t'niployee" of the Governn1ent of J11dia-If could be regarded as "fmployed
under the Government of India"-Employed-Meaning of.
Article 319fd) of the Constitution provides that on ceasing to hold otliet:
a
member, other than the Chairman of a State Public Service c·ommission, 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
Go'Jernment of India or under the Government of a State.
The first respondent, who we.s a member of the Rajasthan State Public Service· Commission during the years 1958-59, was later appointed as Governor of
the State of Rajasthan. The petitioner contended that by virtue of Art. 319 ( d)
of the Constitution the respondent was ineligible to be appointed as Governor
of a State because he W&S a member of' the State Public Service Commission
earlier.
On the question whether, by reason of Art. 319 (d) the respondent was
ineligible for employment either under the Government of India or under the
Government of a State and whether the office of Governor was an employn1ent
under the Government of India.
HELD : 1. The office of Governor of a State is not an employment under
tho Government of India and it does not therefore come with.in the prohibition
of cl.(d) of Art. 319. The appointment of the first respondent as
Governor
of Raiasthan could not be held to be invalid. [982 F).
2. Howsoever wide and expansive a meaning one may give to
the
words
"employment under the Government of India" the office of Governor cannot
come within that term. [978 F).
3. The word "employment" is not a word with a. single fixed meaning bur
bas many connotations. If the term 0 employment" is construed in the narrow
senile of employer employee relationship the office of Gove1nor would not be
an employment within the meaning of Art. 319(d) because 1he Governor of a
State is not an employee or servant of anyone. He occupie:s a high constitutional office with important constitutional functions and duHes. The executjve
power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in his name. lie
con~titutes an
integral part of the legislature of the State though not in the ful1est sense and is
also vested with the legislative power to promulgate ordinances while the Ho:1ses
of the Legislature are not in session. He also exercises the sovereign power to
grant pardons, reprieves, respite etc. He is vested with the power to summon
(972)
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HARGOVIND v. R. TILAK
973
each House of the Legislature, or to prorogue either House or to dissolve the
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legislative assembly and this power may be exercised by him from time to time.
No bill passed by the Houses of the Legislature can become law untes., it is
a&sented 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 Legislature for reconsideration.
He has 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 ConstitutioR
B
designed to fill. Another important function of his is to make a report to the
President where he finds that a situation bas arisen in which the Government of
a State cannot be carried on in accordance with the provisions of the Constitution. It is the Governor's report which generaily forms the basis for the President taking action under Art. 356, of the Constitution. These powers and func·
tions of the Governor make it clear that he is not an employee·or servant in any
sense of the term. [978 H; 979 A-B].
C
4. Though the Governor is appointed by the President, which means in effect
and substance the Government of India, it does not make him an

## Text

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HARGOVIND PANT
v.
DR. RAGHUKUL TILAK & ORS.
May 4, 1979
[Y. V. CIIANDRACHUD, C.J., P. N. BHAGWATI, N. L. UNTWAU,I,
S. MURTAZA FAZAL ALI AND R. S. PATHAK, JJ.]
Constitution of India, 1950-Art.
319(d)-Scope
of-G<>Vernor-11 an
"t'niployee" of the Governn1ent of J11dia-If could be regarded as "fmployed
under the Government of India"-Employed-Meaning of.
Article 319fd) of the Constitution provides that on ceasing to hold otliet:
a
member, other than the Chairman of a State Public Service c·ommission, 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
Go'Jernment of India or under the Government of a State.
The first respondent, who we.s a member of the Rajasthan State Public Service· Commission during the years 1958-59, was later appointed as Governor of
the State of Rajasthan. The petitioner contended that by virtue of Art. 319 ( d)
of the Constitution the respondent was ineligible to be appointed as Governor
of a State because he W&S a member of' the State Public Service Commission
earlier.
