Violation of norms in Punjab advocate general Nanda’s appointment too?
Govt admits that CM needs to submit proposal to guv prior to issuing AG’s appointment order, but says it does not apply in Nanda’s caseUpdated: Feb 04, 2018 11:34 IST
After the Punjab and Haryana high court had last month set aside the appointment of retired IAS officer Suresh Kumar as chief principal secretary to chief minister Captain Amarinder Singh, questions are now being raised over “violation of procedure and precedents” in the appointment of Punjab advocate general Atul Nanda.
Nanda was appointed on March 16 last year, the same day the new Congress government was sworn in. But his appointment was ratified by the council of ministers on May 30, after a gap of two-and-half months. The cabinet’s ex-post facto approval came days after a public interest litigation (PIL) challenging the AG’s appointment was filed in the high court on May 23.
The AG’s appointment is covered under Article 165 (1) of the Constitution. States have framed their own rules of business to comply with constitutional norms. Rule 28 (2) of the Rules of Business of Government of Punjab, 1992, states: “The following classes of cases shall be submitted by the chief minister to the governor before issue of any order....(X) proposal for appointment, resignation and removal of the advocate general.”
In response to HT’s query, an official spokesperson of the government admitted that Rule 28 (2) requires the CM to submit a proposal to the governor before issuing AG’s appointment order. But he said it does not apply in the present case as the AG’s appointment was ratified by the council of ministers. “Rule 17 (3) of the Rules of Business prescribe a copy of the decision shall be sent to the governor. Accordingly, the appointment is fully covered by Rule 17 and valid in all respects,” he said.
The government’s reply reveals that no proposal for Nanda’s appointment was submitted to the governor prior to the cabinet nod. Contradicting its own reply the next day (on Saturday), the official spokesperson said the CM submitted the proposal to the governor as per Rule 28 (2).
As per official record, the letter of acceptance of resignation to outgoing AG Ashok Aggarwal too was sent a month later.
Constitutional expert Subhash Kashyap says the governor is guided by the advice of the council of ministers except in cases where he can exercise his own discretion. “This case appears to be a violation of established procedures and precedents. Even according to government’s reply, it (sending proposal to governor) should have been done beforehand. As a matter of caution, the cabinet validated it retrospectively. So, the appointment is not unconstitutional now. In 2016, the Delhi high court had set aside the appointment of parliamentary secretaries by the Delhi government on the ground that it lacked the approval of the lieutenant governor,” Kashyap said.
There are also questions on whether just sending minutes of cabinet meeting can be construed as governor’s nod as in case of Suresh Kumar’s appointment. While setting aside Kumar’s appointment, the Punjab and Haryana high court had observed in its ruling: “It is incomprehensible why the file (of Suresh’s appointment) was not sent to the governor. In that case, it would have compliance of 1992 Rules of Business. The order would have been in the name of the governor. The stand of the state is that the order was authenticated by the chief secretary. Mere authentication would not make the order valid as 1992 rules are mandatory.”
A former Punjab AG, not wishing to be named, too dubbed the Punjab AG’s appointment as “open to legal scrutiny”. Additional solicitor general Satya Pal Jain said: “A gap of a few days between appointment and ratification by cabinet can be justified.” In Nanda’s case, it is over two months.
Nanda denied any lapses in his appointment saying it was ratified by the cabinet in May. “Where is the unconstitutionality once it was ratified,” he said.
Punjab chief secretary Karan Avtar Singh and NS Kalsi, additional chief secretary, home and justice department, did not respond to calls and messages on why the file on Nanda’s appointment was not sent to the governor before his appointment. The governor’s office too did not respond to queries.
Nanda’s appointment was challenged in the high court by advocate GKS Tank, which was later withdrawn.
(With inputs from Surender Sharma)