Calcutta High Court (Appellete Side)
Vishak Bhattacharya vs The State Of West Bengal & Ors. [In W.P. ... on 1 June, 2015
Author: Ashim Kumar Banerjee
Bench: Manjula Chellur, Ashim Kumar Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble CHIEF JUSTICE DR. MANJULA CHELLUR
And
The Hon'ble JUSTICE ASHIM KUMAR BANERJEE
W.P. No. 7326(W) of 2013
With
W.P. No. 8321(W) of 2013
Vishak Bhattacharya.
Versus
The State of West Bengal & Ors. [in W.P. 7326(W) of 2013]
Puspal Chakraborty.
Versus
The State of West Bengal & Ors. [in W.P. 8321(W) of 2013]
Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Samim Ahammed
Mr. Sabyasachi Chatterjee
Mr. Mrinal Ranjan Pramanik
Mr. Agnibesh Roy. ...For the Petitioner
Mr. Lakshmi Kumar Gupta, Addl. Advocate General
Mr. Pranab Kumar Dutta, Sr. Adv.
Mr. Suman Sengupta
Mr. Abdul Momen ...For the State Respondents
Heard on: 03.9.2014, 04.9.2014, 09.9.2014, 15.9.2014, 28.11.2014,
12.12.2014, 09.01.2015, 16.01.2015 & 27.2.2014.
Delivered on: June 1, 2015.
Dr. Manjula Chellur, Chief Justice :
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 Sections 4 & 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
coordination of Legislative business in the House by serving as an
inter-mediatory 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 in 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 Sections 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 & 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 State of West Bengal. Under the said
Act, they were entitled to receive salary as well as Compensatory
Allowance apart from Constituency Allowance as per the provisions
under 1952 Act. In the said Act, there is clear statement that
Parliamentary Secretaries are those whom the Chief Minister
selects. Other than Parliamentary Secretaries, other office-holders
found place in the said Act of 1952. This creation of Parliamentary
Secretaries by virtue of a Statute was with the sole purpose of
planning and co-ordination of legislative and other official business
in the West Bengal Legislative Assembly. Various functions and
duties of Parliamentary Secretaries are enumerated with the sole
purpose of maintaining closest possible liaison with the department
which they are attached to. In order to ensure better co-ordination
between the executive and legislature since specific duties and
responsibilities are assigned to them, they are entitled to enjoy the
status of a Minister of State. The Governor appoints Council of
Ministers on the advice of Chief Minister and the total number of
Ministers including the Chief Minister in the Council of Ministers shall
not exceed 15% of the total number of MLAs of the State. So far as
appointment of Parliamentary Secretaries, it is totally on a different
footing. They are appointed by Chief Minister and are deemed to be
Ministers only for the purpose of ensuring better co-ordination
between the actual Ministers and the Legislature. Claiming
competency to enact such legislation, they question the locus standi
of the petitioner who is a practicing lawyer. There is no question of
appointment of Ministers beyond the permissible strength of
Ministers under the guise of Parliamentary Secretaries. There is no
intention to overcome the constitutional mandate. There is no
likelihood of any misuse or drainage of public money as contended.
No procedure or rules are violated and there is no question of
financial burden and the reasons stated for striking down the
statute deserves to be rejected.
6. Respondents 1 to 4 have placed affidavit-in-opposition in
W.P. No.7326 (w) of 2013. They denied that entrustment of duties
by Ministers and Chief Minister upon the Parliamentary Secretaries
blurs the distinction between legislative and administrative
functions. Writ petitioners are not competent to agitate the manner
of discharge of functions by a Member of Council of Ministers and it
is entirely the prerogative of the executive to arrange proper
distribution and co-ordination of Government business. With these
observations, they have sought for dismissal of the writ petitions.
7. In support of the contention, learned Senior Counsel
Mr. Bikash Ranjan Bhattacharyya contends that concept of
Parliamentary Secretaries is totally misunderstood by enacting the
statute in question. According to him, the entire exercise was with
an intention to accommodate MLAs who could not be
accommodated with a berth in the Council of Ministers. He further
contends that petitioners as responsible citizens of this country can
always act as pro bono publico whenever there is an attempt to
create dent so far as constitutional mandate. As the enactment in
question, according to learned Senior Counsel aims at, is solely with
the purpose of overcoming the hurdle of restriction created by
virtue of 91st Constitutional Amendment, such direct or indirect
intervention cannot be allowed. According to him, Article 164(1A)
clearly restricts the number of Council of Ministers depending upon
the number of Members of Legislative Assemblies in a particular
State, therefore, in the guise of Parliamentary Secretaries, MLAs
cannot be favoured under the said enactment. He also questions the
competency of the State to make such an enactment which
contravene provisions of the Constitution. No State can enact laws
on the subjects other than the subjects mentioned in the VIIth
Schedule of Constitution is his stand.
8. He took us through various provisions of Constitution and
also several decisions which shall be referred to later.
9. As against this, Mr. Lakshmi Kumar Gupta, learned
Additional Advocate General contends that State has competency to
enact the statute in question. Since Parliamentary Secretaries are
not part of Council of Ministers and are not appointed by Governor
on the advice of the Chief Minister, they cannot be considered as
Ministers and, therefore, there is no question of the State
enactment being in conflict with the constitutional mandate. He
refers to Articles 186, 187(2), 191(1)(a), 194(3), 209, 309 & 310 of
the Constitution contending that how different posts are created
under the Constitution and how the State is competent to enact any
law in connection with the affairs of the State. He also refers to
explanation (b) of Article 361(B) contending that the concept of
political post being a remunerative post is recognized. According to
him, so long as the creation of post is in connection with the affairs
of the State, Act 2012 cannot be found fault with. Since Minister is
one who is a Member of Council of Ministers, reading Sections 5, 6,
7 & 8 of the Act of 2012, along with other provisions, nowhere the
post of Parliamentary Secretaries is referred to as Council of
Ministers. Therefore, Parliamentary Secretaries cannot be brought
on par with the two posts, i.e., Minister of a State and Council of
Minister since, Parliamentary Secretary is neither a member of
Council of Minister nor a Minister of a State. It is further argued
that a Minister is one who is a member of Council of Minister and
not others. He further contended that the functions of the
Parliamentary Secretary are entirely different as enacted by the
Statute and there is no question of Parliamentary Secretary advising
the Governor either as a Chief Minister or as a Council of Ministers.
Since Parliamentary Secretary is not a post referable to Article
164(1A), the enactment in question cannot be found fault with.
