SRI. SHIVA SHANKARAPPA S SAHUKAR v. RAGHAVENDRA

Judgment

#1. The Petitioner is before this court seeking for the following reliefs: i) Call for records. ii) Issue a writ in the nature of certiorari and quash the impugned order dated 10.7.2026 in No GS 28 ADM 2026 passed by office of His Excellency Hon’ble The Hon’ble The Hon’ble Governor of the State of Karnataka communicated by Respondent No.2 thereby suspending the Petitioner in exercise of power under Article 317(2) of the Constitution of India and all further proceedings/actions pursuant thereto; (produced at Annexure-A and A1); iii) Issue any other writ or order grant such other and further reliefs as this Hon’ble Court may deem fit in the facts and circumstances of the case, in the interest of justice and equity.

#2. The Petitioner is the Chairman of the Karnataka Public Service Commission (‘KPSC’ for short). His Excellency, the Hon'ble Governor of the State of Karnataka, vide order dated 10.07.2026, had suspended the Petitioner from the office of Chairman. It is the said order which is under challenge in these proceedings. The recommendation to the Hon’ble President is not the subject matter of these proceedings, as can be seen from the prayers extracted above. HC-KAR - 4 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

#3. Sri Arun Shyam M., learned Senior Counsel for the Petitioner submits that:

3.1. The Petitioner has been rendering services to the Society in general as also as a Chairperson of the KPSC from 03.04.2021. On 17.06.2026, the Secretary of KPSC had issued a notice of the 6th meeting of the Commission for the period 2026-2027 scheduled on

19.06.2026 along with the agenda of the meeting.

3.2. The Petitioner, noticing that agenda No.4 of the meeting related to his daughter's application for the post of Group-C Industrial Extension Officer, had recused from attending the said meeting and requested the senior-most member of the KPSC to conduct the meeting.

3.3. The meeting was conducted by the senior-most member of the KPSC. The agenda Nos.1 to 13 which were notified were discussed and resolved by the KPSC. In respect of agenda No.4 relating to the daughter of the Petitioner, the Commission resolved to reject her 3B certificate as claimed under backward classes HC-KAR - 5 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 and permanently debarred the daughter of the Petitioner from taking up KPSC examination.

3.4. Thereafter, the members of the Commission the permission of the Chairman, considered additional agenda No.1 and resolved to call upon the Petitioner to resign from the post of Chairman, KPSC in the meeting held on

19.06.2026.

3.5. In terms of Section 7 of the Karnataka Public Service Commission (Conduct of Business and Additional Functions) Act, 1959 (the ‘Act’ for short), after receiving file of proceedings on 03.07.2026 and looking into the proceedings held on 19.06.2026, the Petitioner accepted the resolution insofar as agenda No.1 to 13 by suggesting changes to agenda No.4 and had rejected the resolution on additional agenda item No.1 by directing the Secretary to place the same before the Commission for reconsideration in the next meeting.

3.6. Despite the operation of Section 7, Secretary of KPSC had forwarded a report on the proceedings held on 19.06.2026 to the Chief Secretary of Government of Karnataka HC-KAR - 6 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 and His Excellency the Hon'ble Governor on

06.07.2026 and 07.07.2026.

3.7. The Petitioner had challenged the resolution and the forwardal of the report by filing WP.No.20949/2026. This Court, had on

10.07.2026, stayed the operation of resolution

19.06.2026 communication

06.07.2026

07.07.2026 on the ground that the members of the Commission could not have called upon the appointee of the Hon’ble Governor to resign.

3.8. His Excellency the Hon’ble Governor of Karnataka had on 10.07.2026, passed the impugned order bearing No.GS 28 ADM 2026, noting that he has already recommended to the Hon’ble President of India to make a reference to the Hon'ble Supreme Court of India under Article 317(1) of the Constitution of India for necessary enquiry into the allegation made against the Petitioner vide Letter No.GS 28 ADM 2026 dated 09.07.2026, was of the opinion that pending the decision of the Hon'ble President of India into allegation of misconduct, necessary to prevent the Petitioner-Chairman, HC-KAR - 7 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 KPSC from attending the office and day-to-day functioning of the Commission had suspended the Petitioner under the spirit of Article 317(2) of the Constitution of India until further orders of the Hon'ble President of India and directed the next Senior Most Member of the KPSC to act as the Chairman of the Commission until further orders.

3.9. His submission is that Hon'ble Governor, having recommended to the Hon’ble President to make a reference, could not have suspended the Petitioner as a Chairman and in this regard, he relies on Article 317 (2) of the Constitution of India, which is reproduced hereunder for easy reference. “317. Removal and suspension of a member of a Public Service Commission (2) The President, in the case of the Union Commission or a Joint Commission, and the Governor in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court under clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.”

3.10. By placing reliance on Article 317(1) of the Constitution of India, he submitted that the HC-KAR - 8 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 Chairman or any other Member of a Public Service Commission can be removed from office only by an order of the Hon’ble President on the ground of misbehaviour, and that too only after the Hon’ble Supreme Court, upon a reference made to it by the Hon’ble President and after conducting an inquiry in accordance with the procedure prescribed under Article 145 of the Constitution, reports that the Chairman or Member, as the case may be, ought to be removed on that ground.

3.11. Article 317(3) provides that, notwithstanding anything contained in Article 317(1), the Hon’ble President may remove the Chairman or any other Member of a Public Service Commission if such Chairman or Member is adjudged insolvent, engages during the term of office in any paid employment outside the duties of the office, or is, in the opinion of the Hon’ble President, unfit to continue in office by reason of infirmity of mind or body. Thus, according to him, whether the removal is under Article 317(1) or Article 317(3), the power of removal is vested exclusively in the Hon’ble President. HC-KAR - 9 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.12. Though the present case concerns an order of suspension and not removal, learned Senior Counsel submitted that suspension is governed by Article 317(2) of the Constitution. Under the said provision, the Hon’ble President, in the case of the Union Public Service Commission or a Joint Commission, and the Hon’ble Governor, the case of a State Public Service Commission, may suspend the Chairman or any other Member against whom a reference has been made to the Supreme Court under Article 317(1), pending the Hon’ble President passing final orders upon receipt of the report of the Hon’ble Supreme Court.

3.13. It was contended that the power of suspension under Article 317(2) can be exercised by the Hon’ble Governor only after a reference has been made by the Hon’ble President to the Hon’ble Supreme Court under Article 317(1). According to him, unless and until such a reference is made, the Hon’ble Governor has no authority or jurisdiction to suspend Chairman or a Member of the State Public Service Commission. HC-KAR - 10 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.14. In the present case, the Hon’ble Governor had merely forwarded a recommendation to the Hon’ble President on 09.07.2026. Since no reference had, at that stage, been made by the Hon’ble President to the Hon’ble Supreme Court, the condition precedent for the exercise of power under Article 317(2) had not been satisfied. Consequently, the Hon’ble Governor could not have passed the impugned order of suspension.

3.15. He therefore contended that the impugned order of suspension has been passed without jurisdiction, without authority of law, and in contravention of Article 317 of the Constitution of India.

3.16. Even assuming such power existed, principles of natural justice required that the petitioner be issued a show-cause notice and afforded an opportunity of hearing before any order of suspension was passed. According to him, no such notice was issued, nor was any opportunity granted to the petitioner to submit his explanation. The impugned order was thus HC-KAR - 11 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 passed in complete violation of the principles of natural justice.

3.17. It was further contended that the Hon’ble Governor proceeded to suspend the petitioner merely on the basis of newspaper reports and certain complaints. According to learned Senior Counsel, in the absence of a reference to the Hon’ble Supreme Court under Article 317(1), and in the absence of any inquiry, preliminary investigation, or prima facie finding by any competent authority regarding the alleged misconduct of the petitioner as Chairman of the Karnataka Public Service Commission, Hon’ble Governor could not have acted on such material. He submitted that the complaints relied upon are wholly devoid of substance.

3.18. The impugned order of suspension came to be passed after an interim order of stay had been granted in W.P. No. 20949/2026. Consequently, according to him, the reports forwarded by the Secretary of the Karnataka Public Service Commission could not have been taken into consideration by the Hon’ble Governor while passing the impugned order. HC-KAR - 12 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.19. His submission is that according to him, four (4) points arise for consideration, namely; 1) Whether His Excellency the Hon’ble Governor could have suspended the Petitioner/Chairman, KPSC in exercise of Power under the Article 317(2) of the Constitution of India in the absence of OR before the reference to Hon’ble Supreme Court by Her Excellency Hon’ble President of India in exercise of power under Article 317(1) of the Constitution of India? 2) Whether His Excellency Hon’ble Governor could act or suspend the Petitioner/Chairman, KPSC exercise of power under the Article 317(2) of the Constitution of India without the aid and advice of the Council of Ministers of the State as contemplated under Article 163 of the Constitution of India. 3) Whether the ex-post facto approval/ratification by the Council of Ministers of State can be treated as OR considered as aid and advice of Council of Ministers of State to His Excellency as mandated under Article 163 of the Constitution of India? 4) Whether ex-post facto approval or ratification of the impugned order by the cabinet at a later date amounts to compliance with Article 163 of constitution of India?”

3.20. He submits as regards four points formulated by him as follows: 1) Whether His Excellency the Hon’ble Governor could have suspended the Petitioner/Chairman, KPSC in exercise of Power under the Article 317(2) of the Constitution of India in the absence of OR before the reference to Hon’ble Supreme Court by Her Excellency Hon’ble President of India in exercise of power under Article 317(1) of the Constitution of India? HC-KAR - 13 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.21. In support of the first point, learned Senior Counsel submitted that a plain reading of Article 317 of the Constitution makes abundantly clear that the Hon’ble Governor may exercise the power of suspension under Article 317(2) only in respect of the Chairman or a Member of the Public Service Commission against whom a reference has been made by the Hon’ble President to the Hon’ble Supreme Court under Article 317(1).

