Roll Number-22029
MOOT COURT AT HPU/SHIMLA/2023
Before
THE HON’BLE SUPREME COURT
In the matters of:
Shamsher Singh vs State Of Punjab on 23
August, 1974 Equivalent citations: 1974 AIR
2192, 1975 SCR (1) 814
SHAMSHER SINGH .....PETITIONER
STATE OF PUNJAB .....RESPONDENT
MEMORIAL ON BEHALF OF THE RESPONDENT
Contents
1 LIST of ABBREVIATIONS 2
2 INDEX OF AUTHORITIES 3
3 Abstract 4
4 STATEMENT OF JURISDICATION 5
5 STATEMENT OF FACTS 6
6 Issue Raised 7
7 Arguments 7
8 Legal aspects 12
9 Views of the court 14
10 PRAYER 15
1
1 LIST of ABBREVIATIONS
Abbreviation Full Form
¶ Paragraph
A.I.R All India Radio
SCR Supreme Court Reporter
SC Supreme Court
HC High Court
v. Versus
u. Under
Sch. Schedule
art. Article
2
2 INDEX OF AUTHORITIES
–STATUTES–
The Constitution of India, 1949
Article 163 of the Constitution of India
Punjab Civil Service (Judicial Branch) Rules 1951
Article 166
Article 311
Article 154(1)
–Case Laws–
Sardari Lal v. Union of India, (1971) 3 SCR 461
U. N. Rao v. Indira Gandhi
Ramajawari Kapur v. State of Punjab [1955]
A. Sanjeevi Naidu v. State of Madras [1970]
3
3 Abstract
The case Samsher Singh v. State of Punjab, based upon the two appeals from
the judgment of the Punjab and Haryana High Court. The Appellants has joint
the Punjab Civil Service however both of them were terminated without any
proper reason. This is one of the landmark judgments on the concept of dis-
cretionary powers of the Governor. This case has been decided by the 7 judge
bench of the Supreme Court. The two appellants in this case had joined the
Punjab Civil Service (Judicial Branch) and were on probation. The probation
of both of them was terminated by orders of concerned Ministers/Chief Minis-
ter in conformity with the recommendations of the High Court under different
provisions of relevant rules. The orders of termination were issued in the name
of the Governor of Punjab without seeking or obtaining his personal satisfac-
tion. The appellants contended that the Governor as the constitutional or the
formal head of the State can exercise powers and functions of appointment and
removal of members of the Subordinate Judicial Service only personally. This
case has been read, summarized and analyzed broadly under the following head-
ings: Facts of the case, issues at hand, arguments from both sides, legal aspects
involved and overview of the judgement.
4
4 STATEMENT OF JURISDICATION
Article 163(1) of the Indian Constitution provides1 that there shall be a Coun-
cil to aid and advise the Governor, except insofar as he is required by or under
the Constitution to exercise functions or any of them in his own discretion.
Furthermore, it is noteworthy that Article 74 of the Indian Constitution
does not create an exception for the exercise of functions in the President’s own
discretion. This statement clarifies the constitutional provisions governing the
role of the Council in assisting and advising the Governor, while also highlighting
the absence of an exception for the President’s exercise of discretion2 under
Article 74.
1 Indian Constitution, Article 163(1)
2 Indian Constitution, Article 74.
5
5 STATEMENT OF FACTS
• Shamsher Singh, subordinate judge terminated from the services by order
of the Government of Punjab in the name of the Governor, without reasons
• Ishwar Chand Aggarwal services terminated by Government of Punjab in
the name of the Governor on recommendation of HC
• The present case is based on the two appeals from the judgment of the
Punjab and Haryana High Court.
• The appellants in the present case had joined the Public Civil Service.
• However, both of them were kept in probation
• On 27 April 1967, by an order made by the Government of Punjab in
the name of the Governor Shamsher Singh was terminated without any
reason.
• On 15 December, 1969 the other appellant Ishwar Chand Aggarwal was
terminated from his services due to the suggestions made by the High
Court by the Government in the name of the Governor.
6
6 Issue Raised
Whether the Governor can exercise discretion on appointment and
removal of members of the Subordinate Judicial Service?
7 Arguments
Arguments from the appellant
The appellant contends that the Governor should not use his discretion in the
appointment and removal of members of the Subordinate Judicial Service. They
contend that under Article 234, the governor can exercise the power discreetly.
Under Article 163 the Governor can exercise his powers without any aid and
advice of the ministers. The governor is vested with executive powers of the
State under Article 154(1)3 . The Ministers are not given the powers to appoint
and remove a Subordinate Judge under Article 234 as mentioned under the Rule
of Business of the State of Punjab. The appellants contended that the Governor
as per Rule 7(2) in Part D of the Punjab civil Rules may on the recommendation
of the High Court remove any Subordinate Judge without giving any reason or
revert him to his previous post during his probation period. Rule 7(2) is one
of the exceptions to the Rule 18 of the Rules of Business4 . Therefore they
contend that the Governor has the power to remove and appoint Subordinate
judges under Article 2345 with Rule 7(2) of the Service Rules and it cannot be
allocated to a Minister.
