Surya Narain v. Union of India — 1981 DIGILAW 380 (RAJ)

M.L. SHRIMAL, J.—Petitioner, Surya Narain by this writ petition has challenged the validity of the order of the President of India (Annexure-1. dated August 8. 19811. terminating the period of the office of Governor, held by Shri Raghukul Tilak and has claimed the following reliefs :— (i) to issue a writ, order or direction in the nature of mandamus, directing respondents Nos. 1, 2 and 3 to treat respondent No. 4 Shri Raghukul Tilak as Governor of Rajasthan upto May 11, 1982 ; (ii) to issue a writ, order or direction in the nature of quo-warranto, quashing the appointment of Shri K. D. Sharma, Chief Justice of Rajasthan High Court, under Article 160 of the Constitution of India, directing him to discharge the functions of the Governor of Rajasthan; and (iii) to issue a writ, order or direction that Article 156 (1) of the Constitution is not subservient to Article 76 of the Constitution and in the alternative to declare Article 156 (1) of the Constitution to be ultra-vires of Article 74 of the Constitution and invalid, unconstitutional and violative of the basic features of the Constitution. Facts stated from paras 2 to 8 haw been specifically dealt in detail from para 9 to end. —Editor 9. Admittedly Shri Raghukul Tilak has expressed no grievance against his termination from the high office of the Governor. The present writ petition purports to have been filed by a political and social worker of the Janata Party, who once happened to be a Minister under the Janata Regime, and who is under a fear that if the termination of Shri Raghukul Tilak is not challenged, there is every likelihood that the President of India might terminate the term of the Governor of West Bengal, Mr. T. N. Singh, who, according to the petitioner, is having smooth relations with the C. P. M., the party in power in the State of West Bengal, and is not amiable to the wishes of the Union Government or the President of India. Thus, apparently what the petitioner wants to agitate before this Court is the wrangle between the Union Government, headed by the Indian Congress (I) Party and the Janata Party, whose member he is, or tension between the party in power in the Union and the C. P. M. in West Bengal. 10. Thus, apparently what the petitioner wants to agitate before this Court is the wrangle between the Union Government, headed by the Indian Congress (I) Party and the Janata Party, whose member he is, or tension between the party in power in the Union and the C. P. M. in West Bengal. 10. Article 226 of the Constitution empowers the High Court to issue to any person or authority including in appropriate cases Government, within its territorial Jurisdiction, directiors. orders or writs in the nature of mandamus, certiorari, prohibition, quo-warranto or habeas corpus for the enforcement of any of the rights conferred by Part HI and for "any other purpose". 11. The founding fathers of the Constitution have couched the Article in comprehensive phraseology to enable the High Court to remedy injustice where-ever it is found, but it is equally true that a person invoking the extraordinary jurisdiction under Article 226 of the Constitution should be an aggrieved person. If he does not fulfil the character of an aggrieved person and is a stranger, the Court may, in its discretion, deny him such an extraordinary remedy, save in very special and exceptional circumstances. The petitioner challenging the order must have some specialised interest of his own to vindicate, apart from a generally felt political concern, which is of abstract nature. Legal wrong requires a judicially enforceable right or interest. The touch-stone to the justiciability is injuria to a legally protected right. A mere nominal, imaginary and a highly speculative adverse effect to a person or felt concern cannot be said to be sufficient to bring him within the fold of an aggrieved person. The words aggrieved person cannot be co-fined within the bounds of a rigid formula. The scope of the words and meaning thereof depend on diverse facts and circumstances of each case, nature and extent of a persons interest and the nature and extent of the prejudice or injury suffered by him. This Court in exercise of its cower under Article 226. of the Constitution, is required to determine and enforce legal rights It has authority only over issues which are appropriate for disposal by Judges. The Constitution indicates limited area within which judicial action is required to be taken, however, far-reaching the consequence of such action within that area may be. This Court in exercise of its cower under Article 226. of the Constitution, is required to determine and enforce legal rights It has authority only over issues which are appropriate for disposal by Judges. The Constitution indicates limited area within which judicial action is required to be taken, however, far-reaching the consequence of such action within that area may be. The Court is expected to exercise powers to settle cases and controversies, arising between parties or between persons and State, which may raise questions of law or facts or both. 12. The Supreme Court in a number of cases has laid down that in order to have locus standi to invoke extraordinary jurisdiction under Article 226 a claimant should ordinarily be one, who has a personal or individual right in the subject matter of the application. No doubt, sometimes this rule is inlaxed, but not abandoned. But the general rule is infringement of some legal right or to legal interest, which may give to a person a locus standi in the matter. 