No Right Conferred On Proposed MLCs Until Governor's Decision Under Article 166, Council Of Ministers Can Withdraw Nominations: Bombay HC

A division bench of Chief Justice Devendra Kumar Upadhyay and Justice Amit Borkar opined that since there was no Government Order as per the requirements of Article 166 of the Constitution giving effect to the names recommended, the Council of Ministers had discretion to withdraw the recommendations.

“Since no decision by Hon'ble the Governor was taken on the earlier advice tendered by the Council of Ministers in respect of nomination of the 12 members and no Government order was issued as per the requirement of Article 166 of the Constitution of India, in our opinion, it cannot be said that any right stood conferred on those persons who were recommended for nomination as members of the Legislative Council. In this view of the matter, before the advice tendered by the Council of Ministers could take shape of a valid decision, it was open to the Council of Ministers to withdraw the recommendations.”

It is pertinent to note that on 13 August 2021, the High Court in Ratan Soli Luth vs, State of Maharashtra had disposed of a PIL against the alleged inaction of the Governor, Bhagat Singh Koshyari's in nominating MLCs, despite the 12 names submitted by the Council of Ministers on November 6, 2020. The Court observed that it is the Governor's duty to either accept or return the recommendations as made by the Council of Ministers within a 'reasonable time'.

Referring to this case, the Court in the present petition remarked that it was “disturbing” that despite the judgment, the Governor did not take any decision on the earlier recommendations made by the Council of Ministers. Nonetheless, the Court stated as no decision was taken to nominate the 12 members, no order based on any such could have been issued in terms of Article 166 of the Constitution.

It stated that the Council of Ministers had the discretion to withdraw the recommendations before the advice for nomination could take effect.

The Court further opined that the petitioner's arguments were contradictory. It noted that on one hand, the petitioner argued that the Governor ought to have exercised his discretion while taking a decision on the earlier advice tendered to him by the Council of Ministers on 6th November 2020, on the other hand, he also argued that once the Governor exercised his discretion and acted upon the advice tendered by the Council of Ministers, subsequently withdrawing the earlier recommendations was bad in law.

It referred to the case of State of Kerala vs. Smt. A. Lakshmikutty & Ors. (1986), where the Supreme Court observed that unless the decision taken by the Council of Ministers is translated into action by issuing a Notification as per the requirement of Article 166, it cannot be considered as an order of the State Government.

Here, the High Court was of the view that as the advice tendered by the Council of Ministers on November 6 2020, could not reach its final destination, it was well within the authority of subsequent Council of Ministers to withdraw the earlier recommendations.

With these observations, the Court dismissed the petition.

Case title: Sunil Modi vs. State of Maharashtra & Ors. (PIL No. 119 of 2023)