10. Learned Senior Counsel Mr. Pranab Kumar Dutta
representing respondents took us through rules, procedure and
conduct of business of the West Bengal. He places reliance on List II
Entry 38 & 40 of the VII Schedule of the Constitution. According to
him prior to impugned Act, Act of 1952 was in existence which was
never questioned and under Article 208 the State has power to
make provisions for Parliamentary Secretary. According to him, at
any stretch of imagination, the Parliamentary Secretary cannot be a
Council of Ministers. Therefore, the enactment is valid and justified.
11. So far as the remuneration and allowances payable to
Parliamentary Secretaries, various judgments are referred to and
they specifically contend that creating a post or making benefit of
post equivalent to the post of a Minister of State is in existence
under various enactments. Therefore, merely the Parliamentary
Secretary receives the remuneration and other benefits equivalent
to that of a Minister of State, it would not make them part of
Council of Ministers.
12. Learned Senior Counsel, Mr. Bhattacharyya has placed on
record several materials which would be referred to. Second
Administrative Reforms Commission (ARC) which was published
somewhere in 2009 as 15th Report details blueprint for revamping
the public administration system.
13. Coming to the State administration, the relevant
paragraphs are 2.3.2.7 & 2.3.2.8 which read as under:-
2.3.2.7 The Commission feels that a compact and small sized Council
of Ministers is one of the essential requirements of good governance and as
indicated earlier the current ceiling of 15% which has been imposed by Article
164(1A), appears to be somewhat excessive for many of the States.
2.3.2.8 In order to arrive at some rational criteria for reducing the size
of the Council of Ministers, the Commission feels that all the 28 States of the
country could be conveniently placed in three groups on the basis of the
strength of their Legislative Assemblies. Bigger States where the strength of
the Assemblies lies between 200 and 400 could be placed in one group such as
Uttar Pradesh, Bihar, West Bengal, Madhya Pradesh, Rajasthan, Gujarat,
Maharashtra, Andhra Pradesh, Karnataka and Tamil Nadu. States where the
strength of the Legislative Assemblies is between 80 and 200 such as Jammu
& Kashmir, Punjab, Haryana, Assam, Jharkhand, Orissa, Chhattisgarh, and
Kerala could be grouped together. The third Group may consist of States
where the strength of their Assembly is below 80 such as Himachal Pradesh,
Uttarakhand, Sikkim, Arunachal Pradesh, Nagaland, Manipur, Mizoram,
Tripura, Meghalaya, and Goa. (For The Union Territory of Delhi, Article
239AA(4) of the Constitution itself limits the size of the Council of Ministers
to 7 whereas in the case of Puducherry it is limited to 6).
14. The Commission was of the opinion that a compact and
small sized Council of Ministers is one of the essential requirements
of good governance. They felt 15% which has been imposed by
Article 164(1A) appears to be excessive for many of the States.
Therefore, they recommended maximum percentage limit in the
range of 10 to 15% of the strength of the respective State
Legislative Assembly. They also suggested where the membership
of the Assembly is more than 200, the strength of Council of
Ministers should not exceed 10% and 12% in the case of medium
States where the strength of the Assembly between 80 to 200 and
15% where the strength of the Assembly is below 80. Rules of
procedure and conduct of business in the West Bengal Legislative
Assembly in terms of Article 208 of the Constitution refers to
Minister as a Member of Council of Ministers and includes a member
of the Cabinet, a minister of State, a Deputy Minister or a
Parliamentary Secretary. Similarly, Rules of Procedure and conduct
of business in Lok Sabha refers to Ministers as stated above.
15. It is pertinent to mention report of the National
Commission to review the working of the Constitution. At Clause
4.19 there is a reference to the practice of having oversized Council
of Ministers which must be prohibited by law. A ceiling on the
number of Ministers in any State or the Union government be fixed
at the maximum of 10% of the total strength of the popular house
of the legislature. In this connection, reference is also invited to
clause 4 of article 239AA of the Constitution, which limits the size of
Council of the Ministers to not more than 10% of the total number
of members in the Legislative Assembly of the National Capital
Territory of Delhi. Also, the practice of creating a number of political
offices with the position, perks and privileges of a minister should
be discouraged and at all events their number should be limited to 2
per cent of the total strength of the lower house.
16. The petitioners mainly relies upon 2009 (111) BOMLR
737 [Adv. Aires Rodrigues v. The State of Goa by its Chief
Secretary and Ors.] to contend that while considering Article
164(1A) of the Constitution of India, Their Lordships had an
occasion to look into the challenge questioning the authority of the
respondents therein to hold the posts of 'Parliamentary Secretaries'
and also to enjoy the status of a Cabinet Minister. Along with this,
appointment to different posts in the State administration was also
under challenge on the ground that the same was violative of
Constitutional provisions, therefore, arbitrary and is opposed to
public policy. It was further contended that appointment of
Parliamentary Secretaries and other Governmental posts was under
a colourable exercise of power and even if the same was a policy
decision, it is motivated to frustrate the constitutional mandate,
therefore, void ab initio.
17. Their Lordships opined in a detailed judgment that since
Council of Ministers should not exceed the prescribed size under
Article 164(1A), State has no authority to frustrate the
Constitutional mandate and over-reach the constitutional restriction.
They further opined that such exercise would be termed as arbitrary
and untenable in law. Therefore, what is directly impermissible as a
restriction on the size of the Council of Ministers cannot be
permitted by indirect method.
18. Respondents relied upon the following decisions.
AIR 1994 Madras 252 [Justice S.T. Ramalingam v. State
of Tamil Nadu & anr.]. The controversy that arose in this case,
whether the Judges of the Madras High Court were entitled to
medical bills and other facilities in terms of All India Services
(Medical Attendance) Rules of 1954 or High Court Judges
(Conditions of Service) Rules continued to apply for the reasons the
Rules were framed under the Tamil Nadu Payment of Salaries Act of
1951 for the medical attendance bills of the Ministers and others, if
applied to them, appear to deny what they must legitimately get in
terms of the said Rules. It was opined that application of the Rules
which reduce the allowances already granted to the Judges is not
permissible under Article 221(2) of the Constitution of India.
AIR 1985 Himachal Pradesh 22 [Smt. Leela Devi v.
Rangila Ram Rao] was relied upon. This was an election petition
to declare the election of the respondent Rangila Ram Rao as void.
