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CONSTITUTIONAL LAW-I

TOPIC:-

SUBMITTED BY:-

APRAJITA PRIYADARSHNI

BBA LLB SEM-IV

ROLL NO. -04

GUIDED BY:-

MRS. ISHITA CHATERJEE

ASST. PROF OF LAW

Indian Institute of Legal Studies


Dagapur, Matigara Siliguri, Darjeeling, West Bengal 734010

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IN THE HON’BLE SUPREME COURT OF DELHI

UNDER ARTICLE ARTICLE 136 OF CONSTITUTION OF INDIA

SHAMSHER SINGH & ANR

Vs

STATE OF PUNJAB

MEMORIAL SUBMITTED ON BEHALF OF THE PETITIONERS

COUNSEL APPEARING ON BEHALF OF

SAMSHER SINGH

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TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………..04

 LEGISLATION
 CASES REFERRED
 BOOKS REFERRED
 LAW LEXICON AND DICTIONARIES
 LEGAL DATABASES

LIST OF ABBREVIATIONS……………………………………………………………...06

STATEMENT OF JURISDICTION……………………………………………………….07

STATEMENT OF FACTS …………………………………………………………………08

ISSUES RAISED……………………………………………………………………………..10

SUMMARY OF PLEADINGS………………………………………………………………11

PLEADINGS …………………………………………………………………………………..12

PRAYER………………………………………………………………………………………...16

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INDEX OF AUTHORITIES

LEGISLATION

1. The Constitution of India, 1950.


2. Karnataka Sales Tax Act, 1957

CASES REFERRED

Sardari Lal v. union of India & Ors

BOOKS REFERRED

1. Justice Rajesh Tandon, The Code of Civil Procedure ,Allahbad Law Agency, (26th ed., 2005)
2. Dr. R.K Bangia, Contract I, Allahbad Law Agency, (7th ed., 2017)

LAW LEXICON AND DICTIONARIES

1. B.A. Garner., Black’s Law Dictionary,6th edition

LEGAL DATABASES

1. www.indiancaselaws.org
2. www.indlaw.com
3. www.indiankanoon.org
4. www.judic.nic.in
5. www.lexisnexis.com

IMPORTANT DEFINITION:

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1. The petitioner for the purpose of this memorandum in Andhra Steel Corporation.
2. The respondents for the purpose of this memorandum shall stand for the ‘Commissioner,
Commercial taxes, Bangalore’.

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LIST OF ABBREVIATIONS

& And

CPC The Code Of Civil Procedure

Hon’ble Honourable

ICA Indian Contract Act

@ at

Rs. Rupees

Sec. Section

LJ Lord Justice

AC Appeal Cases

AIR All India Reporter

Co. Company

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STATEMENT OF JURISDICTION

THE APPELLANT HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE SUPREME
COURT OF INDIA, THE MEMORANDUM FOR THE APPELLANT UNDER ARTICLE 136
(SPECIAL LEAVE PETITION) OF THE CONSTITUTION OF INDIA, 1950.

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STATEMENT OF FACTS

The appellant Shamsher Singh was a Subordinate Judge on probation. His services 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 terminated by the Government of Punjab in the name of Governor on the
recommendation of the High Court. 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. The appellants placed
reliance on the decision of this Court in Sardari Lal's case where it is held that the
satisfaction for making an order under Article 311 is the personal satisfaction of the President
or the Governor. The State, on the other hand, contended that the Governor exercises powersof
appointment and removal conferred on him by or under the Constitution like executive powers of
the State Government only on the aid and advice of his council of
Ministers and not personally. The Governor is by and under the Constitution required to act in his
discretion in several matters. Articles where the expression "acts in his discretion" is used in
relation to the powers and functions of the Governor are those which speak of special
responsibilities of the Governor. Our constitution embodies generally the parliamentary or cabinet
system of Government of the British model. Under this system the President is
the constitutional or formal head of the Union and exercises his powers and functions conferred on
him by or under the Constitution on the aid and advice of his council of Ministers. Under the
cabinet system of Government, the Governor is the constitutional or formal head of the State
and exercises 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 where the Governor is required by or
under the Constitution to exercise his functions in his discretion. These appeals have been
placed before a larger bench to consider whether the decision in
Sardari Lal's case correctly lays down the law.
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

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way of punishment and was in violation of article 311; and that the High Court failed to act in
terms of the provisions of art. 235 of the Constitution and abdicated the control over subordinate
judiciary by asking the government to enquire through the vigilance department.

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ISSUES RAISED

ISSUE I
 Whether 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 under Article 234?

ISSUE II
 Whether the removal of the Subordinate judges by the Governor under Article 311 the right
prosecution and were it constitutional?

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SUMMARY OF PLEADINGS

1. Whether 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 under Article 234?

Article 234 of the Constitution confers on the Governor the power first to frame rules in
consultation with the High Court and the Public Service Commission and then requires him to
appoint persons to judicial service of a State in accordance with the Rules so made. The powerto
appoint includes The power to dismiss or terminate according to section 16 of the general Clauses
Act read with Article 367 of the Constitution.

