ARUN KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Shri Arun Kumar, former Secretary of the Janta Party has filed this writ petition under Article 226 of the Constitution of India challenging the order of the President of India and appointment of Mr. K.D. Sharma (Hon'ble the Chief Justice of Rajasthan) "to discharge the functions of the Governor of Rajasthan under the provisions of Article 160 of the Constitution of India. He has prayed that Mr. K.D. Sharma is an usurper of the office of Governor of Rajasthan and, therefore, a writ of quo-warranto or any other direction be issued against Hon'ble Chief Justice Mr. Sharma to vacate the office of the Governor. The contention of the petitioner is that formerly he was a journalist. Thereafter he became a member of the Janta Party. He was elected Secretary of the Janta Party for the year 1978-79, is interested in the social political upliftment of Rajasthan and is vitally interested in seeing that the provisions of the Constitution are implemented faithfully. The petitioner submits that Shri Raghukul Tilak was appointed as Governor of Rajasthan on 20-4-1977 by a warrant issued by the President of India. He resumed the office of the Governor on 12-5-1977. He was appointed for a period of five years from the date on which he entered upon his office. The Janta Party lost in general elections. The President of India without any authority of law asked Shri Raghukul Tilak to vacate his office, which amounts to virtual dismissal of the Governor from the high office. The order of the premature termination is arbitrary, contrary to the principles of natural justice and violative of the provisions of the Constitution. There was no urgency to appoint a person merely to discharge the functions of the Governor under Article 160 of the Constitution. As regards Mr. K.D. Sharma, the petitioner argues that he has neither resigned, nor is deemed to have been removed from the office of Chief Justice, as the removal of the Judge of a High Court cannot take place otherwise than as Constitutionally provided in Article 217 Sub-clause (1) (b) read with Sub-clause (4) of Article 124 of the Constitution i. e. by impeachment. A Judge of a High Court discharging the functions of a Governor in pursuance to Article 160 of the Constitution does not cease to hold the office of the Chief Justice. The qualifications for the appointment of a Governor are; (i) a person must be the citizen of India; (ii) he must have completed the age of 35 years; (iii) he should not be the member of either house of the Parliament or house of Legislature; and (iv) he should not hold any other office of the profit. Learned counsel urged that a Chief Justice holds an office of profit and as Chief Justice Mr. Sharma has not relinquished the office of Chief Justice, he is the holder of the office of profit and is disqualified to be the Governor of the State. In the alternative the learned counsel argues that the basic features of the Constitution protecting the judiciary from encroachment of the executive will be disturbed if the Judges of the High Court and specially the Chief Justices are allowed to hold the office of the Chief Executive of the State. The Chief Justice, while discharging duties of the Governor, is expected to exercise his wisdom in taking important executive decisions on behalf of the State. He enjoys certain powers and privileges of the office of the Governor and this is likely to influence the mind of the Chief Justice prejudicially in favour of the Government. Therefore, whenever he resumes the office of Chief Justice, he would not be able to discharge his functions independently without any fear or favour. The appointment of the Chief Justice to discharge the functions of a Governor is a device by which an inconvenient Chief Justice of a State can be removed, if he proves himself to be inconvenient to the executive of the State or the Centre. The High Constitutional office of the Chief Justice in no way can be said to be lesser than the office of the Governor and it is derogatory for the Chief Justice to function as the Governor of the State. In support of the above contentions the learned counsel for the petitioner has cited a number of authorities which I propose to deal with at proper place while dealing with the argument ad seriatum.

(2.) A perusal of para 3 of the writ petition reveals that the petitioner dues not want to challenge the constitutionality of the termination of the period of Shri Reghukul Tilak as Governor of the State of Rajaslhan and as such I am not required to deal with this point in this case.

(3.) This point has been dealt with by me in detail in the connected Civil Writ Petn. No. 1308 of 1981, Surya Narain Choudhary v. Union of India decided on August 28, 1981, (reported in AIR 1982 Raj 1) wherein after making reference to the book of Mr. H.M. Seervai 'Constitutional Law of India' Vol. II, 1976 Ed., page 1046 point 18.4, the well known book 'Constitutional Development of India' by Alexandrowicz, Dr. M.C.J. Kagzi's book 'Constitution of India' 1975 Ed., pages 261-262, Constituent Assembly Debates, Lord Goddard's judgment reported in (1953) 2 All ER 490 and various provisions of the Constitution, I have held that the Governor of a State holds office during the pleasure of the President, The President's pleasure contemplated in Article 156 of the Constitution is unjusticiable. In the absence of any regulatory provision, no restriction can be placed upon the power of the President to terminate the period of appointment of a Governor. The doctrine of pleasure envisaged by Article 156 of the Constitution has its origin in the Latin phrase Durantebeneplacito (during pleasure), meaning that the tenure of office of a person, except where it is otherwise provided by statute can be terminated at any time without cause assigned. In other words, the person concerned is liable to be dismissed without notice and there is no right of action for wrongful dismissal. This well known rule of English law has been incorporated in Article 156 (1) of the Constitution. The Governor's appointment and also by necessary implication his removal is during pleasure of the President. Neither the Presidential order can be challenged in any Court, nor can it be refuted in any House of State legislature. Legally the President's order is conclusive. The pleasure condition of a Governor's term makes any proceeding or procedure or rules of natural justice for his removal unnecessary. The founding fathers in their wisdom provided in Article 61 of the Constitution for the removal of the President from office by impeachment, but as the Governor holds office during pleasure of the President, it was not felt necessary to make separate provision for the removal of the Governor. President enjoys unregulated, uncontrolled power to remove a Governor without any stated reason. The condition of his term of appointment being during pleasure any provision for his removal would be unnecessary and superfluous. He has no security of tenure, no fixed term of office which can be termed to be irrevocable.