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IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice S.S. Saron
The Hon’ble Mr. Justice Ramendra Jain
CWP No. 6715 of 2012 (O&M)
Jagmohan Singh Bhatti
v.
Union of India & Ors.
{Decided on 12/08/2016}
Constitution of India, 1950, Article 164(1A)--Chief Parliamentary Secretaries--Quashing of appointment--The Parliamentary Secretaries are in the nature of Junior Ministers who change with the Government of the day--As such, appointments of Chief Parliamentary Secretaries amount to infraction of the provisions of Article 164 (1A) of the Constitution--Articles 164 (1A) and 164 (1B) were inserted by the Constitution(91 Amendment act 2003) limiting the total number of Ministers including the Chief Minister in the Council of Ministers to 15% of the total number of Members of the Legislative Assembly of that State.
(a) The Governor of the State or the legislature has no competence or legislative sanction to frame rules regulating the conditions of appointment and services of Chief Parliamentary Secretaries and Parliamentary Secretaries for their functioning within the House of the State Assembly. Such posts are not part of regular services of the State under the executive forming part of the bodies involved in the governance of the State;
(b) The services under the State are entirely different from services within the Assembly House. Rules for governing the services under the State or its executive can be made in exercise of powers conferred by the proviso to Article 309 of the Constitution as also under the authority conferred by Entry 41 of List-II of the Seventh Schedule of the Constitution, i.e. the State List, which provides for: “State Public Services; State Public Service Commissions”--These evidently relate to executive services under the State--However, in case a person is working as a Parliamentary Secretary under the State executive, he shall not be disqualified for being a member of the Punjab State Assembly in view of the provisions of the Disqualification Act 1952 which provides that a person shall not be disqualified for being chosen as, and for being, a member of Punjab State Legislature by reason for the fact that he holds the office of Parliamentary Secretary or Parliamentary Under Secretary under the Government of the State of Punjab--The holding of the office of Chief Parliamentary Secretary, therefore, is evidently contemplated under the Government of the State of Punjab and not as a link between the Ministers and the administrative Secretaries.
(c) The provisions of Article 162 of the Constitution relate to the extent of executive power of the State and that the executive power of the State shall extend to matters with respect to which the legislature of the State has power to make laws--The power sought to be derived by the officials respondents is in the context of Article 309 of the Constitution--The 2006 Rules have been framed by the State in exercise of the powers of Article 162 of the Constitution relate to services under the State of the executive and not that of the legislature.
(d) The appointments of Chief Parliamentary Secretaries are contrary to the Constitutional intent of limiting the number of Ministers or the size of the Cabinet--The appointments as made, therefore, are in fact a roundabout way of bypassing the Constitutional mandate of the provisions of Article 164 (1A) of the Constitution and, therefore, have to be invalidated.
S.S. SARON, J.
1. This order will dispose of the above two petitions, i.e. CWP No. 6715 of 2012 titled Jagmohan Singh Bhatti v. Union of India and CWP No. 10167 of 2012 titled H.C. Arora v. State of Punjab, as the petitioners in both the petitions seek the same relief of quashing the appointments of the private respondents in the respective petitions as Chief Parliamentary Secretaries in the State of Punjab.
2. Mr. Jagmohan Singh Bhatti, Advocate - the petitioner in CWP No. 6715 of 2012 seeks a writ in the nature of quo warranto declaring the posts of Chief Parliamentary Secretaries held by respondents No. 6 to 26 in his petition to be illegal, unconstitutional and contrary to; besides, being in utter disregard to the Constitution (Ninety-first Amendment) Act, 2003 to the Constitution of India and for quashing their appointments as such being illegal, unconstitutional, arbitrary and under undue influence of the respondents in the eyes of law. A further prayer has been made for issuance of a writ in the nature of prohibition restraining the Finance Department of the State of Punjab not to bear the expenses of the said illegal appointees which are in violation of the Constitution (Ninety-first Amendment) Act, 2003 to the Constitution of India and to withdraw all the facilities extended to said respondents No. 6 to 26 in the said petition in the interest of the State, its people and the State exchequer. A further writ has been sought for directing respondents No. 1 to 4 to dispense with the services of respondents No. 6 to 26 forthwith.
3. Mr. H.C. Arora, Advocate - the petitioner in CWP No. 10167 of 2012 seeks quashing of the notification dated 04.05.2006 (Annexure P1 with the said writ petition) to the extent that it empowers the Chief Parliamentary Secretaries to function as intermediary channels between the Administrative Secretaries of the State Government and the concerned Ministers stating the same to be in violation of the provisions of Article 164(3) of the Constitution of India, as read with the oath of secrecy administered to the Chief Minister/Deputy Chief Minister and other Ministers of Punjab, which makes it mandatory for them not to reveal any matter to anybody else, either directly or indirectly, which may come under their consideration. A prayer for issuance of a writ has been made for quashing the circular dated 09.05.2012 (Annexure P3 with the said writ petition) issued by the Principal Secretary to Government of Punjab, Department of Rural Development and Panchayats (Budget and Accounts Section), Punjab (respondent No. 2) to the extent it confers powers on the Chief Parliamentary Secretaries to disburse discretionary grants to the extent of Rs. 1.50 crore each, terming the same to be in violation of even the functions of the Chief Parliamentary Secretaries vide notification dated 04.05.2006 (Annexure P1 with the said writ petition) and for restraining respondents No. 3 to 23 (Chief Parliamentary Secretaries) in the said petition from dealing with the files going from the Administrative Secretaries of the concerned departments of the State Government to the Chief Minister/Deputy Chief Minister and other Ministers.
4. It is submitted by Mr. Jagmohan Singh Bhatti, Advocate that he has been practising as an advocate in this Court and the Supreme Court of India for the last more than 28 years. He is a resident of Sahibzada Ajit Singh Nagar (Mohali) in the State of Punjab and he is a conscious and an awakened citizen; besides, he is interested in the affairs of the State of Punjab and he takes up various causes of the general public at large by way of filing and presenting petitions before this Court. Since the affairs relate to the State of Punjab and its general public, therefore, it is submitted that he is entitled to invoke the extraordinary writ jurisdiction of this Court by filing and presenting the present petition in the larger public interest.
5. Mr. H.C. Arora, Advocate submits that he is a public spi
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