GOVERNOR : IS HE AN EMPLOYEE OF THE GOVERNMENT ?

UNANIMOUSLY REJECTING the special appeal of Hargovind Pant*

the Supreme Court observed that the office of the Governor is not an
employment under the Government of India. The court further observed
that article 319 (d) did not impose any ban on the appointment of a
member of the Union or State Public Service Commission as a Governor
of a state. Thus, the appointment of Raghukul Tilak as Governor of
Rajasthan was upheld. This decision of the Supreme Court is of considerable
constitutional importance and raises a lively debate on this point.
The facts of the case were that the petitioner had filed a writ petition for
quashing and setting aside an order of reversion passed against him by
the acting vice-chancellor of the University of Rajasthan. The petition
was dismissed by the High Court. The petitioner in support of his case
argued before the Supreme Court that Raghukul Tilak could not be validly
appointed as Governor of Rajasthan and since his appointment as
Governor was invalid, he could not be the chancellor of the Rajasthan
University and have no authority to appoint the 4th respondent as the
acting vice-chancellor under section 12(7) of the University of Rajasthan
Act. If the appointment of the 4th respondent as acting vice-chancellor
was invalid, the impugned order of reversion made by him against the
petitioner would also fail.
The only ground on which the appointment was challenged was that
Raghukul Tilak had been a member of the Rajasthan Public Service
Commission during 1958-59 and he was, therefore, by reason of article 319
(d) of the Constitution, ineligible for any employment either under the
Government of India or under the government of a state
This brings us to article 319 (d) of the Constitution. The heading of
article 319 reads, "Prohibition as to the holding of offices by members of
Commission on ceasing to be such members", and article 319 (d) states
that on ceasing to hold office:
a member 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 Commi-
ssion, but not for any other employment either under the Govern-
ment of India or under the Government of a State.

The basic philosophy behind article 319 of the Constitution is to

ensure the impartiality, fairness and integrity of the chairmen and members

1. In Hargovind v. Raghukul Tilak, A.I.R. 1979 S.C 1109.

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1981] GOVERNOR : IS HE AN EMPLOYEE OF THE GOVERNMENT! 129

of the Union and the State Public Service Commissions. Justice Bhagwati
has aptly described the importance of the philosophy underlying article
319:

This prohibition has been enacted in public interest with a view to

ensuring that no allurement is held out to the Chairman or mem*
bers of the Union Public Service Commission or a State Public
Service Commission which would deflect them from the path of
rectitude and duty.2

Tf this is the purpose and intention of the founding fathers of our

Constitution, it is hardly to be achieved if the chairman or member of the
Union State Public Service Commissions on ceasing to hold office
is appointed as a Governor. Is this not an allurement to the chairman or
members of the Commissions for further appointment ? Is it not sufficient
to deflect the chairman or members of the commissions from performing
their duties fairly and impartially ?
It was not disputed that the office of Governor was not an employment
under a state ; the only question that required consideration by the court
was whether it was an employment under the Government of India.
Applying the test of employer and employee relationship the court held
that there was no such relationship between the Government of India and
a Governor. Merely appointing a Governor by the President does not make
him the servant of the President. He occupied a high constitutional position
as the head of the state and discharged important constitutional functions
and duties in relation to the State of which he was the Governor. From
this the court concluded that he was not an employee of the Government
of India.
Adopting a wider meaning of the word employment as connoting any
engagement or any work in which one is engaged, the court stated that
though it was true that the Governor was in "employment" in that sense,
yet the question was whether he was in "employment" under the Govern-
ment of India. To "determine this question the court applied the test of
control by the master over the servant. As in the case of Governor there
was no control of the centre over his functions he was not a servant of the
Central Government. In the words of the court :

His office is not subordinate or subservient to the Government of

India. His office is not amenable to the directions of the Govern-
ment of India, nor is he accountable to them for the manner
in which he carries out the functions and duties. His is an indepen-

2, Id. at p. 1110.