3.22. In the present case, no reference had been made by the Hon'ble President of India to the Hon'ble Supreme Court for conducting an inquiry against the petitioner, who was then serving as the Chairman of the Karnataka Public Service Commission. In the absence of such a reference, jurisdictional precondition prescribed under Article 317(2) was not satisfied. Consequently, according to him, the Hon'ble Governor lacked the authority and jurisdiction to pass the impugned order of suspension in purported exercise of the powers under Article 317(2) of the Constitution. HC-KAR - 14 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.23. In this regard, he relies upon the decision of the Hon’ble Division Bench of this Court in Dr.(Smt).Mangala Sridhar v. The State of Karnataka1, more particularly paras 11, 12, 17, 18, 19, 20 and 21 thereof, which are reproduced hereunder for easy reference: “11. The question that arises for our consideration in the context of Article 317 is squarely covered by a decision of the Supreme Court of India in Samsher Singh v. state Of Punjab [(1974) 2 SCC 831.] . The Supreme Court of India held that:— “30. In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction in the of the President or of the Governor constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions.” [Emphasis supplied]

#12. Therefore, pursuant to the decision in the case of Samsher Singh (supra), there can be no doubt that the Governor, whilst exercising powers under Article 317(2) will have to do so, not in his absolute discretion, but in 1 ILR 2017 KAR 1404 HC-KAR - 15 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 accordance with the aid and advice of the Council of Ministers. This decision has, further, been referred to Meher Singh Sain, In Re. [(2010) 13 SCC 586.] and Nabam Rabia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1.] .

#17. The observations of the Supreme Court of India in the case of Ram Kumar Kashyap (supra) is clear and unambiguous that the power of suspension under Article 317(2) can be exercised by the Governor only after the President has referred the matter to the Supreme Court of India. Further, Article 317(2) leaves us with no element of doubt that the Governor can exercise such power only after a reference is made by the President to the Supreme Court of India under Article 317(1). We can profitably refer to the decision of the Supreme Court of India in the matter of Reference Under Article 317(1) of the Constitution of India v. Unknown.

#18. Where the language of Article 317 is clear and unambiguous, reading anything further into it would not be justified. In the instant case, it is an admitted fact that as on May 14, 2014 when the Governor of Karnataka issued the order of suspension under Article 317(2), no reference to the Supreme Court of India had been made by the President under Article 317(1). We are informed that even till date, no such reference has been made by the President to the Supreme Court of India.

#19. We have considered the decision of the Hon'ble Single Judge regarding the credibility of an institution such as the Public Service Commission and as to how such credibility ought to be preserved and as to how public accountability and transparency are sine quo non for the effective governance of that institution. We are in respectable agreement with those observations. However, it is equally, if not more important, that the powers being exercised by the Governor should be exercised in complete consonance with the Constitution of India and in consonance with the law declared by the Supreme Court of India.

#20. In the instant case, when the order of suspension was issued under Article 317(2), on May 14, 2014, the Governor admittedly did not have the benefit of the aid and advice of the Council of Ministers under Article 163. Further, as on that date, no reference had been made by the President to the Supreme Court of India under Article HC-KAR - 16 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 317(1). On these counts, we have no option but to hold that the order of suspension dated May 14, 2014 is unconstitutional.

#21. We, therefore, allow the appeal. The order impugned in this appeal dated September 23, 2014, in Writ Petition No. 22801 of 2014, is set-aside. The Writ Petition is allowed. The order of suspension contained in Notification bearing No. GS 19 EST 2014 dated May 14, 2014 is quashed. The appellant shall be entitled to officiate as the member of the Karnataka Public Service Commission and shall be entitled to all emoluments and consequential benefits.”

3.24. By relying on Mangala Sridhar, learned Senior Counsel submitted that the Hon’ble Division Bench of this Court, after considering the judgment of the Hon’ble Supreme Court reported in Ram Kumar Kashyap v. Union of India [(2009) 9 SCC 378], categorically held that the language employed in Article 317 is plain, clear and unambiguous and, therefore, no words can be added to or read into the provision. According to him, the Hon’ble Division Bench held that even if the Hon’ble Governor had exercised the power under Article 317(2) with the object of preserving the credibility and integrity of the Karnataka Public Service Commission, such exercise of power must nevertheless conform strictly to the constitutional mandate. The Hon’ble Governor HC-KAR - 17 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 is required to exercise the power only in the manner contemplated by Article 317(2) and in conformity with the law declared by the Hon’ble Supreme Court. Since, according to learned Senior Counsel, the impugned order has been passed in disregard of the mandatory requirements of Article 317(2), it is liable to be set aside.

3.25. He relies on Ahmedabad St. Xavier's College Society v. State of Gujarat2, more particularly paras 51 and 109 thereof, which are reproduced hereunder for easy reference: “51. The right of a linguistic or religious minority to administer educational institutions of their choice, though couched in absolute terms has been held by this Court to be subject to regulatory measures which the State might impose for furthering the excellence of the standards of education. The scope and ambit of the rights under Articles 29(1) and 30(1) were first considered and analysed by this Court while giving its advice on the Presidential Reference under Article 143 of the Constitution in Re the Kerala Education Bill, 1957. The report which was made to the President in that Reference, it is true, is not binding on this Court in any subsequent matter wherein in a concrete case the in fringement of the rights under any analogous provision may be called in question, though it is entitled to great weight. Under Article 143 this Court expresses its opinion if it so chooses and in some cases it might even decline to express its opinion, vide In Re Levy of Estate Duty [1944 FCR 317] cited with approval by Das, C.J. in In re The Kerala Education Bill, 1957. In some cases the opinion may be based on 2 (1974) 1 SCC 717 HC-KAR - 18 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 certain stated contingencies or on some assumed or hypothetical situations whereas in a concrete case coming before this Court by way of an appeal under Article 133, or by special leave under Article 136 or by a petition under Article 32, the law declared by it by virtue of Article 141 is binding on all courts within the territory of India. Nonetheless the exposition of the various facets of the rights under Article 29(1) and Article 30(1) by Das, C.J. speaking for the majority, with the utmost clarity, great perspicuity and wisdom has been the text from which this Court has drawn its sustenance in its subsequent decisions. To the extent that this Court has applied these principles to concrete cases there can be no question of there being any conflict with what has been observed by Das, C.J. The decisions rendered on analogous provisions as those that are under challenge in this case would prima facie govern these cases, unless this larger Bench chooses to differ from them.

#109. It has been argued on behalf of the respondents that in the case of Re Kerala Education Bill this Court upheld clauses 11 and 12. Clause 11 made it obligatory for all aided schools to select teachers from a panel of candidates selected for each district by the Public Service Commission. Clause 12 related to the conditions of service of aided teachers. According to sub-clause (4) of clause 12, no teacher of an aided school could be dismissed, removed or reduced in rank or suspended by the manager without the previous sanction of the authorised officer. Das, C.J., observed that the above provisions were serious inroads on the right of administration and appeared perilously near violating that right. All the same, he observed that this Court “as at present advised” was prepared to treat those regulations as permissible regulations. I have already mentioned above that in subsequent cases this Court held similar provisions to be violative of Article 30(1) in the case of minority institutions. The opinion expressed by this Court in Re Kerala Education Bill was of an advisory character and though great weight should be attached to it because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases. It is the law declared by this Court in the subsequent contested cases which would have a binding effect. The words “as at present advised” as well as the preceding sentence indicate that the view expressed by this Court in Re Kerala Education Bill in HC-KAR - 19 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 this respect was hesitant and tentative and not a final view in the matter. It has been pointed out that in Re Levy of Estate Duty [AIR 1944 FC 73 : (1944) 6 FCR 317 : (1944) 2 Mad LJ 234] Spens, C.J., referred to an observation made in the case of Attorney-General for Ontario v. Attorney-General for Canada, [1912 AC 571] that the advisory opinion of the Court would have no more effect than the opinion of the law officers. I need not dilate upon this aspect of the matter because I am of the opinion that the view expressed by this Court in subsequent cases referred to above by applying the general principles laid down in the Re Kerala Education Bill is correct and calls for no interference.”

3.26. His submission by relying on Ahmedabad St. Xavier's College Society is that an opinion rendered by the Hon’ble Supreme Court on a Presidential Reference under Article 143 of the Constitution is merely advisory and does not have the same binding force as a judgment rendered in an adversarial proceeding. Though such an opinion carries considerable persuasive value, it cannot override the law subsequently declared by the Hon’ble Supreme Court in a contested case under Article 141 of the Constitution. He therefore submitted that, in the event of any inconsistency between an advisory opinion under Article 143 and a judgment rendered in a contested proceeding, it is the latter that would constitute the binding declaration of law. HC-KAR - 20 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.27. He relies upon the decision in Ram Kumar Kashyap and Another v. Union of India3, more particularly, paras 11 and 12 thereof, which are reproduced hereunder for easy reference. “11. In Sayalee Sanjeev Joshi, Member, Maharashtra Public Service Commission, In re [(2007) 11 SCC 547] , which concerned the removal of a member of the Maharashtra Public Service Commission under Article 317 on grounds of misbehaviour, this Court had observed: (SCC p. 552, para 2) “2. … Since a request was made to the President of India to act in terms of Article 317(1) of the Constitution, the placing of the respondent under suspension under Article 317(2) of Constitution was proper.”