• The Governor as the Constitutional or the formal head of the State can
exercise powers and functions of appointment and removal of members of
the Subordinate Judicial Service only personally. 4
• Sardari Lal v. union of India & Ors. (1971)3 S.C.R. 461 where it has
been held that where the President or the Governor, as the case may
be, if satisfied, makes an order under Article 311(2) proviso(c) that in
the interest of the security of the State it is not expedient to hold an
enquiry for dismissal or removal or reduction in rank of an officer, the
satisfaction of the President or the Governor is his personal satisfaction.
Therefore,under Article 234 of the Constitution the appointment as well
as the termination of services of subordinate Judges is to be made by the
Governor personally
• the Governor as the Constitutional or the formal head of the State can
exercise powers and functions of appointment and removal of members of
the Subordinate Judicial Service only personally.
3 Indian Constitution, Article 154(1).
4 Rule 7(2), Punjab Civil Services (Judicial Branch) Rules.
5 Indian Constitution, Article 234.
7
• Reasons:
– First there are several constitutional functions, powers and duties
of the Governor. These are conferred on him eonomine (“by that
name”) the Governor. The Governor, is, by and under the Con-
stitution, required to act in his discretion in several matters.These
constitutional functions and powers of the Governor eonomine as well
as these in the discretion of the Governor are not executive powers of
the State within the meaning of Article 154 read with Article 1626 .
– Second, the Governor under Article 163 of the Constitution can take
aid and advice of his Council of Ministers when he is exercising ex-
ecutive power of the State. The Governor can exercise powers and
functions without the aid and advice of his Council of Ministers when
he is required by or under the Constitution to act in his discretion,
where he is required to exercise his Constitutional functions conferred
on him eonomine as the Governor.
– Third, the aid and advice of the Council of Ministers under Article163
is different from the allocation of business of the Government of the
state by the Governor to the Council of Ministers under Article 166(3)
of the constitution. The allocation of business of Govt. under Article,
166(3) is an instance of exercise of executive power by the Governor
through his council by allocating or delegating his functions. The
aid and advice is a constitutional restriction on the exercise of the
executive powers of the State by the Governor. The Governor will
not be constitutionally competent to exercise these executive powers
of the State without the aid and advice of the Council of Ministers.
– Fourth: the executive powers of the State are vested in the Gover-
norunder Article 154(1).
– The powers of appointment and removal of SubordinateJudge under
Article 234 have not been allocated to theMinisters under the Rules
of Business of the State of Punjab. -Rule 18 of the Rules of Business
States that except asotherwise provided by any other rule cases shall
ordinarily be disposed of by or under the authority of the Minister-
in-Charge who may, by means of Standing orders, give suchdirections
as he thinks fit for the disposal of cases in hisdepartment.
– Rule 7(2) in Part D of the Punjab Civil Services Rules whichstates
that the, Governor of Punjab may on the,recommendation of the
High Court remove from servicewithout assigning any cause any sub-
6 Indian Constitution, Article 162.
8
ordinate Judge or reverthim to his substantive post during the,period
of probation isincapable of allocation to a Minister.
– Rule 18 of the Rules of Business is subject to exceptions and rule
7(2) of the Service Rules is such an exception7 . Therefore, the appel-
lants contend that the power of the Governor to remove Subordinate
Judges under Article 234 read with the aforesaid Rule 7(2) of the
Service Rules cannot be allocated to a Minister.
7 Rule 7(2), Punjab Civil Services (Judicial Branch) Rules.
9
Arguments from the respondent
It is a fundamental principle of English Constitutional law that there must be no
conflict between the King and his people, and consequently no conflict between
the King and the, House of Commons which represents the people. It is this
principle which is responsible for three settled rules of English Constitutional
Law : (i) That for every public act of the King, his Ministers must accept
responsibility, (ii) That the Sovereign must never act on his own responsibility
that is, he must always have advisers who will bear responsibility for his acts;
and (iii) The Power of the Sovereign to differ from or dismiss his Ministers is
conditioned by the practical rule that the Crown must find advisers to bear
responsibility for his action and those advisers must have the confidence of the
house of Commons8 .
This rule of English Constitutional Law is incorporated in the Constitution
of India. See Articles 74(1), 75(3) and 361(1) and second proviso which clearly
point to the conclusion that the Indian Constitution envisages a Parliamentary
or ”responsible” form of Government and not a Presidential form of Govern-
ment. The powers of the, Governor as constitutional head are no different-See
Article 163(1), 164(2) and 361(1) and second proviso.
The Supreme Court of India has consistently taken the view that the powers
of the President and the powers of the Governor under the Indian Constitution
are akin to the powers of the Crown under the British Parliamentary system.
