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2015 DIGILAW 319 (JK)

Mukerjeet Sharma v. State

2015-07-06

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J. 1. In the present petition, the petitioners are aggrieved of the action of Governor in not according approval to the decision of State Cabinet dated 10.10.2014 with regard to the appointment of petitioners herein as Members of the Jammu & Kashmir Public Service Commission. Along with the writ petition, the petitioners have also filed AP(OWP) No. 16/2015 seeking dispensing with the filing of copies of cabinet decisions dated 10.10.2014 and 15.03.2015 along with the order by virtue of which the cabinet decision dated 10.10.2014 was upset. 2. Objections to the application have been filed by the respondents questioning its maintainability. 3. When the matter was taken up for hearing on 28.05.2015, Mr. Jan, learned Advocate General, pleaded that under law the present application would be maintainable only if the main writ petition, in which it has been filed, is tenable in law. He, therefore, emphasized to first argue on the maintainability of the writ petition. Mr. Jalali, learned senior counsel, in the peculiar facts and circumstances of the case, agreed to argue on the maintainability of the writ petition. 4. Accordingly, with the consensus of learned counsel appearing for the parties, the matter was heard at length on 28.05.2015 as regards the maintainability of writ petition and reserved for pronouncement of judgment. 5. The case as set up by the petitioners in this petition is that through local media reports they came to know that the State Cabinet vide its decision dated 10.10.2014 had approved their names for their appointments as Members of the Jammu & Kashmir Public Service Commission against pending slots in exercise of its power under Section 35 of the Constitution of Jammu & Kashmir. The matter then landed in the Office of Governor for according approval to their appointments in terms of Section 129 of the Constitution of J&K. The Office of Governor sought certain information with regard to the petitioners necessary for their appointments, and the same was accordingly fulfilled by the respective departments of the State Government. It is averred that before their appointments as Members of the PSC could take place, Model Code of Conduct came to be imposed in the State on 25.10.2014 and, thereafter, a new Government came into existence. It is averred that before their appointments as Members of the PSC could take place, Model Code of Conduct came to be imposed in the State on 25.10.2014 and, thereafter, a new Government came into existence. Further, it is averred that after taking over the reins by the new Government, a press note, published in all leading dailies, came to be issued by the Office of Governor highlighting that the erstwhile Government's recommendations were not found acceptable for several reasons and, the Chief Secretary of the State had been asked to draw up a draft frame work for the selection and appointment of the Chairman and Members of J&K PSC. It is averred that thereafter on 16.03.2015 a news item appeared in all local dailies that the State Cabinet met on 15.03.2015 and recommended few names for the post of Chairman and Members of PSC. Hence, aggrieved of the same, the petitioners have filed the present petition. 6. The contention of learned counsel for petitioners is that the Governor cannot override the decision of Council of Ministers, particularly when Section 35(2) of the State 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 Council of Ministers. Therefore, the action of Governor in upsetting the cabinet decision dated 10.10.2014 in the face of subsequent cabinet decision dated 15.03.2015 is not only unconstitutional, but ex-facie illegal, as such requires to be declared as ultra vires to the Constitution of J&K State. 7. Mr. Jalali, learned senior counsel argued that after enactment of Right to Information Act, it has become obligatory for the Government to disclose the cabinet decision, particularly when the matter having come under public domain through Press, quoting Government sources, in order to find out truth of the matter. He further argued that the respondents were even duty bound to disclose the reason for not approving the names of petitioners by the Governor. He also contended that even otherwise this Court has extra ordinary jurisdiction to direct the respondents to disclose the cabinet decision. In support of his argument, he has relied upon a case, titled as, S.P. Gupta v. President of India, AIR 1982 SC 149 . 8. Lastly, Mr. He also contended that even otherwise this Court has extra ordinary jurisdiction to direct the respondents to disclose the cabinet decision. In support of his argument, he has relied upon a case, titled as, S.P. Gupta v. President of India, AIR 1982 SC 149 . 8. Lastly, Mr. Jalali, learned senior counsel referring to the J&K Business Rules argued that after approval of the Chief Minister, cabinet decision dated 10.10.2014 was the decision essentially taken and not mere an advice which was sent to the Governor. 