Para 3 is relevant which reads as under:
" It is stated in the election petition that the respondent was a
member of Himchal Pradesh Vidhan Sabha from June 1977 to
April 19, 1982. With effect from May, 9, 1980, he was
appointed as Chief Parliamentary Secretary to the
Government of Himchal Pradesh. It is pointed out that since
there was no provision for the appointment of Chief
Parliamentary Secretary under the Constitution of India, the
Government of Himchal Pradesh in exercise of its executive
powers, accorded sanction to the creation of the post of Chief
Parliamentary Secretary. Consequently, the respondent was
appointed as such by an order dated 11th June, 1980. The
order was, however, made effective from May 9, 1980. It is
stated that on April 19, 1982, the Governor of Himachal
Pradesh in exercise of his powers under Article 174 of the
Constitution of India, dissolved the Legislative Assembly of
Himachal Pradesh with effect from that date. As such,
according to the petitioner, the respondent ceased to be a
Member of Himachal Pradesh Legislative Assembly (The
Assembly in short) and could not continue to be a Member of
the Government of Himachal Pradesh, headed by the then
Chief Minister. It is contended by the petitioner that from that
day onward, the respondent was reduced to the status of an
employee of the State Government drawing a salary of
Rs.1,000/- per month apart from enjoying other privileges as
contained in Annexure-A. According to the petitioner, since
the respondent held the office of profit under the State of
Himachal Pradesh from April 19, 1982, the protection from
disqualification afforded to him as a Chief Parliamentary
Secretary under Section 3 of the Himachal Pradesh Members
of Legislative Assembly (Removal of Disqualifications) Act,
1971 (hereinafter to be referred as the Act of 1971) ceased to
be available to him from that day onwards. The respondent is
stated to have resigned from the said office on 24th May,
1982."
They also relied on (2008) 13 SCC 5 Constitutional Bench
judgment in the case of State of Maharashtra v. Bharat Shanti
Lal Shah & ors. Learned Senior Counsel Mr. Pranab Dutta relied
upon this decision with regard to mode of construction of statute
and how presumption of constitutionality in favour of a statute has
to be drawn. It was stated in the above case that one of the proven
methods of examining the legislative competence of an enactment
is by the application of doctrine of pith and substance. This doctrine
is applied when the legislative competence of the legislature with
regard to a particular enactment is challenged with reference to the
entries in various lists. If there is a challenge to the legislative
competence, the Courts will try to ascertain the pith and substance
of such enactment on a scrutiny of the Act in question. In this
process, it is necessary for the Courts to go into and examine the
true character of the enactment, its object, its scope and effect to
find out whether the enactment in question is genuinely referable to
the field of legislation allotted to the respective legislature under the
constitutional scheme. The said doctrine has come to be established
in India and is recognized in various pronouncements of the
Supreme Court and the High Courts.
19. Where a challenge is made to the constitutional validity
of a particular State Act with reference to a subject mentioned in
any entry in List I, the Court has to look to the substance of the
State Act and on such analysis and examination, if it is found that in
pith and substance, it falls under an entry in the State List but there
is only an incidental encroachment on topics in the Union List, the
State Act would not become invalid merely because there is
incidental encroachment on any of the topics in the Union List.
Thus, though it is true that the State Legislature would not have
power to legislate upon any of the matters enumerated in the Union
List but as per the doctrine of pith and substance, if it could be
shown that the area and subject of the legislation is also covered
within the purview of the entry of the State List or the Concurrent
List, in that event incidental encroachment to an entry in the Union
List will not make a law invalid and such an incidental encroachment
will not make the legislation ultra vires the Constitution.
20. Learned Advocate General relied upon (1990) 1 SCC 12
[India Cement Ltd. & ors. v. State of Tamil Nadu & ors.]
again to contend how the language used in a particular entry should
be understood? Para 18 is relevant which reads as under:-
18. Certain rules have been evolved in this regard, and it is well settled
now that the various entries in the three lists are not powers but fields of
legislation. The power to legislate is given by Article 246 and other articles of
the Constitution. See the observations of this Court in Calcutta Gas Co. v.
State of West Bengal. The entries in the three lists of the Seventh Schedule to
the Constitution, are legislative heads or fields of legislation. These demarcate
the area over which appropriate legislature can operate. It is well settled that
widest amplitude should be given to the language of these entries, but some of
these entries in different lists or in the same list may overlap and sometimes
may also appear to be in direct conflict with each other. Then, it is the duty of
the court to find out its true intent and purpose and to examine a particular
legislation in its pith and substance to determine whether it fits in one or the
other of the lists. See the observations of this Court in H.R. Banthia v. Union
of India and Union of India v. H.S. Dhillon. The lists are designed to define
and delimit the respective areas of respective competence of the Union and the
States. These neither impose any implied restriction on the legislative power
conferred by Article 246 of the Constitution, nor prescribe any duty to
exercise that legislative power in any particular manner. Hence, the language
of the entries should be given widest scope, to find out which of the meaning is
fairly capable because these set up machinery of the government. Each general
word should be held to extend to all ancillary or subsidiary matters which can
fairly and reasonably be comprehended in it. In interpreting an entry it would
not be reasonable to import any limitation by comparing or contrasting that
entry with any other one in the same list. It is in this background that one has
to examine the present controversy.
21. Respondents also relied upon (1990) 1 SCC 438 [K.M.
Sharma v. Devilal & ors.]. In this case, the challenge was with
regard to appointment of Deputy Prime Minister. Since the oath of
the Deputy Prime Minister was not in accordance with the
prescription of the Constitution Their Lordships opined that mere
description of Deputy Prime Minister as such would not confer on
him any power of the Prime Minister and he would remain only a
Minister and accordingly held that appointment was not vitiated.
This was relied upon to contend that merely subscribing status of a
Minister of State to Parliamentary Secretary, he would not become
Council of Minister, but he would remain only a Member of
Legislative Assembly.
22. 1980 Supp. SCC 249 [V.G. Shukla v. State (Delhi
Administration)] was relied upon to contend that if there is
reasonable classification and if provisions of Article 14 of the
Constitution permits the same, then it is reasonable. Once hostile
differentiation between equally circumstanced and situated persons
arises, Article 14 of the Constitution is attracted. Onus is on the
person challenging the statute to displace presumption arising in
favour of constitutionality of the statute.
23. Learned Additional Advocate General supporting the
legislation in question brought to our notice Article 186 and 187(2)
of the Constitution to contend that salaries and allowances of the
Speaker and Deputy Speaker as well as Chairman and Deputy
Chairman of Legislative Assembly and Legislative Council
respectively are fixed by the Legislature of the State by law. So far
as application of salaries and allowances mentioned in the Second
Schedule would apply till such law is made by the State.
