Allahabad High Court
Asok Pande And Another vs Union Of India Through Its Cabinet Secy. ... on 2 November, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgment reserved on 17.05.2017 Judgment delivered on 02.11.2017 Court No. - 24 Case :- MISC. BENCH No. - 4464 of 2010 Petitioner :- Ashok Pande And Another Respondent :- Union Of India Through Its Cabinet Secretary South Block New Delhi Counsel for Petitioner :- Ashok Pandey (Inperson ),Sesh Narain Pande (In person) Counsel for Respondent :- C.S.C.,A.S.G. Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Ashok Pande, petitioner, who has appeared in person at length and Sri S.B. Pandey, Assistant Solicitor General of India for respondent.
2. This writ petition under Article 226 of Constitution of India has been filed as Public Interest Litigation assailing vires of Section 2 of "The Salaries and Allowances of Ministers Act 1952" (hereinafter referred to as "Act 1952") and Section 2(e) of "Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981" (hereinafter referred to as "U.P. Act 1981") being ultra vires of Constitution. Petitioners have also sought mandamus commanding respondents not to give effect to the definition of "Ministers" as defined in the aforesaid Acts i.e. (Act 1952) and (U.P. Act 1981). Petitioners have also sought a mandamus commanding respondents to treat all Ministers equal and further mandamus to place Judge of High Court at par with Ministers.
3. Petitioners are Advocates by profession and have filed this writ petition with an object to have Rule of Law to prevail in this Country and provisions of Constitution and other Laws should be applied by all concerns in letter and spirit.
4. The case set up by petitioners is that Article 74 of Constitution of India provides that there shall be a "Council of Ministers" to aid and advise President of India. Article 75 provides that Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of Prime Minister. Total number of Ministers, including Prime Minister, in the Council of Ministers shall not exceed fifteen percent of total number of Members of House of the People. These provisions are for Central Government.
5. For State Government Article 163 and 164 of Constitution of India are referred where power of appointment of Chief Minister is with Governor and other Ministers are to be appointed by Governor on the advice of Chief Minister.
6. Parliament has legislated "Act 1952" and therein the term ''Minister' has been defined as "Member of Council of Ministers" by whatever name called and includes a "Deputy Minister." Similarly in State of U.P., U.P. Act 1981 has been promulgated and therein term ''Minister' has been defined in Section 2(e) to mean a Member of Council of Ministers of Government of U.P. and includes "Chief Minister", a "State Minister" and a "Deputy Minister" of that State. The aforesaid Statute provides different salaries for Ministers, State Ministers and Deputy Ministers.
7. Referring to Article 75(6) petitioners' claim is that Parliament was authorized only to determine salaries and other allowances payable to ''Ministers' and not to expand meaning of ''Ministers' so as to include within its ambit "Ministers of State" and "Deputy Ministers". Similar argument has been advanced with reference to Article 164(5) of Constitution. It is said that extending meaning of ''Minister' to "State Minister" and "Deputy Minister" is not permissible and beyond the power conferred by Constitution.
8. It is urged that Constitution has created only one class of ''Ministers', hence Parliament and State Legislature had exceeded their jurisdiction by classifying ''Ministers' and expanding meaning of ''Ministers' to "State Ministers", "Deputy Ministers" etc. It is said that Constitution contemplates all ''Ministers' equal and there cannot be ''Ministers' having no independent department or having different function than a ''Minister' which is commonly called as "Cabinet Minister". Referring to Constitution of Combodia, China, Egypt, Namibia, Nepal, Pakistan, Saudi Arabia and South Africa it is said that whenever and wherever any Constitution has contemplated otherwise it has separately made provisions for "State Ministers" or "Deputy Ministers". "State Ministers" cannot be treated to be ''Ministers' so as to perform constitutional duties of aid and advice to President or Governor hence their inclusion as Minister is void ab-initio.
9. Pursuant to order dated 15.12.2010 notices were served upon Attorney General of India as well as Advocate General of State of U.P. Today however, on behalf of respondents learned Standing Counsel and Assistant Solicitor General of India are present and have advanced their submissions.