On the question whether, by reason of Art. 319 (d) the respondent was
ineligible for employment either under the Government of India or under the
Government of a State and whether the office of Governor was an employn1ent
under the Government of India.
HELD : 1. The office of Governor of a State is not an employment under
tho Government of India and it does not therefore come with.in the prohibition
of cl.(d) of Art. 319. The appointment of the first respondent as
Governor
of Raiasthan could not be held to be invalid. [982 F).
2. Howsoever wide and expansive a meaning one may give to
the
words
"employment under the Government of India" the office of Governor cannot
come within that term. [978 F).
3. The word "employment" is not a word with a. single fixed meaning bur
bas many connotations. If the term 0 employment" is construed in the narrow
senile of employer employee relationship the office of Gove1nor would not be
an employment within the meaning of Art. 319(d) because 1he Governor of a
State is not an employee or servant of anyone. He occupie:s a high constitutional office with important constitutional functions and duHes. The executjve
power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in his name. lie
con~titutes an
integral part of the legislature of the State though not in the ful1est sense and is
also vested with the legislative power to promulgate ordinances while the Ho:1ses
of the Legislature are not in session. He also exercises the sovereign power to
grant pardons, reprieves, respite etc. He is vested with the power to summon
(972)
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HARGOVIND v. R. TILAK
973
each House of the Legislature, or to prorogue either House or to dissolve the
A
legislative assembly and this power may be exercised by him from time to time.
No bill passed by the Houses of the Legislature can become law untes., it is
a&sented 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 Legislature for reconsideration.
He has 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 ConstitutioR
B
designed to fill. Another important function of his is to make a report to the
President where he finds that a situation bas arisen in which the Government of
a State cannot be carried on in accordance with the provisions of the Constitution. It is the Governor's report which generaily forms the basis for the President taking action under Art. 356, of the Constitution. These powers and func·
tions of the Governor make it clear that he is not an employee·or servant in any
sense of the term. [978 H; 979 A-B].
C
4. Though the Governor is appointed by the President, which means in effect
and substance the Government of India, it does not make him 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. [979 G].
5. The fact that the Governor holds office during the pleasure of the PrC8ident does not make the Government of India l'l.Il employer of the Governor.
It is only a constitutional provision for determination of the term of oftlce of
the Governor. The Governor is the bead of the State and bold! a high constitutional office which carries with it important constitutional functions and duties
and be cannot be regarded as tlll employee or servant of the
Government of
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India. If the word "employment" were construed to mean relationship
of
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employer and employee, the office of Governor would not be an "employment"
within the meaning of cl.(d) of Art. 319. [979JI].
6. An 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 Govera.ment
of India vis-a-vi.Y such employment. If this test is applied 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
hli: 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 ud
without whose assent there can be no legislation in exercise of the legislatiYe
power of the State. There can 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 Art. 319(d). [981 A-BJ.
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Pradyat Kumar Bose v. The Hon'ble the Chief Justice
of Calwtt•
Hi~h
Court, [1955] 2 SCR 1331; Baldev Raj Guliani & Ors. v. The Punjab & Haryana
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High Court & Ors., [1977] I SCR 425; Union of lndla v. S. H. Sheth le Anr.,
[l 978) I SCR 423; referred to.
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974
SUPREME COURT REPORTS
[1979] 3 S.C.R.
CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil)-
No. 1596 of 1978.
From the Judgment and Order dated 8·11·1977 of the Rajasthan
High Court in S. B. Civil Writ Petition No. 311/77.
Sonmath Chatterjee, Dilip Sinha and K. R. Nambiar for the Petitioner.
F. S. Narima11, (for R. 1), Soli !. Sorabjee, Addi. Sol. Genl. (for
RR 5 and 6) Dr. S. K. Tewari, S. M. Jain and S. K. Jain for Respondent 1, 5 and 6.
V. M. Tarkunde, C. M. Math11r. Manaj Swarup and Miss La/ita
Kohli for Respondents 3 and 4.
