In the High Court of Meghalaya at Shillong WP (C) No.541/2019 Petitioner Shri Latiplang Kharkongor Respondents Secretariat of the Governor of Meghalaya & ors Date of Judgement 28th January 2020 Bench Hon’ble Mr. Justice Mohammad Rafiq, Chief Justice
Facts of the case
The petitioner is the elected Member of the KHADC from 16th Nongthymmai District Council Constituency. He has been elected as such Member for four consecutive terms, firstly in the year 2004 and recently in the year 2019. Mr. Teinwell Dkhar was originally elected as the Chief Executive Member of the KHADC but a no-confidence motion against him was put to vote in a duly convened session of the KHADC on 20.11.2019.
Since no-confidence motion was carried, he stood removed from that Office. In the fresh election that took place on 22.11.2019, the petitioner was elected as the new Chief Executive Member. Report of removal of the erstwhile Chief Executive Member, namely, Mr. Teinwell Dkhar and subsequent election of the petitioner by majority as the Chief Executive Member was sent to the Deputy Commissioner, East Khasi Hills District by the Secretary to the KHADC by two separate letters, both dated 22.11.2019, with the request to convey to the Governor of Meghalaya about election of the petitioner as the Chief Executive Member for the needful. The Deputy Commissioner, East Khasi Hills District, Shillong, wrote back to the Secretary of the KHADC vide letter dated 22.11.2019 (Annexure-3), asking for a comprehensive report along-with the proceedings of the election of the Chief Executive Member. In response thereto, the Secretary, vide letter dated 23.11.2019 (Annexure-4), sent a comprehensive report to her.
Thereupon, the Deputy Commissioner vide letter dated 23.11.2019 (Annexure-5), forwarded the result of the election to the Secretary to the Governor of Meghalaya, Raj Bhawan, Shillong. The Deputy Secretary to the Governor of Meghalaya intimated to the Deputy Commissioner, East Khasi Hills District vide letter dated 25.11.2019 (Annexure-6) the approval of the Governor of the election of the petitioner as the new Chief Executive Member of the KHADC. A copy each of this communication was endorsed to the Joint Secretary, District Council Affairs Department, Government of Meghalaya, and the Secretary to KHADC for information and necessary action. The Secretary to KHADC then vide letter dated 25.11.2019 (Annexure-7) informed the Secretary to the Executive Committee of the KHADC regarding approval of the Governor of Meghalaya of the election of the petitioner as the new Chief Executive Member of the KHADC. That the petitioner thereafter vide letter dated 27.11.2019 (Annexure-8) advised the Governor of the State to appoint (1) Mr. Mitchel Wankhar, (2) Smt. Macdalyn Sawkmie Mawlong, (3) Mr. Lamphrang Blah and (4) Mr. Ronnie V. Lyngdoh, as the Executive Members of the KHADC. He also subsequently vide letter dated 29.11.2019 (Annexure-9) advised the Governor to appoint Smt. Grace Mary Kharpuri as the Deputy Chief Executive Member in the Executive Committee of the KHADC. Copies of these two letters were also forwarded by the Secretary to the Executive Committee of the KHADC, to the Deputy Secretary to the Governor of the State of Meghalaya, respectively on 27.11.2019 (Annexure-10) and 29.11.2019 (Annexure-11). Since no action was taken on the recommendation made by the petitioner for quite some time, the petitioner has approached this Court by means of the present writ petition seeking a writ of mandamus in the terms as prayed for.
Issues
i) Whether approved for reporting in Law journals etc.
ii) Whether approved for publication in press.
Argument advanced
Mr. K. Paul, learned counsel for petitioner as also Mr. A. Kumar, learned Advocate General with Ms. A. Thungwa, learned Government Advocate for respondents No.3 to 5 and Mr. V.G.K. Kynta, learned Senior Advocate assisted by Ms. M. Kyanta, learned counsel for respondents No.6 and 7, viz., Secretary to the KHADC and Secretary, Executive Committee of the KHADC. All the learned counsel have supplemented their oral submissions by written arguments as well.
