Govt quotes legal provisions to get governor’s approval

SENIOR SP LEADERS MAINTAIN THAT THE GOVERNOR RETURNING THE FILE THRICE WAS IN VIOLATION OF ARTICLE 163(1) OF THE CONSTITUTION

LUCKNOW: Amidst the ongoing face-off between Governor Ram Naik and chief minister Akhilesh Yadav over the appointment of lokayukta, the state government and the ruling Samajwadi Party has asserted that the advice of the state cabinet was constitutionally binding on the governor.

The gover nor has thrice returned the file proposing appointment of Justice (retired) Ravindra Singh as the new lokayukta.

Yadav, who has been maintaining a studied silence on the standoff, has communicated to the chief justice (CJ) of Allahabad high court and the governor about the consultation process that started on November 3, 2014 with the first meeting with the leader of opposition, who had agreed on Singh’s name.

According to reliable sources, Yadav has also referred to his meeting with the CJ on July 18, 2015 for consultations.

The government and party leaders insist that as per constitutional provisions, there was no point in starting the process of consultation again after decision of the state cabinet on August 4, 2015.

Party leaders recall the assent given to appointment of seven information commissioners by the then governor during the BSP regime.

While questioning the present governor’s insistence on a meeting of the selection committee, party leaders claim that no such meeting was held before Mayawati government recommended names of the seven information commissioners.

Demanding that the governor give his assent to the proposal without any further delay, senior party leaders maintain that returning the file thrice was in violation of Article 163(1) of the Constitution, according to which the governor was bound to act only in accordance with the aid and advice of the council of ministers.

They also quote State of Gujarat versus Justice RA Mehta (retired) and others’ case in which the apex court had observed, “In Samsher Singh versus State of Punjab and Anr., this court ‘expounded the universal rule that the governor is bound to act only in accordance with the aid and advice of the council of ministers, headed by the chief minister’.”

The governor while returning the file on August 20 for the third time, had asked the CM to propose a name for appointment on the post after holding consultation and concurrence among the chief minister, CJ and leader of opposition. The state government sent back the file to the gover nor for the fourth time on August 22. Raj Bhawan sources said the governor was likely to take a decision on Tuesday.

Sources said, while sending the file back to Raj Bhawan with point to point clarification, the state gover nment pointed out that the “consultation process” that began on November 3, 2014 has been completed as per the provisions of section-3 (1) (a) of the Uttar Pradesh Lok Ayukta and Up Lok Ayukta Act, 1975 and the state cabinet’s approval had been sought.

Senior SP leaders say the gover nor has not given his assent to the proposal though the supreme court’s deadline for appointment of a new lokayukta ended on August 22, 2015. “Instead of giving his assent to the proposal approved by the

SOURCES SAID YADAV HAD SENT A LETTER TO THE CJ ON JANUARY 28, 2015 AND REQUESTED HIM TO GIVE HIS CONSENT TO THE NAME OF JUSTICE SINGH.

state cabinet, the governor has returned the file to CM thrice,” they say.

The state government has also drawn the gover nor’s attention towards the supreme court’s observations in the case of Justice Chandrashekaraiah ( retd) versus Janekere C. Krishna and others to make its point that the opinion of CJ should not be given primacy over the opinion of other constitutional authorities.

The apex court observed: “It may be appreciated that that these constitutional authorities also have an equal say in the executive governance of the state and there is nothing to suggest that their opinion should be subordinated to the opinion of chief justice or the chief justice can veto their views. On the other hand, since it is ultimately the CM who has to advise the governor, it is he alone who has to take the final call and shoulder the responsibility of correctly advising the governor in the matter of appointing the most suitable person as an Up-Lokayukta… I see no reason to accord primacy to the views of the chief justice….”

Sources said Yadav had sent a letter to the CJ on January 28, 2015 and requested him to give his consent to the name of justice Singh. The CJ, in his letter dated February 12, 2015, sent to the CM, however, asked the latter to convene a meeting of the selection committee to lay down procedure and work out a panel for shortlisting and selection.

The state government has pointed out that there was no provision for a ‘procedure of selection’ in the Uttar Pradesh Lok Ayukta and Up-Lokayukta Act 1975. It further said under the provisions of the act sitting and retired judges of supreme court and high courts were eligible for selection for appointment as the lokayukta. It contended that working out a panel would not be possible. What would be the basis for inclusion or exclusion of the names, it stated while making a point that there was no such act in any state that provided for a panel for selection of lokayukta.

About the chief justice’s letter dated April 17, 2015 saying that there was a ‘widely held perception’ that Justice Singh was close to the ruling party and his family members represented the state government, it (state government) pointed out that the CJ did not provide any evidence or document in support of the adverse view against Justice Singh. It also brought to the notice of governor that in order to take the process of consultation forward the chief minister met the chief justice on July 18, 2015.