24. Similarly, sub-Article (2) of Article 187 speaks of
authority of the State to make law to regulate the recruitment and
the conditions of service of persons appointed to the Secretarial
staff of the House or Houses of the Legislature of the State.
25. Article 191(1A) speaks of disqualification of a member of
Legislative Assembly or a Legislative Council of a State if such
person holds any office of profit under the Government of India
other than being a Member of Legislative Assembly or Legislative
Council of State.
26. Sub-Article (3) of Article 194 speaks of the powers,
privileges and immunities of a State Legislatures and their
Members. It says, the powers, privileges and immunities of a House
of a Legislature of a State, of the Members and the Committees of
House of such Legislature shall be such as may from time to time be
defined by the Legislature by law and until so defined shall be those
of that House and of its members and committees immediately
before the coming into force 44th Amendment Act of 1978.
27. Article 209 refers to authority of Legislature of a State for
regulating the timely completion of financial business by procedure
in relation to any financial matter or to any Bill for the appropriation
of moneys.
28. Article 309 is relied upon to contend that subject to the
provisions of the Constitution, Acts which are promulgated by the
appropriate Legislature to regulate the recruitment and conditions
of service of persons appointed to public services and posts in
connection with the affairs of the Union or any State can be made
by the State Legislature. This was contended to substantiate the
stand of the State that State can legislate law on subjects other
than those provided under VIIth Schedule of the Constitution.
29. Article 310 is also relied upon with regard to the civil
service of the persons.
30. Explanation (b) to sub-Article 361(B) was relied upon
with regard to the procedure for disqualification for appointment of
remunerative political posts.
31. This Article was relied upon to contend that Parliamentary
Secretary post is remunerative political post under the Government
of a State and the salaries or remuneration is payable out of the
public revenue of the State as the case may be. According to them,
unless the person, who is appointed as Parliamentary Secretary is
disqualified for being a Member of the House shall also be
disqualified to hold any remunerative political post for duration of
the period commencing from the date of his disqualification till the
date on which the term of his office would expire in that post.
32. It is contended on behalf of the State that the
Parliamentary Secretary under Act 2012 cannot be treated as a
Member of Council of Ministers since Minister is one who is Member
of Council of Ministers. According to them, the creation of
Parliamentary Secretary post as long as is in connection with the
affairs of the State, it is valid. They took us through Sections 5, 6,
7 & 8 of the Act. The rules for this enactment were made in 2013.
33. After the Bill in 2012, the West Bengal Parliamentary
Secretaries (Appointment, Salaries, Allowance and Miscellaneous
Provision) Act of 2012 has come into force from the date it was
notified in the Official Gazette. Said notification was gazetted on
11.1.2013. Sections 3, 4, 5, 6 & 7 are relevant which read as
under:-
3. The Chief Minister may, having regard to the circumstances and the
need of the situation, at any time appoint such number of
Parliamentary Secretaries and assign to each of them such duties and
functions as he/she may deem fit and proper.
4. A Parliamentary Secretary shall be of the rank and status of a
Minister of State or Deputy Minister and shall exercise such powers,
discharge such functions and perform such duties as may be assigned
to him by the Chief Minister by way of a notification published in the
Official Gazette.
5. The functions and duties of Parliamentary Secretary shall be such as
may be specified.
6. The Parliamentary Secretary shall, before entering upon his office,
take an oath of office and secrecy in such manner as may be prescribed.
7. A Parliamentary Secretary shall be entitled to such salary and
allowances as are admissible to a Minister of State or a Deputy
Minister, as the case may be, under the West Bengal Salaries and
Allowances Act, 1952.
34. Subsequent to this enactment from time to time
notifications were made with regard to benefits to be enjoyed by
Parliamentary Secretaries. As per notification No.558 dated
12.7.2013, the benefits/facilities of a Parliamentary Secretary
appointed under 2012 Act will be at par with those of a Minister of
State.
35. Another notification dated 11.6.2013 says they are
entitled to use a furnished residence in Kolkata, if they normally
resided outside Kolkata.
36. Another notification no.226 dated 14.3.2013 says they
shall enjoy the status of a Minister of a State in West Bengal.
37. By notification dated 01.02.2013 in exercise of power
conferred under Sections 4 & 5 of the West Bengal Parliamentary
Secretaries (Appointment, Salaries, Allowance and Miscellaneous
Provision) Act of 2012, they were assigned to discharge the
following duties and functions:-
(1) The Parliamentary Secretaries will assist the respective
Minister-in-Charge in planning and co-ordination of
legislative and other official business in the West Bengal
Legislative Assembly;
(2) Parliamentary Secretaries are expected to maintain the closest
possible liaison with the Department to which they are
attached, the Minister-in-Charge and Secretary and with the
members of the Legislature;
(3) Parliamentary Secretaries would be prepared at all times to
represent and speak on behalf of the Minister-in-Charge in the
West Bengal Legislative Assembly, including at various
Assembly Committees so constituted, subject to specific
authorization by the Minister-in-Charge and the Chief
Minister;
(4) Parliamentary Secretaries would attend the meeting of the
Assembly Committees and co-ordinate the action based on the
recommendations of Assembly Committees, subject to specific
authorization by the Minister-in-Charge and the Chief
Minister;
(5) Parliamentary Secretaries will maintain necessary liaison with
leaders of various political parties and groups represented in
the West Bengal Legislative Assembly, subject to specific
authorization by the Minister-in-Charge of Parliamentary
Affairs Department;
(6) The Minister-in-Charge of a Department may, at his discretion
and with the prior approval of the Chief Minister, specify a
selected class of legislative policy matter which the
Parliamentary Secretary may deal with and submit his or her
views to the Minister-in-Charge;
(7) Parliamentary Secretaries are not ordinarily required to deal
with Departmental files except in so far as they may be
specifically directed to do so by the concerned Minister-in-
Charge and the Chief Minister for his or her assistance in his or
her Parliamentary work.
38. As per Rule 3 which came into effect on 21.01.2013
Parliamentary Secretaries (Oath of Office and of Secrecy) shall be
made before the Chief Minister in the prescribed form.
39. Manual Part-I was placed on record to show that in West
Bengal Salaries and Allowance Act of 1952, Parliamentary Secretary
of the Government of West Bengal was also included whose salary
was Rs.1,000/- per month at the relevant point of time.
40. By order dated 11.8.1999 the Home Department clarified
who are Council of Ministers. It says Council of Ministers includes
all Minister and Ministers of State of West Bengal.
