1

IN THE HIGH COURT OF BOMBAY BENCH AT PANAJI

PIL WRIT PETITION NO. 05 OF 2007

Adv. Aires Rodrigues, )r/o. B 30 Flat No.T-1, )Ribandar Retreat )Ribandar, Tiswadi, Goa. ).. Petitioner

VERSUS

1. The State of Goa ) by its Chief Secretary, ) Secretariat ) Porvorim, Goa. )

2. Mr. Nilkant Halarnkar ) `Parliamentary Secretary', ) Secretariat, Porvorim, Goa. )

3. Mrs. Victoria Fernandes, ) `Parliamentary Secretary', ) Secretariat, Porvorim, Goa.(Deleted) ) (Amendment carried out as per order ) dated 4.9.07) )

4. Mr. Francisco Silveira, ) `Parliamentary Secretary', ) Secretariat, Porvorim, Goa. )

5. Mr. Agnelo Fernandes, ) Chairman, EDC Limited, ) Panjim, Goa. )

6. Dr. Wilfred D'Souza ) Deputy Chairman, )

Goa State Planning Board, ) Secretariat, Porvorim, Goa. )

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7. Mr. Eduardo Faleiro ) Commissioner of N.R.I. Affairs, ) Secretariat, Porvorim, Goa. )..Respondents

-0-Petitioner in person.Mr. S.S. Kantak, Advocate General with Mr.A. Kamat, Additional Government Advocate for the respondent No.1.Mr. S.K. Kakodkar, Senior Advocate with Mr. Nitin Sardessai for the respondent Nos.2 and 4.Mr. C.A. Ferreira for the respondent No.5.Mr. Amey Kakodkar for the respondent No.3.Mr. V. Braganza for the respondent No.6.Mr. V.A. Lawande for the respondent No.7.

-0-

CORAM : SWATANTER KUMAR , C.J. & N.A. BRITTO, J.

DATE OF RESERVING THE JUDGMENT : 21 st NOVEMBER, 2008

DATE OF PRONOUNCING THE JUDGMENT : 22nd JANUARY, 2009

JUDGMENT (PER SWATANTER KUMAR, C.J.)

The Petitioner who is a practising advocate and who also

claims to be a public spirited citizen, has approached this court by

way of present Public Interest Litigation under article 226 of the

Constitution of India wherein, on the strength of Constitutional

mandate contained in Article 164(1A) of the Constitution of India,

he questions the authority of respondent Nos.2 to 4 to hold the

posts of `Parliamentary Secretaries' and enjoy the status of Cabinet

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Minister and also questions respondent Nos.5 to 7 appointed to

different posts in the State administration, as to how they enjoy the

status and rank of Cabinet Minister. He also prays that the orders

at Annexures `P2' collectively and `P4' collectively relating to

respective group of respondents be revoked and cancelled being

violative of the Constitutional mandate.

2. It is the case of the petitioner that the recent Assembly

Elections which were held in May 2007, resulted in the fractured

mandate from the electorate, with the Congress bagging 17 seats,

BJP 14, NCP 3, MGP 2, Save Goa Front 2 and Independents

winning 2 seats. As a consequence of this people's mandate, the

Congress opted for support of its allies and was permitted to form a

Government. Article 164(1A) requires that total number of

Ministers, including Chief Minister, in the Council of Ministers in a

State shall not exceed 15% of the total number of members of the

Legislative Assembly of that State. Under proviso to Article 164, the

total strength of Ministry shall not be less than 12. Applying this

principle, the strength of Ministers including the Chief Minister in

the Cabinet of the State cannot exceed 12. Vide Annexure P1, all

the 12 posts of Cabinet/State Ministers had been filled up by the

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Chief Minister allotting different portfolios. Despite the fact that

