Samsher Singh v. State of Punjab

The appellants were Samsher Singh and Ishwar Chand Agarwal. The respondent was the State of Punjab.

Samsher Singh was a subordinate judge working on probation. Probation is a trial period during which a new employee's work, conduct and suitability are observed before the job becomes permanent. The Punjab government terminated his service on 27 April 1967. The order was passed in the name of the Governor, but no reason was given.

In much the same way, another probationer judge, Ishwar Chand Agarwal, had his service terminated in December 1969, on the recommendation of the High Court, again in the name of the Governor. In his case, the High Court had got an inquiry against him conducted through the government's own Vigilance Department.

Both appealed to the Supreme Court, arguing that their termination was illegal.

1. Can the Governor, acting on his own discretion and without the aid and advice of the Council of Ministers, appoint or remove members of the subordinate judicial service?

2. When the Constitution speaks of the 'satisfaction' of the Governor or the President, is that satisfaction personal to them, or is it really the satisfaction of the Council of Ministers?

3. Was the termination of the two probationer judges a simple discharge, or was it in substance a punishment attracting the protection of Article 311(2)?

Appellants: The power to appoint and remove subordinate judges had to be exercised personally by the Governor. In their case, the Governor had not applied his own mind at all. The decision was actually taken by a minister or by officers, and only the Governor's name was used, so the termination was invalid. They relied on the 1971 Sardari Lal case, which had held that under Article 311 the satisfaction of the President is personal to him and not that of the Council of Ministers. They argued that under Article 234 the power to appoint subordinate judges lies with the Governor. They added that Article 163 says certain powers are exercised by the Governor in his own discretion, and that Article 154 vests the executive power of the State in the Governor. They also referred to a rule under the Punjab Civil Service Rules allowing the Governor, on the High Court's recommendation, to remove a probationer judge without giving any reason.

State: The scheme of the Constitution is entirely different. The Governor and the President are constitutional heads, and their actions are always taken on the aid and advice of the Council of Ministers. Article 166 says executive action is taken in the name of the Governor, but the actual decision is made by the ministers. If the Governor were to do everything personally, there would be no need for a Council of Ministers and parliamentary democracy could not function.

The Supreme Court overruled Sardari Lal v. Union of India. The majority opinion was written by Chief Justice A. N. Ray. Justice V. R. Krishna Iyer, together with Justice P. N. Bhagwati, wrote a famous concurring opinion.

Articles 53(1) and 154(1) vest executive power in the President and the Governor, but this does not mean they exercise it personally. The power always operates on the aid and advice of the Council of Ministers. Under Articles 77 and 166, executive acts are carried out in the name of the President or Governor, but the actual decisions are taken by the ministers. The system is modelled on the British parliamentary system: the President and the Governor, like the Crown in England, are constitutional heads, while real power lies with the cabinet. The Governor does not personally interfere, except in a few limited situations under Article 163. Wherever the Constitution refers to the satisfaction of the President or Governor, it means the satisfaction of the Council of Ministers.

Justice Krishna Iyer listed rare exceptional situations where the head of State may have to use personal discretion. Examples are choosing a Prime Minister or Chief Minister when no party has a clear majority, or dealing with a government that has lost its majority but refuses to leave office. In every other matter, the head of State must follow ministerial advice.

On subordinate judges, the Governor cannot appoint or remove them at his own will. This is an executive act done on the aid and advice of the Council of Ministers. However, because Article 235 gives the High Court control over subordinate courts, the Governor must act in keeping with the High Court's recommendation. The Court strongly disapproved of the High Court using the government's Vigilance Department to inquire into a judicial officer. It said this amounted to the High Court giving up its own control and went against judicial independence.

On Article 311, a probationer can generally be removed without reasons by a 'termination simpliciter', that is, a termination based only on unsuitability. But if the termination is really based on allegations of misconduct, it is a punishment, and Article 311(2) applies. The Court looks at the substance of the order, not its form.

Ishwar Chand Agarwal's termination was in substance based on a misconduct inquiry in which he was not properly heard. It was invalidated, and he was declared once again a member of the Punjab Civil Service, Judicial Branch. Samsher Singh's termination was also set aside. The allegations against him were very minor, and his termination was really a punishment contrary to Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. Since he had by then taken up a job in the Ministry of Law, he was given salary and other financial benefits only up to that point.

Constitution of India, Article 53(1); Article 74(1); Article 77; Article 154(1); Article 163; Article 166; Article 234; Article 235; Article 311(2); Constitution (Forty-second Amendment) Act, 1976; Constitution (Forty-fourth Amendment) Act, 1978; Punjab Civil Services (Punishment and Appeal) Rules, 1952, Rule 9; Punjab Civil Service Rules (rule on removal of probationer judges on High Court recommendation)

This case is the foundation of the 'aid and advice' principle in India's parliamentary system. It explains that the President and Governor are constitutional heads and that real power lies with the Council of Ministers. Its reasoning later found its way into the text of the Constitution. The Forty-second Amendment (1976) stated in Article 74(1) that the President shall act in accordance with ministerial advice. The Forty-fourth Amendment (1978) allowed the President to return the advice once for reconsideration, but required the President to follow the advice given after that. The roots of later cases on the Governor's discretion, such as Nabam Rebia, lie here. It is also important for the High Court's control over subordinate courts under Article 235 and for the 'form versus substance' test for probationers under Article 311. Exam keywords: seven-judge bench, Sardari Lal overruled, satisfaction means satisfaction of the Council of Ministers, British model, Krishna Iyer's exceptions.

Hypothetical: Prince is a probationer civil judge in a State. The order ending his service is issued in the Governor's name and says nothing about reasons. However, the file shows it was based on a vigilance inquiry into alleged bribery in which Prince was never heard. Prince argues the Governor never personally applied his mind.

Following Samsher Singh, the court would reject the argument that the Governor had to decide personally. The Governor acts on ministerial advice and, for subordinate judges, in keeping with the High Court's recommendation. But the court would look at the substance of the order. Because it was really based on alleged misconduct, it is a punishment, and Prince was entitled to a reasonable opportunity under Article 311(2). The termination would be set aside.

By contrast, if Neha, another probationer, were discharged purely because her work was found unsuitable, with no misconduct behind it, that 'termination simpliciter' would generally be valid without reasons.