9. Objections to the application, seeking to dispense with the filing of cabinet decision, have been filed, contending therein that the cabinet decision was merely an advice tendered by the Council of Ministers to the Governor, expressly saved by Section 35(3) of the Constitution of J&K thus immune from judicial scrutiny and not amenable to judicial review. While maintaining their stand, respondents have also relied upon a judgment of the Supreme Court in case, titled as, J.B. Bansal v. State of Rajasthan, (2003) 5 SCC 134 , wherein it has been held that till the advice is accepted by the Governor, views of the Council of Ministers do not get crystallized into action of the State. 10. Mr. Jan, learned Advocate General referring to Sections 128 and 129 of the State Constitution argued that appointments of Chairman and Members of the PSC are to be made by the Governor with the aid and advice of the Council of Ministers and till such advice is accepted and a decision is taken by the Governor in terms of Section 45 of the State Constitution, the action cannot be regarded as that of the State. Thus, while maintaining the stand, learned Advocate General made a statement at the bar that there was no such decision taken by the Governor. While referring to paragraphs 8 & 9 of the writ petition, learned Advocate General argued that even the petitioners have themselves admitted that there was no order of appointment made by the authority concerned in the name of the Governor, rather their names were only approved by the State Cabinet on 10.10.2014 for their appointments as Members of the J&K PSC, that too which they came to know only through the local media. He, thus, argued that merely on the basis of a news item the writ petition cannot be entertained, that too in absence of any substantial proof whether the advice of Council of Ministers had been accepted by the Governor in terms of Section 45 of the State Constitution. 11. Heard learned counsel appearing for the parties. 12. Before proceeding further to discuss the rival contentions of learned counsel for the parties, it would be relevant to reproduce Section 35(3) of the Constitution of J&K hereunder: "35. Council of Ministers to aid and advise the Governor.-- (1).................. (2).................. (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into any court." 13. A perusal of the above section 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 Jammu & Kashmir. 14. The Supreme Court in J.B. Bansal v. State of Rajasthan, (2003) 5 SCC 134 , has held as under: "We need not delve into the disputed question as to whether there was any Cabinet decision, as it has not been established that there was any Government order in terms of Article 166 of the Constitution. 14. The Supreme Court in J.B. Bansal v. State of Rajasthan, (2003) 5 SCC 134 , has held as under: "We need not delve into the disputed question as to whether there was any Cabinet decision, as it has not been established that there was any Government order in terms of Article 166 of the Constitution. The Constitution requires that action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking, the Council of Ministers are advisors and as the head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor, views of the Council of Ministers do not get crystallized into action of the State. That being so, the first plea of the appellant is rejected." 15. The Supreme Court in State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1 , has expressed the same view. What is held by the Supreme Court is reproduced hereunder: "149. The learned counsel for the State of Punjab submitted that the High Court could not have directed production of the advice tendered by the Chief Minister to the Governor. The basis of this argument is the order dated 01.08.2011 passed by the Full Bench. The relevant portion of the order reads as follows: "Mr. Jindal, Addl. Advocate General shall also produce the record relating to the appointment process of respondent No. 4 [Mr. Dhanda]." The grievance made by learned counsel in this regard is justified. It need only be pointed out that in State of Punjab V. Sodhi Sukhdev Singh, this Court clearly held that: "42. It is hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly saved by Article 163, Clause (3) of the Constitution; and in the case of such advice no further question need to be considered." It is not necessary to say anything more on this subject." 16. Therefore, looking to the facts and circumstances of the present case and the case law on the subject, the judgments cited by learned senior counsel for petitioners are of no help to the petitioners. Therefore, looking to the facts and circumstances of the present case and the case law on the subject, the judgments cited by learned senior counsel for petitioners are of no help to the petitioners. Hence, 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, I 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.