See Ramajawari Kapur v. State of Punjab [1955] 2 SCR at 236- 237 (Mukher-
jea, CJ.), A. Sanjeevi Naidu v. State of Madras [1970] 3 SCR 505 at 511 (Hegde
J.)9 ; U. N. Rao v. Indira Gandhi [1971] Supp. SCR p. 46 (Sikri, C.J.). In the
last case this Court held that Article 74(1) was mandatory and therefore the
President could not exercise the executive power without the aid and advice
of Council of Ministers; but the principle of the decision is not restricted to
the exercise of executive power alone. A similar view with regard to the pow-
ers of the President and the Governor under our Constitution is expressed by
Constitutional lawyers. (See, for instance, Jennings Constitutional Laws of the
Commonwealth 1952 p. 365 where the author characterizes the description of
the Indian Constitution as a Sovereign Democratic Republic as ”wholly accu-
rate” but that ”it might also be described as a constitutional monarchy without
a monarch”. The Supreme Court of India considers the powers of the President
and the Governor in the Indian Constitution similar to the powers of the Crown
in the British Parliamentary system. This view has been expressed in various
court cases and is supported by constitutional lawyers. The Governor holds
the highest position in the executive branch and also has a role in the State
Legislature. The Governor’s functions include powers and duties, as described
in the Explanatory Note attached to this argument. The power to terminate
the engagement of a member of a State Public Service Commission, such as a
8 Constitution of the United Kingdom.
9 A. Sanjeevi Naidu v. State of Madras [1970]
10
Sub-Judge, falls under the executive power of the State and can be delegated
to a Minister or subordinate officials in accordance with the rules10 .
• The Governor exercises powers of appointment and removal conferred on
him by or under the Constitution like execute powers of the State Gov-
ernment only on the aid and advice of his Council of Ministers and not
personally
• President is the, constitutional head of the Union and the Governor is the
constitutional head of the State and the President as well as the Govern
or exercises all powers and functions conferred on them by or under the
Constitution on the aid and advice of the Council of a Ministers.
10 M.P. Jain, Constitutional Law of India (LexisNexis [2018]).
11
8 Legal aspects
• Article 163 of the Constitution of India: “Council of Ministers to aid
and advice Governor.
1. There shall be a Council of Ministers with the Chief Minister as the
head to aid and advice 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.”
• Article 234: “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 235: “The control over district courts and courts subordinate
thereto including the posting and promotion of, and the grant of leave to,
persons belonging to the judicial service of a State and holding any post
inferior to the post of district judge shall be vested in the High Court,
but nothing in this article shall be construed as taking away from any
such person any right of appeal which he may under the law regulating
the conditions of his service or as authorizing the High Court to deal
with him otherwise than in accordance with the conditions of his service
prescribed under such law.”
• Article 311(2): “No such person as aforesaid shall be dismissed or re-
moved or reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable opportunity of
being heard in respect of those charges Provided that where it is proposed
after such inquiry, to impose upon him any such penalty, such penalty may
be imposed on the basis of the evidence adduced during such inquiry and
it shall not be necessary to give such person any opportunity of making
representation on the penalty proposed: Provided further that this clause
shall not apply.
– a. where a person is dismissed or removed or reduced in rank on
the ground of conduct which has led to his conviction on a criminal
charge; or
12
– b. where the authority empowered to dismiss or remove a person or to
reduce him in rank ins satisfied that for some reason, to be recorded
by that authority in writing, it is not reasonably practicable to hold
such inquiry; or
– c. where the President or the Governor, as the case may be, is satis-
fied that in the interest of the security of the State, it is not expedient
to hold such inquiry.”
13
9 Views of the court
The majority opinion was given by Justice A. N. Ray. The executive power of
the union and the state is given to the President and the Governor respectively.
The actions taken by the Union in exercise of the power vested in the President
under Article 53(1) is taken by the Government in the name of the President as
mentioned under Article 77(1) likewise the actions done in the exercise of the
executive powers of the State vested in the governor as mentioned under Article
154(1) is taken by the Government of the state in the name of the governor
as per Article 166(1). Further under article 300 and 361 neither the President
nor the Governor can be sued for the executive actions of the government as
the executive functions are not taken by them personally. In situations where
the Governor perform his functions with the help of ministers he does so by
making rule for convenient transaction of the business of the Government of
the State or by allocating business to the said Ministers under Article 166(3).
The actions of the ministers under the above mentioned article are the decision
of the Governor itself. The courts have always taken the view that the powers
of the President and the Governor are similar to that of the Crown under the
British parliamentary System. The crux of a Cabinet system of government is
that an individual Minister is responsible for every action and inaction taken in
its ministry and it is a Civil servant who takes certain decisions. The decisions
taken by a civil servant is in the behalf of the government.
14
10 PRAYER
It is therefore respectfully prayed to uphold the terminations made by the state
government in due course of law by dismissing the appeal made by the appel-
lants.
Dated:03.06.2023 Sd/-
PETITIONER
Through
Sd/-
COUNSEL
15