#12. It is clear from the perusal of the above cases that the petitioners were not entitled to an opportunity to show cause or to be heard before the point of time that the orders of suspension were passed by the Hon'ble Governor of Haryana under Article 317(2) after the President had referred the matter to the Supreme Court. The rationale behind empowering the Governor of a State to issue such an order of suspension even before the reference is actually decided by the Supreme Court is to maintain the public trust and confidence in the impartial and honest working of the said Public Service Commission.”

3.28. Relying on Ram Kumar Kashyap Learned Senior Counsel submitted that the judgment in Ram Kumar Kashyap was specifically considered by the Hon’ble Division Bench of this Court in Dr. (Smt.) Mangala Sridhar, 3 (2009) 9 SCC 378 HC-KAR - 21 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 particularly in paragraph 17 thereof. According him, the Hon’ble Division Bench unequivocally held, on the strength of the observations made by the Hon’ble Supreme Court in Ram Kumar Kashyap, that the power of suspension under Article 317(2) can be exercised by the Hon’ble Governor only after the Hon’ble President has made a reference to the Hon’ble Supreme Court under Article 317(1) of the Constitution.

3.29. Learned Senior Counsel submitted that, in the absence of any reference made by the Hon'ble President of India to the Hon'ble Supreme Court under Article 317(1), the Hon'ble Governor lacked the constitutional authority to invoke the power of suspension under Article 317(2). Consequently, according to him, the impugned order of suspension is without jurisdiction and liable to be set aside. 2) Whether His Excellency Hon’ble Governor Petitioner/Chairman, KPSC in exercise of power under the Article 317(2) of the Constitution of India without the aid and advice of the Council of Ministers of the suspend HC-KAR - 22 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 State as contemplated under Article 163 of the Constitution of India.

3.30. In support of the second question formulated by him, learned Senior Counsel submitted that the Hon'ble Governor could not have exercised the power of suspension under Article 317(2) of the Constitution without acting on the aid and advice of the Council of Ministers as contemplated under Article 163 of Constitution. According to him, since the impugned order was not preceded by such aid and advice, the exercise of power by the Hon'ble Governor is without jurisdiction, contrary to the constitutional mandate, and consequently liable to be set aside.

3.31. He relies on the decision in Samsher Singh v. State of Punjab4, more particularly paras, 5, 30, 31, 88, 89, 130, 138 and 154 thereof, which are reproduced hereunder for easy reference. 4 (1974) 2 SCC 831 HC-KAR - 23 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 “5. The appellants contend that the Governor as the constitutional or the formal head of the State can exercise powers and functions of appointment and removal of Judicial Service only members of personally. The State contends that the Governor exercises powers of 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 Subordinate

#30. In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transaction of the business of the Government and the allocation of business among the Ministers of the said business. The Rules of Business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the Rules of Business made under these two articles viz. Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively.

#31. Further the Rules of Business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor HC-KAR - 24 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the Rules of Business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (see Halsbury's Laws of England 4th Ed., Vol. I, paragraph 748 at p. 170 and Carltona Ltd. v. Works Commissioners [(1943) 2 All ER 560] ).

#88. For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of the members of the Subordinate Judicial Service is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. Appointments and removals of persons are made by the President and the Governor as the constitutional head of the Executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union or the State in regard to appointment or dismissal is brought against the Union or the State and not against the President or the Governor.

#89. The orders of termination of the services of the appellants are set aside. The appellant Ishwar Chand Agarwal is declared to be a member of the Punjab Civil Service (Judicial Branch). The appellant Samsher Singh succeeds insofar as the order of termination is set aside. In view of the fact that Samsher Singh is already employed in the Ministry of Law no relief excepting salary or other monetary benefits which accrued to him upto the time he obtained employment in the Ministry of Law is given.

#130. The overwhelming weight of judicial authority is in favour of the Cabinet system of Government as inscribed in HC-KAR - 25 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 the Constitution. Mukherjea, C.J. in Rai Saheb Ram Jawaya Kapur v. State of Punjab observed: “Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of Governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. * * * In India, as in England, the Executive has to act subject to the control of the Legislature; but in what way is this control exercised by the Legislature? Under Article 53(1) of our Constitution, the executive power of the Union is vested in the President but under Article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the Executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the Executive in the State but it is virtually the Council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of Parliamentary Executive as in England and the Council of Ministers consisting, as it does of the Members of the Legislature is, like the British Cabinet, a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part. The Cabinet enjoying, as it does, a majority in the Legislature concentrates in itself the virtual control of both legislative and executive functions and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.”

#138. The President in India is not at all a glorified cipher. He represents the majesty of the State, is at the apex, though only symbolically, and has rapport with the people and parties, being above politics. His vigilant presence makes for good government if only he uses, what Bagehot described as, “the right to be consulted, to warn and encourage”. Indeed, Article 78 wisely used, keeps the President in close touch with the Prime Minister on matters of national HC-KAR - 26 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 importance and policy significance, and there is no doubt that the imprint of his personality may chasten and correct the political Government, although the actual exercise of the functions entrusted to him by law is in effect and in law carried on by his duly appointed mentors i.e. the Prime Minister and his colleagues. In short, the President, like the King, has not merely been constitutionally romanticised but actually vested with a pervasive and persuasive role. Political theorists are quite conversant with the dynamic role of the Crown which keeps away from politics and power and yet influences both. While he plays such a role, he is not a rival centre of power in any sense and must abide by and act on the advice tendered by his Ministers except in a narrow territory which is sometimes slippery. in a these provisions, exercise

#154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various articles shall, by virtue of formal constitutional powers only upon and in accordance with the few well-known advice of their Ministers save exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith's statement [ Constitutional and Administrative Law, by S.A. De Smith, Peguin Books on Foundations of Law] regarding royal assent holds good for the President and Governor in India: “Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely HC-KAR - 27 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the Government itself were to advise such a course, a highly improbable contingency, or possibly if it was notorious that a Bill had been passed to mandatory procedural requirements; but since the Government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent.” in disregard

3.32. By relying on Samsher Singh, learned Senior Counsel submitted that the Constitution Bench the Hon’ble Supreme Court authoritatively that wherever Constitution requires the satisfaction of the Hon’ble President or the Hon’ble Governor for the exercise of any power or function, including those under Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 of Constitution, such satisfaction is not personal satisfaction of the Hon’ble President or the Hon’ble Governor. According to him, the satisfaction contemplated Constitution is the constitutional satisfaction of the Hon’ble President or the Hon’ble Governor acting within framework parliamentary system of government, namely, on the aid and advice of the Council of HC-KAR - 28 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 Ministers. He therefore submitted that the Hon’ble President or the Hon’ble Governor cannot ordinarily exercise such executive powers independently of, or contrary to, the aid and advice of the Council of Ministers.

3.33. The Constitution Bench has also held that, even where the Hon’ble Governor is vested with constitutional powers, such powers are ordinarily exercised in harmony with the aid and advice of the Council of Ministers. The case before the Constitution Bench concerned the appointment and removal of members of the Subordinate Judicial Service, which was held to be an executive function required to be exercised by the Hon’ble Governor on the aid and advice of the Council of Ministers. According to him, the same constitutional principle equally governs the exercise of power under Article 317(2) of the Constitution.

3.34. The Constitution Bench has unequivocally held that appointments and removals are made by the Hon’ble President and the Hon’ble Governor, only in their capacity as constitutional heads of the Executive and not in their individual or HC-KAR - 29 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 personal capacities. Such powers, according to him, are exercised on the aid and advice of the respective Council of Ministers.

3.35. Insofar as the Hon’ble President is concerned, Article 53(1) vests the executive power of the Union in the Hon’ble President, while Article 74 mandates that such power is to be exercised on the aid and advice of the Council of Ministers headed by the Hon’ble Prime Minister. The reference to Article 75 in Samsher Singh is in the context of the constitution and collective responsibility of the Council of Ministers.

3.36. Although the Hon’ble President is the formal or constitutional head of the Executive, the real executive authority is exercised by the Council of Ministers headed by the Hon’ble Prime Minister. According to him, constitutional scheme applies to the States, the Hon’ble Governor constitutional head of the Executive, while the real executive power vests in the Council of Ministers headed by the Hon’ble Chief Minister.

3.37. On the date when the impugned order came to be passed under Article 317(2), there was HC-KAR - 30 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 neither any aid and advice of the Council of Ministers nor any recommendation of the Hon’ble Chief Minister or the Cabinet to the Hon’ble Governor either recommending that a reference be made to the Hon’ble President or recommending the suspension of the petitioner from the office of Chairman of the Karnataka Public Service Commission. According to him, in the absence of such constitutionally mandated aid and advice, the Hon’ble Governor lacked the authority to issue the impugned order.