10. A counter affidavit has been filed on behalf of respondents 1 and 2 sworn by Ajay Kumar Singh, Director (C.S.) Ministry of Home Affairs, North Block, New Delhi. It is said that no cause of action has accrued to petitioners, hence this writ petition is liable to be dismissed for this reason alone. It is further said that the system of governance in India as envisaged in our Constitution, is in the form of Government which is known as Parliamentary Democracy. The terms like ''Cabinet Minister' and "Council of Ministers" are not defined in the Constitution. That is how Constitution makers have provided elbow room and flexibility to Legislature to adopt these concepts in the system of governance and day to day functioning of Government, as per peculiar social, political and cultural traditions and environment of country. While borrowing these terms from the working of existing Parliamentary Democracies, particularly in Commonwealth Countries, with special reference to United Kingdom, from which country, we have inherited our Constitutional Institutions to a large extent, Constitution has tried to strike a balance between Constitutional goals and ideals and practical considerations. The intention of Constitution makers is further clear from Article 77(3) which permits President to make rules for convenient transaction of Government and allocation among Ministers, of the said business. In exercise of powers under Article 77(3) President has made rules for allocation of business of Government of India and for more convenient business of Government of India. These rules are;
(a) Government of India (Allocation of Business) Rules, 1961 (hereinafter referred to as "Allocation Rules, 1961")
(b) Government of India (Transaction of Business) Rules, 1961 (hereinafter referred to as "Transaction Rules, 1961")
11. Rule 3 of Transaction Rules, 1961 provides as under:-
"Disposal of Business by Ministries.- Subject to the provisions of these Rules in regard to consultation with other departments and submission of cases to the Prime Minister, the Cabinet and its Committees and the President, all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961, shall be disposed of by, or under the general or special directions of, the Minister-in-charge."
12. Transaction Rules, 1961 inter alia also lists cases which shall be brought before Cabinet (Second Schedule to the Rules); Standing Committees of Cabinet (First Schedule to the Rules); and cases which shall be submitted to Prime Minister or to President or to Prime Minister and President (Third Schedule to the Rules). It is further said that there is no difference in the salary of Prime Minister, Cabinet Minister, Minister of State and Deputy Minister. All of them are paid Rs. 50,000/- per month. However, sumptuary allowance is paid at different rates under Act 1961. Prime Minister is paid Rs. 3,000/- per month, Cabinet Ministers are paid Rs. 2,000/- per month, Ministers of State are paid Rs. 1,000/- per month and a Deputy Minister is paid Rs. 600/- per month.
13. Existence of a similar form of oath of office and secrecy for Cabinet Ministers, Ministers of State (Independent charge) or Minister of State or Deputy Minister do not affect sanctity/legality of oaths administered by President to Members of Union of Councils of Ministers.
14. In para 7 of counter affidavit, meaning of the term "Council of Ministers" "Cabinet Ministers" has been referred as defined in Advanced Law Lexicon, 3rd Edition 2005 by P. Ramanath Aiyer. The legislative power of Parliament to define term ''Ministers' is referable not only to Article 75(6) but also to Article 248 and Entry 97 of List I of VIIth Schedule.
15. Regarding relief that Judges of High Court should be treated equal to Ministers, it is contended that it has no relevance to the issue raised in this writ petition. This relief is misconceived and amounts to misjoinder of cause of action. No ground has been raised in the writ petition to support the aforesaid relief. High Court Judges are Constitutional functionaries in a different way and neither need to be equated nor be compared with ''Ministers' or other "Members of Executive or Legislative wing of Government of India".