The Judgment of the Court was delivered by
BHAGWATI, J., This petition for special leave to appeal is directed
against an order made by a Full Bench of the Rajasthan High Court
dismissing the writ petition filed by the petitioner for quashing and
setting aside an order of reversion passed against him by the 4th re~
pondent in his capacity as the Acting Vice-Chancellor of the University of Rajasthan. The order of reversion was challenged on several
grounds, but they were all negatived by the Full Bench and the writ
petition was dismissed on a preliminary hearing. The petitioner has
raised the same grounds of challenge in this special leave petition, but
barring one ground, which calls for a reasoned judgment, we do not
think there are any other grounds which require detailed consideration and we reject them in limine. The only ground which needs to
be considered . and which we propose to dispose of by this judgment
is a constitutional one, namely, whether the appointment of the !st
respondent as Governor of Rajasthan is valid. This question becomes
material because if it is found that the !st respondent could not be
validly appointed as Governor of Rajasthan and his appointment as
Governor is invalid, he would not be the Chancellor of the Rajasthan
University and he would have no authority to appoint the 4th respondent as Acting Vice-Chancellor under section 12, sub-section {7) of
the University of Rajasthan Act and if the appointment of the 4th
respondent as Acting Vice-Chancellor is invalid, the impugned order
of reversion made by him would fall. We are, therefore, called upon
to consider in this special leave petition whether the appointment of
the ht respondent as Governor of Rajasthan is valid. The only ground
on which the validity of the appointment has been assailed is that
the !st respondent was a member of the Rajasthan Public Service
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HARGOVIND v. R. TILAK (Bhagwati, !.)
975
Commission during 1958-59 and he was, therefore, by reason of Article 319, clause (d) of the Constitution, ineligible for any employment
either under the Government of India or under the Government of a
State and since the office of Governor is an employment under the
Government of India, the 1st respondent could not validly be appointed to that office.
This ground raises a question of considerable importance relating to the applicability of Article 319, clause (d) to the
office of Governor.
We shall have to consider the true nature of the office of Governor
in order to determine whether it is an employment under the Government of India, but before we do so, we may first have a look at
Article 319.
This Article consists of clauses (a) to (d) and these
clause~. on a combined reading, impose prohibition on holding of any
employment under the Government of India or the Government of a
Srate by the Chairman or member of the Union Public Service Commission or a State Public Service Commission on his ceasing to be
such Chairman or member.
This prohibition has been enacted in
public interest with a view to ensuring that no allurement is held out
to the Chairman or members of the Union Public Service Commission
or a State Public Service Commission which would deflect them from
the path of rectitude and duly. The Union and State Public Service
Commissions are charged inter alia with the duty of advising the
Government on various matters relating to civil services and civil posts
such as methods of recruitment, appointments, promotions and transfers and disciplinary matters and it is of utmost importance for the
efficiency and integrity of the civil services that this duty should be
pedormed by the Union and State Public Service Commissions objectively, impartially and without being influenced by any extraneous
considerations. The Union and Stile Public Service Commission have
vast powers of recruitment to an immense and increasing host of
C'JOvernment posts and in a country with considerable unemployment,
these powers may l:>e prone to be abused if the office of Chairman and
member of the Union and Srate Public Service Commissions is exposed
to executive or political pressures.
The prospect and peril of the
executiw or the politician trying to influence overtly or covertly the
Chairman and members of the Union and St~te Public Service Commissions by dangling the carrot or holding out the possibility of employment under the Government after the expiry of their term of office
may corrupt the integrity of the institution of the Union and State
Public Service Commissions. It is true that by and large the Chairman
and members of the Union and State Public Service Commissions
would be men of proven merit and intergrity and no allurement, howsoever attractive, would deflect them !ram doing their duty without fear
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SUPREME COURT REPORTS
[1979) 3 S.C.R.
or favour,, but even so, the possibility of obtaining employment under
the Government in future may consciously or unconsciously induce
them to fall in line with the wishes of the executive or the politician.
