Correspondent
KOHIMA, DECEMBER 17
EVEN as the eight-member opposition Congress staged a walk-out, the Nagaland Legislative Assembly (NLA) today passed a historic resolution not to seek the approval of the Governor in matters relating to the rules of Executive Business (REB), but that the approval of the Chief Minister would be final and it would be submitted to the Governor only for information.Adopting the resolution by voice vote even as the opposition Congress staged a walk-out during the one-day winter session of the House here this afternoon, the resolution presented by the Chief Minister Neiphiu Rio urged upon the Governor to act in accordance with the aid and advice of the Council of Ministers of the State as mandated by the Constitution of India in all matters that do not relate to his discretion.
The House also particularly urged upon him to heed to the Cabinet advice in regard to the amendments proposed to the Nagaland Rules of Executive Business without any further delay.
The House also endorsed the Government of Nagaland, Department of Personnel and Administrative Reforms notification issued on December 12 last, which removes the doubt to the effect that, in regard to all matters falling under Rules 34(2) of the Nagaland REB, the approval of the Chief Minister shall be final and the order in regard to such matter containing the final approval of the CM shall be submitted to the Governor only for information.
Meanwhile, Rio while making an explanation on the intension of the government in bringing the resolution to House, said that the resolution was not an amendment but to remove doubts on REB.
Reminding the members about the first notification of Rules of Executive Business in the year 1964, soon after Nagaland become a the 16th State, Rio said “most probably due to the peculiar circumstances under which the state was born and perhaps due to absence of matured political executive and leadership at that point of time, the rule had made it necessary for day to day business of the governance of the state to be sent to the Governor, thereby giving much less power to the political executive of the state”.
As per the Nagaland REB framed in 1964, all proposals fro appointment, promotion and posting of senior officers right from the Deputy Commissioner/Superintendent of Police/ Joint Secretary/ Head of Department’s Directorate etc and upwards, after being approved by the Chief Minister, will have to submitted by the Secretary of the Department concerned to the Governor before issuing of the order.
Rio said that the State Government considers this Rule 34(2)(xxi) to be outdated and unnecessary today, as no other states in India has such kind of provision in their REB and also that Nagaland has come of age and has already celebrated 50 years of statehood.
“The State Government feels that continuance of this peculiar provision would make it appear as if the political executive is enjoying less authority as compared to other States, even in the matter of appointment, promotions, transfer and posting of middle level officers like Deputy Commissioners/SP/Joint Secretary etc and upward,” Rio said.
Expressing that several meetings had already been held by the state government with the Governor on this issue, both at the ministerial and bureaucratic level, Rio said “the Governor appears to think that this particular provision in the REB, which the state government is attempting to amend, is related to the ‘Special responsibility’ in the area of law and order being given to the Governor of Nagaland under Article 371-A(b) of the Constitution”.
He said on the issue, the state government is of the view that the law and order situation in the state is quite different from what it was immediately before the creation of Nagaland state in 1963, and further that this “special responsibility’ is not required to be exercised by the Governor by way of having the final authority for the appointment, promotions, transfer and positing of all senior officers of the state government.
Maintaining that since the officers of the government are the instruments through which a welfare state implements all development and welfare programme, he said the performance of a democratically elected government can be greatly handicapped if the appointment, transfer and positing of key officials, both at the district level and at the state level are in the hands of another authority, who is not accountable to the people or to the legislature.
He also cited the fact that the Governors of Sikkim and Arunachal Pradesh are also being given similar ‘special responsibilities’ for law and order and for peace etc, but in there two states, tehproposal for appointment, promotions, transfer and posting of senior government officers are not sent to the Governor.
Hence, he argued, there can be no reason why it should ne necessary only for Nagaland state to send such proposals to the Governor.
Referring to Rule 35 of the Nagaland REB, he said there is a mention about the special responsibilities of the Governor of Nagaland for law and order, but it is not to be linked with the appointment, promotions, transfer and posting of senior government officers.
Therefore, he said in order to avoid complete deadlock in the day-to-day governance of the State and pending the finalization of the issue of amendment of the REB, the Cabinet decided to issue a notification on November 25 last to remove certain doubts relating to the REB which had received the approval of the Chief Minister.
Seeking the support of the members to unanimously pass the resolution, he said it is in light of the developments that the state government decided to move a resolution to be adopted by the House.
Earlier, Advocate General, Government of Nagaland, K.N. Balgopal giving the legal opinion on the issue, referred to Rules 62 of the Nagaland REB which states that “if any doubt arises as to the interpretation by these rules, it shall be referred to the Chief Minister, whose decision shall be final”.
