In a big jolt, the Himachal Pradesh High Court on Wednesday set aside the appointments of six Congress MLAs as Chief Parliamentary Secretaries (CPS) and ordered their immediate removal, along with the benefits and perks available to them in the government.
A division bench comprising Justice Vivek Thakur and Justice Bipin Chander passed the orders on a petition filed by Satpal Satti, a sitting BJP MLA, and 11 others challenging the constitutional validity of their appointments.
Chief Minister Sukhwinder Singh Sukhu had administered the oath to all six CPS on January 8 – the day when he had inducted seven cabinet ministers into his government.
Besides BJP MLAs, who had questioned their appointments on legal grounds, a PIL filed by Kalpana Devi had also made similar contentions, asking the High Court to quash the appointments, which were ordered in violation of the Constitution. The Constitution had fixed the number, strength, and size of the cabinet to be inducted by the Chief Minister.
In its 33-page order, the High Court quashed the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges, and Amenities) Act-2006, which the court said was beyond the legislative competence of the state assembly.
The court was of the strong view that the CPS Act of 2006 was a clear transgression of the mandatory constitutional prohibition and limitation contained in Article 164(1-A) of the Constitution of India.
“The office created by the impugned Act, in fact, performs functions ancillary to and incidental to those of the Political Executive. In fact, what is prohibited and limited directly by Article 164(1-A) of the Constitution of India has been sought to be done indirectly by the State Legislature,” said the court.
The bench made strong observations on the questioned appointments, holding that the legislature cannot violate the mandatory constitutional prohibitions by employing an indirect method.
It said, “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.”
The court also rejected the contentions of the government that it had not given the rank of ministers to the CPS and thus there was no violation of the Act.
The court was of the view that though there exists no express and explicit provision in the impugned Act conferring the rank and status of Minister upon the Parliamentary Secretary, the hidden status provided to such an office is unveiled from the ‘Object’ of the enactment of the impugned Act. This is evident from the provisions of the impugned Act, which grant access to files and the power to record notes in the form of proposals on the files for consideration of the Minister in charge. They have been given offices, perks, residences, conveyance allowances, and their salaries and allowances are higher than those of MLAs.
The Chief Minister has also allotted departments to the Chief Parliamentary Secretaries, and they have been attached to Cabinet Ministers like Deputy/Junior Ministers.
Unlike the Members of the Legislative Assembly, but like Parliamentary Secretaries, they have access to official files and participate in the decision-making process in the government.
“Evidently, the distinction attempted to be portrayed between Chief Parliamentary Secretary/Parliamentary Secretary and Minister is artificial,” it ruled.
The bench also relied on the Supreme Court ruling in Bimolangshu Roy’s case from Assam.
The six Chief Parliamentary Secretaries who lose their jobs include Ashish Butail (Palampur), Kishori Lal (Baijnath), Ram Kumar (Doon), Mohan Lal Brakta (Rohru), Sunder Thakur (Kullu), and Sanjay Awasthy (Arki in Solan).
Former Chief Minister Jai Ram Thakur has hailed the decision of the High Court, reminding that his party had been telling the government from day one that the appointments were unconstitutional and would not stand the scrutiny of the judiciary. Yet, the government continued to resort to the wastage of public money to maintain these appointments.
Advocate General Anoop Rattan said the state government will soon approach the Supreme Court to seek relief.
To mediapersons, Rattan said he has conveyed the decision of the High Court to the government but will prepare to challenge the same in the Apex Court to get relief against today's order.
Though there is no threat to the Congress government, it is certainly a huge jolt to the Chief Minister, who is already facing flak over the state’s fiscal position and opposition criticism over fulfilling poll guarantees.