13. In United States of America in the case of Ralla W. Coleman, W. A. Barrom, Clande C. Bradney etc. vs. Clarelnce W. Miller (1) a question regarding agitation of political rights arose. Justice Frankfurtor, repelling the argument advanced before him, held : "...this is not the tribunal for its challenge except by those, who have some specialised interest of their own to vindicate, apart from a political concern which belongs to all." The above quoted passage was read with approval by their Lordships of the Supreme Court in Jasbhai Motibhai Desai Vs. Roshan Kumar (2). In the same case their Lordships of the Supreme Court also approved the following observations made in American Jurisprudence : "Legal wrong requires a judicially enforceable rights and the touch stone to justiciability is injury to a legally protected right. A nominal or highly speculative adverse effect on the interest or right of a person has been held to be insufficient to give him the standing to sue for judicial review of administrative action." 14. Mere wrangles between Government and an incumbent of any political party have no place in the scheme of Article 226 of the Constitution. They have to resolve their dispute elsewhere and by means less solemn and sacrosanct with a Court proceeding. Mere wrangles between Government and an incumbent of any political party have no place in the scheme of Article 226 of the Constitution. They have to resolve their dispute elsewhere and by means less solemn and sacrosanct with a Court proceeding. The purpose of Article 226 of the Constitution is to afford a forum for quick resolution of disputes, which depend for their decision on the existing or extent of a legal right. It is only when a legal, or a mere political issue arises touching upon the existence or extent of a legal right, that Article 226 of the Constitution is attracted. 15. In fact that the petitioner, as already noted above, has filed this writ petition as an active member of a political party, who lost in the last elections. The purpose of filing the writ petition is to safeguard the right of the C.P.M. Government in West Bengal, for which he speculates that its interest will be adversely affected if the President is allowed to exercise the right vested in him under Article 156 (1) of the Constitution i.e., if he is allowed to terminate the term of the office of the Governor of a State at his pleasure. 16. The order dated August 8, 1981 (Annexure-1) cannot be said to have been passed against the petitioner. The impugned order does not, in any way affect the personal interest of the petitioner. No decision has been pronounced against him which may wrongly deprive him of something or which may wrongfully refuse him something. It cannot be said that he has suffered any legal wrong or injury, in the sense that his interest, recognised by law, has been prejudicially and directly affected by the impugned act complained of, reference may be made to Kesavan v. State of Tamil Nadu (3). 17. The petitioners contention in respect of his fundamental duties under Article 51-A of the Constitution too does not give him any locus standi. The fundamental duties of citizens are duties of individual citizens. They cast no public duties which alone can be enforced by a writ of mandamus; vide Muslim Mission vs. State (4). 18. As regards relief No. 1, claimed by the petitioner for issuance of writ, order or direction in the nature of mandamus to the respondents Nos. The fundamental duties of citizens are duties of individual citizens. They cast no public duties which alone can be enforced by a writ of mandamus; vide Muslim Mission vs. State (4). 18. As regards relief No. 1, claimed by the petitioner for issuance of writ, order or direction in the nature of mandamus to the respondents Nos. 1, 2 and 3 to treat the respondent No. 4, Shri Raghukul Tilak, as Governor of Rajasthan upto May 11, 1982, suffice it to say that in the writ petition there is no specific assertion to the effect that in the interest of justice the respondents Nos. 1,2 and 3 be directed through mandamus to restore respondent No 4 on the office of Governor of Rajasthan and as such the petitioner is not entitled to claim relief No. 1 (supra). The Supreme Court decision in Kamini Kumar Das Choudhary Vs. State of West Bengal (5) supports this view. In Amritlal Vs. Collector, Central Excise (Revenue) (6) their Lordships of the Supreme Court have observed as under :— "A demand for justice and its refusal must precede the filing of a petition asking for direction or writ of mandamus:....." Reference may also usefully be made to Vijai Goods Transport Company vs. State of Rajasthan (S. B. Civil Writ Petition No. 342 of 1978, decided on May 26, 1978). In The case on hand failure to make demand for justice on the part of the petitioner operates as a bar against the maintainability of the writ petition, regarding the grant of the above mentioned relief. 