The office of the Chairman and member of the Union and the State
Public Service Commissions must, therefore, be zealously kept beyond
reproach and above suspicion.
It was pointed out as far back as
1924 by the Royal Commission on Superior Services in India, popularly called the Lee Commission :
"Wherever democratic institutions exist, experi1rnce has
shown that to secure an efficient civil 'service it is essential to
protect it as far as possible from political or personal influence and give it that position of stability and security which is
vital to its successful working as the impartial and efficient instrument by which governmentS, of whatever political complexion, may give effect to their policies.
In
countries
where this principle has been neglected, and where the 'spoils
system' has taken its place, an inefficient and disorganised
civil service has been the inevitable result and corrnption has
been rampant."
It was as a result of this recommendation that Public Service Com--
missions were set up in the country with the objective outlined by the
Lee Commission.
When Article 285(3) of the Draft Constitution providing for ineligibility of the Chairman and members of L'le Union and
the S•ate Public Service Commissions for future employment under the
Government was being debated in the Constituent ASsembly, Dr. Ambedkar pointed out the raison d'etre of that provision in the following
words:
"Now I come to the other important matter relating to
the employment or eligibility for employment of the members
of the Public Services Commission both the Union and State
Public Services Commissions. Members will see that according to Article 285, clause (3), we have made both the Chairman and the Members of the Central Public Services Commission as welJ as the Chairman of the State, Commission and
the members of the State Commission, ineligible for reappointment to the same posts : that is to say, once a term of office
of a Chairman and Member is over, whether he is a Chair'1lan
of the Union Commission or the Chairman of a State CommisH
sion, we have said that he shall not be reappointed.
I think
that is a very salutary provision, because any hope that might
be held out for reappointment, or continuation in the same
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HARGOVIND v. R. TILAK (Bhagwati, J.)
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·appointment, may act as a sort of temptation which may induce the Member not to act with the same impartiality that
he is expected to act in discharging his duties.
Therefore,
that is a fundamental bar which bas been provided in the
draft article."
Shri H. V. Karnath also spoke in the same strain while adverting
to this topic :
"It is agreed on all hands that the permanent services play
an important role in the administration of any country. With
the independence of our country the responsil;?ilities of the
services have become more onerons. They may make or mar
the efficiency of the machinery of administration call it steel
frame or what you will-a machinery which is so vital for the
peace and progress of the country."
x
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"If a Member of the Public Service Commission is under
the impression that by serving and kotowing to those in
power he could get an office of profit under the Government
of India or in the Government of a State, then I am sure he
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would not be able to discharge his. functions impartially
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or with integrity."
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"The public here have sometimes been made to feel that
family or group interests have been promoted at the expense
of the national; and to protect the Ministers against such a
charge, it is necessary that the Public Service Commissions
mu.•t be kept completely independent of the executive .... "
It is, therefore, clw that the Constitntion 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 the 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 that the Constitution makers enacted
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SUPREME COURT REPORTS
[1979] 3 S.C.R.
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.
Oause (d) of Article 319 provides : "On ceasing to hold office---a
member other than the Chairman of a State Public Senrice Commission
c
shall he eligible for appointment as the Chairman or any other member
of the Union Public Service Commission or as the Chairman of thot 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 !st respondent could
be appointed Chairman or any other member of the Union Public Sero vice Commission or Chairman of the Rajasthan or any other State
Public Service Commission, but he was ineligible for any other employment either under the Government of India or under th<e 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 he considered is whether
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the office of Governor can he said to be an employment under
the
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Government of India. If it is, then undoubtedly the 1st respondent
could not be appointed Governor of Rajasthan and hi"s appointment
would he 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 come within
it.
