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3 RIVAL SUBMISSIONS :

3(a) Submissions in the PIL and W.P.No.16275 of 2017 assailing proposed nominations and nominations can broadly be set out as under :
(i)Nomination of MLAs under Section 3(3) of the UT Act has to be done by the Central Government. In the instant case, the nomination has not been done by the 'Central Government' as in law qua Puducherry Union Territory.
(ii)The process of nomination of the three MLAs purportedly under Section 3(3) of the UT Act is in complete violation of a time honoured procedure for nomination which has attained the status of constitutional convention. According to PIL petitioner and petitioner in W.P.No.16275 of 2017, the constitutional convention is that recommendation should emanate from the Council of Ministers. The recommendation of names which emanate from the Council of Ministers should be forwarded to the Lieutenant Governor, who in turn shall forward it to the President for nomination and in the event of disagreement between the recommendation made by the Council of Ministers and Lieutenant Governor, the same shall be settled by the President.
3(b) Countering the aforesaid attack of PIL petitioner and petitioner in W.P.No.16275 of 2017 and also advancing their own case in their respective writ petitions, nominated MLAs made submissions, which can broadly be set out as under :
(i)There is no constitutional convention as alleged and on a demurer, even if there is one, there is no violation of any constitutional convention.
(ii)Nominations to Puducherry Legislative Assembly have been done on six earlier occasions in 1985, 1990, 1996, 2001, 2006 and 2011, but on every occasion, nominated members belonged to one political party or the other.

4(n) With regard to the procedure, it was contended by the learned senior counsel appearing for the Whip and the PIL petitioner that only the elected Government of the day has the right to choose the names and forward it to the Administrator, who in turn should forward it to the President for approval, after which a nomination should be made. It was asserted that this procedure has been followed in earlier occasions when MLAs were nominated to Puducherry Legislative Assembly. It was also argued that owing to this being followed over a considerable period of time and considering the nature of nominations, i.e., of MLAs, this procedure has attained the status of a constitutional convention. It was further argued that there is no distinction between 'Constitutional Law' and 'established constitutional convention'. In support of this proposition, a judgment of the Supreme Court of India in Supreme Court Advocates-on-Record Association and others Vs. Union of India reported in (1993) 4 SCC 441 was pressed into service. On this basis, it was further argued that power of nomination of an MLA is exercisable only in consultation with, with the aid and advice of the Chief Minister and the Council of Ministers of Union Territory of Puducherry.

4(o) We were taken through the six nominations made earlier, details of which have been set out supra in this order. We find that on earlier occasions, political complexion of the ruling establishment in the Union Territory of Puducherry and the Central Government have either been same or have at least been of same hues and shades. In this occasion, with regard to 14th Legislative assembly, it is a scenario where political complexions of ruling establishments are completely different in the Union Territory and Centre. Further more, there is nothing on record before us to show that the aforesaid procedure alone was followed on all earlier six occasions. For that matter, none of the parties to the lis were able to place before us material to show, what exactly was the procedure follower earlier. Therefore, we do not have sufficient material placed before us to conclusively decide whether this procedure was construed to be so sanctus that it was followed without a shred of deviation on all previous occasions, so as to attain the status of a constitutional convention as contended. In the absence of such material, it may not be appropriate for us to come to a conclusion that this procedure has attained the status of a constitutional convention.