41. In order to contend that several political posts are
assigned with rank and status of a Minister to such persons, several
notifications were relied upon. The notification dated 24.2.1984
speaks of rank and status of Leader of the Opposition in the West
Bengal Legislative Assembly equivalent to that of a Cabinet Minister
of that State. Similarly, notification dated 4.4.1990 speaks of rank
of Advocate General of the State shall be deemed to have been
status of Member of State Cabinet. Similarly, notification dated
8.9.1993 speaks of Sabhadhipati of a Zilla Parishad enjoying the
status of a Minister of State in the West Bengal. Notification dated
19.8.1994 speaks to Chief Minister to enjoy the status of a Minister
of State of the Government. Another notification dated 9.2.1999
speaks of Sabhadhipati to Siliguri Mahakuma Parishad to enjoy the
status of Minister in State of West Bengal. They have also placed
on record Karnataka Parliamentary Secretaries Allowances Act of
1963. Section 3 of this Act says that Parliamentary Secretary shall
be entitled to such salaries and allowances as are admissible to a
Minister, Minister of State or a Deputy Minister of State in
Karnataka Minister's Salaries and Allowances Act of 1956.
42. We have to analyse the arguments of the State in order
to appreciate whether there is justification in their stand supporting
the Legislation in question. Parliamentary Secretaries cannot be
equated with that of service of persons serving the Union or the
State. Article 309 authorizes the Legislature to regulate the
recruitment and conditions of persons appointed in connection with
the affairs of the Union or State as the case may be. These
appointments are regulated by rules with reference to recruitment
and other conditions of service. It would be inappropriate to equate
the services of Parliamentary Secretaries with that of the services of
persons serving the Union or a State with reference to public service
i.e., in connection with the affairs of the Union or the State.
Therefore, there is no justification for the State to rely upon Article
309 so far as the controversy before us.
43. Similarly Articles 186 and 187 cannot be relied upon as
the Speaker and Deputy Speaker so also Chairman and Deputy
Chairman referred to in these Articles cannot be equated with that
of Parliamentary Secretaries. None of the persons referred to under
Articles 186 and 187 are required to discharge the duties and
functions of Parliamentary Secretaries as referred to at para 37
which are akin to functions of Council of Ministers.
44. There cannot be any dispute that the Legislature of a
State by law is empowered to define powers, privileges and
amenities of a House of such Legislature or its Members. We are
not deciding any issue with regard to the status of the party
respondents as members of the Legislative Assembly. We are
examining their status as Parliamentary Secretaries. They cannot
fit in the description of House of the Legislature of a State, its
Members and the Committees of the House.
45. Article 195 definitely takes care of salaries and allowances
of the Members of the Legislative Assembly and the Legislative
Council of the State. It does not speak of Parliamentary
Secretaries. The rules so far as persons of public service or persons
holding any posts by virtue of Article 309, only the President of
India or the Governor of a State is empowered to do so and not the
Chief Minister.
46. Article 154 of the Constitution of India clearly indicates
that the executive power of the State is vested in the Governor,
who shall exercise such executive power either directly or through
officers subordinate to him, but it has to be in accordance with the
Constitution. The powers defined under Article 162, no doubt
give/vest executive powers to the State but it also defines or
qualifies the executive powers of the State, i.e., to what extent it
can be exercised since it is subject to the provisions of the
Constitution and proviso to Article 162.
47. Article 163 empowers the Chief Minister of a State as
Head of the Council of Ministers to assist and advice the Governor.
The Governor shall appoint such number of Ministers, who will hold
office during the pleasure of the Governor, on the advice of the
Chief Minister.
48. It is needless to say much exercise must have gone into
during the deliberations before bringing amendment to Article 164.
It was amended so as to place a check on the size of Council of
Ministers in every State. It was to operate prospectively from the
date of commencement of the 91st amendment of the Act by putting
a restriction on the size of the Council of Ministers not exceeding
15% of the total number of Members of the State Assembly with
minimum limit of 12%. The provisions were expected to be retro-
active requiring the authority concerned to bring down the size of
Council of Ministers in conformity with the provisions of Article 164
(1A) of the Constitution. This had to be done within a period of 6
months from the date of coming into force of amended provisions.
The amended provision came into effect from 1.1.2004. It is also
seen that, several States adopted the amendment, enacted laws for
appointment and fixation of salaries and allowances payable to the
Parliamentary Secretaries. Apparently, various Acts enacted by
different States concerned remain valid piece of Legislation till their
correctness or validity is challenged in the face of Constitutional
mandate by 91st Amendment.
49. The Bombay judgment was in respect of an ordinance in
the State of Goa in the absence of any enactment of the present
nature. We have to examine the present situation in the light of
Constitutional amendment to Article 164. The challenge would be
the same whether it is an ordinance or a policy or an enactment
since it has to be examined in the face of Constitutional
amendment. In the enactment under challenge, the posts of
Parliamentary Secretaries are created and they remain so at the
pleasure or discretion of the Chief Minister. Past history indicates
concept of Parliamentary Secretary is not unknown practice. We
have to examine the enactment which creates post of Parliamentary
Secretary wherein provisions regarding methodology for
appointment, demarcating functions, duties and perks of
Parliamentary Secretaries, vis-à-vis., the purpose and the object
with which Article 164 was amended by inserting Article 164(1A).
The functions of the Parliamentary Secretary defined in the Statute
do not go beyond the purview of the duties and functions of the
Council of Ministers. Their functions are not like that of an Advocate
General, Speaker and Deputy Speaker which are created by virtue
of other provisions of Constitution. The functions attached to the
post of Parliamentary Secretary is that of the functions of the
Ministers. In other words, they share the responsibility of the
Minister of a State. Their deliberation or involvement in the duties
and functions of the Department to which they are attached to,
have an impact on the decision making process so far as that
Department is concerned. In other words, they without being called
as Ministers, do discharge functions of Ministers. They are not
Secretaries, who come through the public service referred to under
Article 309. The Parliamentary Secretary is also a political
executive like other political executives in the State.
