On 14 March 2015, Delhi Government headed by Chief Minister Arvind Kejriwal had appointed 21 Aam Aadami Party (AAP) MLAs as Parliamentary Secretaries to the Ministers against all constitutional norms. These Parliamentary Secretaries are generally posted to bypass the rule laid down in the Constitution that ministers numbering more than a fixed percentage of the strength of the Legislative Assembly cannot be appointed. The Constitution does not allow more than this number. However, Kejriwal Government allegedly flouted this mandate of the Constitution. The appointment of these 21 Parliamentary Secretaries was challenged in the Delhi High Court by an organisation called Rashtriya Mukti Morcha on the ground that Delhi Government cannot have more than 7 ministers and that these 21 Parliamentary Secretaries enjoyed the status and perks of a minister. The High Court had issued notice on this public interest litigation (PIL) to the Delhi Government and the next date in that case is on 1 July 2015 (see here). Now, it appears that there is likely to be trouble for the Delhi Government on this issue, since yesterday (2 June 2015), Calcutta High Court has set aside a similar order of the West Bengal Government to appoint as many as 24 parliamentary secretaries to ministers, and in fact, the Calcutta High Court has also struck down the State law relating to the appointment of these Parliamentary Secretaries (see here). Therefore, if a similar stand is taken by the Delhi High Court, the order of Kejriwal Government of appointing 21 Parliamentary Secretaries may also be set aside in a similar way.
A division bench of the Calcutta High Court, comprising of the Chief Justice Manjula Chellur and Justice Asim Kumar Banerjee on 2nd June 2015 declared the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2012, as ultra vires the Constitution, on the ground that it goes against Clause 1(A) of Article 164 of the Constitution. Under this Act, which had come into force in 2013, West Bengal chief minister Mamata Banerjee had appointed parliamentary secretaries to the ministers to “maintain coordination between government departments”. A parliamentary secretary was given the rank, status, salary and allowances of a minister of state in the Government. This had been challenged in Calcutta High Court by the petitioners Vishak Bhattacharya and Pushpal Chakraborty, who had filed a PIL in January 2013. Senior Advocate Bikash Bhattacharya, who argued on their behalf, submitted that that the West Bengal assembly cannot promulgate a law that would add to the ministerial berths when the Constitution mandates that the number of ministers should not exceed 15% of the number of MLAs.
It is pertinent to point out that in 2009, in the case of Adv. Aires Rodrigues v. State of Goa [PIL Writ Petition No. 05 of 2007], a Division Bench of the Bombay High Court (Panaji Bench), comprising of Chief Justice Swatanter Kumar and Justice N.A. Britto, by its judgment dated 21 November 2009, had set aside the appointment of parliamentary in Goa. It held that appointing Parliamentary Secretaries of the rank and status of a Minister was in violation of the provisions of Article 164 (1A) of the Constitution. The relevant observations of this judgment are reproduced below:
“70. As far as Respondent Nos.2 and 4 are concerned, they have been appointed to a public office with the nomenclature of Parliamentary Secretaries with cabinet rank and they are to perform duties and functions in the respective ministries. They would represent the government in the Assembly and would, while assisting the Chief Minister, have the authority to pass appropriate orders. They, obviously, participate in the decision making process and take decisions. Thus, equivalence of status and rank is clubbed with the functions, duties, responsibilities and privileges of that post and, therefore, in the spirit and substance they have been appointed as Cabinet Ministers/Ministers, may be under the expression of “Parliamentary Secretaries”. We have already noticed that the Parliamentary Secretary is not a regular post created in furtherance of exercise of any statutory power and State of Goa has not framed any law in that behalf. The appointment of Parliamentary Secretaries alleged to have been made by the Chief Minister would fall within the constitution of the council of Ministers. If these appointments of Parliamentary Secretaries are to relate to the appointments in the State Legislature, then there should exist a codified law in relation to requirements, conditions of service, qualifications for appointment to the post or the Governor of the State, after consultation with the Speaker of the Assembly in the manner specified under Article 187(3) of the Constitution of India can make such appointments. Admittedly, that is not the case here. Thus, these appointments are not in the service cadre of the Legislative Assembly and in fact that is not even the case of the State.
71. As far as Respondent Nos.2 to 4 are concerned, the appointment of Respondent No.3 already stands revoked by Notification dated 17th August 2007 and the appointment of Respondent Nos.2 and 4 as Parliamentary Secretaries has been actually made in the status and rank of a Cabinet Minister. They are not only entitled to enjoy the perks and benefit of a Cabinet Minister but are performing the duties and functions in the Departments/Ministries in that status. They have limited access to the Government files, they are to assist the Chief Minister in the Department and Ministry to which they are allotted and would perform such functions as may be assigned to them. Though they were granted the rank of a Cabinet Minister vide Notification dated 28th June 2007, their functions were defined or explained vide Notification dated 6th September 2007. We have already dealt with the aspect of “Minister-personally” and the Parliamentary Secretaries. Once the source of appointment, purpose of appointment, duties and functions and perks and privileges conferred upon such Parliamentary Secretary are akin to “Ministerpersonally”, the distinction sought to be made on behalf of the State becomes irrelevant. They are awarded Departments like portfolios of Ministers and they were functioning in those Departments. Thus in pith and substance, they are appointed as Cabinet Ministers though under the nomenclature of Parliamentary Secretaries. The cumulative effect of the discussion leads us to an irresistable conclusion that attempt of the State in making these appointments of Parliamentary Secretaries was clearly intended to over-reach the Constitutional restrictions contained in Article 164 (1-A) of the Constitution of India with the aid of Executive power. Exercise of such Executive power with reference to the source of power would vitiate the action ab initio. State’s action in frustrating the Constitutional mandate and attempt to over-reach the Constitutional restrictions would per se be termed as arbitrary and untenable in law.
72. There is no doubt that some liberty and freedom is vested in the State in relation to framing of policies as the State policies are intended to achieve larger public interest and may relate to complex matters of social, economic and commercial nature. The scope of judicial review in such matters is narrower but in the matters of present kind where there is hardly any question of public policy or larger public interest, the relevancy and utility of such a decision in the larger public interest and welfare of the State needs close scrutiny. In the case of the present nature where the decision is hardly relatable or founded on matters of policy relating to public utility or public interest but is the result of a `wish’ expressed at a given point of time to create political stability by accommodating elected members of the Assembly in violation to Constitutional command contained in Article 164(1-A), such decision can hardly stand to the scrutiny of law. In the present case, the entire decision making process and the final decision both are arbitrary, unjustifiable, unconstitutional and serve no public interest.
73. Thus, we have no hesitation in quashing the appointments of Respondent Nos.2 and 4 as Parliamentary Secretaries in the State of Goa. Resultantly, the appointments of Respondent Nos.2 and 4 are quashed. Writ against Respondent Nos.5 to 7 rejected. Rule accordingly disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.”
So, it will have to be seen as to whether the Delhi High Court also sets aside the Delhi Government order of appointing 21 parliamentary secretaries on similar grounds.
