Karnataka High Court: In the instant case wherein the issue arose regarding the power of the Governor to suspend a member of the State Public Service Commission under Article 317 (2) of the Constitution, the Division Bench of Subhro Kamal Mukherjee, C.J., and Budihal R.B., J., referring to the decision, In the matter of Reference under Article 317(1) of the Constitution of India v. Unknown, (1983) 4 SCC 258 held that the language of Article 317 clearly states that the power of suspension can only be exercised by the Governor in accordance with the aid and advice of the Council of Ministers and when the President of India has referred the matter to the Supreme Court of India. The Court noted that in the present matter, the charges against the appellant and the recommendation to suspend her had not yet been referred by the President to the Supreme Court; therefore the decision of the Governor to suspend the appellant was unconstitutional.
As per the facts of the present case, the appellant had been embroiled in charges of corruption which resulted in her suspension from the Karnataka Public Service Commission by the Governor in ‘exercise’ of his powers under Article 317(2) of the Constitution via issuing an Order to the effect dated 14.05.2014. The impugned Order was challenged by appellant in a previous writ petition, which was subsequently dismissed by the Single Judge; therefore the present appeal came up before the Court. Questions were raised by the appellant’s counsel Sajan Poovayya upon the extent of the exercise of power of suspension by the Governor. It was questioned as to whether the Governor can pass an order of suspension prior to the recommendation made by the President to the Supreme Court. Another issue that the Court deemed fit to address was whether the Governor while exercising powers under Article 317(2) can act at his discretion or is he bound by the aid and advice of the Council of Ministers under Article 163 of the Constitution.
Perusing the contentions, the case laws on the point and the constitutional provisions, the Court observed that member of a Public Service Commission is a constitutional functionary and not a post that is held at the pleasure of the Governor, therefore exercise of Power under Article 317 should not be discretionary and whimsical. Referring the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831, the Bench noted that exercising powers under Article 317(2) will have to be done in accordance with the aid and advice of the Council of Ministers. The nature of exercise of powers enshrined in Article 317 is not equivalent to the emergency provision under Article 356, where the Governor of a State can exercise discretion. Observing thus, the Court therefore set aside the Suspension Order of the appellant on the ground of it being unconstitutional. [Mangala Sridhar v. State of Karnataka, 2017 SCC OnLine Kar 928, decided on 06.03.2017]
