Back
2015 Supreme(Cal) 246
CALCUTTA HIGH COURT
MANJULA CHELLUR & ASHIM KUMAR BANERJEE, JJ.
Vishak Bhattacharya – Appellant
Vs.
State of West Bengal and Others – Respondents
W.P. No. 7326 of 2013
Decided On : 1.6.2015
Important Points
Act Referred
WEST BENGAL PARLIAMENTARY SECRETARIES APPOINTMENT, SALARIES, ALLOWANCE AND MISCELLANEOUS PROVISION ACT : S.4, S.5
Headnote
PARLIAMENTARY SECRETARIES - APPOINTMENT, SALARIES, ALLOWANCE AND MISCELLANEOUS PROVISION ACT OF 2012 - ARTICLES 164(1A), 186, 187(2), 191(1)(A), 194(3), 209, 309 AND 310 OF THE CONSTITUTION - VALIDITY - WHETHER ACT 2012 IS VALID AND JUSTIFIED IN THE LIGHT OF ARTICLE 164(1A) - WHETHER PARLIAMENTARY SECRETARIES ARE IN FACT MINISTERS THOUGH THEY FUNCTION UNDER A DIFFERENT TITLE OR NOMENCLATURE - WHETHER APPOINTMENT OF PARLIAMENTARY SECRETARY TANtamount TO APPOINTMENT OF MINISTER - WHETHER IT IS AN EXERCISE TO CIRCUMVENT AND DEFEAT THE LIMITATION OR RESTRICTION UNDER THE CONSTITUTIONAL MANDATE - WHETHER THE STATE LEGISLATURE IS ENTITLED TO MAKE APPROPRIATE RULES AND PROCEDURE FOR CONDUCTING ITS OWN BUSINESS.
Fact of the Case:
Writ petitions challenging the constitutional validity of the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012 (hereinafter referred to as Act of 2012).
Finding of the Court:
The Court held that the Act of 2012 is repugnant to the Constitution and deserves to be struck down. Consequently, the appointments of the party/respondents as Parliamentary Secretaries are set aside.
Issues: 1. Whether Act 2012 is valid and justified in the light of Article 164(1A)? 2. Whether Parliamentary Secretaries are in fact Ministers though they function under a different title or nomenclature? 3. Whether appointment of Parliamentary Secretary tantamount to appointment of Minister? 4. Whether it is an exercise to circumvent and defeat the limitation or restriction under the Constitutional mandate? 5. Whether the State Legislature is entitled to make appropriate rules and procedure for conducting its own business?
Ratio Decidendi: 1. The Court held that the enactment of Act 2012 is nothing but an enactment to overcome the limitation or restriction imposed under Articles 164(1A) of the Constitution of India. Hence, it is repugnant to the Constitution and deserves to be struck down. 2. The Court held that the Parliamentary Secretaries are in fact Ministers though they function under a different title or nomenclature. 3. The Court held that the appointment of Parliamentary Secretary tantamount to appointment of Minister. 4. The Court held that it is an exercise to circumvent and defeat the limitation or restriction under the Constitutional mandate. 5. The Court held that the State Legislature is entitled to make appropriate rules and procedure for conducting its own business. However, the dominant purpose must be to regulate the business of the floor and not to subvert the restrictions imposed by the Constitution as to the number of the Council of Ministers.
Final Decision: The writ petitions were allowed. The enactment of West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012 was struck down. Consequently, the appointments of the party/respondents as Parliamentary Secretaries were set aside.
MANJULA CHELLUR, J.
1. These two writ petitions are in the nature of Public Interest Litigation seeking quashing of West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012 (hereinafter referred to as Act of 2012) as ultra vires to the Constitution of India. Consequently, they have also sought for cancellation of appointments of the respondents 8 to 20 in Writ Petition No. 8321 (W) of 2013 repugnant to Article 164(1A) of the Constitution of India since Ss. 4 and 5 of 2012 Act are repugnant to 91st Amendment of Constitution of India. They have also sought for consequential reliefs as well in case of allowing the main reliefs.
2. The main contention and arguments addressed on behalf of the writ petitioners in brief are as under :
On reading of news item regarding introduction of Bill of 2012 pertaining to the above Act was passed at the floor of West Bengal Legislative Assembly in order to provide appointment to Members of Assembly as Parliamentary Secretaries who would have the rank and status of a Minister of State and who shall help in planning and co-ordination of legislative business in the House by serving as an intermediatory between Administrative Secretaries and Ministers, the petitioners came up with the above Public Interest Litigation contending that the judicial intervention is imminent to protect the sanctity of the Constitution and esteemed democratic institution such as the Legislative Assembly. To safeguard the constitutional spirit and its propriety under Article 164(1A) of the Constitution, according to petitioners, the present challenge is justified and proposed enactment is nothing but extending privileges to some of Members of Assembly who would not be able to make it to the Council of Ministers.
3. According to petitioners, the functions and duties entrusted to Parliamentary Secretaries under the Act in question exhibits most important privileges being enjoyed by Minister of the Council of Ministers that is handling files of the Department concerned has been delegated to the Parliamentary Secretaries under certain circumstances which is not acceptable and justifiable when the very system in existence indicate Cabinet form of Government. It is nothing but elevating good number of M.L.As., to the position of Minister of State under the guise of Parliamentary Secretaries violating the constitutional mandate. It is also contended that the Act of 2012 is without any legislative competence apart from casting heavy financial burden on the State exchequer since, it is undergoing financial crisis.
4. They have also referred to several provisions of the Act pointing out that in the name of Parliamentary Secretaries, they would be discharging the functions of a Minister of State. There is express restriction indicating upper limit for the number of Council of Ministers in respect of a State. Under Article 164(1A) the very object of the 91st Constitutional Amendment was to fix a ceiling on the number of Ministers in a State or Union. The Act is question is in gross violation of said mandate. State Government under colourable exercise of power cannot award a particular rank as a favour which affects constitutional propriety. State is under an obligation to act in accordance with the provisions of Constitution of India and is not free to act upon its whims and fancies. Since the Act in question is beyond the subject-matters enumerated under List II of Schedule VII of the Constitution, therefore, it has to be quashed. Provisions under Ss. 4, 5 etc. of the Act of 2012 indicate duties assigned to Parliamentary Secretaries which are derogatory to the very spirit of Cabinet form of Government.
5. Respondents 1 to 19 and 21 in W.P. No. 8321 (W) of 2013 have filed affidavit-in-opposition which states in brief as under :
The concept of Parliamentary Secretary is not a new one and the expression Parliamentary Secretary has been practiced since 1952 by enactment of the S