19. I find no merit in the arguments that the impugned order, Annexure -1, was not issued while exercising powers vested in the President of India under Article 156 (1) of the Constitution and at the pleasure of the President, as laid down in the Article. A perusal of the impugned order reveals that it has been issued in the name of the President of India, and has been duly signed by himself. It is expressly recited therein that the impugned order was issued by the President by virtue of the powers vested in him under Article 156 of the Constitution. A perusal of the impugned order reveals that it has been issued in the name of the President of India, and has been duly signed by himself. It is expressly recited therein that the impugned order was issued by the President by virtue of the powers vested in him under Article 156 of the Constitution. It was not necessary to specifically mention in the order that it was issued in exercise of the power "at the pleasure of the President." The power vested in the President must be deemed to have been exercised by him in the manner required by the article referred. 20. A Governor of a State is appointed by the President. He holds office during the pleasure of the President. The original plan in the draft Constitution was to have elected Governors, but later in the Constituent Assembly it was replaced by the mode of appointment by nomination by the President after a good deal of discussion. It was envisaged that if a Governor was to be elected by direct vote he would consider himself to be superior to the State Chief Minister, returning from a single constituency; and this would lead to frequent frictions between the Governor and the Chief Minister. When executive powers as a whole are legally vested in the Governor, and when he believes that he has got the backing of the people of the State behind him, he at his discretion might come forward and intervene in the governance of the State. That would really amount to something contrary to the spirit of democracy and system of parliamentary government. The executive power of the State is vested in the Governor; and every executive action of the Government is required to be expressed to be taken in his name, besides this he is the integral part of the Legislature: vide Article 168 of the Constitution. He has also the power to reserve any bill for consideration of the President. The Governor, under Article 200 of the Constitution, has also got the power to reserve any bill for the consideration of the President, if such a bill, in his opinion, became law it would so derogate from the powers of the High Court as to endanger the position, which that Court is desired to fill under the Constitution. The Governor, under Article 200 of the Constitution, has also got the power to reserve any bill for the consideration of the President, if such a bill, in his opinion, became law it would so derogate from the powers of the High Court as to endanger the position, which that Court is desired to fill under the Constitution. There is also another significant role, which the Governor has to play under the Constitution; and that is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is the Governors report which generally forms the basis of Presidents action taken under Article 356 of the Constitution. It must be realised that the Governor while discharging his functions works as a channel of communication and contact between the State and the Centre. 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 the pleasure of the President, it was not felt necessary to make provision in the Constitution for the removal of the Governor by impeachment or by any other process analogous to impeachment. As already mentioned above, Governor is an important channel of communication and contact between the State and the Centre. Under Article 164 (1) Chief Minister is appointed by the Governor. On the advice of the Chief Minister other Ministers are appointed by the Governor; and the Ministers including the Chief Minister hold office during the pleasure of the Governor. As regards non-State field, provisions are found in Part XI of the Constitution. Article 256 provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. Article 256 provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. Article 257 lays down that the executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Central Government to be necessary for that purpose. The executive power of the Union also extends to the giving of directions to a State as to the construction and maintenance of means of communication declared to be of national or military importance, and also for giving directions to States to take measures for the protection of Railways within the State. In