AIR 1979 SC 1109
DR. RAGHUKUL TILAK AND OTHERS
CONSTITUTION OF INDIA, ARTICLE 319 (d) —
Office of Governor — Not an employment under the Government of India.
The office of Governor of a State is not an employment under the Government of India and it does not, therefore, come within the prohibition of Cl. (d) of Article 319, AIR 1978 Raj 72 (FB) Affirmed. (Para 7)
The employemnt can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment. Now, if one applies this test to the office of Governor, it is impossible to hold that the Governor is under the cointrol of the Government of India. His office is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional Office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State. There can, therefore, be no doubt that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of Cl. (d) of Article 319. AIR 1956 SC 285; AIR 1976 SC 2490 and AIR 1977 SC 2323. Relied on.(Para 5)
Note at page 946 – Shorter Constitution of India by DURGADAS BASU
“Employment under the Government of India or a State” –
1. This Article provides that a person who has held the office of Chairman or a Member of a Public Service Commission shall be debarred from employment, after the termination of his office in the Commission to any other office under the Government of India or of a State. The object of the provision, obviously, is to ensure the independence and impartiality of the members of Public Service Commissions by keeping them free from any alurement of employment under the Government after termination of their office in the Commission.
2. But in order to apply this bar, the new appointment after the person ceases to be in the Commission, must satisfy two conditions, viz., that (a) it must be an “employment”; (b) it must be “under the Government”. In either case the Supreme Court has applied the tests of (i) relationship of master and servant, and (ii) control of the employer over the employee in the discharge of the functions and duties of his office. Applying this two fold test, the Supreme Court has held that a “constitutional office” i.e., an office which is held under terms laid down by the Constitution, such as that of the Governor.
Note : Indian Constitutional Law by M.P. Jain.
In Hargovind Pant v. Reghukul Tilak, the Supreme Court ruled that the office of the Governor does not fall within the prohibition of Art. 319 (d). Therefore, a member of the State Public Service Commission can be appointed as the Governor. The Court adduced the following reasons for this view: an employment can be said to be under the Central Government if the holder or the incumbent is Under the control of the Central Government vis-a-vis such employment. The office of the Governor does not fall under this description. The office of the Governor is not an employment under the Government of India; Governor occupies a high constitutional office with important constitutional functions and duties; he is not an employer of the Government of India; he is not subordinate or subservient or under the control of the Government of India, nor is he amenable to its directions, nor is he accoutable to it for the manner in which he carries his functions and duties. According to the Court, Governor’s “is an independent constitutional office which is not subject to the control of the Government of India”.