3.38. In the aforesaid background, learned Senior Counsel submitted that, as on the date of the impugned order, there existed neither any aid and advice of the Council of Ministers nor any recommendation of the Hon’ble Chief Minister or the Cabinet advising the Hon’ble Governor either to recommend a reference under Article 317(1) or to suspend the petitioner under Article 317(2). Consequently, according to him, the Hon’ble Governor could not have validly exercised the power under Article 317(2), rendering the impugned order constitutionally unsustainable. HC-KAR - 31 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.39. He relies upon the decision in Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly5, more particularly paras 153, 154, 155, 166, 176, 177, 183 and 387 thereof, which are reproduced hereunder for easy reference: “153. Though the debate could be endless, yet we would consider it apposite to advert to the decisions rendered by this Court in Sardari Lal case [Sardari Lal v. Union of India, (1971) 1 SCC 411] and Samsher Singh case [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550] . Insofar as Sardari Lal case [Sardari Lal v. Union of India, (1971) 1 SCC 411] is concerned, this Court had held therein that the President or the Governor, as the case may be, would pass an order only on his personal satisfaction. In the above case, this Court while examining the case of an employee under Article 311(2) [more particularly, under proviso (c) thereof], recorded its conclusions, in the manner expressed above. The same issue was placed before a seven-Judge Bench constituted to re-examine the position adopted in Sardari Lal case [Sardari Lal v. Union of India, (1971) 1 SCC 411] . The position came to be reversed. This Court in Samsher Singh case [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550] declared that wherever the Constitution required the satisfaction of the President or the Governor, for the exercise of any power or function, as for example under Articles 123, 213, 311(2), 317, 352(1), 356 and 360, the satisfaction required by the Constitution was not the personal satisfaction of the President or the Governor “… but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government”. It is, therefore, clear that even though the Governor may be authorised to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in his own discretion. 5 (2016) 8 SCC 1 HC-KAR - 32 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 the contention advanced on behalf of

#154. We are, therefore, of the considered view that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the constitutional provision concerned, could not be construed otherwise. We, therefore, hereby reject respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers. We accordingly, also turn down the contention, that whenever the Governor in the discharge of his functions, takes a decision in his own discretion, the same would be final and binding, and beyond the purview of judicial review. We are of the view that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e. where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms.

#155. We may, therefore, summarise our conclusions as under:

155.1. Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1).

155.2. Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion.

155.3. Thirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the provision concerned, and the same cannot be construed otherwise.

155.4. Fourthly, in situations where this Court has declared that the Governor should exercise the particular function at his own and without any aid or advice because of the impermissibility of the other alternative, by reason of conflict of interest. HC-KAR - 33 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

155.5. Fifthly, the submission advanced on behalf of the respondents, that the exercise of discretion under Article 163(2) is final and beyond the scope of judicial review cannot be accepted. Firstly, because we have rejected the submission advanced by the respondents, that the scope and extent of discretion vested with the Governor has to be ascertained from Article 163(2), on the basis whereof the submission was canvassed. And secondly, any discretion exercised beyond the Governor's jurisdictional authority, would certainly be subject to judicial review.

155.6. Sixthly, in view of the conclusion drawn at fifthly above [para 155.5], the judgments rendered in Mahabir Prasad Sharma case [Mahabir Prasad Sharma v. Prafulla Chandra Ghose, (1968) 72 CWN 328 : 1968 SCC OnLine Cal 3] , and Pratapsingh Raojirao Rane case [Pratapsingh Raojirao Rane v. Governor of Goa, AIR 1999 Bom 53 : 1998 SCC OnLine Bom 351] , by the High Courts of Calcutta and Bombay, respectively, do not lay down the correct legal position. The constitutional position declared therein, with reference to Article 163(2), is accordingly hereby set aside.

#166. In view of the consideration recorded hereinabove, we are of the view that in ordinary circumstances during the period when the Chief Minister and his Council of Ministers enjoy the confidence of the majority of the House, the power vested with the Governor under Article 174, to summon, prorogue and dissolve the House(s) must be exercised in consonance with the aid and advice of the Chief Minister and his Council of Ministers. In the above situation, he is precluded to take an individual call on the issue at his own will, or in his own discretion. In a situation where the Governor has reasons to believe that the Chief Minister and his Council of Ministers have lost the confidence of the House, it is open to the Governor, to require the Chief Minister and his Council of Ministers to prove their majority in the House, by a floor test. Only in a situation, where the Government in power on the holding of such floor test is seen to have lost the confidence of the majority, it would be open to the Governor to exercise the powers vested with him under Article 174 at his own, and without any aid and advice.

#176. In view of the above, we have no hesitation in concluding, that the messages addressed by the Governor to the Assembly, must abide by the mandate contained in Article 163(1), namely, that the same can only be addressed to the State Legislature, on the aid and advice of HC-KAR - 34 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 the Council of Ministers with the Chief Minister as the head. The message of the Governor dated 9-12-2015, was therefore beyond the constitutional authority vested with the Governor.

#177. For all the reasons recorded hereinabove, we are of the considered view that the impugned message of the Governor dated 9-12-2015 is liable to be set aside. We order accordingly. IV. Article 179 of the Constitution

#178. “179. Vacation and resignation of, and removal from, the Offices of the Speaker and Deputy Speaker.—A member holding Office as the Speaker or Deputy Speaker of an Assembly— (a) shall vacate his Office if he ceases to be a Member of the Assembly; (b) may at any time by writing under his hand addressed, if such Member is the Speaker, to the Deputy Speaker, and if such Member is the Deputy Speaker, to the Speaker, resign his office; and (c) may be removed from his Office by a resolution of the Assembly passed by a majority of all the then Members of the Assembly: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.”

#183. Despite the above, the facts and circumstances of the present case reveal that the Governor in his alleged bona fide determination issued the impugned message dated 9- the State 12-2015, statedly Legislature, to carry out its functions in consonance with the provisions of the Constitution, and the Rules framed under Articles 166 and 208. The question which arises for adjudication is not, that of the Governor's bona fides. The to advise and guide HC-KAR - 35 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 question is of the jurisdictional authority of the Governor, in the above matter. The Governor has no direct or indirect constitutionally assigned role, in the matter of removal of the Speaker (or the Deputy Speaker). The Governor is not the conscience keeper of the Legislative Assembly, in the matter of removal of the Speaker. He does not participate in any executive or legislative responsibility, as a marshal. He has no such role assigned to him, whereby he can assume the position of advising and guiding the Legislative Assembly, on the question of removal of the Speaker (or Deputy Speaker). Or to require the Legislative Assembly to follow a particular course. The Governor can only perform such functions, in his own discretion, as are specifically assigned to him “by or under this Constitution”, within the framework of Article 163(1), and nothing more. In our final analysis, we are satisfied in concluding that the interjects at the hands of the Governor, in the functioning of the State Legislature, not expressly assigned to him, however fide, would be extraneous and without any constitutional sanction. A challenge to an action beyond the authority of the Governor, would fall within the scope of the judicial review, and would be liable to be set aside.

#387. That the functions of the Governor are limited to matters of executive governance or executive issues and the Council of Ministers is made explicit through Article 166 of the Constitution which provides that all executive action of the Government shall be expressed to be taken in the name of the Governor, [ Article 166(1) of the Constitution] orders and instruments shall be executed in the name of the Governor [ Article 166(2) of the Constitution] and the Governor shall make rules for the more convenient transaction of business of the Government and allocation of business among the Ministers “insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion”. This clearly has reference to Article 163 of the Constitution and must be understood as meaning that framing the rules under Article 166(3) of the Constitution is not the discretion of the Governor but an executive exercise undertaken by the Council of Ministers. Article 167 of the Constitution relates to the duty of the Chief Minister of a State to communicate the decisions of the Council of Ministers to the Governor and furnish information to the Governor. Chapter II of Part VI of the Constitution is, therefore, quite compact and delineates the relations between the Executive and governance of the State.” HC-KAR - 36 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.40. By referring to Nabam Rebia, learned Senior Counsel submitted that the Hon'ble Supreme Court, after referring to the Constitution Bench decision in Samsher Singh, reiterated that wherever the Constitution requires satisfaction of the Hon'ble President or the Hon'ble Governor for the exercise of any power or function, including under Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 of the Constitution, such satisfaction is not the personal satisfaction of the Hon'ble President or the Hon'ble Governor. According to him, the satisfaction contemplated is the constitutional satisfaction of the Hon'ble President or the Hon'ble Governor acting within the framework of the parliamentary system of Government, namely, on the aid and advice of the Council of Ministers.

3.41. The Hon'ble Supreme Court categorically rejected the contention the Hon'ble Governor is at liberty to determine, at his own discretion, the circumstances in which he may act without the aid and advice of the Hon'ble Chief Minister and the Council of Ministers. The Hon'ble Supreme Court held HC-KAR - 37 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 discretionary powers of the Hon'ble Governor are confined only to those situations where the Constitution expressly so provides or where such discretion necessarily flows from the constitutional scheme.

3.42. Any action taken by the Hon'ble Governor beyond the limits of the constitutional authority vested in him is amenable to judicial review. According to him, since the impugned order has passed without satisfying constitutional requirements governing exercise of power under Article 317(2), the same falls within the scope of judicial review and is liable to be set aside.

3.43. The Hon'ble Governor could not have, on his own and without the constitutionally mandated aid and advice of the Council of Ministers, suspended the petitioner from the office of Chairman of the Karnataka Public Service Commission. 3) Whether ex-post approval/ratification by the Council of Ministers of State can be treated as OR considered as aid and advice of Council of Ministers of State to His Excellency as HC-KAR - 38 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 mandated under Article 163 of Constitution of India?

3.44. In support of the third question formulated by him, learned Senior Counsel submitted that a plain reading of Article 163 of the Constitution makes it abundantly clear that the aid and advice of the Council of Ministers is a constitutional precondition for the exercise of executive powers by the Hon'ble Governor, except in matters where the Constitution expressly confers discretion upon the Hon'ble Governor. According to him, Article 163 does not contemplate or permit an ex post facto approval or ratification of a decision already taken by the Hon'ble Governor. In the present case, admittedly, there was no aid and advice of the Council of Ministers before the impugned order came to be passed.