this role as a link with the Centre, the Governor keeps the President well informed periodically and regularly of the matters connected with the affairs of the State. There may be occasions for Governor, in addition to his periodical reports, to inform the President, of any serious internal disturbance or of the exercise or otherwise of any possible danger of external aggression. Duty to report flows from Article 365. Article 356 deals with the steps to be taken by the President, in case of failure of Constitutional machinery in a State, on a report lodged by the Governor. The Union Government has the duty to ensure that Government of every State is carried on in accordance with the provision of the Constitution. To fulfil this object there is no central agency in a State other than that of the Governor. The Central Government can also under Article 258 conditionally or unconditionally entrust powers vested in it to be exercised by the State Government or the officers of the State. In regard to some of these non-State matters the Governor cannot possibly act on the advice of his Ministers and is required to act according to the directions of the Central Government. The Governor in his own assessment can dismiss the Chief Minister. In regard to some of these non-State matters the Governor cannot possibly act on the advice of his Ministers and is required to act according to the directions of the Central Government. The Governor in his own assessment can dismiss the Chief Minister. For instance, Shri Ajoy Mukherji was requested by the West Bengal Governor to convene an Assembly for deciding whether the United Front Gov-ernment enjoyed majority support any longer. On Shri Mukherjis declining to do so, the Governor made his own assessment and dismissed him from the office of Chief Minister; and appointed Shri P.C. Ghosh the next Chief Minister. If an elected representative of the people can be dismissed by the Governor on the assessment made by him it does not stand to reason why the Governor, who is, as a matter of fact an appointee of the President of India and expressly holds office during pleasure of the President, cannot be asked to resign or in case of failure to accept the advice of the President, be made to vacate his office or otherwise his term be not terminated. 21. A celebrated writer on Constitutional Law Alexandrowicz in his well known book "Constitutional Development of India" writes :— "If the Governor chooses to exercise his discretion independently of the Centre or the President, that is, the Union Government, the President will be entitled to withdraw his pleasure of continuing the Governor under Article 156 (1) of the Constitution." 22. Mr. H.M. Seervai in his well known book "Constitutional Law of India" Volume II, 1976 Edition, page 1046, Point 18.4 observed :— The President can be removed from the office by impeachment for the violation of the Constitution (Art. 61). The President, or one who has held the office of President is eligible for re-election. The Governor holds office during the pleasure of the President and can be removed by him at any time during short term of office (Art. 156), so that it is not necessary to provide for removal of Governor by impeachment or by a process analogous to impeachment." 23. Kagzi, M.C.J. in his book, "The Constitution of India" (1975 Edition, page 261-262) observed :- "...A person is appointed a Governor for a term of five years; but|he can resign his office earlier. Kagzi, M.C.J. in his book, "The Constitution of India" (1975 Edition, page 261-262) observed :- "...A person is appointed a Governor for a term of five years; but|he can resign his office earlier. The Governor holds his office during the pleasure of the President who may recall him at any time " "There is no provision for appointment of a Deputy Governor.... Accordingly, any casual vacancy due to illness, death or long absence of a Governor should be filled in the manner the President may decide in accordance with the practice developed since after the commencement of the Constitution. The established practice requires the President to appoint the Chief Justice or in his absence the Senior most Judge of the State High Court as the Governor pro tempore." 24. The Governors appointment and also, by necessary implication his removal is during pleasure of the President. The Presidential pleasure in matter of removal of the Governor is not regulated or controlled by any provision in the manner as provided under Article 311 in relation to Civil (Administration) Services. The above provision for his removal or dismissal is an obvious requisition of the unregulated and uncontrolled Presidential pleasure, exercisable at any moment without cause or without any stated reasons. If this were not so, the Governor will have most secured term of office, more secure than any office held by a member of civil service. He will be irremovable, although Judges holding offices during good behaviour would be removable in accordance with the procedure established by Article 124 (4). The conditions of his term of appointment being during pleasure any provision or procedure if provided for his removal would be unnecessary and a superfluous. He has no security of tenure and no fixed term of office. He may be removed by an expression of Presidential displeasure. His removal at pleasure gives no cause of action. The impugned Presidential Notification albeit a bold expression of displeasure is a complete answer to all doubts, disputes, challenges and contentions against his removal. Neither the Presidential order can be challenged in any Court, nor can it be refuted in any House of State Legislature/Parliament. Legally the Presidential order is conclusive. 