the prescribed strength of Ministers including Chief Minister had

already been filled up, the Government in a hurried manner and to

frustrate the Constitutional directive appointed respondent No.2 to

4 as `Parliamentary Secretaries' with Cabinet rank/ status without

any formal notification. However, notifications in this regard were

issued on 6th July, 2007, 9th July, 2007 and 10th July, 2007

appointing Shri Nilkanth Halarnkar, Mrs. Victoria Fernandes, and

Shri Francisco Silveira,all three Members of Legislative Assembly as

`Parliamentary Secretaries' and these notifications are collectively

annexed to the writ petition as Annexure `P2'. These respondents

were sworn in by the Chief Minister. All these respondents have

been accorded status or rank of a Cabinet Minister and permitted to

engage 11 staff members of their own in line with the status and

have also been provided with all the facilities and privileges of the

Cabinet Minister. In addition to this, the respondent Nos. 5, 6 and 7

were appointed to different posts in the Government administration

with rank / status of Cabinet Minister conferred upon them. Vide

notifications dated 28th March, 2006, 2nd July, 2007 and 10th July,

2007, respondent No.5 was appointed as Chairman of Economic

Development Corporation respondent No.6 as Deputy Chairman,

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State Planning Commission and respondent No.7 had already been

appointed as Commissioner of NRI affairs and all of them were

conferred with the status of Cabinet Ministers. The notifications

have been annexed to the writ petition as Annexure `P4'.

3. According to the petitioner, the very purpose of the 91st

Amendment of the Constitution which restricts the size of Cabinet,

was to prevent the installation of jumbo cabinets and resultant huge

drain on the public exchequer. All these persons were not only

appointed ostensibly as `Parliamentary Secretaries' and as heads of

Board, Corporation and Commission, but they were permitted to

enjoy the status of Cabinet Ministers thus, in fact, defeating the

very purpose of the amendment. In view of the prohibition

contemplated under Article 164(1A) appointment of all these

respondents is a back door entry and is in willful disobedience of

the mandate of law. There is no legal power vested in the

Government for making appointments as `Parliamentary

Secretaries' with the status of Cabinet Ministers and they cannot be

made in the garb of exercise of executive powers. The Chief

Minister does not have any power or authority to administer oath

not being backed by any appropriate law. The `Parliamentary

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Secretaries' are privy to official information and have access to

official files and official documents in the course of the decision

making process of the Government. Administering oath to

respondent Nos.2 to 4, thus, is without any authority of law while

respondent Nos.5 to 7 have not even been administered oath of

secrecy which give them undue advantage of access to Government

information, records and opportunity to participate in making

Government policy without being bound by oath. The petitioner

has specifically averred in the petition that the MLAs or party

functionaries cannot be appointed to these posts even if there was

some authority in law for making such appointments. Political

patronage seems to be the order of the day and appointments for

chairmanship of statutory corporations or Government

corporations are made mala fide, in colourable exercise of power

and with tearing hurry for political patronage, thus, are bad in law.

Vide notice dated 11th July, 2007, the petitioner called upon

respondent No.1 to immediately revoke and cancel the aforesaid

appointments and conferments of the Cabinet status but of no

consequence. According to the petitioner,these appointments

besides being illegal and arbitrary are abuse of the power and it is at

huge public cost particularly when they are entirely unwarranted

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and the respondents have no authority to continue to function in

that status.

4. During the pendency of the present writ petition, the

appointment of respondent No.3 as Parliament Secretary was

revoked by the Government itself vide order dated 17th August, 2007

and her name was resultantly deleted from the array of parties. The

said order reads as under:

“No.45/16/2007-GAD-III Government of Goa, General Admn.

Department, Secretariat, Porvorin.

Dated: 17/08/2007

Read: Govt. Order No.45/16/2007-GAD-III

O R D E R

The appointment of Smt. Victoria Fernandes, M.L.A., as `Parliamentary Secretary' made vide Government order cited above stands cancelled with effect from 14/08/2007.

By order and in the name of theGovernor of Goa Sd/-(S.G. Korgaonkar)

Joint Secretary (GA)

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1. Smt. Victoria Fernandes, M.L.A. Santa Cruz Constituency.2. The Office of Chief Minister, Secretariat, Porvorim, Goa.3. The Director of Accounts, Panaji.4. The Sr. Dy. Accountant General (Audit), Goa, Audit Bhavan, Porvorim.5. The Accounts Section, GAD, Secretariat, Porvorim.6. Guard file.”