He further explained that the Chief Minister from his side, in exercise of the powers conferred on him under Rule 62 of the Nagaland REB is the final arbiter to remove doubts arising as to the interpretation of the rules.
He said that under Rule 34(2)(xxi) of the REB, classes of cases, including appointment and postings of officers, to be submitted to the Governor by the Secretary of the Department has to be first approved by the CM and thereafter the Secretary of the Department concerned shall submit the same to the Governor before the issue of orders.
He however pointed out that this procedure as envisaged under the rule was not at all in practice in the state of Nagaland. “All these days it was wrongly presumed by the authorities concerned that every order is first approved by the CM, and thereafter, it is submitted for further approval of the Gvoernor thereby making him the ‘super-Chief Minister’ thereby conferring powers of final executive action on the Governor, instead of limiting it only to the CM, which is the constitutionally sanctioned position, which prevails in all the states in the entire country,” he said.
He said it is only as a measure of Constitutional courtesy and in compliance of Article 167(a) that the REB prescribes that the cases shall be submitted with the approval of the CM to the Governor before the issue of orders. “Once information has been sent with relevant records it will satisfy the requirement of the above rules and the State Government is entitled to issue orders/notifications,” he said.
Opinioning that Rule 34(2) (XXI) has been consistently misinterpreted and misunderstood for the last 5 decades, he said “there is no estoppels against law”.
“Therefore, notwithstanding the fact that a wrong procedure has been followed for the last 5 decades, the Government is free to issue orders in the matter of appointments and postings of officers on the lines mentioned above,” he said.
Minister for Roads & Bridges and Parliamentary Affairs, Kuzholuzo Nienu and Minister for Minister for Planning, Geology and Mining, T.R. Zeliang also participated in the discussion.
However, the Opposition Congress while maintaining that it would not be a party to the passing of the resolution staged a walk-out, after which the Assembly Speaker Chotisuh Sazo put the resolution to vote and was passed by the ruling bench members.
THE Opposition Congress in the Nagaland Assembly while staging a walk-out before the passing of a resolution on the Rules of Executive Business (REB) today urged upon the government to tackle without any confrontation while also expressing the Nagas cannot afford to uphold the Article 371(A) in piecemeal and ignore the rest.
Taking part in the discussion after the Chief Minister Neiphiu Rio introduced the resolution for consideration and passing in the one-day session today, Congress Legislature Party leader Tokheho Yepthomi cautioned that Article 371(A)(1) (a), which provides special provisions with respect to religious and social practices of the Nagas, Naga customary law and procedures, administration of civil and criminal justice involving decisions according to Naga customary law and ownership and transfer of land and it s resources, there special constitutional protections and the REB under Article 166, they are distinct and independent of each other.
“No attempts should be made to mix it up and confuse the innocent Naga public,” he said adding that REB of the Nagaland state government have nothing to do with the special provisions since they are totally different subjects.
He also said that a bare reading of Article 371(A)(1)(b), unlike other states in India, the Governor have special responsibilities with respect to law and order in the state of Nagaland. He said the President of India in exercise of power under second proviso to Article 371(A)(1)(b), is yet to withdraw the said special power of the Governor. Also, under Article 371(A)(1)(c), the Governor have certain special responsibilities to ensure that any money provided by the Government of India out of the consolidated fund of India for any specific service or purpose is included in the demand for grant to that service or purpose and not in any other demand. “Nagaland is a state, financially fully dependent on the Central Government,” he said.
He said that the powers of the Governor as provided under Article 371(A)(1)(b) & (c) is in exercise of the discretionary powers of the Governor and it is outside the ambit of Article 166 of the Constitution. As such, he said, any proposal to amend the REB, including powers relating to appointments, transfer and posting of government servants, it should not infringe on the exclusive discretionary powers of the Governor under Article 371(A)(1)(b) &(c) of the Constitution of India.
“We cannot afford to uphold Article 371(A) in piecemeal and ignore the rest,” he said adding that the Governor is the head of the executive in the state, as such, any proposal to amend the REB without “consent” shall be against the spirit of Article 166 of the Constitution.
Reiterating the CLP stand that the Assembly have no power under Article 166 of the Constitution to exercise on REB since it is exclusively within the jurisdiction of the executive, he said the CLP shall not a be party to any such move to infringe upon the powers of the governor.
He also urged the government to withdraw the proposed resolution since it would have far reaching consequences.
NPCC president and MLA SI Jamir took part in the discussion.
However, as the government went ahead with the proposed resolution the Congress members walked-out without passing the resolution.
