Governor has no discretion to withhold appointment of Executive Members: Meghalaya High Court

Shillong Jan 28: The Meghalaya High Court on Tuesday ruled that the governor of the state has no discretion to withhold appointment of executive members, as advice by the chief executive member (CEM).

The court’s verdict came as a boost to the Khasi Hills Autonomous District Council (KHADC) CEM Latiplang Kharkongor, who for the past two months was without the executive members after the governor delayed his approval to the list of five members of the KHADC who should be inducted as Deputy CEM and four Executive Members of the Executive Committee (EC).

The Court said this in an order passed by Chief Justice Mohammad Rafiq on Tuesday on a writ petition filed by Kharkongor.

“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 an elected CEM of the Council to choose the Deputy CEM and other members of the Executive Committee of the Council,” the court said.

This writ petition was filed under Article 226 of the Constitution of India by Kharkongor.

Kharkongor prayed for issuance of a writ of mandamus, directing the respondents to immediately issue appointment order of four members of the KHADC – Mitchel Wankhar, Macdalyn S Mawlong, Lamphrang Blah, Ronnie V Lyngdoh as the Executive Members of the KHADC, and Grace Mary Kharpuri as the Deputy CEM, pursuant to his advice as the CEM to the Governor of the state through letters dated 27/11/2019 and 29/11/2019.

As per Rule 20 of the Rules of 1951, other members of the Executive Committee of a District Council have to be appointed by the governor on the advice of the CEM from amongst the members of the district council.

In the event of such advice, the Court said, “the governor has to appoint person/persons of his choice accordingly. This provision is analogous to Article 75 of the Constitution, which vests the authority in the Prime Minister to advice 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. 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, the court further ruled that it must be held that on the advice being rendered by the petitioner (Kharkongor) in his capacity as the CEM for appointment of one Dy CEM and four EMs of the Executive Committee, the governor of the state 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 the following the discussion, this petition deserves to succeed and is accordingly allowed. The respondent no 1 (secretary to the Governor) is directed to place the relevant file for issuance of the formal orders accordingly,’ the court said.

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