Himachal Pradesh High Court quashes law on appointment of MLAs as Parliamentary Secretaries

The Himachal Pradesh High Court on Wednesday quashed the HP Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges & Amenities) Act, 2006 which had enabled the State government to appoint Members of Legislative Assembly (MLA) as parliamentary secretary [Satpal Singh Satti & others vs State of Himachal Pradesh & Others]..A Bench of Justice Vivek Singh Thakur and Justice Bipin Chander Degi held that the law was beyond the legislative competence of the State legislature.Consequently, it also set aside the appointment of six Congress legislators as chief parliamentary secretaries..The judgment was passed in a batch of petitions including those filed by MLAs of Bharatiya Janata Party..The Court took note of a Supreme Court decision quashing a similar law that had been passed by Assam legislature. It then examined the Himachal law and found it to be violative of Article 164(1-A) that places embargo on the size of cabinet. The parliamentary secretaries perform functions "ancillary /incidental to the office of a Cabinet Minister", the Court ruled.“The Legislature cannot violate the mandatory constitutional prohibitions by employing an indirect method. If there is a constitutional provision inhibiting the Constitutional Authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision,” it said..The Court noted that a chief parliamentary secretary or a parliamentary secretary is administered an oath of office and secrecy and are assigned duties by the Chief Minister.Though it found that the law did not give them the power to approve the action proposed by a secretary or any other subordinate functionary of the government, the Court said,“However, on being appointed as “chief parliamentary secretary” or a "parliamentary secretary", they have access to the office of the Political Executive. It is therefore that they are administered an oath of secrecy. In their capacity as “Chief Parliamentary Secretary” or a “Parliamentary Secretary” they perform functions ancillary /incidental to the office of a Cabinet Minister. Even though their role at best is recommendatory, they are actively associated with the performance of constitutional or statutory, sovereign functions of the Political Executive.”.The Court, therefore, said it was inconsequential that they have not been given the rank and status of a minister. It further took note of the perks given to the parliamentary secretaries and found them to be similar to that of ministers..The Court also noted that unlike other legislators, the parliamentary secretary has access to official files to participate in decision making process in the government.“The Chief Minister has also allotted the Departments to Chief Parliamentary Secretary(ies) and they have been attached with the Cabinet Ministers like Deputy/Junior Ministers,” it found..The distinction attempted to be portrayed between chief parliamentary secretary/ parliamentary secretary on one hand and a minister on the other hand is artificial, the Court concluded.Hence, it quashed the law as well as the existing appointments made under the law and asked the government to ensure immediate implementation of the judgment in letter and spirit."Since the impugned Act is void ab initio therefore respondents ... are usurpers of public office right from their inception and thus their continuance in the office, based on their illegal and unconstitutional appointment, is completely impermissible in law. Accordingly, from now onwards, they shall cease to be holder of the office(s) of Chief Parliamentary Secretaries with all the consequences," the Court ordered. .Senior Advocates Maninder Singh and Ankush Dasss Sood with Advocates Vir Bahadur Verma, Ankit Dhiman, Prabhas Bajaj, Ragasanan Mohan, Gaurav Chaudhary, Tarun Mehta, Mukul Sharma, Prajwal Busta represented the petitioners. Advocates Sanjay Kumar and Rakesh Kumar represented the petitiones.Senior Advocates Dushyant Dave and Vivek Tankha with Additional Advocates General Navlesh Verma and Puneet Rajta along with Advocate Vipul Tiwari represented the State. Senior Advocates Ajay Sharma, Virender Singh Chauhan, Neeraj Gupta with advocates Ashwani Chawla, Deven Khanna, Atharv Sharma, PP Chauhan, Shikha Rajta, Sahil Verma, Vikram Thakur, Arsh Chauhan, Bhanvi Negi, Vanshaj Azad, Pranjal Munjal and Vedhant Ranta represented various respondents..[Read Judgment]