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130 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 23 : 1

dent constitutional office which is not subject to the control of the

Government of India.3

The court in the instant case took guidance from its own decisions
in Pradyat Kumar Bose* and Baldev Rai Gulianfi in interpreting the
phase ''under the Government of India." The Supreme Court in both
the cases held that officers and members of the staff of the High
Courts and judicial officers could not be said to be persons serving
under the Government of a State. Relying on these two cases, the
Court in the instant case said that the Governor is not either under
the employment of the Government of India or the Government of State.
The instant case can be easily distinguished from Bose and Guliani
on which much reliance was placed by the Supreme Court. The
question in the present case was that whether the governor of a state was
an empoloyee of the Government of India, whereas in the Bose and Guliani
cases the question was whether the officers and members of the staff of the
High Courts and the other judicial officers could [be said to be persons
serving under the Government of the State or under the High Court.
The administrative control in respect of these officers is vested in the High
Court (an independent branch of the government) and not in the state
government. The High Court is the immediate authority to maintain
efficiency, punctuality, discipline in the officers, members of the staff and
judicial officers serving under it. The High Court through the Chief Justice
keeps a close watch and maintains a record of their service on which their
future promotion depends.
The reliance on these decisions in respect to the office of the Governor
seems to be irrelevant. Since the administrative control over these
officers and employees is that of the High Court and not that of the
government, it was correct to hold that they were not in the employment of
the government. The position of a Governor is different. He is appointed
by the President under article 155 of the Constitution for a fixed period of
five years and holds office during the pleasure of the President. "The
pleasure" here means, as the court observed, in effect and substance "the
Government of India".6 He can be removed by the President at any time
for no cause. He holds his office entirely at the sufference of the President.
Does it not mean that the Governor is under the employment of the
Government of India? The Governor remains de facto under the adminis-

3. Id. at 1113.
4. Pradyat Kumar Bose v. The Hon' bte Cfiief Justice of Calcutta High Court,
A.LR. 1956 S.C. 285.
5. Baldev Raj Guliani v. The Punjab <£ Haryana High Courj, A.I.R. 1976. S.C.
2409.
6. Supra note 1 at 1112.

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1981] GOVERNOR : IS HE AN EMPLOYEE OF THE GOVERNMENT? 131

trative control of the Government of India. Constitutionally the Governor

acts and exercises his functions (except when the President's rule is imposed)
on the advice of the Council of Ministers which means in effect that he is
practically controlled by the state government of which he is the Head.
Administratively he is controlled by the Central Government through the
President. The control here does not mean the direct and immediate but
the ultimite. The Governor is appointed by the President and holds the
office during the pleasure of the President and thus remains under his
control. But as the President has to act on the advice of the Council of
Ministers, in fact the governor is an agent of the central government.
Being an agent of the Government of India, the Governor is controlled
by it.
The Court also sought to justify its decision by relying on the Sankalchand
case7 wherein it held that judges of the Supreme Court and the High
Courts did not hold any employment under the Government of India,
although they exercised state power. This case can easily be distinguished
from the case under review. There is no similarity between the Governor
of a State and the judges of the Supreme Court and the High Courts except
that the President on the advice of his Council of Ministers appoints
both the Governor and the judges. The President in exercise of articles
124 and 217 cannot appoint anybody as a Judge 8 either to the Supreme
Court or the High Courts unless he has fulfilled the qualifications required
by these articles. Unlike the judges, the President can appoint in exercise
of article 155 any person as a Governor of the state which does not
prescribe any qualification to be fulfilled by him. The judges of the Supreme
Court and the High Court remain in their offices until they attain the age of
sixty-five and sixty two years respectively whereas the Governor holds office
for a term of five years which is subject to the pleasure of the President.
It needs no mention that judges are independent of the executive and
their tenure is not subject to the pleasure of the President as is the
case of the Governor. Further, the Governor discharges purely executive
functions whereas the judges interpret the Constitution and the law
and discharges judicial functions. These are some of the grounds
on the basis of which the court's reliance on the Sankalchand case
was misplaced.
Perhaps the Court in the instant case was afraid of the consequences if
it would have come to the conclusion that the chairman or members of
the Union and State Public Service Commissions could not be appointed
as the Governor of a state, because the office of the Governor is an
employment under the Government of India. If the appointment of

Union of India v. Sankalchand A.LR. 1977 S.C. 2328.

Arts. 124 (3) and 217 (2),

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132 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 23 : 1