50. In the above background, one has to examine the
enactment with reference to the object and purpose with which
Article 164(1A) was introduced. While interpreting the provisions of
the Constitution, one has to examine and interpret the provisions in
the context in which they are used and the purpose they are
expected to achieve. The paramount guidance would be to see
what the object and the legislative intent lies behind enacting
provisions of law. On several occasions, the Courts exercising
object oriented approach while interpreting the provisions of
Constitution, did refer to assembly debate as a means of guidance
in order to arrive at proper interpretation. The Constitution is not
just a document in sacred or solemn form. It has to be considered
as a living frame work for the Government of the people and its
successful working entirely depends upon the democratic spirit
underlying it which has to be respected in letter and spirit. On
many occasions it is reiterated by various judgments of the Apex
Court that obligation of the judiciary is to administer justice
according to law. However, the law must be one which commands
legitimacy with the people and legitimacy of the law itself. This
would depend upon whether it is accorded with justice. Therefore,
it is said even ruler is not above the rule of law.
51. It is worth referring to wisdom of Former Chief Justice of
India, Mr. Justice M.N. Venkatachalaiah, in his Forward Note to the
Constitution of Jammu and Kashmir - Development and Comments
which says "the mere existence of a Constitution by itself, does not
ensure constitutionalism. What are important are the political
traditions of the people and its spirit and determination to work out
its constitutional salvation through the chosen system of its political
organization."
52. The obligation on the elected representative in a
parliamentary democratic set up is to strictly adhere and obey the
Constitutional mandate. At any cost, it cannot be subverted by
circumventing the law. By enacting a law, law gives much
discretion in exercise of powers by authorities like Chief Minister
and others, but they are expected to exercise discretion only in a
manner regulated by law and they shall not do anything contrary to
the Constitution (referred to AIR 2001 SCC 2707 - S.P. CHOUDARY
-vs- STATE OF PUBJAB AND OTHERS; AIR 2001 SC 2435 - B.R.
KAPOOR -vs- STATE OF TAMILNADU).
53. As contended by the State, by enactment of 1952 in the
State of West Bengal post of a Parliamentary Secretary was a
convention or a practice. It is pertinent to mention that in the year
1952 Article 164(1A) was not in existence. This is how the purpose
and the object with which Article 164(1A) was inserted in the
Constitution becomes relevant. The question before us is whether
Act of 2012 is valid and justified in the light of Article 164(1A). Mere
such practice cannot make the enactment a valid one unless such
enactment is in consonance with the object and the mandate
enshrined in the Constitution.
54. One has to examine the surrounding circumstances under
which Articles 164(1A) was inserted and interpret the enactment
under challenge.
55. In principles of statutory interpretation by great author
Justice G.P. Singh, it is observed that the Court can always take
into consideration while interpreting the provisions, the historical
facts and circumstances. It is well-settled that a legislation has to
be saved as far as possible. If it needs to be read down to save the
legislation it has to be done so since presumption of validity is
attached to a legislation. Such presumption cannot be raised if the
legislation opposes the ethos of Constitution. No doubt, changed
circumstances have a bearing on the approach of the Court in such
matters. Article 164(1A) was not in existence till 2004. After great
deliberation and recommendation of the standing committee it was
introduced. The circumstances existed definitely indicate, it was to
ensure that Council of Ministers does not exceed the prescribed
size, therefore, the framers chose not to provide any exception.
The main purpose of enacting Article 164(1A) was not only to check
defection on the part of the Members of Legislative Assembly but
also to limit the size of the Cabinet for better governance and also
to avoid heavy burden on public exchequer. By referring to power
under Article 162 of the Constitution, there cannot be any
interpretation over reaching or over riding the constitutional
mandate under Article 164(1A). The political executive must obey
and respect the object and purpose of 91st amendment to the
Constitution of India. Reference is made to AIR 2009 SCC 92
MAHALXMI SUGAR Mills CO., -vs- UNION OF INDIA.
56. The authorities, who are expected to discharge their
functions should always remember the Constitutional mandate and
they cannot circumvent the said mandate under the guise of
exercising other powers or taking recourse to other provisions over
riding Constitutional mandate. If the enactment did not prescribe
qualification of MLA it is altogether a different situation. If a
legislation is brought to regulate the business of the House for
better governance and administration no one can find fault with the
same. Probably number of Parliamentary Secretaries, Cabinet
Ministers and Ministers of a State all put together do not exceed the
restricted number of Council of Ministers indicated under Article
164(1A), such legislation cannot be found fault with.
57. Under the enactment in question, the qualification to
become a Parliamentary Secretary one has to be a Member of
Legislative Assembly. Except M.L.A., no other person could be
conferred with the nomenclature of a Parliamentary Secretary.
Under the Act, they are given the status of a Minister of State.
Definitely, as contended by the State, one cannot find fault with the
prescription of salaries and allowances of Parliamentary Secretary
on par with the Minister of a State since many other political
executives are given such benefits on par with Minister but
assigning the status to them, the status of Minister of a State
cannot be approved. Other political executives do enjoy all the
benefits assigned to the post of a Minister of State, but they are not
connected to the Departments assigned to a particular Minister.
Those political executives are not acting as intermediary between
the Minister of the Department and the Secretariat as like
Parliamentary Secretaries. Over and above, by giving them
salaries, allowances and perks equal to that of a Minister of State,
they are also assigned with the status of a Minister of State.
Treating a post equal with that of a Minister is different from
assigning the status of a Minister of a State to that post. It is
nothing but over riding the Constitutional mandate i.e., restricting
on the size of Council of Ministers. What is directly prohibited
cannot be achieved by indirect method. Where it is not permissible
to enlarge the Council of Ministers beyond the prescribed size,
adopting an indirect method to defeat the Constitutional mandate
by giving the nomenclature of Parliamentary Secretary to a Member
of Legislative Assembly, who could not make it to become a Minister
is nothing but defeating the very purpose and intent of the
Constitutional mandate. The description of Parliamentary Secretary
and the duties assigned to them especially after insertion of Article
164(1A) is nothing but allowing a Member of Legislative Assembly
to become de-facto Minister. Assigning status of Minister of a State,
description of their functions and qualifying the perks and privileges
under the enactment would clearly lead us to the conclusion that
the Parliamentary Secretaries are in fact Ministers though they
function under a different title or nomenclature.
58. No one can deny the authority of a State to create posts
and frame its policies for better administration. They can have any
number of advisers with vast experience in the field to advise the
Government. But one must remember it cannot be against the
philosophy of the Constitution as Constitution is above all other
laws. Whenever such policies are framed on reasonable basis
without hidden agenda and the overall assessment of the policy do
not expose any arbitrariness, Courts shall not interfere with such
policies is the settled principle. If a decision taken on policy suffers
from infirmities or deficits on account of violation of the
Constitutional provisions or in violation of settled law and if such
policy decisions has no legal basis whatsoever and is an outcome of
colourable exercise of power, Courts have to examine such cases in
order to intervene by exercising judicial review. Same principle
applies even to a legislation.