The tirst question that arises on the applicability of the words "employment. .. under the Government of India" is whether the office of
Governor is an 'employment' within the meaning of that expression in
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clause (d) of Article 319. What is the sense in which that word has been
used in this Article ?
Semantically, !he 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
H
the 11ense 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
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HARGOV!ND v. R. T!LAK (Bhagwati, J.)
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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 his 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 entitled 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 the~ 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 Legi'slature 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 Constitution. It is the Governor's report which generally fonns 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
make 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 pleasure 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 Goverc
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nor. The Governor is the head of the State and holds a high constituH
tional office which carries with it important constitutional functions
and duties and he cannot, therefore, even by stretching the language
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SUPREME COURT REPORTS
( l 979) 3 S.C.R.
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 meaning of the word 'employment'
"'
conn_oting any engagement or any work in which one is engaged, as in
the expression 'self-employment'. the office of Governor would clearly
be an 'employment' within the meaning of clause (d) of Art. 319. That,
however, 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 Hon'ble the Chief Justice of Calcutta High Court(') where the
question was as to whether the officers and members of the staff of the
High Court could be said to be persons "serving under the Govcrmnent
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 consu!tation with
the appropriate Public Service Commission in disciplinary matter.s. This
Court speaking through Jagannadhadas, J., pointed om : "the phrase
'a person' serving under the Government of India or the Government of
'a State' it seems to have reference to such persons in respect cf whom
the administrative control is vested in the respective executive Govern ..
ments functioning in the name of the President or of the Governor or Olf
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 Chief Justice-". The
question which arose in the other decision in Baldev 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 Officern
in the State.
Here in this case also the Court took the same view anc,
after referring to the earlier decision in Pradyat Kumar Bose's case wit'1
nppiovo?, held ti1at "just as the High Court staff are rot st~rving under the
Government of the State, the Judicial Officers are al'so not serving under
the State Government", because they arc "entirely under the jurisdiction
of the High Court for the purpose of control and discipline".
It will,
(t) [1955] 2 S. C.R. 1)1!.
(21 [1977] I S. C. R. 425.
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HARGOVIND v. R. TILAK (Bhagwati, }.)
981
therefore, be seen that the employment can be said to be under the GoA•
vernm~nt 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 impo'ssible 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.
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He is not amenable to the directions of the Government of India, nor is
he acoountable 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 executivt' power of
the State and without whose assent there can be no legislation in exercise
of the legislative power of the State.
There can,, therefore, be no doubt
that the ollice 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.
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We may point out that the Governor of a State is not the only coni;titutional 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 hold 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.(') that a High Court Judge 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 (Bhagwati,
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,
(l) [1978] l S. C.R. 423.
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SUPREME COURT REPORTS
[1979) 3 S.C.R.
who exercises the executive power and the Lgislative Assembly
together with the 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
constitutional heresy to so regard him. He has a constitutional function to discharge,, "hich includes adjudication of the
question whether the executive or the legislature has overstepped 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."
These observations apply equally to the office of a J uclge 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 employe~s
or servants or holders of employment under the Government.
We are, therefore, of the view that the office of Govemor 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 oo this view, the appointment of the 1st respondent as the Governor
of Rajasthan cannot be held to be invalid.
We may point out that in the course of the argument there was much
discussion about the paramount public Jx.>licy underlying the need to
ban appointment of holders of public offices after retirement to higher
office3 and posts under the Government. We do not wish to expand
on 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 Ceaser's
wife must be above suspicion, that purity of public officr:s of high status
is a constitutional value in itself, 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 sup-
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HARGOVIND v. R. TILAK (Bhagwati, J.)
983
port to the criticism of favourtism or patronage and consequential
A
weakening of credibility. The confidence of the community in the key
instrumentalities is of considerable significance in the maintenance of
the rule of law.
These were the reasons for which we made our order dated 23rd
November, 1978 rejecting the special leave petition and confirming the
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order passed by the Full Bench of the Rajasthan High Court.
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