Court accepts council autonomy, position of CEM
SHILLONG: The High Court of Meghalaya has asked the Meghalaya Governor to notify the names of Deputy Chief Executive Member and Executive Members (EMs) as forwarded by the Chief Executive Member (CEM) of KHADC.
The single bench of the court headed by Chief Justice Mohammad Rafiq, in response to a petition moved by the CEM Latiplang Kharkongor, viewed on Tuesday that the governor does not have any discretion to withhold the appointment of EMs of the KHADC and has no option but to notify their appointment acting on the advice of the CEM.
The CEM moved the court as there was delay in the appointment of Mitchel Wankhar, Macdalyn Sawkmie Mawlong, Lamphrang Blah and Ronnie V Lyngdoh as the executive members and Grace Mary Kharpuri as the deputy chief executive member of the KHADC.
The court said that a detailed analysis of the District Council Rules of 1951, makes it clear that the principles of the cabinet system of the government are ingrained in various provisions of the rule, especially rule 20, according to which it is the prerogative of the duly elected CEM of the Council to choose the deputy chief executive member and other members of the Executive Committee of the District Council.
The bench observed that in the event of such advice, the governor has to appoint person/persons of his (CEM) choice accordingly.
The 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 other ministers, the order said.
“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 court said.
The court observed that 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 governor does not have any discretion to withhold their appointment and has no option but to notify it acting on such advice.
The court hence directed the secretary to the governor to place the relevant file before the governor for issuance of formal orders.
No role for govt
Further, the bench said that the mere fact that the state government has not notified the election of the petitioner (CEM) does not lead to a situation where it can be said that the petitioner has not at all been elected.
The court observed that the process of election is governed by the Rules of 1951, which does not anywhere provide for notification of result of election by the state government.
“When the petitioner has been elected as the Chief Executive Member of the Council, validity of his election cannot be made to depend upon the contingency of the notification by the state government or else, this would completely negate the opinion of the majority and shall undermine the autonomy of the District Council, howsoever limited it may be, envisaged in the Sixth Schedule to the Constitution of India”, the court stated.
“So long as the petitioner enjoys the confidence of majority, his functioning as duly elected Chief Executive Member (CEM) and that of his Executive Committee, cannot be stalled as that would frustrate the popular mandate”, the court added.