25. If the quinquennial term of a Governor were fixed term, the condition of his holding office during Presidential pleasure would be a redundancy. Neither the Presidential order can be challenged in any Court, nor can it be refuted in any House of State Legislature/Parliament. Legally the Presidential order is conclusive. 25. If the quinquennial term of a Governor were fixed term, the condition of his holding office during Presidential pleasure would be a redundancy. The essence of his term is the Presidential pleasure, and not the duration of limit of five years. This is amply borne out by a reference to the Constituent Assembly Debates. The idea of a fixed mandatory term, and for that matter the idea of an irremovable Governor was not approved or accepted by the Constitution. The mode of an elected and consequently, an irremovable Governor was not deliberately adopted by the framers. It was thought that an appointed or nominated Governor holding office during Presidential pleasure would remove a source of possible separatist tendencies. 26. The pleasure condition of a Governors term makes any proceeding or procedure or rules of natural justice for his removal unnecessary. A removal provision exists in cases of high functionaries including President, Chief Justice and Judges of the Supreme Court and those of the High Courts. But no such provision exists in case of those functionaries who hold office during pleasure of President. If a Governor should be irremovable during his five years term, while President, can be removed following his impeachment in Parliament, an irremovable Governor of a State holding office during pleasure of the President would be an anomaly. He must endanger executive efficiency, Union-State relations and might be a possible focal point of separatist tendencies. Even the learned counsel for the petitioner thinks that this should not be so. He readily concedes that there can be a situation in which removal or dismissal of a Governor might become justified in the national interest. 27. At this stage I may point out the case of H. H. Maharajadhiraj Madhav Rao Jivaji Rao Scindia Bahadur Vs. Union of India (7), which the learned counsel referred. The case relates to the executive discretion of the President under Article 366 for purposes of recognition of a Ruler for the time being for a claim of privy purse, etc. The clause envisages, as held by the Supreme Court, consideration of specific individual claims for recognition. It does not relate to exercise of executive power in relation to State affairs. The clause envisages, as held by the Supreme Court, consideration of specific individual claims for recognition. It does not relate to exercise of executive power in relation to State affairs. The case has, therefore, no bearing with the controversy raised in the present matter. 28. Article 367 (1) of the Constitution make it clear that the General Clauses Act, 1897, shall, subject to any adaptations and modifications made therein under Article 372, be applicable to the interpretation of the Constitution as it applies for the interpretation of an existing act of the legislature of the Dominion of India. The words "hold office during the pleasure" came up for interpretation in Terrell vs. Secretary of State for the Colonies (8) before the Queens Bench Division of England. The question involved in that case was that in 1930, by letters, dt. July 15 and August 7, the Secretary of State for the Colonies offered to the claimant Terrell the appointment of a Judge of the Supreme Court of the Straits Settlements. One of the matters mentioned in the letters was that the compulsory retiring age would be 62. The claimant accepted the appointment. In 1942 when Malaya was occupied by Japanese, he was on leave in Australia and was unable to assume his office until the British regained control of Malaya. In March, 1942, he was informed that as no other suitable appointment in the colonial legal service could be found for him, he must be awarded a pension on abolition of office, and on July 7, 1942, his appointment was ended, 17 months before his 62nd birthday. On a claim by him that he was not liable to be dismissed before he reached the age of 62, when he would be entitled to a larger pension, His Lordship Goddard C.J. held : "Judges in Malaya did not hold their office during good behaviour, but they held, and always had held, office at the pleasure of the Crown and, therefore, the claimant had held the office during pleasure. The right of the Crown to dismiss at pleasure was a rule of law which could not be taken away by any contractual arrangement .." 