FPJ Legal | Guv has constitutional duty to nominate 12 persons for post of MLCs, no escape from it: Bombay High Court

Mumbai: While reserving its order, the Bombay high court observed on Monday that the Maharashtra Governor has constitutional duty to either accept or reject the recommendation sent by council of ministers for nominating 12 persons to the post of Member of Legislative Council (MLC) and that there was no escape from this duty.

A division bench Chief Justice Dipankar Datta and Justice Girish Kulkarni was hearing a public interest litigation filed by a Nashik-resident Ratan Luth praying that the Governor should expeditiously nominate MLCs as recommended by the council of ministers. The posts of 12 MLCs have been lying vacant since June 2020.

“Once a proposal is sent then it is the duty of the Governor to accept it or send it back. Can the Governor keep the seats (of MLCs) vacant? Would it not be the Governor’s duty (to nominate)?’ asked the chief justice.

Additional Solicitor General (ASG) Anil Singh, while representing the Union government, argued that the Governor had “discretionary powers” to nominate on the recommendation to appoint MLCs. He even argued that the Constitution of India does not specify any time frame in which the Governor has to accept the recommendation and nominate MLCs.

To this, the chief justice remarked: “The proposal has been sent and is pending since November 2020. The Governor may or may not accept it but does the Governor not have a duty to speak or act? Is there any time provision in the Constitution that says that the Governor may not act at all?”

Giving a hypothetical example, the chief justice even that what if a court hears a case, reserves it for order and then does not pass any order for over three months. “There is a provision in such a scenario that the parties in this case can go the Chief justice of the HC and seek that the case be assigned to another judge who would hear it and pass necessary orders,” said the chief justice.

Senior Counsel Rafiq Dada, who argued for the state government sought that the Governor take a decision on the same within a period of 15 days.

The HC has reserved the order in the petition after hearing arguments on behalf of the Luth, state government and Union government.

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