M.L. SHRIMAL J.—Shri Arun Kumar, former Secretary of the Janta Party has filed this writ petition under Art. 226 of the Constitution of India challenging the order of the President of India and appointment of Mr. K.D. Sharma (Honble the Chief Justice of Rajasthan)to discharge the functions of the Governor of Rajas-than under the provisions of Art. 116 of the Constitution of India. He has prayed that Mr. K.D. Sharma is an usurper of the office of Governor of Rajasthan and, therefore, a writ of quo-warranto or any other direction be issued against Honble the Chief Justice Mr. Sharma to vacate the office of the Governor. The contention of the petitioner is that formerly he was a journalist. Thereafter he became a member of the Janta Party. He was elected as Secretary of the Janta Party for the year 1978 79, is interested in the social political upliftment of Rajasthan and is vitally interested in seeing that the provisions of the Constitution are implemented faithfully. The petitioner submits that Shri Raghukul Tilak was appointed as Governor of Rajasthan on 20.4.1977 by a warrant issued by the President of India. He resumed the office of the Governor on 12.5.1977. He was appointed for a period of five years from the date on which he entered upon his office. The Janta Party lost in general elections. The President of India without any authority of law asked Shri Raghukul Tilak to vacate his office, which amounts to virtual dismissal of the Governor from the high office. The order of the pre-mature termination is arbitrary, contrary to the principles of natural justice and violative of the provisions of the Constitution. There was no urgency to appoint a person merely to discharge the functions of the Governor under Article 160 of the Constitution. As regards Mr. K.D. Sharma, the petitioner argues that he has neither resigned, nor is deemed to have been removed from the office of Chief Justice, as the removal of the Judge of a High Court cannot take place otherwise than as Constitutionally provided in Article 217 sub clause (1) (b) read with sub-clause(4) of Article 124 of the Constitution i.e. by impeachment. A Judge of a High Court discharging the functions of a Governor in pursuance to Article 160 of the Constitution does not cease to hold the office of the Chief Justice. The qualifications for the appointment of a Governor are; (i) a person must be the citizen of India; (ii) he must have completed the age of 35 years; (iii) he should not be the member of either house of the Parliament or house of Legislature; and (iv) he should not hold any other office of the profit. Learned counsel urged that a Chief Justice holds an office of profit and as Chief Justice Mr. Sharma has not relinquished the office of Chief Justice, he is the holder of the office of profit and is disqualified to be the Governor of the State. In the alternative the learned counsel argues that the basic features of the Constitution protecting the judiciary from encroachment of the executive will be disturbed if the Judges of the High Court and specially the Chief Justices are allowed to hold the office of the Chief Executive of the State. The Chief Justice, while discharging duties of the Governor, is expected to exercise his wisdom in taking important executive decisions on behalf of the State. He enjoys certain powers and privileges of the office of the Governor and this is likely to influence the mind of the Chief Justice prejudicially in favour of the Government. Therefore, whenever he resumes the office of Chief Justice, he would not be able to discharge his functions independently without any fear or favour. The appointment of the Chief Justice to discharge the functions of a Governor is a Service by which an inconvenient Chief Justice of a State can be removed, if he proves himself to be inconvenient to the executive of the State or the Centre. The High Constitutional office of the Chief Justice in no way can be said to be lesser than the office of the Go

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