16. A separate counter affidavit has been filed on behalf of respondents 3 and 4 sworn by Krishna Gopal, Special Secretary, Confidential Section, Government of U.P., Lucknow and here also plea of misjoinder of relief with regard to prayer no. 3 has been raised. With regard to the definition of ''Ministers' under U.P. Act 1981, arguments are similar to what have been raised by Government of India. Respondents 3 and 4 have referred to Article 163 and other provisions of Constitution. Further respondents 3 and 4 have referred and relied on certain judgments in U.N.R. Rao Vs Indira Gandhi, AIR 1971 SC 2002, Bhanumati Vs State of U.P. and others, 2010 AIR SCW 6470, K.M. Sharma Vs Sri Devi Lal and others, AIR 1990 SC 528, Rai Sahib Ram Jawaya Kapur and others Vs State of Punjab, 1955 2 S.C.R. 225 and Ishwarlal Girdharlal Joshi etc. Vs State of Gujrat and others, AIR 1968 Supreme Court 870.
17. Since entire argument is centred around Articles 74, 75 and 164 of Constitution hence we find it appropriate to reproduce the same:-
74. Council of Ministers to aid and advise President.-
(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
75. Other provisions as to Ministers.-
(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.
(2) The Minister shall hold office during the pleasure of the President.
(3) The Council of Ministers shall be collectively responsible to the House of the People.
(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule.
164. Other provisions as to Ministers.--(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:
Provided that in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.
(1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State:
Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve:
Provided further that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent. or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such dateas the President may by public notification appoint.
(1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule."
18. The first question is, "whether definition of ''Ministers' insofar as it has included "Ministers of State" or "Deputy Ministers' is ultra vires of Constitution as Constitution contemplated ''Ministers' i.e. a "Member of Council of Ministers only".
19. It is not in dispute that term ''Ministers" is not defined in the Constitution. It is also nowhere stated in the Constitution that the term ''Ministers' would not include within itself ''Ministers' with different classifications like "Cabinet Minister", "Ministers of State" and "Deputy Minister" etc.
20. Act 1952 is referable to Article 75 read with Entry 75 List 1 Schedule 7 of Constitution. Similarly U.P. Act 1981 is referable to Article 164 (5) read with Entry 40 List II Schedule 7 of Constitution. Entry 75 List 1 and Entry 40 List II of 7th Schedule read as under:-
"75. Emoluments, allowances, privileges, and rights in respect of leave of absence, of the President and Governors; salaries and allowances of the Ministers for the Union; the salaries, allowances, and rights in respect of leave of absence and other conditions of service of the Comptroller and Auditor-General.
40. Salaries and allowances of Ministers for the State."
21. Legislative entries in Schedule-7 have been held to be read in the widest possible and permissible manner so as to cover every aspect which is explicit or by necessary implication can be included or even incidental aspects can be covered on which respective Legislature may exercise its power. Schedule-7 does not confer power of legislation but broadly provides various fields of legislation available to the Central and State Legislatures respectively. In absence of any restriction in any provision of Constitution, we find no reason to read the word ''Minister' as confined to "Cabinet rank Minister" and assume any restriction upon power of Legislature so as not to define the term ''Minister' to include "Minister of State" or a "Deputy Minister". We do not find that Article 74, 75, 163 and 164 in any manner restricts word ''Ministers' to "Cabinet Ministers" or "Ministers of Cabinet". No reason could be given by petitioner so as not to include within its ambit or exclude by necessary implication, other categories of ''Ministers" namely "Ministers of State" and "Deputy Ministers".
22. Despite repeated query, petitioner who has argued the matter in person could not show anything from the Constitution to demonstrate that the term "Council of Ministers" would include within its ambit only the set of Ministers which are given Cabinet rank and not any other category of Ministers. In the of functioning, as to how matter different category of Ministers shall hold meeting or participate in the business of Government is governed by Rules of Business. Hence in absence of anything to show that Constitution when talks of the term "Ministers", contemplates only one category of Ministers namely "Cabinet rank Ministers", we find no merit in the submission that by defining the term ''Ministers' under Act 1952 and U.P. Act 1981, respective Legislatures by including "Ministers of State" or "Deputy Minister" have in any manner acted beyond legislative competence by contravening any provision of Constitution.
