Dual-post hearing: Court asks office to correctly advise Governor on court matters
SHILLONG: The High Court of Meghalaya has taken exception to the non-appearance of Principal Secretary to Governor MS Rao on Thursday during the hearing on the dual post case.
Instead of appearing in the court, Rao had sent a letter to Additional Advocate General expressing his inability appear before the Court.
The Full Bench of the High Court later in its order said that though Governor is exempted from appearing in the Court , the same protection is not available to the Secretary to the Governor.
The court’s directive came while hearing a PIL filed by RTI activist Agnes Kharshiing, seeking disqualification of members of the Legislative Assembly who are also members of the autonomous district councils in the state.
The High Court had asked Rao to appear before the High Court to tell the latest status of dual post Bill which is pending with the Governor but the Principal Secretary did not appear before the court and instead sent a letter to Advocate General saying Governor has not permitted him to appear before the High Court of Meghalaya along with the related file
In the hearing conducted earlier, as Advocate General was not in position to inform about the status of compliance of that order and the decision of the Governor of Meghalaya, he was asked to advise the Secretary to the Governor to appear and tell the latest status of the file so that the Court could proceed to decide the matter on merit.
However, Rao, informed the Advocate General vide a letter that under the provisions of Article 361 of the Constitution of India, the Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office. Accordingly, the Governor has not permitted him to appear before the High Court of Meghalaya along with the related file.
Chief Justice Uma Nath Singh however observed that “We are not oblivious of the provisions of Article 361 of the Constitution of India that the Governor is not answerable to any Court in the exercise and performance of powers and duties of the office, but there is nothing like absolute immunity from judicial inquiry as per law elucidated and laid down by the Constitution Bench of the Supreme court of India in Rameshwar Prasad & Ors v. Union of India (2006) 2 SCC 1 and State of Gujarat & Anr v. Mr Justice RA Mehta (Retd) & Ors (AIR 2013 SC 693) apart from other judgments on this subject”.
Moreover, that protection is not available to the Secretary to the Governor, Court said while adding that Rao is also holding the charge of Principal Secretary to the Government of Meghalaya and he had been only asked to appear and inform the status of decision making process and the reasons for indecision, if any, so that we could proceed to finally decide the matter.
However, keeping in view the respect that the office of Governor should deserve, for the present, “Court restrains from issuing any direction or making any observation, except that the Governor of Meghalaya should be correctly advised on judicial matters pending in Courts, or else it may create serious misunderstanding with the High Court”.
Fixing the next hearing for November 24, the full bench directed the principal secretary to the governor to place the copy of their order before the governor, for perusal and appropriate orders to his secretariat.