29. The right of the Crown to dismiss at pleasure was a rule of law which could not be taken away by any contractual arrangement .." 29. The words "to hold office at the pleasure of the Crown" have their origin in the Latin phrase "Duronte-bene-placito" (during pleasure), meaning that the tenure of office of a person, except where it is otherwise provided by statute, can be terminated at the time without cause assigned. The true scope and concept of this expression is that even if a special contract has been made with the person, the Crown is not bound thereby. In other words, the person concerned is liable to be dismissed without notice and there is no right of action for wrongful dismissal. It is a well known rule of English Law, which has been incorporated in Art. 156(1) of the Constitution. 30. On the parity of reasoning of the above noted case it can be safely said that it lies within the power of the President to terminate, in his discretion, the term of the office of the Governor at his pleasure. 31. The learned counsel wrongly construes. Art. 156 by saying that Clause (3) controls Clause (1) of the Article. The correct construction is just the opposite. It is expressly stated that Clause (3) is subject to Clause (1). This means that five years term is subject to the exercise of pleasure by the President. He may in exercise of pleasure cut short the term. The Presidential pleasure contemplated in the Article is unjusticiable. It may be pointed that where any regulatory restriction for the exercise of pleasure is contemplated, such a provision could have been made in expressly words as is the case with Article 311 in relation to pleasure under Article 310. In the absence of any like regulatory provision and its unqualified character, no restriction can be placed upon it. 32. The interpretation suggested by the learned counsel that the term of the office of Governor cannot be reduced, if accepted, will have the effect of making Clause (1) of Art. 156 otiose. It is also likely to create unsurmountable difficulties for the country. As for instance in Assam, which stands surrounded by foreign countries like China, Burma etc. and a narrow 30 miles corridor connects it with the rest of the country. It is also likely to create unsurmountable difficulties for the country. As for instance in Assam, which stands surrounded by foreign countries like China, Burma etc. and a narrow 30 miles corridor connects it with the rest of the country. If the party in power of the State and the Governor decide to secede and integrate with China, the President of India cannot be asked by a Court of Law to wait for five years in not terminating the terms of the Governor of recall him earlier. Articles of the Constitution are required to be given harmonious interpretation. A look at the debates in the Constituent Assembly will show that one of the reasons, which weighed with our founding fathers, was not to have the elected Governors as this method would encourage separatist tendency. The stability and the unity of the Government machinery of the country as a whole could, the Constituent Assembly rightly observed, be achieved only by adopting the system of nomination. 33. For the reasons already mentioned above I hold that there is no merit in the argument that unless a minimum Constitutional term of five years for the office of the Governor is held to be mandatory, it would demolish the basic structure of the Constitution and the Government would become subservient to the President and through him to the Government of India. It will not be out of place to mention here that sometimes during the term of the office of a Governor he has been and is subject to transfer from one State to another by order of the President. 34. The second limb of the same argument is that it is the requirement of law that every executive action must be accompanied by reasons and should be free from arbitrariness. There is nothing on record to hold that the President of India while passing the order, Annexure-1, acted capriciously or arbitrarily. Shri Raghukul Tilak a few months back fell ill and was under treatment of coma and the Notification, published in the Gazette shows that Shri K.D. Sharma was asked by the President to discharge the functions of the Governor as provided in Art. 160 of the Constitution. Neither Art. 156 nor Art. 160 enjoins on the President duty to give explicit reasons while issuing orders under them. Neither Art. 156 nor Art. 160 enjoins on the President duty to give explicit reasons while issuing orders under them. The President of India is the best Judge to decide as to when and in what circumstances the term of sitting Governor of a State should be reduced or he may be asked to vacate the office or may be transferred from one place to another. It is not the requirement of Art. 156 that a person who holds the office at the pleasure of the President shall be removed by a speaking order. In my humble opinion, reasons are not required to be disclosed. 