3.45. It was only as an afterthought that the Chief Secretary addressed a communication dated

16.07.2026. Thereafter, the matter was placed before the Cabinet on 18.07.2026, when the decision already taken by the Hon'ble Governor was purportedly approved or ratified. According to him, such subsequent approval cannot cure HC-KAR - 39 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 the constitutional infirmity attached to the exercise of power at its inception.

3.46. It is a settled principle of law that where a statute or the Constitution prescribes that a particular act must be performed in a particular manner, it must be performed in that manner alone or not at all. According to him, Article 163 mandates that the Hon'ble Governor shall act on the aid and advice of the Council of Ministers while exercising executive powers of the nature involved in the present case. Consequently, if the impugned order was passed by the Hon'ble Governor without such constitutionally mandated aid and advice, the same is rendered legally unsustainable and is liable to be set aside.

3.47. He relies on Sunny Abraham v. Union of India,6 more particularly paras 14, 15 and 17 thereof, which are reproduced hereunder for easy reference. “14. We do not think that the absence of the expression “prior approval” in the aforesaid Rule would have any impact so far as the present case is concerned as the same Rule has been construed by this Court in B.V. Gopinath [Union of India v. B.V. Gopinath, (2014) 1 SCC 6 (2021) 20 SCC 12 HC-KAR - 40 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 351 : (2014) 1 SCC (L&S) 161] and it has been held that charge-sheet/charge memorandum not having approval of the disciplinary authority would be non est in the eye of the law. Same interpretation has been given to a similar Rule, All India Services (Discipline and Appeal) Rules, 1969 by another Coordinate Bench of this Court in State of T.N. v. Promod Kumar [State of T.N. v. Promod Kumar, (2018) 17 SCC 677 : (2019) 2 SCC (L&S) 127] (authored by one of us, L. Nageswara Rao, J.). Now the question arises as to whether concluded proceeding (as in B.V. Gopinath [Union of India v. B.V. Gopinath, (2014) 1 SCC 351 : (2014) 1 SCC (L&S) 161] ) and pending proceeding against the appellant is capable of giving different interpretations to the said Rule. The High Court's reasoning, referring to the notes on which approval for initiation of proceeding was granted, is that the disciplinary authority had taken into consideration the specific charges. The ratio of the judgments in Ashok Kumar Das [Ashok Kumar Das v. University of Burdwan, (2010) 3 SCC 616 : (2010) 1 SCC (L&S) 886] and Bajaj Hindustan [Bajaj Hindustan Ltd. v. State of U.P., (2016) 12 SCC 613] , in our opinion, do not apply in the facts of the present case. We hold so because these authorities primarily deal with the question as to whether the legal requirement of granting approval could extend to ex post facto approval, particularly in a case where the statutory instrument does not specify taking of prior or previous approval. It is a fact that in the Rules with which we are concerned, there is no stipulation of taking “prior” approval. But since this very Rule has been construed by a Coordinate Bench to the effect that the approval of the disciplinary authority should be there before issuing the charge memorandum, the principles of law enunciated in the aforesaid two cases, that is, Ashok Kumar Das [Ashok Kumar Das v. University of Burdwan, (2010) 3 SCC 616 : (2010) 1 SCC (L&S) 886] and Bajaj Hindustan [Bajaj Hindustan Ltd. v. State of U.P., (2016) 12 SCC 613] would not aid the respondents. The distinction between the prior approval and approval simpliciter does not have much impact so far as the status of the subject charge memorandum is concerned.

#15. The next question we shall address is as to whether there would be any difference in the position of law in this case vis-à-vis B.V. Gopinath [Union of India v. B.V. Gopinath, (2014) 1 SCC 351 : (2014) 1 SCC (L&S) 161] . In the latter authority, the charge memorandum without approval of the disciplinary authority was held to be non est in a concluded proceeding. The High Court HC-KAR - 41 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the disciplinary authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of disciplinary authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this judgment. Sub- clauses (2) and (3) of Rule 14 contemplates independent approval of the disciplinary authority at both stages, for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub-clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non- existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the disciplinary authority. If there is any the process of application of mind default independently at issue of charge memorandum by the disciplinary authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in B.V. Gopinath [Union of India v. B.V. Gopinath, (2014) 1 SCC 351 : (2014) 1 SCC (L&S) 161] , as would be evident from para 8 of the Report which we reproduce below : (SCC p. 358) time of “8. Ms Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for HC-KAR - 42 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 initiate initiation of seeking approval the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT [B.V. Gopinath v. Union of India, 2009 SCC OnLine CAT 1108] as well as the High Court [Union of India v. B.V. Gopinath, 2009 SCC OnLine Del 2183] had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy.”

#17. We are conscious of the fact that the allegations against the appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges under Rule 14 of the CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the department's power to pursue the matter has been reserved and not foreclosed.”

3.48. By relying on Sunny Abraham, learned Senior Counsel submitted that although the said judgment arose in the context of disciplinary proceedings relating to the issuance of a charge memorandum, the principle laid down therein is of general application. According to him, the Hon'ble Supreme Court held that where the statutory scheme requires approval before the exercise of a particular power, such approval must necessarily precede the exercise of that HC-KAR - 43 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 power and cannot be accorded subsequently by way of ex post facto approval or ratification. He submitted that a charge memorandum issued without the approval of the competent disciplinary authority was held to be non est in the eye of law and incapable of being validated retrospectively by a subsequent approval.

3.49. The Hon'ble Supreme Court explained that the expression “non est” denotes an instrument which is treated in law as non-existent on account of a fundamental defect in its creation and not merely because of a curable procedural irregularity. Drawing an analogy to the facts of the present case, he submitted that the impugned suffers similar foundational jurisdictional defects.

3.50. Firstly, according to him, the recommendation made by the Hon'ble Governor to the Hon'ble President initiating proceedings under Article 317(1) was made without constitutionally mandated aid and advice of the Council of Ministers.

3.51. Secondly, even before the Hon'ble President could make a reference to the Hon'ble Supreme HC-KAR - 44 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 Court under Article 317(1), the Hon'ble Governor proceeded to suspend the petitioner in purported exercise of the power under Article 317(2).

3.52. According to learned Senior Counsel, these defects strike at the very root of the exercise of power and render both the recommendation and the impugned order of suspension non est in the eye of law. He submitted that such foundational defects cannot be cured or validated by any subsequent ex post facto approval or ratification accorded by the Council of Ministers.

3.53. He relies upon the decision in Shri Khereshwar Mahadev VA Dauji Maharaj Samiti v. State of U.P.7, more particularly para 15 thereof, which is reproduced hereunder for easy reference. “15. Apart from that it is a settled law that when a law requires a particular thing to be done in a particular manner, it has to be done in that manner alone or not at all. When a legal proceeding to be filed by the Gram Sabha is to be filed only on the resolution of the Gram Sabha, instance of Respondent No. 5/Manju Devi, without there being a resolution of the Gram Sabha was not tenable at the the petition at 7 2025 SCC OnLine SC 774 HC-KAR - 45 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 instance of the Gram Sabha. If the High Court wanted to treat the same as a public interest litigation at the instance of Respondent No. 5/Manju Devi in her individual capacity then the High Court ought to have taken into consideration as to whether the public interest litigation should have been entertained in a private lis or not.”

3.54. By relying on Shri Khereshwar Mahadev, Learned Senior Counsel reiterated the well- settled principle that where a statute or the Constitution prescribes that a particular act is to be performed in a particular manner, it must be performed in that manner alone or not at all. According to him, in the present case, the Constitution mandates the Hon'ble Governor exercise the power under Article 317(2) only upon the aid and advice of the Council of Ministers and in accordance with the constitutional procedure. Since, according to him, the impugned order was passed without complying with constitutional requirement, the exercise of power is vitiated and the impugned order is liable to be set aside. HC-KAR - 46 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.55. He relies on Padma Sundara Rao v. State of T.N.8, more particularly para 9 thereof, which is reproduced hereunder for easy reference: “9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.”

3.56. By relying on Padma Sundara Rao, learned Senior Counsel submitted that it is a well- settled principle that a judicial precedent cannot be applied divorced from the facts in which it was rendered. According to him, before placing reliance on any precedent, the Court is required to examine whether the factual matrix of the case under consideration is comparable to that of the precedent relied upon. He therefore submitted that the decisions relied upon by the respondents arise in entirely different factual and constitutional contexts 8 (2002) 3 SCC 533 HC-KAR - 47 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 and, consequently, do not govern the issues arising for consideration in the present case.

3.57. He relies on Babu Verghese v. Bar Council of Kerala9, more particularly para 31 and 32 thereof, which are reproduced hereunder for easy reference. “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426 : 45 LJCh 373] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936 PC 253] who stated as under: “[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.”

#32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322 : 1954 SCR 1098] and again in Deep Chand v. State of Rajasthan [AIR 1961 SC 1527 : (1962) 1 SCR 662] . These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57] and the rule laid down in Nazir Ahmad case [(1936) 63 IA 372 : AIR 1936 PC 253] was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.”

3.58. By relying on Babu Verghese, learned Senior Counsel reiterated that it is a settled principle of law that where a statute or the Constitution prescribes the manner in which a particular power is to be exercised or a particular act is to 9 (1999) 3 SCC 422 HC-KAR - 48 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 be performed, it must be exercised or performed in that manner alone and in no other. According to him, since the constitutional requirements governing the exercise of power under Articles 163 and 317 have not been complied with the present case, impugned exercise of power by the Hon'ble Governor is contrary to the constitutional mandate and is therefore liable to be declared invalid. 4) Whether ex-post facto approval or ratification of the impugned order by the cabinet at a later date amounts to compliance with Article 163 of constitution of India?”