23. The second aspect that Judges of High Court should be treated at par with Ministers and a mandamus be issued to respondents to this effect is thoroughly misconceived. Now it cannot be doubted that independence of judiciary in the Constitution of India is one of the basic tenets of fundamental requirements of Constitution. It constitutes a basic feature of Constitution and even Parliament is not competent to interfere by making a legislation which may affect, in any manner, or tinker with independence of judiciary. It was so observed in M.M. Gupta Vs State of J&K, (1982) 3 SCC 412 reiterated in All India Judges Association Vs Union of India, 1993 (4) SCC 288, in a Constitution Bench judgment in State of Bihar and Another Vs Bal Mukund Sah and others, 2000 (4) SCC 640 and recently in Supreme Court Advocates-on-Record-Association and others Vs Union of India, 2016 (5) SCC 1.
24. In All India Judges Association Vs Union of India (supra) a three Judge Bench, speaking through Sawant, J. observed "the society has a stake in ensuring the independence of Judiciary, and no price is too heavy to secure it."
25. Now coming to the status of Judges, in this very judgment, Hon'ble Savant J, said that Judicial Service is not service in the sense of ''employment'. The Judges are not employees. As Members of Judiciary, they exercise sovereign judicial power of the State. Court further said;
"When it is said that in a democracy such as ours, the executive, the legislature and the Judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The Council of Ministers or the political executive is different from the Secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and administrative executive. This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason."
26. Court further held in para 5 of the judgment in All India Judges Association (supra), that all concerned appreciated that there cannot be any link between the service conditions of Judges and those of the Members of other services. Court also said that while determining service conditions of Members of Judiciary, a distinction should be made between them and Members of other services. Service conditions of other services neither can be compared nor be treated at par with Members of Judiciary. Court also referred to historical accident in the linkage of service conditions of Judiciary and that of Administrative Executive and said that after Constitution was enacted the situation has changed and there is a separation of State power distributed among the three branches, hence continuation of linkage between Judiciary and Administrative Executive is inconsistent with constitutional provisions. The parity in status is no longer between Judiciary and Administrative Executive but between Judiciary and Political Executive. Relevant extract of judgment is reproduced as under:-
"The linkage between the service conditions of the Judiciary and that of the administrative executive was an historical accident. The erstwhile rulers constituted, only one service, viz., the Indian Civil Service for recruiting candidates for the Judicial as well as the Administrative Service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial! side. Initially, there was also no clear demarcation between the judicial and executive services and the same officers used to perform judicial and executive functions. Since the then Government had failed to make the distinction between the two services right from the stage of the recruitment, its logical consequences in terms of the service conditions could not be avoided. With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. The parity in status is no longer between the Judiciary and the Administrative Executive but between the Judiciary and the Political Executive. Under the Constitution, the Judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the Judiciary must be comparable to those of the administrative executive and any amelioration in service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter."
27. This passage has been quoted with approval in the judgment of Hon'ble S.B. Majumdar,J with whom Hon'ble G.B. Pattanaik,J and U.C. Banerjee,J agreed in the Constitution Bench judgment in State of Bihar and Another Vs Bal Mukund Sah and others (supra) where Court said as under:-
"In our view, the aforesaid decision of the three-Judge Bench on the relevant scheme of the Constitution, especially, Articles 234 to 236 and 309 remains well sustained and clearly indicates how Judicial Service, though being a part of the General Service of the State, stands of its own and cannot countenance any encroachment on it as it is based on the principle of Independence of Judiciary from the executive and/or legislative save and except to the limited extent permitted by second part of Article 235 of the Constitution. Otherwise the basic feature of independence of Judiciary will get eroded."
28. The aforesaid judgment of Constitution Bench clearly distinguishes between Legislators, Judges and Executives. It is said that three essential wings of State, i.e. Legislature, Judiciary and Executives have different functions and there is no occasion to assume any parity amongst them. However, Administrative Executives in whatever manner cannot be given any parity with Legislatures or Council of Ministers, who control the executive power of State and are answerable to Legislature. Members of Staff, i.e., Secretariat of Legislature, Judiciary and Ministers are not as such essential wings but they are meant for aid and assistance of functioning of three wings represented by Legislatures, Judges, and, Executive power of State exercised by Ministers. Though it is observed that for the purpose of considering concept of three pillars of State, namely, Legislature, Judiciary and Executive, parity is between Political Executives, Legislatures and Judges and there is no comparison or parity between Judges and Administrative Executives it also cannot be said that for terms and conditions also all three may be compared in any manner at par.