35. The point is undisputed that the Governor is not an employee either of the President or of the Union Government. He is a Constitutional func-tionery. Obviously the Governor is also the medium through whom Union keeps itself informed as to whether the State is complying with the directives issued by the Union from time to time. However, after promulgation of a proclamation on the failure of the Constitutional machinery in the State, the Governor acts as agent of the President. As regards those functions of the State Government, which have been assumed by the President under the proclamation (Art. 356(1)(a) ), it is obvious that in matters on which the Governor is empowered to act in his discretion or on his special responsibility, the Governor will be under the complete control of the President. Art. 371(2) provides that President may direct that the Governor of Maharashtra or Gujarat shall have a special responsibility for taking steps for the development of certain areas in the State such as Vidharb, Saurashtra etc. Similarly, the Governor of Nagaland under Art 371(l)(b) has similar responsibilities with respect to law and order in the State. Special responsibilities have also been imposed upon the Governors of Manipur and Sikkim. In discharge of such responsibilities, the Governor has to act according to she directions issued by the President from time to time and if anyone of the above noted Governors flout the directions of the President aided by the Council of Ministers, it cannot be said that the intention of the Constitution is that the President should feel helpless and should not remove the Governor of that State prior to the expiry of the term of five years. 36. 36. Learned counsel for the petitioner states that a long discussion was carried on in the Constituent Assembly regarding the term of appointment of the Governor and his removability. Ultimately Dr. Ambedkar observed that this power of removal was given to the President in general terms. This was so, although Prof. Shah wanted that certain grounds should be stated in the Constitution itself for the removal of the Governor. Therefore, it seems obvious to me that when the President is given the general power, he is also given power to remove a Governor for corruption, for bribery, for violation of Constitution or for any other reason which the President, no doubt, feels is legitimate ground, for the removal of the Governor. (Itelics added). It seems, therefore, quite unnecessary to burden the Constitution with all these details in express terms. When it is perfectly possible for the President to act upon any one or more ground under the formula. I should think that it is unnecessary to chatego-rise the conditions under which the President may undertake the lack of removing the Governor. 37. The above noted observation made by Dr. Ambedkar relied upon by the learned counsel for the petitioner in no way supports the case of the petitioner. The power of removal has been left in the hand of the highest Constitutional functionary of the Union of India; and a presumption under Sec. 114 of the Evidence Act does arise that an official act must have been done in the manner it ought to have been done. No fact or data has been mentioned in the writ petition or placed before this Court on the basis of which it can be said that the President while passing the impugned order dated August 8, 1981. acted capriciously arbitrarily or maliciously Mere averment of the word capricious or malicious in the writ petition is not sufficient. Necessary details are required to be mentioned. In the writ petition in hand, it has been mentioned that Shri Raghukul Tilak was a freedom fighter and he is a man of letters and he was appointed by the President|of India on April 20, 1977. It is also an admitted fact that Shri Raghukul Tilak was allowed to act as Governor for a pretty long time after the Congress (1) coming into power in Centre and the State. It is also an admitted fact that Shri Raghukul Tilak was allowed to act as Governor for a pretty long time after the Congress (1) coming into power in Centre and the State. Thus, there is nothing on record or even a semblance of suggestion that on any account whatever the Government at the Centre, its functionaries or the President bore an ill-will against Shri Tilak. Simply because no reason has been mentioned in the impugned order, it cannot be said that the order is arbitrary, capricious or malicious. Nowhere in the writ petition it has been mentioned that Shri Raghukul Tilak had expressed any grievance or was sore about his termination and the petitioner cannot be allowed to make any grievance about it. 38. I find no merit in the contention that the President of India while terminating the term of appointment of Shri Raghukul Tilak as Governor of Rajasthan ought to have allowed to work on that post till a permanent incumbent was appointed. Once a person holding office of the Governor loses the confidence of the President and the President withdraws his pleasure from him, the