3.59. In support of the fourth point formulated by him, learned Senior Counsel submitted that the present case concerns the holder of a constitutional office, namely the Chairman of the Karnataka Public Service Commission, and involves the interpretation and application of Article 317 of the Constitution. According to him, the matter directly affects the petitioner's constitutional rights flowing from Articles 316 and 317 of the Constitution and also concerns the constitutional obligations cast upon the HC-KAR - 49 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 Council of Ministers and the Hon'ble Governor in the exercise of powers under Article 317. He submitted that the case therefore involves the observance of constitutional procedure and the constitutional safeguards expressly engrafted under Article 317 of the Constitution.

3.60. Since the impugned order has the effect of depriving the petitioner of the rights and privileges attached to a constitutional office, it was incumbent upon the Hon'ble Governor to ensure strict compliance with constitutional requirements governing exercise of such power. According to him, any departure from the prescribed constitutional procedure would vitiate the exercise of power.

3.61. The very fact that the Council of Ministers subsequently accorded ex post facto approval ratification impugned order unequivocally demonstrates that, on the date the order of suspension was passed, there was no aid and advice of the Council of Ministers available to the Hon'ble Governor. According to him, the constitutional requirement of aid and advice under Article 163 is a condition HC-KAR - 50 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 precedent to the exercise of the power under Article 317(2) and cannot be supplied retrospectively by way of ex post facto approval or ratification. Consequently, he submitted that the impugned order stands vitiated for non- compliance with the constitutional mandate.

3.62. There cannot approval/ratifications or post facto aid and advice by the Council of Ministers to the Hon’ble Governor.

3.63. He relies on Harbinder Singh Sekhon & Ors. v. State of Punjab and Ors.10, more particularly paras 10, 34, 40, 43, 44, 45, 47 thereof, which are reproduced hereunder for easy reference: “10. We have heard the learned counsel for the parties, and we have gone through the comprehensive material on record. In our considered opinion, the following questions arise for determination in the present appeals.

10.1. (I) Whether the CLU dated 13-12-2021 could have been granted for the proposed unit when the land use under the Master Plan for Sangrur treated the site as falling in a rural agricultural zone.

10.2. (II) Whether the “approval” recorded in the 43rd meeting of the Punjab Regional and Town Planning and Development Board dated 5-1-2022 could lawfully cure the admitted defect in the CLU and whether such approval is 10 (2026) 5 SCC 107 HC-KAR - 51 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 capable in law of operating as an alteration or amendment of the Master Plan under the PRTPD Act.

10.3. (III) Whether the siting norms and environmental safeguards, including the PPCB Notification dated 2-9-1998 and the relevant regulatory framework, were complied with in relation to the proximity of habitations and the school, and whether the process adopted by the authorities satisfies the requirements of the prevailing legal norms. the Master Plan for alteration, amendment, or

#34. It must be emphasized that when a statute prescribes a particular manner for doing an act, it must be done in that manner and in no other manner. In the present case, the governing statutory instrument for land use, a departure which effectively changes land use permissibility must satisfy the statutory procedure revision contemplated by the PRTPD Act. It cannot rest on internal approvals or administrative convenience. This is also why the High Court's recording that, as on 13-12-2021, the CLU did not have statutory backing, assumes decisive significance. If on the date of its issuance the CLU lacked statutory support to permit the proposed use in the relevant zone, the defect is not a mere irregularity. It goes to the root of jurisdiction. A permission must be lawful when it is granted. It cannot be rendered lawful by a later event unless the PRTPD Act itself so provides.

#40. We now turn to the reliance placed on the “approval” recorded in the 43rd meeting of the Punjab Regional and Town Planning and Development Board dated 5-1-2022. The record indicates that the item placed before the Planning Board itself described the proposal as requiring ex post facto approval, and the minutes record that such ex post facto approval was granted. The crucial question, however, is not the label applied by the administration, nor is described. The determinative question is whether the decision recorded on 5-1-2022 is capable, in law, of operating as an alteration or amendment of the Master Plan so as to retrospectively validate and cure the admitted defect in the CLU dated 13- 12-2021. in which the approval

#43. This conclusion becomes inescapable where, as in the present case, the asserted “approval” has the effect of permitting an otherwise impermissible industrial activity in a rural agricultural zone, with direct consequences for functioning educational residents, habitations, and a institution. Zoning prescriptions under a Master Plan are HC-KAR - 52 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 not mere internal guidelines. They represent a considered legislative balance between competing land uses and are intended to protect public interest. Any departure which dilutes that balance must satisfy the full statutory process prescribed itself. Executive convenience or post facto endorsement cannot be a substitute for statutory compliance. for altering the Plan

#44. Equally, the statutory scheme does not contemplate the curing of a jurisdictional defect by retrospective administrative approval. A CLU which is unlawful on the date of its grant for want of statutory authority does not become lawful merely because a later decision purports to validate it, unless the statute expressly confers such a power of retrospective validation. The PRTPD Act contains no such provision. The legality of the CLU must therefore be tested with reference to the law and the operative planning framework as they stood on the date the CLU was granted.

#45. Therefore, we hold that where the PRTPD Act occupies the field and prescribes the manner in which an operative planning instrument is to be revised or altered, that manner cannot be substituted by executive decision- making or by treating minutes of a meeting as the equivalent of an amendment brought into operation under the Act.

#47. It was lastly urged that substantial financial investment has been made pursuant to the CLU and that interference at this stage would cause prejudice. We are unable to accept this submission. Expenditure incurred or steps taken in furtherance of a permission that is unlawful or without statutory authority cannot confer legitimacy upon the underlying action. No amount of financial investment can justify the continuation of an illegal project that operates in derogation of the statutory planning framework and directly impacts the rights of civilians living in the region.”

3.64. By relying on Harbinder Singh Sekhon, learned Senior Counsel submitted that the Hon'ble Supreme Court has reiterated the well- settled principle that where a statute prescribes a particular manner in which an act is required HC-KAR - 53 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 to be performed, it must be performed in that manner alone and in no other manner. He submitted that the Hon'ble Supreme Court further held that where the statutory scheme does not contemplate retrospective validation of an action which was unlawful at its inception, a subsequent administrative approval or ex post facto ratification cannot cure the foundational defect or confer legality upon such action. Drawing an analogy to the facts of the present case, submitted constitutional scheme embodied in Articles 163 and 317 does not contemplate the validation of an otherwise unconstitutional exercise of power by means of a subsequent approval or ratification by the Council of Ministers. According to him, since the impugned order was allegedly passed without complying with the mandatory constitutional requirements governing the exercise of power under Article 317(2), the same cannot be retrospectively validated by the subsequent decision of the Council of Ministers and is therefore liable to be declared unconstitutional. HC-KAR - 54 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

3.65. He relies on Vijay Kumar v. Central Bank of India and Ors.11, more particularly paras 9, 17, 19, 20, 21 and 24 thereof, which are reproduced hereunder for easy reference: “9. Mr. Neeraj Shekhar contended pension is not a bounty and appellant's right to pension is constitutionally protected under Article 300A. Such right could not be taken away save and except by a clear prescription of law. High Court erred in holding that a compulsorily retired employee is not entitled to pension at all unless an order under regulation 33(1) of the Pension Regulations is passed. Regulation 33(1) and (2) must be harmoniously construed to mean in cases where penalty of compulsory retirement is imposed, such employee has a right to receive pension not less than two- third of the full pension and such deduction can be made only after prior consultation with the Board of Directors.

#17. There is no cavil that pension is not a discretion of the employer but a valuable right to property and can be denied only through authority of law. When an authority is vested with the discretion to grant pension less than full pension admissible under the Pension Regulations, all procedural safeguards in favour of the employee including prior consultation must be strictly followed.

#19. In fine, we hold clause (1) and clause (2) of regulation 33 must be read conjointly and in all cases when the full pension admissible to a compulsorily retired employee under the regulations is reduced, a prior consultation with the Board is necessary.

#20. It would be argued the Field General Manager's order to reduce pension may be placed before the Board for ex-post facto approval. Whether ‘prior consultation’ is mandatory or a post facto approval would suffice would depend on various factors including nature of consultation, status of the authority consulted, and the rights affected by the decision.

#21. A plain reading of regulation 33 would show award of pension less than full pension is to be done with prior consultation of the Board of Directors. Such prior consultation with the highest authority of the Bank i.e., 11 2025 SCC Online SC 1442 HC-KAR - 55 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 Board of Directors must be understood as a valuable mandatory safeguard before an employee's constitutional right to pension is curtailed. In these circumstances, a post facto approval cannot be a substitute of prior consultation with the Board before the decision is made. Reference may be made Indian Administrative Service (S.C.S.) Association, U.P. v. Union of India6 wherein the parameters to decide whether prior consultation is mandatory or directory have been succinctly elucidated:— “26. The result of the above discussion leads to the following conclusions: (1) Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute the foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory. (2) When the offending action affects fundamental rights or fair procedure, to effectuate built-in consultation is mandatory and non-consultation renders the action ultra vires or invalid or void. insulation, as (3) When the opinion or advice binds the proposer, consultation is mandatory and its infraction renders the action or order illegal. (4) When the opinion or advice or view does not bind the person or authority, any action or decision taken contrary to the advice is not illegal, nor becomes void. (5) When the object of the consultation is only to apprise of the proposed action and when the opinion or advice is not binding on the authorities or person and is not bound to be accepted, the prior consultation is only directory. The authority proposing to take action should make known the general scheme or outlines of the actions proposed to be taken be put to notice of the authority or the persons to be consulted; have the views or objections, take them into consideration, and thereafter, the authority or person would be entitled or has/have authority to pass appropriate orders or take decision thereon. In such circumstances it amounts to an action “after consultation”. HC-KAR - 56 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 (6) No hard and fast rule could be laid, no useful purpose would be served by formulating words or definitions nor would it be appropriate to lay down the manner in which consultation must take place. It is for the Court to determine in each case in the light of its facts and circumstances whether the action is “after consultation”; “was in fact consulted” or was it a “sufficient consultation”. (7) Where any action is legislative in character, the consultation envisages like one under Section 3(1) of the Act, that the Central Government is to intimate to the State Governments concerned of the proposed action in general outlines and on receiving the objections or suggestions, the Central Government or Legislature is free to evolve its policy decision, make appropriate legislation with necessary additions or modification or omit the proposed one in draft bill or rules. The revised draft bill or rules, amendments or additions in the altered or modified form need not again be communicated to all the concerned State Governments nor have prior fresh consultation. Rules or Regulations being legislative in character, would tacitly receive the approval of the State Governments through the people's representatives when laid on the floor of each House of Parliament. The Act or the Rule made at the final shape is not rendered void or ultra vires or invalid for non-consultation.”