29. Learned counsel appearing for Union of India, however, pointed out that Judges of Supreme Court, Chief Justice and Judges of High Court are treated at par with Cabinet Secretary and Secretary of Government of India for the purpose of salary/emoluments etc. However, we do not find any support of this submission either in the pleading or any material placed before us. In absence of any support to the aforesaid submission from record, we do not find it appropriate for us to examine this aspect but suffice is to mention that Secretariat Staff including Secretaries irrespective of their ranks have no comparison with Judges, Constitutional functionaries since Constitution Bench has held it is Political Executives, i.e., Ministers, Legislatures and Judges, who exercise functions of three pillars of State. Administrative Executives, i.e., secretarial staff is for aid and assistance of them and have no comparison with them. In other words, secretarial staff including Secretaries irrespective of their ranks are comparable in their status with Officers of Registry of High Court and Supreme Court. Neither they can claim any parity with the Judges nor Government should treat them at par for any purpose else action of State would be contrary to law laid down in All India Judges Association (Supra). We may remind here that Supreme Court has clearly observed that after enactment of Constitution, parity in status is no longer between Judicial and Administrative Executives, but between Judicial and Political Executives.
30. At this stage, we do not find any reason to deal this aspect further since statement made by learned counsel for Union of India is not supported by any pleading or other material, but a copy of this judgment shall be communicated to Secretary (Law), Government of India so that if there is any doubt or a historical error still persists with Government of India, it may rectify its error and should proceed in accordance with law so that unequals may not be treated as equals.
31. Seeking a direction to treat High Court Judges at par with Ministers without pleading is nothing but an attempt on the part of petitioner to ask equality among unequal's since status of High Court Judges being constitutional functionaries having different powers, privileges and functions cannot be placed at par with Minister for the purpose of conditions of functioning. The Political Executives, Legislatures, Judges have their different functions, authorities, duties, responsibilities and their terms and conditions of function obviously has to satisfy their status, functions, duties etc. which they discharge being constitutional functionaries and there is no occasion to treat for any purpose, whatsoever, the two different categories at par. We have no reason to compare High Court Judges at par with Ministers. Both are class apart and mere fact that in some aspect similar provisions are made, it does not mean that there is any comparison so as to bring them at par for all purposes.
32. In taking the view that word 'Ministers' can include "Ministers of State" or "Deputy Minister" we find support from a Supreme Court judgment in Rajendra Prataprao Mane and others Vs Sadashivrao Mandalik K.T.S.S.K. Ltd. and others, 2012 (4) SCC 781, wherein Rule 6-A of Rules of Business of Government of State of Maharashtra reads as under:-
"6-A. When the Chief Minister is unable to discharge his functions owing to absence, illness, or for any other cause, the Chief Minister may direct any other Minister to discharge all or any of his functions during his absence. When any Minister is likewise unable to discharge his functions, the Chief Minister may direct any other Minister to discharge all or any of the functions of the Ministers during the Minister's absence."
33. Interpreting aforesaid provision, Court observed that if Chief Minister is unable to hear the appeal, entrusts to one of the other Ministers, which would include Minister of State of the concerned Department also. Relevant observation reads as under:-
"In the event the Chief Minister is unable to hear the appeals himself and entrusts the hearing to one of the other Ministers, which, in our view, would also include the Minister of State of the concerned Department......".
34. Lastly, even otherwise, the prayer in this regard has been made by petitioner without any factual foundation and appropriate pleadings, therefore also it has to be rejected.
35. Writ petition lacks merit. It is accordingly dismissed.
Order Date :- 02.11.2017 Pravin