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Synopsis

The Maharashtra Government on Tuesday informed the Bombay High Court that no stay was granted by the court, nor was any assurance made by the state that the vacant posts of MLC (Member of Legislative Council) would not be filled.

The statement was made by Advocate General Birendra Saraf before the division bench of Chief Justice Devendra Upadhyaya and Justice Amit Borkar.

"There is no stay or injunction granted on the appointment and no assurance also given that the appointment would not be made," the AG said. 

The bench had reserved the order in PIL challenging the decision of Former Governor Bhagat Singh Koshyari to withdraw the names of 12 Members of Legislative Council (MLC) recommended by the previous Maha Vikas Aghadi (MVA) government.

The advocate appearing for the petitioner informed the bench that the judgement was reserved but the governor had notified the appointment of 12 MLC's.

The previous government, led by Former Chief Minister of Maharashtra Uddhav Thackeray, had nominated these 12 members as MLCs in November 2020. However, the appointments were not made by the then-governor.

Subsequently, a petition was filed before the Bombay High Court, seeking directions to be issued to the Governor to decide on the nomination of the 12 MLCs.

A division bench led by Justice Dipankar Datta had held that it was the Governor's constitutional duty to either accept or return the names within a reasonable time. However, this decision was challenged before the Supreme Court.

The Supreme Court stated that the matter required further consideration and instructed the Maharashtra government not to take any further action in the meantime. 

During this one-year period, there was a change in the government in Maharashtra, and Eknath Shinde formed a government with the BJP.

The new government, led by Eknath Shinde, decided to withdraw the names of the 12 nominated MLCs, a decision that was accepted by the then Governor, Bhagat Singh Koshiyari.

The PIL contended that the Governor had engaged in an "illegal pocket veto" by refusing to act on the nominations made to the Legislative Council by the Council of Ministers for an unreasonably long period of 1 year and 10 months. 

This prolonged delay allowed the subsequent government (Shinde Government) to withdraw the nominations made to the Legislative Council, which, according to the PIL, is not permissible under the constitutional scheme.

The PIL not only seeks to quash and set aside the Governor's decision from September 2022 but also seeks the court to direct the Governor to either nominate the 12 members recommended for the Legislative Council on November 6, 2020 or provide reasons for the refusal. The petitioner has also prayed for a stay on the appointment of MLCs to the 12 posts until the PIL is heard.

Advocate General Birendra Saraf opposed the PIL, challenging its maintainability, and contended that there was no restriction on the cabinet to recommend or withdraw recommendations. He further explained that the Governor had returned the recommendation file as there were no other pending recommendations after the withdrawal.