#24. Accordingly, we allow the appeal and set aside the order of the High Court and order of the Field General Manager dated 07.08.2015 reducing pension without prior consultation of the Board of Directors. It shall be open to the Bank to take appropriate decision regarding reduction of pension after giving an opportunity of hearing to the appellant and with prior consultation of the Board within two months from the date of this judgment failing which the appellant shall be entitled to full pension from the date of superannuation.”

3.66. By relying on Vijay Kumar, learned Senior Counsel submitted that the Hon'ble Supreme Court has held that where the governing statutory framework mandates consultation before the exercise of a power affecting valuable rights, such prior consultation HC-KAR - 57 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 constitutes a mandatory safeguard and cannot be substituted by an ex post facto approval. According to him, the Hon'ble Supreme Court further held that where the opinion or advice of the authority to be consulted is binding upon the decision-maker, non-compliance with the requirement of prior consultation renders the consequential action illegal and void. Drawing an analogy to the present case, he submitted that the aid and advice of the Council of Ministers under Article 163 of the Constitution is binding upon the Hon'ble Governor in the exercise of executive powers of the nature involved herein. Consequently, according to him, if the Hon'ble Governor exercised the power under Article 317(2) without obtaining the aid and advice of the Council of Ministers, the impugned order would be illegal, void and incapable of being validated by a subsequent approval or ratification.

3.67. The Hon'ble Supreme Court has explained that consultation is not an empty formality but a constitutional process requiring a meeting of minds between the parties involved on the material facts and issues so as to arrive at an HC-KAR - 58 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 informed and considered decision. Applying the said principle to the present case, he submitted that there ought to have been a meeting of minds between the Hon'ble Governor and the Council Ministers before recommendation was made to the Hon'ble President under Article 317(1) or before any decision was taken to suspend the petitioner under Article 317(2). According to him, in the absence of such prior deliberation and aid and advice, the constitutional requirement stood unfulfilled and could not thereafter be supplied or cured by any ex post facto approval or ratification of the Council of Ministers.

3.68. He relies on the decision in Marathwada University v. Seshrao Balwant Rao Chavan12, more particularly paras 27, 28 and 29 thereof, which are reproduced hereunder for easy reference; “27. These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. 12 (1989) 3 SCC 132 HC-KAR - 59 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

#28. The counsel for the appellant, however, invited our attention to the case of Parmeshwari Prasad Gupta v. Union of India [(1973) 2 SCC 543 : (1974) 1 SCR 304] . It was a case of termination of services of the Secretary of a Company. The Board of Directors decided to terminate the services of the Secretary. The Chairman of the Board of Directors in fact terminated his services. Subsequently, in the meeting of the Board of Directors the action taken by the Chairman was confirmed. In the suit instituted by the Secretary challenging the termination of his services, the court upheld on the principle that the action of the Chairman even though it was invalid initially, could be validated by ratification in a regularly convened meeting of the Board of Directors. Mathew, J. while considering this aspect of the matter, observed: (SCC pp. 546-47, para 14 : SCR pp. 307- 08) “Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on 16-12-1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on 17-12-1953. The appellant was not entitled to declaration prayed for by him and the trial court as well as the High Court was right in dismissing the claim.”

#29. These principles of ratification governing transactions of a company where the general body is the repository of all powers cannot be extended to the present case. We were also referred to the decision of the Court of Appeal in Barnard v. National Dock Labour Board [(1953) 1 All ER 1113] and in particular the observation of Denning, L.J.: (All ER 1118 and 1119) “While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication. In Local Government Board v. HC-KAR - 60 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 Arlidge [1915 AC 120 : 84 LJKB 72] the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that. They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a time. Next, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has already done. The effect of ratification is to make it equal to a prior command, but as a prior command, in the shape of delegation, would be useless, so also is a ratification.”

3.69. By referring to Seshrao Balwant Rao Chavan learned Senior Counsel submitted that the Hon'ble Supreme Court has drawn a clear distinction between the principles of ratification applicable to acts performed on behalf of a company and the exercise of powers conferred by statute. According to him, the Hon'ble Supreme Court has categorically held that the doctrine of ratification has no application where the exercise of power is governed by a statutory or constitutional provision. He submitted that a statutory authority cannot travel beyond the limits of the power conferred it, and any action taken without jurisdiction or contravention of HC-KAR - 61 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 mandatory statutory constitutional requirements is void ab initio and incapable of being validated by subsequent ratification. Drawing an analogy to the present case, learned Senior Counsel submitted that the powers exercised by the Hon'ble Governor under Article 317 of the Constitution are constitutional powers circumscribed by the constitutional limitations contained in Articles 163 and 317. Therefore, according to him, if impugned order was passed without satisfying the mandatory constitutional preconditions, the defect goes to the root of the exercise of jurisdiction and cannot be cured by any subsequent approval or ratification by the Council of Ministers.

3.70. He refers to the decision in State of Gujarat and Anr. v. Justice R.A.Mehta (Retired) & Ors13, more particularly paras 33, 34, 36, 37, 38, 41, 42, 48, 53, 54, 57 and 70 thereof, which are reproduced hereunder for easy reference: constitutionally unsustainable.

17.7. The submission that no opportunity of hearing was given before the order of suspension cannot be accepted in view of the law declared by the Hon'ble Supreme Court in Ram Kumar Kashyap (paragraph 12), which holds that an order of suspension under Article 317(2) is an interim measure and does not require a prior hearing. Likewise, this Court does not propose to examine the sufficiency or correctness of the material which formed the basis of HC-KAR - 281 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 recommendation. As explained in Ashok Kumar Aggarwal (paragraph 27), judicial review is concerned with the legality of the exercise of power and not with an assessment of the truth of disputed allegations at this stage. Those questions properly belong to the constitutional process contemplated by Article 317 and not to these proceedings. They are therefore left open.

17.8. The recommendation dated 09.07.2026 under Article 317(1) also suffers from the same constitutional infirmity, as it was made without the prior aid and advice of the Council of Ministers. However, this Court considers it appropriate to exercise restraint while moulding the relief. The recommendation is only one stage in a constitutional process involving the Hon'ble President and, where considered necessary, the Hon'ble Supreme Court. The constitutional functions entrusted to those authorities are not directly before this Court. Respect for the constitutional distribution of powers requires this Court to confine its relief the order which directly affects petitioner, namely the order of suspension. It is HC-KAR - 282 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 neither necessary nor appropriate for this Court to issue directions touching the constitutional functions of the Hon'ble President. The competent constitutional authorities will remain free to proceed afresh, if so advised, strictly in accordance with the Constitution.

17.9. The Court is conscious that, after the impugned action was taken, the Council of Ministers did concur with and ratify the decision. It may therefore be argued that setting aside the order serves little practical purpose or is an empty formality because the Council of Ministers may, upon fresh consideration, tender the very same advice. This possible criticism overlooks the nature of constitutional adjudication. When the Constitution prescribes the manner in which a power is to be exercised, compliance with that procedure is not an empty formality. The procedure is itself an integral part of the constitutional limitation upon the exercise of power. Courts are not concerned with whether the outcome may ultimately be the same. Their duty is to ensure that constitutional power is exercised only in the manner authorised by the Constitution. HC-KAR - 283 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

17.10. The argument that no useful purpose would be served by insisting upon fresh aid and advice cannot therefore be accepted. Constitutional safeguards are not measured by the likelihood of a different outcome. They exist to ensure that each constitutional authority performs the role assigned to it by the Constitution. The Council of Ministers must tender its advice before the Hon'ble Governor acts because that is what Article 163 requires. The Hon'ble Governor must act upon that advice because that is the constitutional scheme. This Court must enforce those requirements because that is its constitutional duty. None of these steps becomes unnecessary merely because the result may eventually be the same.

17.11. Constitutional governance rests upon fidelity to constitutional process. The Constitution distributes powers different constitutional authorities and prescribes the manner in which each is to exercise those powers. The legitimacy of governmental action depends not only upon the objective sought to be achieved but equally upon adherence to the constitutional procedure. Where HC-KAR - 284 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 Constitution requires a particular thing to be done in a particular manner, it must be done in that manner alone. Courts cannot excuse non- compliance on the ground that the omission appears technical or that the outcome might ultimately have been identical. To do so would weaken the constitutional safeguards which the framers of the constitution deliberately enacted.