5. Separate reply affidavits to this writ petition are filed.

According to the State, the writ petition is without any merit and

has not been filed in public interest. It is stated that earlier, BJP led

coalition Government had also appointed `Parliamentary Secretary'

with Cabinet rank and after the Congress led coalition Government

came to power in June, 2005, Shri Agnelo Fernandez, Member of

Legislative Assembly, was appointed as `Parliamentary Secretary'

on the same terms and conditions as were applicable to the earlier

appointees. The petition is stated to be a result of political

vendetta. Appointment of `Parliamentary Secretaries' is stated to be

a longstanding convention and they were appointed even in the

year 1951. However, during 1967 to 1984, there was no

appointment of `Parliamentary Secretaries'. These posts do not

form part of the Government and they have no executive power.

They assist Minister concerned in discharge of his duties and

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functions. Even earlier, the post of `Parliamentary Secretary' was

created and appointments were made by the previous Government.

The proposal for such appointment was considered and approved

vide order dated 5th October, 2004. However, only one post of

`Parliamentary Secretary' was created and filled up at different

times. After coming into power, the present Government, in

addition to one post, created two more posts of `Parliamentary

Secretaries' with effect from 6th July, 2007 vide its order dated 11th

July, 2007 which reads as under:

“No.1/8/2004-GAD-P,Government of Goa,

General Admn. Department,Secretariat. {Porvorim,/

Dated”- 11th July, 2007

O R D E R

The Governor of Goa is pleased to accord sanction for the creation of two posts of “Parliamentary Secretaries” in the office of Chief Minister with effect from 06.07.2007. The terms and conditions of appointment and functions of the Parliamentary Secretary shall be issued separately.

By order and in the name of the Governor of Goa

Sd/-

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(D.H. Kenaudekar) Under Secretary (GA)

To

1. The Officer on Special Duty to Chief Minister, Secretariat, Porvorim.

2. The Director of Accounts, Panaji.3. The Sr. Dy. Accountant General (Audit), goa, Audit

Bhavan, Porvorim.4. The Accounts Section, GAD, Secretariat, Porvorim.5. Guard file.”

6. The Notifications as stated by the petitioner are annexed

to the reply. All the three `Parliamentary Secretaries' are stated to

have assumed the charge of their offices. In the reply, it is stated on

behalf of the respondent No.1 that one post of `Parliamentary

Secretary' was proposed on 17th August, 2004 primarily to assist the

Chief Minister for official work. A post was created even stating the

terms and conditions of the appointment of the `Parliamentary

Secretary' on 5.10.2004. In relation to the said appointments even

terms and conditions and functions were sought to be defined. For

the current Government, three persons were appointed as

`Parliamentary Secretaries' and, according to the respondent, two

posts were created on 6th July, 2007 and orders were issued on that

date. However, as on the date of filing of the reply viz. 24th July,

2007, the Government had not issued orders regarding the terms of

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appointment and regarding their functions and duties which were

stated to be under consideration of the Government though their

appointments had already been made effective. It was stated that

respondent Nos.2 to 4 were administered oath of secrecy by the

Chief Minister and respondent Nos.5 to 7 had not been

administered any oath however, respondent Nos.5 to 7 have also

been conferred with the status of a Cabinet Minister. As far as

respondent No.6 is concerned, it is stated that he was appointed as

Deputy Chairman of Planning Board and was conferred the status of

Cabinet Minister as per past practice. Similar is the stand taken vis-

a-vis the other respondents. It is denied that the respondent Nos.2

to 4 have any access to Government records and are privy to the

Government policy. In regard to the authority of the State

Government, it is stated that in terms of Article 162 of the

Constitution of India, the Government has executive power to make

appointments and the appointments are made in exercise of such

powers.