Mr. K. Paul, learned counsel for petitioner, has submitted that Rule 20(1) of the Assam [and Meghalaya] Autonomous Districts (Constitution of District Councils) Rules, 1951 (for short, ‘the Rules of 1951) provides that the Chief Executive Member shall be elected by the District Council and the other Executive Members shall be appointed by the Governor on the advice of the Chief Executive Member from amongst the members of the District Council. The proviso thereto stipulates that one from amongst the members under sub-rule (1) of Rule 19, may be appointed as the Deputy Chief Executive Member by the Governor on the advice of the Chief Executive Member. Rule 20(2) of the Rules of 1951 provides that the election of the Chief Executive Member shall be conducted according to the procedure provided for the election of the Deputy Chairman in Rule 10, which, inter alia, provides that there shall be a Chairman and a Deputy Chairman of the District Council, who shall be elected by the District Council in the manner provided for in Rules 32 and It is argued that Rule 32 pertains to the election of Chairman and Rule 33 provides for procedure for election of the Deputy Chairman, which appointed by the Governor on the advice of the Chief Executive Member from amongst the members of the District Council. There is no discretion left with the Governor with regard to choice of a member of the Executive Committee to be appointed by him and he has to follow the advice of the Chief Executive Member in this regard.
It is argued that the position of law being so, even if for argument sake it is accepted but not admitted that there was indeed an infraction of rules, the same does not vitiate the proceedings as it only amounts to mere irregularity and not illegality. Even otherwise, in the absence of any challenge to the election by any member of the District Council and especially Mr. Teinwell Dkhar himself, who was removed as Chief Executive Member and the petitioner elected as Chief Executive Member in his place, the State cannot step into his shoes and question the legitimacy of the petitioner occupying the post of Chief Executive Member.
The argument of the learned Advocate General that after the Hon’ble Governor declined to invoke Para 16(2) and refused to appoint the Administrator to take over the administration of the District Council, the Government has again requested the Governor to do so as according to limit is not possible for the present Council to conduct its affairs according to the provisions of the Sixth Schedule to the Constitution, considering serious mal-administration and infraction of the Rules in the conduct of the election, particularly when there is frequent shifting of the allegiance by members of the district Council to various groups based on political gains.
In the first place, there is absolutely no material placed on record to substantiate the allegation of maladministration, which argument, even otherwise, cannot be countenanced as the new Executive Committee is yet to be formed and has not started working. Secondly, it is for the Governor to decide whether or not to invoke Para 16 of the Sixth Schedule to the Constitution of India. The Governor having once declined to invoke that Clause and refused to appoint the Administrator, 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, namely, the advice tendered by the Chief Executive Member, whose election has been approved by the Governor himself, for appointment of the Deputy Chief Executive Member and the Executive Members of the KHADC as envisaged in Rule 20 of the Rules of 1951, having not been acted upon by the Governor. Thirdly, if at all what is being alleged is correct that there is frequent shifting of allegiance by members of the District Council to various groups for political gains, appropriate course for them would be to again invoke Rule 71 read with Rule 22 of the Rules of 1951 by moving no-confidence motion against him, like they did against the erstwhile Chief Executive Member. Omission to timely notify the appointment of Deputy Chief Executive Member and Members of the Executive Committee would only breed an atmosphere of uncertainty and encourage horse-trading, undermining the constitutional values and autonomy of the District Council. Looking to the scheme envisaged by the Constitution makers in Article 244 read with Sixth Schedule to the Constitution, the administration of scheduled and tribal areas, on certain specific matters, has been entrusted to the Autonomous District Councils. These areas are enlisted in Part I, IIA and III, appended to para 20 of the Sixth Schedule. Members of the Autonomous District Councils are elected by popular vote on the basis of adult suffrage which reflects the will of the people. The question whether the petitioner enjoys the confidence of the Council therefore cannot be a matter to be decided by the Governor on the aid and advice of the Government but can be decided only on the floor of the house. If majority of the members of the District Council by resolving to pass the no-confidence motion against the
Erstwhile Chief Executive Member, have elected the petitioner on such post even when the Council was already in session and was not specially convened, the core issue would still be whether the petitioner enjoys the confidence of majority. And if he does not, he can be unseated from his office only in accordance with the provisions contained in the Rules of 1951.
Judgment
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. This provisions 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. In view of the afore-discussed law, it must be held that 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. Having regard to the conclusion that has been arrived at following the above discussion, this petition deserves to succeed and is accordingly allowed. The respondent No.1, namely, the Secretary to the Governor of Meghalaya, Raj Bhawan, Shillong is directed to place the relevant file before the Hon’ble Governor of the State of Meghalaya for issuance of the formal orders accordingly.
“The views of the authors are personal“
