SHAMSHER SINGH & ANR versus STATE OF PUNJAB

Citation: [1975] 1 S.C.R. 814 · Decided: 23-08-1974 · Supreme Court of India · Bench: A.N. RAY · Disposal: Disposed off
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Judgment (excerpt)

814 
SHAMSHER SINGH & ANR. 
AND 
STATE OF PUNJAB 
August 23, 1974 
[A. N. RAY, C.J., D. G. PALEKAR, K. K. MATHEW, Y. V. CHANDRA-
CHUD, 
A. ALAGJRISWAMI, P. N. BHAGWATI 
AND v. R. KRISHNA 
IYER, JJ.J 
President and Governor~Whether fornzal heads-Whether bound 'to act on 
aid and advice of Council of Ministers-Articles 166(3), 154(1). 53(1) 
of 
constitution o j l ndia. 
Constitution of India-Article 311-termination of service by innocuously 
worded order whether hit by article 311. 
A 
B 
Civil service probationer lvhether can be dee1ned to be confirmed on the ex-
C 
piry of probation period. 
Pun.Jab Civil Service (Judicial Branch) Rules 1951 rr. 7. 9. 
Constitution of India Article 235-lfigh Court whether can depute an execu-
tive authority to inquire into allegations made against subordinate judiciary. 
Constitution of India, Article 234-Appointment and determination of services 
of subordinate judges if to be made by Governor personally. 
The appellant Shamsher Singh was a Subordinate Judge on probation. 
His 
5ervices were terminated by the Government of Punjab in the name of Governor 
of Punjab by an order which did not give any reasons for the termination. 
Likewise, the services of Ishwar Chand Agarwal were also term:nated by 
the Government of Punjab in the nam~ of Governor on the recommendation of 
the High Court. The appellants contended that the Governor as the constitutional 
or t~ formal head of the State can GXercise powers and functions of appointment 
and removal of members of the subordinate judicial service only personally. The 
appellants placed reliance on the decision of this Court in Sardari Lal's case where 
it is held that the satisfaction for n1aking an order under Article 311 is the personal 
satisfaction of i.he President or the Governor. The State, on the other hand, con-
tended that ihe Governor exercises pO¥iers of appointment and removal conferred 
on him by or under the Constitu.tion like executive powers of the State Govern-
ment only on the aid and adviee of his council of Ministers and not per5onally. 
The Governor is by and under. the Constitution required to act in his discretion in 
r.everal matters. Articles where the ~xpression "acts in his discretion'' is used in 
relation to the powers and functions of the Governor are those which speak of 
r.pecial responsibilities of the Governor. Our constitution embodies generally the 
parliamentary or .::abinet system of Government of the Biritish model. Under this 
system the President is the constitutional or formal head of thi UnTOn and exer-
cises his powers and functions conferred on him by or under the Constitution on 
Hie aid and advice of his council of Ministers. Under the cabinet system of Gov-
ernment, the Governor is the constitutional or formal head of the State and exer-
cises all his powers and functions conferred on him by or under the Constitution 
on the aid and advice of his council of Ministers, save in spheres \\'here the Gover-
nor is required by or under the Constitution to exercise his functions in his discre-
tion. These appeals have been placed before a larger bench to consider whether 
the decision in Sardari Lat's case correctly Jays down the '1a\v. 
It was further contended that since the probationer continued in service after 
the expiry of the maximum period of probation he became confirmed that the 
termination was by way of punishment and was in violation of article 31 l; and 
that the High Court failed to act in terms of the provisions of art. 235 of the Con-
stitution and abdicated the control over subordinate judiciary by asking the 
govern1nent to enquire through the vigilance department. 
D 
E 
F 
G 
H 
• 
A 
II 
.. 
c 
D 
E 
F 
G 
H 
SHAMSHER SINGH v. PUNJAB 
8 15 
(Per A. N. Ray C. J., Palekar, Mathew, Chandrachud. Alagiriswami, JJ). 
HELD :-The decision in Sardari Lal's case that the President has to be satis-
fied personally in exerciso of executive power or function and that the functions 
of the President cannot be delegated is not the correct statement of law and is 
against the established and uniform view of this Court as embodied in se~eral de-
cisions. 'fhe President as welI as the Governor is the constitutional head or formal 
head. The President as well as the Governor exercises his powers and functions 
conferred on him by or under the Constitution on the aid and advice of his coun-
cil of Ministers save in spheres where the Governor is required by or under the 
Constitution to exercise
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