Raghukul Tilak as Governor of Rajasthan would have been declared

unconstitutional, the appointment of the acting vice-chancellor of the
Rajasthan University and the dismissal of Hargovind Pant would
also have been declared illegal. This might have prevented the court from
adopting the correct approach. To save all executive actions from judicial
review which would have retrospective effect, the option before the court
was that while upholding the appointment of the present incumbent of the
gubernatorial office and actions taken thereon, the court could have laid
down a more sound principle that no chairman or member of the Union
and State Public Service Commissions, after laying down their office, can be
tipped to the higher offices like Governorship and Ambassadorship. The
problem before the court in fact was how to save the public
policy contained in article 319 and the executive actions by deciding the
constitutionality of the impugned appointment of the Governor of
Rajasthan. The court was caught in this great dilemma. But this could
have been solved by upholding the appointment of and actions taken by
the Governor and holding that in future no chairman or member of the
Union and State Public Service Commissions shall be appointed as
Governor of a state. Thus, the office of the Governor could have been
brought within the prohibition of article 319 of the Constitution.
Practically speaking the defeated, discredited and disgruntled
politicians are being accommodated by appointing them as members
of the Union or State Public Service Commissions or the Governor
of the state. This has undoubtedly undermined the paramount
public policy incorporated in article 319. To put a strong check on the
erosion of philosophy contained in article 319 it would have been better if
the Supreme Court had availed the opportunity in the instant case by
laying a blanket ban that chairman or members of the Union and State
Public Service Commissions shall not be eligible for any appointment
to any office either under the Government of India or under the state
government. The court has ignored the far-reaching consequences of the
practice being followed in the country. The court's duty is to remove ills
from the society. The moral and ethical values are fast disappearing
from the land of Gandhi, Nehru and Azad. The problem today before
the nation is not of development but how to restore the confidence of the
people in the publicmen incharge of the country's affairs. The confidence
of the people in persons holding public offices has been completely shaken
for they merely please the government while discharging their functions so
as to get higher appointment after their retirement. The court in this case
seems to be satisfied by merely appending a note of caution that:

purity of public offices of high status is a constitutional values 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 appoint-
ment after retirement if he pleases the Government of the day and

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1981] GOVERNOR : IS HE AN EMPLOYEE OF THE GOVERNMENT! 133

that no appointments should be made which may lend support to

the criticism of favouritism or patronage and consequential weaken-
ing of credibility.9

In two other cases, Ramappa™ and Govinda Basu,11 the Supreme Court has
considered the phrase holding "an office of profit under the Government
of India or under the Government of any State" used in articles 102 and
191 of the Constitution so as to disqualify the holder of such office of
profit from becoming the member of Parliament or the state legislatures.
In both these cases the decisive test was the 'test of appointment' and not
any other test. In Ramappa the question was whether the holder
of a village office who had a hereditary right to it was disqualified from
being elected to the state legislative assembly under article 191 of the
Constitution. The Supreme Court observed :

The Government makes the appointment to the office though it

may be that it has under the statute no option but to appoint the
heir to the office if he has fulfilled the statutory requirements. The
office is, therefore, held by reason of appointment by the Government
and not simply because of a hereditory right to it.12

In the Gobinda Basu case, Guru Gobinda Basu was a chartered accountant
and a partner of the firm of auditors carrying on a business under the
name and style of Gobinda Basu and Company. The firm acted as the
auditor of Life Insurance Company of India, the Durgapur Projects Ltd.
and the Hindustan Steel Ltd. on payment of certain remuneration. He
was also a director of the West Bengal Financial Corporation appointed
by the Government of West Bengal and as such he had a right to
receive fees or remuneration. In February 1962 Basu was elected to the
Lok Sabha from Burdwan parliamentary constituency. The sole question
before the court was : whether the appellant was disqualified from being
elected as a member of the Lok Sabha under article 102(1) (a) of the
Constitution. The Supreme Court agreeing with the Calcutta High Court
observed that for holding an office of profit under the government, one
need not be in the service of the government and there need be no relation-
ship of master and servant between them. The constitution makes a
distinction between the holder of an office of profit under the Government

9. Supra note 1 at 1114.

10. Ramappa v. Sangappa, A I.R. 1958 S C. 937.
11. Gobinda Basu v. Sankari Prasad, A.I.R. 1964 S.C. 254.
12. Supra note 10 at 939,

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134 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 23 : 1