59. In the present case, Statute is brought in this regard and
according to the State the posts of Parliamentary Secretaries are
created under a Statute made by competent authority that is the
State and not a policy decision like in the case of State of Goa
(supra). Apparently, post of Parliamentary Secretary is political
executive post. The State can take shelter by arguing that the
appointments in question are within the powers under frame work
of law. The power of the State to sanction or create post under the
impugned enactment can hardly be questioned, but the question is
not the competency of the State to sanction or create the post by
law under an enactment, but the very Statute is in conflict with the
Constitutional mandate. Especially when the provisions of Article
164(1A) prohibits number of Council of Ministers, can there be a law
which frustrates the limitation imposed by Constitutional mandate?
In other words, the powers vested by virtue of Articles 162 and 163
of the Constitution to be exercised by the Chief Minister and the
Governor are rather controlled or limited by insertion of Article
164(1A).
60. Constitution holds supremacy over all other laws. The
authority or power arising from any source of law, naturally has to
be in conformity with the Constitution and the powers to be
exercised by authority must be in adherence to the provisions of the
Constitution. It is well settled that public necessity is greater and
higher than private necessity. Private interest must yield to the
public interest. In order to have proper governance, the authority
which exercises power must be backed by law and such law must be
exercised in accordance with the prescribed limits of law. Could we
consider the Statute in question as an exercise of an Administrative
Policy Decision, therefore, no judicial review is possible. Whether it
is by a Statute or by an Administrative Policy, unless it is not in
violation of specific provisions of the Constitution, such law or policy
cannot have the seal of validity.
61. A question arose before the Supreme Court of USA -
Whether the law of the Legislature is above the Constitution of the
Country. In the case of MARBURY -VS- MADISON, 5 US 137 (1803)
it was opined that, there cannot be any presumption that any clause
in the Constitution is intended to be without effect. An act which is
repugnant to the Constitution cannot be a valid law. Any legislative
Act contrary to the Constitution is not law. When people have
framed written Constitution it is contemplated that it is fundamental
and paramount law of the nation, therefore, every Government
must follow the Constitution and any act of the Legislature
repugnant to the Constitution is void. If an act of Legislature is
repugnant to the Constitution, definitely Courts cannot give any
effect to such legislative act. If two laws conflict with each other,
while interpreting the laws, Courts must decide on the operation of
each of the law. If a law is in opposition to the provisions of the
Constitution, it cannot be approved by Courts of Law. Why does a
Judge swear to discharge his duties agreeably to the Constitution of
the United States, if that Constitution forms no rule for his
Government? If it is closed upon him, and cannot be inspected by
him, if such be the real state of things, this is worse than solemn
mockery. To prescribe, or to take this oath, it becomes equally a
crime. When one has to declare what shall be the supreme law of
the land, the Constitution itself is first mentioned and not the laws
of the United States generally, but those only which shall be made
in pursuance of the Constitution have that rank. When the
Constitution is made by the people of the Country and that
Constitution must be respected and implemented in letter and spirit.
No law made by any authority irrespective of its competence can be
allowed to work in defiance of the Constitution. Any law whatever
be the purpose or the object, if repugnant to the Constitution, it is
void.
62. One has to see whether the appointment of Parliamentary
Secretary tantamount to appointment of Minister. Is it an exercise
to circumvent and defeat the limitation or restriction under the
Constitutional mandate? Definitely, nomenclature of the post is of
irrelevance. For what purpose they are appointed and the impact of
their functions on the infrastructure of the mechanism of the
Cabinet has to be seen.
63. The difference between the Minister and Parliamentary
Secretary has to be understood with reference to the provisions of
Article 164(1A). The source of appointment, purpose of
appointment, duties and functions and the perks and privileges
confirmed on such Parliamentary Secretary is on par with a Minister
of State. Minister of State is nothing but an elected member of an
Assembly, who is part of Council of Ministers, who would assist and
advice the Governor in discharge of the functions of the State.
Whether they are persons forming part of the Cabinet or State
Ministers within the Cabinet, their number is definitely and
undisputedly governed by the provisions of Article 164(1A). Their
appointments are duly notified and oath is administered through the
Governor. It appears, there is no regular cadre carrying the
nomenclature of Parliamentary Secretary deriving authority from
the Constitution of India i.e., to say, they are neither part of regular
State services nor political executive authorities forming part of the
system governing the governance of the State. Their role is to
participate factually in the functioning of Government, may be with
some restrictions but definitely they are outsiders to the functioning
of the Government. They have access to public record and
interaction with the public. Practically except for the nomenclature,
they almost function like a Minister of a State. It appears, these
appointments are primarily made for the purpose of accommodating
an Elected Member of Assembly, who could not be included in the
regular Cabinet for one reason or the other primarily on account of
restriction contained in Article 164(1A) of the Constitution. In fact
'Parliamentary Secretaries' carry all that a Minister does except the
name.
64. In the present case, the Statute in question 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.
Accordingly, the writ petitions are allowed. The enactment of West
Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance
and Miscellaneous Provision) Act of 2012 is struck down.
Consequently, the appointments of the party/respondents as
Parliamentary Secretaries are set aside.
(Manjula Chellur, Chief Justice)
Ashim Kumar Banerjee, J. :
I have the golden opportunity to go through the well-versed judgment of my esteemed sister, Her Ladyship, the Hon'ble Chief Justice, I fully agree with Her Ladyship on the ultimate result of the lis. However, with great hesitation and with all humility may I express my little apprehension to the extent, our judgment may be misunderstood and/or misinterpreted. I thus feel prudent to add a few words clarifying some issues which would dispel my little apprehension as expressed hereinbefore. My earnest effort is to dispel all doubt that might arise. Hence, this humble endeavor. I need not dilate on the issues raised and argued before us as it would be a repetition and in the process I might commit mistake. To my understanding, the writ petitioners approached us challenging the validity of the impugned Act. The sheet anchor of the petitioners' case would lie on two High Court decisions, one of the Himachal High Court and the other of the Bombay High Court. To my understanding, the said two decisions would never support the case of the petitioners as those could be clearly distinguished. The argument on that score, in my view, was thoroughly misplaced. If we look to the Himachal case we would find an unsuccessful candidate challenging an election process under the Representation of Peoples Act, solely on the ground, the successful candidate was holding the post of Chief Parliamentary Secretary a place of profit and as such violated the provisions of the Representations of Peoples Act. The High Court dismissed the petition, while doing so the High Court held, once the Assembly was dissolved and the candidate ceased to be a member of the Assembly he could not continue as Chief Parliamentary Secretary. It could not be said, the respondent was disqualified to be elected as a member of the Assembly as he had been appointed the Chief Parliamentary Secretary. I do not find any resemblance of the factual scenario that prompted to High Court to make such observation. Rather, the logic behind such observation, if one would infer on a combined reading of the said decision, would support my view that I shall be expressing hereinafter.