conclusion is inescapable that his further continuance on that post will not be conducive to the interest of the State. It will be preposterous to suggest that the Chief Justice of the State should not be asked to discharge the functions of the Governor in pursuance of the provisions of Article 160 of the Constitution of India. The President of India under his seal and signature has appointed Shri Kalyan Dutt Sharma to discharge the functions of the Governor of Rajas-than and I find no illegality in the order dated August 8, 1981. appointing Justice Shri Kalyan Dutt Sharma, Chief Justice of the Rajasthan High Court to discharge the functions of the Governor of Rajasthan with effect from August 8, 1981. The provision of Article 160 of the Constitution is meant to meet the situation which arose in Rajasthan when Shri Raghukul Tilak ceased to hold the office of the Governor of the State. 39. The provision of Article 160 of the Constitution is meant to meet the situation which arose in Rajasthan when Shri Raghukul Tilak ceased to hold the office of the Governor of the State. 39. Since Shri K. D. Sharma was appointed to discharge the functions of the Governor of Rajasthan with effect from August 8 1981, soon after he took the oath to discharge the functions of the Governor and as a result of it he ceased to hold the office of the Chief Justice of Rajasthan for the time being as he became unable to perform the duties of the office of the Chief Justice. Shri D P.Gupta, by the order of the President of India was appointed as Acting Chief Justice from the same date. This could have been done only under Art. 223 of the Constitution. Under the Rajasthan High Court Ordinance, 1949, the definition of Chief Justice includes Acting Chief Justice. Also sub-clause D(11)(a) of Schedule II to the Constitution provides that the expression Chief Justice includes Acting Chief Justice. It is the requirement of Art. 216 of the Constitution that every High Court shall consist of a Chief Justice and such other Judges as the President may deem it necessary to appoint. A close reading of Arts. 216, 223 read with Schedule II subclause D(l 1) clearly reveals that there Connor be two Chief Justices in a High Court; and an Acting Chief Justice is appointed only when the Chief Justice is away and unable to perform duties of his office. After taking the oath under Article 159 of the functions of the Governor, Shri K. D. Sharma cannot be said to continue to hold the office of the Chief Justice, and as such it cannot be held that he suffers from the disqualification provided under Article 158 (2) of the Constitution. Moreover a person asked to discharge the functions of the Governor of a State under Article 160 need not possess the qualifications mentioned in Article 158 of the Constitution, because, he is not termed as Governor. The oath prescribed for the Governor and for a person discharging the functions of the Governor is different Schedule II Part-A subclause (4) further provides that a person discharging the functions of the Governor shall be entitled to the same emoluments allowances and privileges as the Governor whose functions he discharges or for whom he acts. The oath prescribed for the Governor and for a person discharging the functions of the Governor is different Schedule II Part-A subclause (4) further provides that a person discharging the functions of the Governor shall be entitled to the same emoluments allowances and privileges as the Governor whose functions he discharges or for whom he acts. Thus, the functionary dischargeing the functions provided under Article 160 of the Constitution cannot be termed to be a Governor within the meaning of Article 155 of the Constitution. The necessary corollary of that is that stop-gap functionary need not possess the necessary qualifications for being appointed as a Governor, and also does not suffer from the disqualifications attached to that office. Thus, Shri K.D. Sharma cannot be said to be usurper of the office of the Governor of the State of Rajasthan. 40. It is also clear that there is no conflict between Article 74 and Article 156 (1) of the Constitution. 41. The contention of the learned counsel for the petitioner that the executive power of the President should co-relate to the matters with respect to which Parliament has power to make laws in no way helps the cause of the petitioner. The appointment or the removal of the Governor is not covered by List II of Schedule 7. It does not fall whithin the State List and thus the Parliament has power to make necessary rules and regulations regarding the office of the Governor under enumerated residuary heads of List I, entry 97 under Article 248. The President can, therefore, certainly exercise the powers vested in him under Article 156 (1) of the Constitution. Moreover, as already mentioned above, for certain functions the Governor is directly responsible to the President. For not discharging his duties, the Governor can be removed by the President, by order. 42. For the reasons mentioned above, the writ petition fails and is dismissed in limine.