17.12. This Court accordingly answers Point No. (vii) by holding that the order of suspension dated

10.07.2026 is constitutionally and legally unsustainable because it was issued without the prior aid and advice of the Council of Ministers as required by Articles 163 and 317 of the Constitution. In view of the fact that no relief has been sought in regard to such recommendation and the constitutional process in which it forms a part. The subsequent concurrence of the Hon'ble Chief Minister and the post facto ratification by the Council of Ministers do not cure the constitutional defect or validate impugned actions. The petitioner's remaining contentions relating to natural justice and the sufficiency of the HC-KAR - 285 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 material are left open, as they do not form the basis of this decision.

#18. Answer to Point No. (viii): Whether the petitioner has made out a case for interference under Article 226 of the Constitution of India?

18.1. Sri Arun Shyam, learned Senior Counsel for the petitioner, submitted impugned recommendation and the order of suspension suffer from a fundamental constitutional defect. According to him, the powers under Article 317 were exercised without complying with the mandatory requirement of Article 163 that the Hon'ble Governor must act on the aid and advice of the Council of Ministers. He submitted that when a constitutional authority acts without satisfying a mandatory constitutional requirement, the resulting action is without jurisdiction and is liable to be corrected in exercise of the writ jurisdiction under Article

#226. He emphasised that the challenge is not directed against the truth of the allegations or the desirability of the suspension, but against the constitutional validity of the exercise of power itself. HC-KAR - 286 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

18.2. Shri Udaya Holla, Shri Reuben Jacob, learned Senior Counsel, and the learned Advocate General submitted that the impugned order is only an interim order of suspension passed in aid of proceedings under Article 317. According to them, this Court should not interfere in exercise of its writ jurisdiction by examining the material on which the constitutional authorities acted or by substituting its own opinion for that of the Hon'ble Governor. They submitted that no case has been made out for interference under Article 226.

18.3. The answer to this Point assumes significance because this Court is dealing with the exercise of constitutional powers by high constitutional functionaries and the requirement of strict compliance with constitutional processes. It is for this reason that this Court has examined every submission advanced by the parties and every authority relied upon by them, so that no contention of substance can be said to have been overlooked or left unanswered. It is also for this reason that this Point has been separately framed answered, HC-KAR - 287 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 notwithstanding that some aspects overlap with the findings recorded on the earlier Points.

18.4. The scope of judicial review in the present case is narrow and clearly defined. This Court has not undertaken an examination of allegations made against the petitioner. It has not considered whether those allegations are true. It has not examined whether they justify the initiation of proceedings under Article 317 or whether suspension was desirable on the facts of the case. Those are not the questions which arise for consideration in this writ petition. They are matters which fall within the constitutional process contemplated by Article 317 and are to be considered by the concerned constitutional authorities.

18.5. The only question which this Court has examined is whether the constitutional power under Articles 163 and 317 was exercised in the manner required by the Constitution. That is a question of constitutional competence. It is concerned not with the correctness of the decision, but with the authority to make the decision. There is an important distinction HC-KAR - 288 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 between reviewing the merits administrative or constitutional decision and examining whether the authority possessed the constitutional power to make that decision in the first place. The former ordinarily falls outside the scope of judicial review. The latter is the heart of the matter.

18.6. The issue before this Court is therefore jurisdictional. Where the Constitution provides that a constitutional power may be exercised only upon fulfilment specified constitutional conditions, those conditions are not matters of procedure alone. They define the limits within which the power exists. If those conditions are absent, the question is no longer whether the authority exercised the power correctly. The question becomes whether the authority possessed constitutional competence to exercise the power at all. That is a question which the constitutional courts are not merely empowered to examine but are under a constitutional duty to decide.

18.7. The determination of that question in the present case does not depend upon disputed HC-KAR - 289 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 facts. The relevant chronology emerges from the State's own records. The dates on which the recommendation under Article 317(1) was made, the order of suspension under Article 317(2) was issued, the concurrence of the Hon'ble Chief Minister was obtained and the Council of Ministers granted its approval are all admitted. No oral evidence is required. No disputed factual issue falls for determination. The controversy turns entirely upon interpretation of Articles 163 and 317 and upon the legal consequences of admitted facts. Such questions particularly suited determination in proceedings under Article 226.

18.8. Article 226 confers wide powers upon the High Courts to ensure that every authority exercising constitutional or statutory power acts within the limits prescribed by law. One of the principal purposes of judicial review is to ensure that constitutional authorities remain within the boundaries fixed by the Constitution. Judicial review is therefore concerned as much with the existence of power as with its exercise. Where a constitutional functionary acts beyond those limits or disregards a mandatory constitutional HC-KAR - 290 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 requirement, the resulting action becomes amenable to correction under Article 226.

18.9. The respondents are right in submitting that this Court should not sit in appeal over the decision of the Hon'ble Governor. This Court has not done so. It has not substituted its opinion on the necessity of suspension. It has not examined whether the allegations disclose misconduct. It has not weighed the evidence. Nor has it expressed any opinion on whether proceedings under Article 317 ought ultimately to result in removal of the petitioner. Those matters remain entirely outside the scope of this judgment.

18.10. The interference by this Court rests upon a different and much narrower foundation. It rests upon the conclusion already recorded that the constitutional requirement of prior aid and advice of the Council of Ministers was not satisfied when the recommendation under Article 317(1) and the order under Article 317(2) were made. Once that conclusion is reached, the consequence follows as a matter of constitutional principle. An order made HC-KAR - 291 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 without complying with a mandatory constitutional requirement is not merely an erroneous order. It is an order made without constitutional authority. Such an order falls squarely within the supervisory jurisdiction of this Court under Article 226.

18.11. The petitioner occupies a constitutional office protected by Article 317. The impugned order directly deprives him of the right to discharge functions of that office pending the constitutional proceedings contemplated by Article 317. He is therefore directly affected by the impugned action and has sufficient legal standing to invoke the jurisdiction of this Court. The respondents have not pointed to any alternative remedy capable of effectively deciding the constitutional questions raised in this petition. The controversy concerns the interpretation of the Constitution itself and the legality of the exercise of constitutional power. Those are matters which appropriately fall within the jurisdiction of this Court under Article

#226. HC-KAR - 292 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

18.12. This Court has also been conscious of the limits of judicial review while moulding the relief. It has deliberately refrained from expressing any opinion upon the allegations made against the petitioner or upon the material relied upon by the respondents. It has equally refrained from expressing opinion upon whether proceedings under Article 317 should or should not continue. Those questions remain entirely open. They are matters to be considered by the concerned constitutional authorities entrusted with that responsibility under the Constitution.

18.13. The relief granted by this Court is therefore confined to correcting the constitutional defect identified in this judgment. The judgment should not be understood as preventing the competent constitutional authorities proceeding further in accordance with law. If fresh action is considered necessary, it remains the constitutional authorities proceed afresh, strictly in accordance with the requirements of Articles 163 and 317 of the Constitution. This Court expresses no opinion on the merits of any such future action. HC-KAR - 293 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026

18.14. The power of judicial review under Article 226 is intended to preserve the supremacy of the Constitution ensuring constitutional authority acts within the limits imposed upon it by the Constitution. The legitimacy of constitutional action depends not only upon the object sought to be achieved but equally upon adherence to the constitutional process prescribed for achieving it. Courts therefore do not interfere because disagree with the decision that has been taken. They interfere because the Constitution requires that public power be exercised only in the manner which it authorises. Fidelity to constitutional procedure is itself an essential aspect of the rule of law.

18.15. This Court accordingly answers Point No. (viii) by holding that the petitioner has made out a clear case for interference under Article 226 of the Constitution. The interference is confined entirely to the jurisdictional and constitutional grounds recorded in this judgment. No opinion is expressed on the truth of the allegations against the petitioner or on the merits of the proceedings contemplated under Article 317, all HC-KAR - 294 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 of which are expressly left open consideration by the competent constitutional authorities in accordance with law.

#19. Answer to Point No. (ix): What order?

19.1. For the reasons recorded above, and in terms of the Answers to the Points for Determination, this Court passes the following (i) (ii) ORDER: The writ petition is allowed in part. The impugned order of suspension dated 10.07.2026 bearing No. GS 28 ADM 2026, passed in purported exercise of power under Article 317(2) the Constitution of India and communicated by respondent No.2, is quashed. (iii) Since recommendation under Article 317(1) has not been challenged in these proceedings, no order has been passed in relation thereto keeping within the constitutional limits of this Court. (iv) As a consequence, respondents are directed to reinstate the petitioner as HC-KAR - 295 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 the Chairman of the Karnataka Public Service Commission, within 7 days of the receipt of a certified copy of this order, the petitioner on reinstatement is entitled to function and officiate as the Chairman of the Karnataka Public Service Commission, and is entitled to all consequential service and monetary benefits flowing from the quashing of the order of suspension. (v) The Petitioner is, however, restrained from taking any decision or act or causing anyone to act in any particular manner respect of the action proposed to be taken by Commission against his daughters. (vi) It is, however, made clear that this judgment decides constitutional validity of the impugned order of suspension and does not decide, one way or the other, the truth or otherwise of the allegations against the petitioner and/or his daughters. It will be open the competent constitutional authorities to proceed HC-KAR - 296 - NC: 2026:KHC:44367 WP No. 21376 of 2026 CNR: KAHC010479992026 afresh, if so advised, strictly accordance with the Constitution and the law declared in this judgment, that is, on the prior aid and advice of the Council of Ministers, that an order of suspension under Article 317(2) can be made. (vii) All pending applications, if any, stand disposed of in the above terms. This Court has been assisted by Mr Sourav, Law Clerk, in the formulation of this Judgment. SD/- (SURAJ GOVINDARAJ) JUDGE KTY,SR,LN,PRS List No.: 2 Sl No.: 3