In the Bombay case, the appointment of Parliamentary Secretary in Goa Assembly was called in question. The Bench dealt with all aspects while examining the constitutional validity of such appointment. The Division Bench found, the State of Goa did not enact any law relating to creation or filling up the post of Parliamentary Secretary. The claim of the Government exercising power under Article 162 was found to be arbitrary and colourable and that too, to frustrate the limitations imposed under Article 164(1)A as observed by the Bench in paragraph 65 of the said decision. In our case, the legislature enacted the law that was called in question and as a consequential relief the petitioner prayed for quashing of the appointments under the said statute, meaning thereby, in case the petitioners would succeed in getting the law struck down the fruits out of it would automatically go. We wonder, how this could be of any help to us.
Let me now deal with the issue independent of those two decisions. The petitioners would claim, the power of the State to make such law was absent as the entry No. 2 item 40 in Seventh Schedule would not support such enactment. Per contra, the State would claim, they derived power under list 2 entry No. 38. We all know, List 2 of the Seventh Schedule would itemize subjects that would be dealt with by the State. Item 40 would relate to salaries and allowances of the ministers for the State whereas item 38 would deal with the salaries and allowances of the members of the legislative Assembly including the speaker and deputy speaker. The schedule and the list appended thereto, would deal with subjects that would be within the domain of the State or the Union or both. However, the power would come from the Articles. Article 309 would empower the Union or the State to regulate the recruitment and conditions of service in public employment through appropriate legislation. Article 208 would empower the legislature of a State to make rules for regulating its procedure and conduct of its business, of course subject to the limitations and restrictions that the Constitution would impose. Similarly, with regard to financial business, Article 209 would empower the State legislature to make appropriate laws. In my humble opinion, the list so appended, is to facilitate appropriate rules and procedures to be enacted to deal with various subjects and issues appended thereto. There are separation of powers to avoid conflict. There are some items where concurrent competence is entrusted on the Union and the State. However, this, in my view, cannot be exhaustive. Whether a particular issue or subject is within the scope or not, the law so enacted that is called in question, has to be closely examined before the same could be termed as unconstitutional. The dominant role of the impugned law, its effect on the issue, would be very much important to be examined. Merely because the particular subject on which the law is enacted per se, would not be there in the State list the law cannot be said to be invalid. All aspects must be closely examined. I am prompted to say so being encouraged by the Apex Court decision in the case of Indian Cement (supra). In the said case, the issue involved was to examine the competence of the State to impose Cess on Royalty under the Mines and Minerals (Regulation and Development Act 1957). The Apex Court found, none of the three lists of the Seventh Schedule would permit or authorize a State to impose tax on Royalty. Cess was not on land but on Royalty which was included in the definition of land revenue. After having close examination, per majority, the Apex Court observed, "Construction most beneficial to the widest possible amplitude of its powers, must be adopted. But the language cannot be stretched or perverted in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors." The majority decisions examined various entries and ultimately came to such conclusion. The Apex Court also observed, "It is well-settled now that the various entries in the three lists are not powers but fields of legislation." I thus observe, the power could be found anywhere in the Constitution. Unless the Court is satisfied, the power is absent or rather dehors the constitutional mandate the impugned law cannot be said to be unconstitutional. Its objects and reasons and its dominant purpose must be examined to find out its true purport and then to examine whether the same would offend the constitutional mandate.
Let me now come to the subject law. Appointment of Parliamentary Secretary is not a new concept. There are States that would have appropriate laws on the issue. In fact, our State did have such law in 1952 as discussed by Her Ladyship, the Hon'ble Chief Justice. The State Legislature is entitled to make appropriate rules and procedure for conducting its own business. The job of the Parliamentary Secretary is to assist the Council of Ministers on the floor of the House so that the business of the House could be effectively run. The Secretaries are to maintain liaison between the Executives, Departments and the Ministers so that the Ministers could effectively deal with the issues that would come in course of business on the floor of the House. Such restricted power and authority of a Secretary, in no stretch of imagination, can be equated with that of Ministers who are appointed by the Governor under the advice of the Government.
There is some misconception about the status. The status of a person would have two facets i.e. his rank that would describe his power and authority and secondly his honour for the power and authority that he would hold. Per se, it might not have any financial implication. However, as a far-reaching consequence, it might have some financial implications too. For example, the Advocate General for the State or a District Sovadhipati could be given the status of a Minister. However, the power and authority of a Minister and the job that the Advocate General or Sovadhipati would discharge, would be completely different. Hence, someone despite having the same status with that of a Minister cannot be termed as a Minister. The Parliamentary Secretaries were given the same status as a Minister of State. A Minister of State would have Legislative function, he would have executive function too. Such functions are performed both within and outside the floor of the House. However, the job of the Parliamentary Secretary would be restricted on the floor of the House. They might have power to collect information for the Ministers from outside source or maintain liaison with any outside agency on behalf of the Minister. Their primary job is to assist of the Minister on the floor of House. Hence, the misconception that the people would have, the Parliamentary Secretaries are equated with the Ministers, is a complete misnomer. Coming back to the present case, I find, Her Ladyship, the Hon'ble Chief Justice, upon proper appreciation of facts, found, the subject law was enacted for the dominant purpose to give the secretaries status of a Minister beyond the capacity that the Constitution would fixed, hence, held the subject law unconstitutional. On facts, I would respectively agree with His Lordship. I would only observe, the power to make law of the like nature would very much lie with the State Legislature. 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. Hence, the challenge to the power of the State, in my view, must fail. However, the subject law is liable to be struck down because of its oblique purpose. The State, in my view, would still be free to come with a new law on the subject issue keeping in view the discussions and observations made by us in the foregoing judgment.
(Ashim Kumar Banerjee, J.) Later:
Mr. Pranab Kumar Dutta, learned Senior Counsel appearing on behalf of the State respondents prays for stay of operation of this order.
The prayer for stay is considered and rejected.
(Manjula Chellur, Chief Justice) I agree.
(Ashim Kumar Banerjee, J.)