No Discretion For Governor In Appointments In District Councils In Tribal Autonomous Areas: Meghalaya HC [Read Judgment]

"On the advice being rendered by the petitioner in his capacity as the Chief Executive Member, for appointment of one Deputy Chief Executive Member and four Executive Members of the Executive Committee of the KHADC, the Hon'ble Governor of the State of Meghalaya does not have any discretion to withhold their appointment and has no option but to notify their appointment acting on such advice," Chief Justice Mohammad Rafiq has held.

The KHADC is one of the three autonomous district councils in the state of Meghalaya, established under the Sixth Schedule to the Constitution to co-ordinate the work with various government departments in the State and also with the Govt. of India.

The provisions with regards the appointments to the Committee are envisaged under Rule 20 of the Assam [and Meghalaya] Autonomous Districts (Constitution of District Councils) Rules, 1951.

Rule 20 states that the Chief Executive Member shall be elected by the District Council on the floor of the House and the other Executive Members shall be appointed by the Governor on the advice of the Chief Executive Member.

While passing the order, Chief Justice Rafiq clarified that the power of the Governor to make appointments of other Executive Members to this Committee under Rule 20 is analogous to his 'limited' power to appoint State Ministers, under Article 164 of the Constitution. He said,

"A detailed analysis of the Rules of 1951, makes it clear that the principles of the Cabinet system of the Government are ingrained in its various provisions, especially Rule 20, according to which it is the prerogative of the duly elected Chief Executive Member of the Council to choose the Deputy Chief Executive Member and other Members of the Executive Committee of the District Council. In the event of such advice, the Governor has to appoint person/persons of his choice accordingly."

He added,

"This provision is analogous to Article 75 of the Constitution, which vests the authority in the Prime Minister to advise the President to appoint other Ministers and Article 164 of the Constitution, which similarly empowers the Chief Minister to advise the Governor to appoint the other Ministers. Both these constitutional provisions do not leave any discretion with either the President or the Governor, as the case may be, as to the choice of the persons to be appointed as Ministers."

The order has been passed in a petition preferred by the Chief Executive Member of the Committee, as the Governor had been sitting on the recommendations made by him for appointments to the position of Deputy Chief Executive Member, "for quite some time".

Granting relief to the Petitioner, the court held that Rule 20 of the 1951 Rules could not, by any stretch of interpretation, be construed to mean that the Governor has any discretion in the matter of appointments to the Committee.

He concurred with the Petitioner's submission that "the words Chief Executive Members as appearing in Rules 20 and 21 cannot be substituted to mean Council of Ministers. Therefore, the consultative process with the Council of Ministers under Article 163(1) of the Constitution is not sine qua non for appointment of Executive Members."

Reliance was placed on Ram Sing Ronghang v. Karbi Anglong Autonomous Council & Ors., (2001) 3 GLR 344, whereby while interpreting Articles 75 and 174 of the Constitution in juxtaposition with the Rules of 1951, the Gauhati High Court had held that,

while the President and the Governor may have some discretion with regard to the choice of Prime Minister and Chief Minister respectively, but the Governor has no say in the appointment of the members of the Executive Committee of the District Council under Rule 20 of the Rules of 1951 as it is based on election by majority.

Pertinently, the State tried to challenge the competency itself of the Petitioner to make appointments the Committee, by alleging that he had acquired the office of the Chief Executive Member illegally.

It was alleged that the preceding Chief Executive Member was illegally removed from the office through an illegal no-confidence motion and further that the Petitioner's election was perpetrated by mal-administering the election. Hence, the entire process, including the appointment of the Petitioner was alleged to be procedurally invalid.

Finding itself at variance with these submissions, the high court held that the Petitioner being the dominus litis in the instant proceedings, the Respondents could not be permitted to raise plea for declaration that the election of the Petitioner itself was illegal.

The court observed that there was "absolutely no material" placed on record to substantiate the allegation of maladministration. It further said,

"mere perception of the present ruling dispensation that the Members of the Council are shifting their allegiance, from one group to another, based on their political and personal gains, cannot be a reason for this Court not to entertain the present writ petition, which is founded entirely on a different cause of action."

With these observations, the high court directed the Secretary to the Governor to place the relevant file before the Governor for issuance of the formal orders.

Case Details:

Case Title: Shri Latiplang Kharkongor v. Secretariat of the Governor of Meghalaya & Ors.

Case No.: WP (C) No.541/2019

Quorum: Chief Justice Mohammad Rafiq

Appearance: Advocate K. Paul, (for Petitioner); Advocate General A. Kumar, Govt. Advocate A. Thungwa, Senior Advocate VGK Kynta and Advocate M. Kyanta (for Respondents)

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