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| HC dismisses petition challenging cabinet decision on appointment of PSC members | | | Early Times Report
JAMMU, July 6: The state high court has dismissed a petition challenging the March 15, 2015 cabinet decision as regards the appointment of PSC members.
The court directive came in a petition filed by Mukerjeet Sharma, Wali Mohammad Batt, Dr Tejit Singh and Baldev Raj Lachotra, challenging the March 15, 2015 cabinet decision whereby previous government's cabinet decision of October 10, 2014 was ignored as regards the appointment of chairman and members of J&K Public Service Commission.
In the petition, the issue which needed to be addressed was as to whether the governor can override the decision of the Council of Ministers particularly when Section 35(2) of the Constitution expressly states that all functions of the governor except those under Sections 36, 38 and 92 shall be exercised by him only on the advice of the Council of Ministers.
Since the cabinet decision of October 10, 2014 was with regard to the J&K PSC and the governor had no option except to comply with it as no discretion was vested with him to turn it down. The intent and spirit of Section 35 is explicit and it is only the areas earmarked under Sections 36, 38 and 92 when the governor can exercise his powers independently and in the given facts and circumstances he had no power to take a contrary view by upsetting the cabinet decision which had been taken by the Council of Ministers with the Chief Minister as head after deliberations in exercise of the power conferred under Section 35 of the J&K Constitution. The Act of the Governor in upsetting the Cabinet Decision of October 10, 2014 as such is unconstitutional and requires to be declared as ultra-virus to the Constitution of J&K State. In the petition, petitioners sought direction for restraining the respondents from acting upon the cabinet decision dated March 15, 2015 by virtue of which the state cabinet after ignoring the earlier cabinet decision of October 10, 2014 made fresh recommendation for appointment to the post of Chairman/Members of J&K PSC and also seeking direction to respondents to produce the entire records/correspondence between the respondents and the office of governor with regard to the processing of the cases of the petitioners on the basis of the cabinet decision of October 10, 2014.
High court judge Tashi Rabstan observed that perusal of the section 35 reveals that the court shall not enquire into the question whether any, and if so what, advice was tendered by the Council of Ministers to the Governor and the same gets immunity from production. The idea behind this sub-section is that what advice is tendered by the Council of Ministers to the Governor is a matter between them and the court is not to go into it. And, if such a matter comes before the court, the court is only concerned with the legality and validity of the order and not with what happened in the inner councils of the Governor and the Ministers. Therefore, the question as to what advice was tendered by the Council of Ministers to the Governor shall not be inquired into in any court irrespective of the provisions of the Evidence Act. In other words, the material other than the advice tendered by the Council of Ministers to the Governor, if found necessary, may be looked into. Thus, any advice tendered by the Council of Ministers to the Governor by way of cabinet decision dated 10.10.2014 cannot be looked into or examined by this Court in view of clear bar under Section 35(3) of the Constitution of J&K. With these observations, Justice Tashi observed that, in view of the provisions of Section 35(3) of the State Constitution and the law laid down by the Supreme Court in the aforementioned judgments, this Court do not find that the writ petition is tenable in law. Accordingly, the application seeking dispensing with the filing of copies of cabinet decisions is hereby rejected as not tenable in law. Consequently, the writ petition along with the connected miscellaneous petition is also dismissed as not being maintainable. (JNF) |
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