and 'the holder of a post or service under the Government.'13 The counsel
for the appellant in the Gobinda Bant case advanced the following five tests
for making the holder of an office subordinate to the appointing authority
namely, (i) whether the government makes the appointment to the office;
(ii) whether the government has the right to remove or dismiss the holder
of office; (Hi) whether the government pays the remuneration; (iv)
the functions which the holder of the office performs and whether he
performs them for the government; (v) the control exercised by the govern-
ment over the performance of those functions. His argument was that
testNos. 3, 4, and 5 mentioned above were not fulfilled in the case of
Gobinda Basu and therefore he could not be disqualified for being member
of the Lok Sabha on the ground that he was the holder of an office of
profit under the Government of India and the Government of West Bengal
as auditor of the said corporations and companies. While rejecting the
argument of the appellant the Supreme Court observed that the appellant
as the holder of an office of profit in the two government companies, the
Durgapur Project Ltd., and the Hindustan Steel Ltd., was really under the
Government of India. He was appointed by the Government of India,
was removable from office by it and he performed function for the two
government companies.
In the above mentioned two cases the Supreme Court followed the
test of appointment and also removal and thus held the holder of an hereditary
office as the holder of an office of profit under the government because he
was appointed by the government and, therefore was disqualified from being
a member of the Lok Sabha and the Vidhan Sabha under articles 102 (0
(a) and 191 (i) (a) of the Constitution. Similarly a private auditor was
held to be the holder of an office of profit under the Government of India
merely because he was appointed as auditor of the government companies
and thus Gobinda Basu was declared disqualified for being a member of
either House of Parliament.
Applying the same analogy to the instant case it can be said that the
President appoints the Governor; he has the right to remove and dismiss
the Governor; the state government pays and bears all expenses of the
Governor; the Governor performs the functions of the government and the
President exercises a certain amount of administrative control over him.
If this be the position, then Governor holds an office of profit under the
Government of India. Since the office of the Governor is under the
employment of the Government of India, the appointment of Ragukul
Tilak as the Governor of Rajasthan should have been declared to be

13. Art. 102(1) :

A person shall be disqualified for being chosen as, and for being, a
member of either House of Parliament
(«) if he holds any office of profit under the Government of India or the.
Government of any State . . . .

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1981] GOVERNOR : IS HE AN EMPLOYEE OF THE GOVERNMENT? 135

unconstitutional.
The following three incontrovertible principles have been held beyond
doubt by the Supreme Court in theKarunanidhiu case: (1) that a minister is
appointed or dismissed by the Governor and is, therefore, subordinate to
him whatever be the nature and status of his constitutional functions; (2)
that a chief minister or a minister gets salary for the public work done or
the public duty performed by him; (3) that the said salary is paid to the
chief-minister from the government fund.
The above principles equally apply to the Governor because he is
appointed and holds office during the pleasure of the President and draws
salary in lieu of his services rendered to the state by discharging his public
functions and duties. This salary and other emoluments and expenditures
are charged from the consolidated fund of the state which is of course the
government fund.
If the office of the Governor is neither a "self-employment" nor "elec-
tive" then what is it? It can only be ^an "office" or "appointment"
under the Government of India. The appointment of Governor, dismissal,
extension either in the same state or other and the transfer15 from one
state to another shows that the Governor owes his entire existence to the
Government of India. He is, therefore, under direct control of the Govern-
ment of India. Is not it sufficient to make the Governor a subordinate of
the Government of India, if not, what else? It may be admitted that the
Governor may not be under the control of the Government of India in his
day-to-day functions but since he holds his office at the pleasure of the
President he cannot for long disregard the views of the Centre while discharg-
ing his functions. The Governor like a civil servant is required to send his
fortnight report about the state administration to the Government of India,
which does show that he is a servant of the central government.
The power of dismisal by the President makes the position of the
Governer subservient to the Government of India. The way the provision
relating to the President Rule has been abused to serve the interests of the
party in power at the centre demonstrates that the Governor is an agent of
the centre and acts at its behest.u The Centre may not legally control the
Governor in a formal way, yet the fact remains that he is controlled in
various informal and subtle ways. He may not be in a position to ignore
the various "oral advices" or "oral directions" because otherwise his
service as Governor itself may be put in geopardy. He is nothing but
a dignified civil servant kept as an agent by the Centre in order to keep
a constant vigil and watch on the state government and to ensure the

14. Karunanidhi v. Union of India, A.I.R. 1979 S.C. 898 at 915.

15. In March 1980 the Governor of U P. was transferred to Haryana. In April
1980 the Governor of the States of M.P. and Orissa were also transferred by the
Government of India.
16. See Siwach, Politics of President Rule in India (1979).

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136 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. i%: i

governmental machinery thereon to be carried on in accordance with the

the provisions of the Constitution.
If the present pernicious practice of appointment to higher posts
is allowed to continue, then nothing would prevent the incumbents of the
high offices from being influenced by the executive or the political
pressures. They would not be able to discharge their constitutional duties
fairly, impartially, independentably, and objectively. Can we accept that
Chairmen and members of the Union and State Public Service Commis-
sions while discharging their functions will not be influenced by "dangling
the carrot or holding out the possibility of employment under the
government after the expiry of their term of office"17 ? The judgment
appears to be unsound and unconvincing.

Shariful Hasan*

17. Supra note 1 at 1110.

* Faculty of Law, Aligarh Muslim University.

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