2. Whether the removal of the Subordinate judges by the Governor under Article 311 the right
prosecution and were it constitutional?

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 311; and that the High Court failed to act in terms of the
provisions of art. 235 of the Constitution and abdicated the control over subordinate judiciary by
asking the government to enquire through the vigilance department.

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PLEADINGS

1. Whether 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 under Article 234?
1.1 Article 234 in The Constitution Of India 1949 States That:-

234. Recruitment of persons other than district judges to the judicial service 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.

1.2 Article 234 of the Constitution confers on the Governor the power first to frame rules in
consultation with the High Court and the Public Service Commission and then requires him to
appoint persons to judicial service of a State in accordance with the Rules so made. The powerto
appoint includes The power to dismiss or terminate according to section 16 of the general Clauses
Act read with Article 367
of the Constitution.

1.2.1 The power of the Governor under Article 234 as regulated by the rules framed thereunder is
not the executive power of the State as contemplated under Article 154 and under Article
162 of the Constitution and is, therefore, not exercisable under Article 154 through subordinate
officers, which, includes Ministers but must, on the language, the purpose and the setting of
the Article, be exercised by the Governor as a power exercisable by himself. Even Rule 7 framed
in consultation with the High Court and the PublicService Commission of the Punjab Civil
Service (Judicial Branch Rules) confers the power of termination on the Governor alone and
being bound by those rules he cannot leave exercise thereof to a subordinate officer. Since the
impugned order of termination dated 15th December, 1969 was passed admittedly without even
placing the papers before the Governor the same is in contravention of and is not authorized by
Article 234 and the rules framed thereunder.

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1.3 The appellants rely on the decision of this Court in Sardari Lal v. union of India & Ors 1. 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. The appellants on the authority of this ruling
contend that 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.

1
(1971)3 S.C.R. 461

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2. Whether the removal of the Subordinate judges by the Governor under Article 311 the right
prosecution and were it constitutional?

2.1 Article 311 in The Constitution Of India 1949 states that:-

311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union
or a State

(1) No person who is a member of a civil service of the Union or an all India service or a civil service
of a State or holds a civil post under the Union or a State shall be dismissed or removed by a
authority subordinate to that by which he was appointed

(2) No such person as aforesaid shall be dismissed or removed 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

(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 satisfied that in the interest of the
security of the State, it is not expedient to hold such inquiry

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably
practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in rank shall be final.

2.2 In the absence of any rules governing a probationer the authority may come to the conclusion
that on account of inadequacy for the job or for any temperamental or other object not

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involving moral turpitude the probationer is unsuitable for the job and hence must
bedischarged, the same does not involve any punishment. The authority may in some cases be of
the view that the conductof the petitioner may result in dismissal or removal onenquiry but
in those cases the authority may not hold an enquiry and may simply discharge the petitioner With a
view to giving him a chance to make good in other walks of life without a stigma.
The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is
really by way of punishment. It the facts and circumstances of the case indicate that the substance of
the order is that the termination is by way of punishment then the petitioner is entitled to attract
Article 311. Where the departmental enquiry is contemplated and if any enquiry is not in fact
proceeded with, Article 311 will not be- attracted unless it can be shown that the order though
unexceptionable in form is made following a report based on misconduct.

2.3 A person appointed to a permanent post in Government service on probation has no right to
continue to hold that post any more than a servant employed on probation by a private employer
is entitled to do. Termination' of the services of the probationer during or at the end of the
period or probation will not ordinarily and by itself be a punishment attracting the provisions of
article 311. If termination of service of a probationer is founded on a right flowing from the contract
or the service rules, then prima facie it is not a punishment and article 311 is not attracted. The test
is : Is termination sought to be brought about otherwise than by way of punishment ? If yes,
article 311 will not apply. This is ordinarily to be ascertained by reference to the order
terminating the service.

2.4 In Sardari Lal's case (supra) an order was made by the President under sub-clause (c) to clause
(2) of Article 311 of the Constitution. The order was : "The President is satisfied that you are unfit to
be retained in the public service and ought to be dismissed from service. The President is further
satisfied under sub-clause (c) of proviso to clause (2) of Article 311 of the Constitution that in the
interest of the security of the State it is not expedient to hold an inquiry". The order was challenged
on the ground that the order was signed by the Joint Secretary and was an order in the name of the
President of India and that the Joint Secretary could not exercise the authority on behalf of the
President.

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PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES


CITED, THE COUNSEL FOR PETITIONER HUMBLY PRAYS THAT THE HON’BLE HIGH
COURT BE PLEASED:

A. 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 under Article 234
B. the removal of the Subordinate judges by the Governor under Article 311 the right
prosecution and were it constitutional

AND/OR

PASS ANY ORDER THAT THIS HON’BLE COURT MAY DEEM FIT IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE PETITIONER AS IN DUTY BOUND

SHALL EVER PRAY.

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