Today, the Himachal Pradesh High Court struck down the HP Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges & Amenities) Act, 2006, which had allowed the State government to appoint Members of the Legislative Assembly (MLAs) as parliamentary secretaries.
A Bench consisting of Justice Vivek Singh Thakur and Justice Bipin Chander Degi ruled that the law exceeded the legislative competence of the State legislature. As a result, the court also annulled the appointment of six Congress legislators as chief parliamentary secretaries.
The judgment was delivered in a batch of petitions, including those filed by Bharatiya Janata Party (BJP) MLAs. The Court referred to a Supreme Court ruling that had struck down a similar law passed by the Assam legislature. Upon examining the Himachal Pradesh law, the Court found it to be in violation of Article 164(1-A), which imposes a restriction on the size of the cabinet.
“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,” the Court said.
The Court observed that both a chief parliamentary secretary and a parliamentary secretary take an oath of office and secrecy and are assigned duties by the Chief Minister. While it noted that the law did not grant them the authority to approve actions proposed by a secretary or any other subordinate government official, the Court stated that...
“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.”
"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.
Website designed, developed and maintained by webexy