IN THE HIGH COURT OF MEGHALAYA AT SHILLONG : ORDER :

PIL No. 5 of 2016 Shri Madal Sumer ….. Petitioner -Versus-

State of Meghalaya and others ….. Respondents Date of Orde r :: 9^th November 2017 PRESENT HON’BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON’BLE SHRI JUSTICE VED PRAKASH VAISH Shri B Bhattacharjee, for the petitioner Dr. BP Todi, Advocate General with Ms. P Agarwal, GA for the respondents No.1 and 2 Shri R Debnath CGC for the respondents No.3 and 4 Shri H S Thanghkhiew Senior Advocate with Shri N Mozika for the respondent No. 5 Ms. S Alam, for the respondents No.7, 12, 16 and 22 Shri S Dey, with Ms. QB Lamare and Ms. N Gurung for the respondents No.8, 11, 13, 14, 18 and 21 AFR BY THE COURT: (per Hon’ble the Chief Justice)

Introductory and Rival Stands By way of this petition in the nature of Public Interest Litigation [>PIL?], the petitioner has questioned the vires of the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2005 [>the Meghalaya Act of 2005?] and has also alleged that the respondents No. 6 to 22, holding the office of Parliamentary Secretary, have incurred disqualification to be the members of Meghalaya Legislative Assembly.

On the matter being taken up for hearing, learned counsel for the petitioner submitted at the outset that the principal issue involved in this petition regarding constitutional validity of such an enactment creating the office of Parliamentary Secretary has now been settled by the three- Judge Bench decision of the Hon?ble Supreme Court in the case of Bimolangshu Roy (Dead) through LRs v. State of Assam and Anr.: Transferred Case (Civil) No.169 of 2006 decided on 26.07.2017 wherein, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 [>the Assam Act of 2004?], has been declared unconstitutional for want of legislative competence of the State Legislature. Learned counsel for the petitioner submitted that the Meghalaya Act of 2005 being in pari materia with the Assam Act of 2004 and the basic issue having been settled by the Hon?ble Supreme Court, the present matter is squarely covered by the said decision in Bimolangshu Roy; and hence, the Meghalaya Act of 2005 also deserves to be struck down.

However, the learned Advocate General appearing for the respondents No. 1 and 2 submitted that the said decision in Bimolangshu Roy?s case cannot be applied to the present case because of material difference in the two enactments namely, the Assam Act of 2004 and the Meghalaya Act of 2005. The learned Advocate General referred to the Meghalaya Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) (Amendment) Act, 2016 [>the Amendment Act of 2016?] and submitted that by way of this amendment, brought into effect from 26.09.2016, the status and privileges of the Parliamentary Secretaries have been materially altered and thereby, they do not draw any salary or allowances as Parliamentary Secretaries and in essance, they remain only the members of Legislative Assembly. Thus, according

1 Reported in AIR 2017 SC 3552

to the learned Advocate General, the provisions contained in the Assam Act of 2004, as examined by the Supreme Court in Bimolangshu Roy?s case, and those in Meghalaya Act of 2005 being different on material particulars, the ratio of Bimolangshu Roy does not apply to the present case. The learned Advocate General also submitted that the petitioner has not taken any pleadings so as to question the Meghalaya Act of 2005 on the ground of legislative competence; rather the petition was founded only on the ground that the Meghalaya Act of 2005 was hit by Article 164(1-A) of the Constitution of India and the Hon?ble Supreme Court having not ruled on the grounds taken in the present petition, Bimolangshu Roy cannot be applied as a binding decision under Article

141 of the Constitution of India.

While questioning the Meghalaya Act of 2005, the petit