State Legislatures lack the competence to create the office of Parliamentary Secretary through legislation, as such posts circumvent the constitutional mandate restricting the size of the Council of Ministers and lack express constitutional authorization.

J U D G M E N T

(25.08.2017)

Satish K. Agnihotri, CJ

W.P. (PIL) No. 04 of 2016 (hereinafter referred to as the first petition=) is filed by public spirited persons, in the nature of Public Interest Litigation, questioning the legality and constitutionality of the Sikkim State Legislators? Appointment to Different Authorities Act, 2006 (hereinafter referred to as the Act of 2006=), Sikkim Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2010 (hereinafter referred to as the impugned Act=) and further extension of status of Cabinet Minister and the Minister of State with facilities and privileges to the Chief Whip. Subsequently, the provision of Section 3A(bb) of the Sikkim Legislative Assembly Members (Removal of Disqualifications) Amendment Act, 2006, by way of amendment of the petition, was also challenged. The petitioners have further prayed for quashment of consequential notifications and also a declaration disqualifying the sixth to nineteenth respondents from being members of the Sikkim Legislative Assembly, on the ground of holding office of profit. 

2. W.P. (C) No. 63 of 2016 (hereinafter referred to as the second petition=) was filed by Sikkim Krantikari Morcha, a political outfit, seeking reliefs on similar terms, questioning the validity of various statutory provisions, as stated hereinabove, during the currency of the first petition.

3. Both the writ petitions involve a common question of law, and as such are being considered jointly and disposed of by this common order.

4. The High Court, on preliminary examination, framed the following questions of law in the first petition on 29^th August 2016: -

(i) whether the Parliamentary Secretaries appointed under provisions of the Sikkim Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2010 (for short the Act of 2010=), are holding office of profit;

(ii) if the answer of the first question is affirmative, whether they have incurred disqualification as Legislature under provisions of Article 191(a) of the Constitution of India;

(iii) whether the Act of 2010 providing for appointment of Parliamentary Secretary is violative of the provisions of Article 102 read with Article 191 of the Constitution of India and Section 9 of the Representation of the People Act, 1951;

and (iv) Whether >Explanation? to the provisions of Article 102 with Article 191 of the Constitution of India may be expanded by the Sikkim Legislative Assembly Members (Removal of Disqualifications) Amendment Act, 2006.= 

5. In the meantime, the Supreme Court examined an identical issue in Bimolangshu Roy (Dead) through LRs vs. State of Assam and Another, 2017 SCC online SC 813, on 26^th July 2017, wherein the question involved was the constitutional validity of Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 (hereinafter referred to as the Assam Act=) and held as under: -

54. Thus, it can be seen from the scheme of Article 194 that it does not expressly authorize the State Legislature to create offices such as the one in question. On the other hand, Article 178 speaks about the offices of Speaker and Deputy Speaker. Article 179 deals with the vacation of those offices or resignations of incumbents of those offices whereas Article 182 and 183 deal with the Chairman and Deputy Chairman of the Legislative Counc