7. Separate affidavits were filed on behalf of the respondent

Nos.4,5 and 7 respectively. The case put forward by respondent

No.5 is that the General Assembly Elections were held in Goa in

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May, 2007. The petitioner was actively and openly campaigning

and canvassing against Indian National Congress Nationalist

Congress Alliance. Since the Alliance parties have returned to

power, petitioner supporting Bharatiya Janata Party has filed this

petition by way of political vendetta. This respondent claims that he

was also appointed as `Parliamentary Secretary' in the year 2005

vide order dated 2nd August, 2005 but later he resigned and

thereafter vide order dated 28th June, 2007, he was appointed as

Chairman of Economic Development Corporation Limited with the

status and rank of Cabinet Minister and was not administered the

oath of office or secrecy. The allegations with regard to his

appointment as Chairman of State Planning Board or any

arbitrariness in his appointent to EDC, are denied.

8. According to respondent No.4, the `Parliamentary

Secretary' or Minister does not hold the public office and since it is

not a public office, the appointment cannot be challenged in a

Public Interest Litigation and petitioner has no locus standi to file

the present petition. On merits, it is stated that the `Parliamentary

Secretary' in the office of the Chief Minister is not a Member of

Council of Ministers (Cabinet) and is no part of the Government.

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The appointment is at the discretion of the Chief Minister. The

conferment of Cabinet status or rank on `Parliamentary Secretary'

is neither illegal nor undesirable. It is denied that conferment of the

status is a back-door entry to the appointment as Cabinet Minister

and, to be a part of the Council of Ministers. According to this

respondent, it is not necessary to enact any law or legislation for

appointment to this post. It is also denied that appointment of

`Parliamentary Secretary' is by way of largesse and violates Article

14 of the Constitution of India. The `Parliamentary Secretary' holds

the post during the pleasure of the Minister to whom he is attached.

It is also denied that the appointments were made in a tearing hurry

or for political patronage or with ulterior motives.

9. According to the reply filed by respondent No.7 through

his Constituted Attorney, vide order dated 28th March, 2006, in

pursuance to the policy decision of the State Government, the

appointments were made and the policy of the Government cannot

be challenged in the writ petition. It is denied that the order of

appointment of the said respondent was intended to circumvent the

91st Amendment to the Constitution. The conferring of Cabinet rank

on the person appointed does not contravene the provisions of

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Article 14 of the Constitution. This respondent claims that he has

equivalent rank of the Cabinet Minister.

10. To the replies filed by the respective respondents, the

petitioner has filed a rejoinder wherein he has reiterated the facts

stated in the writ petition and stated that the Public Interest

Litigation is maintainable. According to him, he had campaigned

for Bharatiya Janata Party and he has filed various litigations in the

forefront of actions to combat pollution, environmental degradation

and to fight against injustice, corruption and wastage of public

funds and, in the same public spirit, he has filed the present

petition. After 91st Amendment to the Constitution, back-door

entry appointments cannot be made in the manner in which they

have been done by the respondent-Government. The appointments

have been made in undue hurry without any need and only to

favour and keep in control the respondent No.2 to 4 and to please

even the other respondents at the cost of the public exchequer.

There cannot be any difference between the Cabinet Minister and a

person ostensibly been conferred with the rank and status of a

Cabinet Minister. The Executive power of the State is expressly

subject to the provisions of the Constitution and Article 162 cannot

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be used to defeat the Constitutional mandate contained in Articles

14 and 164(1A) of the Constitution of India. The appointments

should not be made at the whims and fancies of the Chief

Minister. The appointments of such MLA and conferment of such

benefit of status of Cabinet Minister and post of `Parliamentary

Secretary' is mala fide and it is to appease party MLAs. It amounts

to back-door entry and fraud on the Constitution which restricts the

number of Cabinet posts. In the rejoinder, it has also been averred

that the posts of `Parliamentary Secretaries' were not even created

when the concerned respondents were appointed or sworn

in as `Parliamentary Secretaries' but were created later even

without concurrence of the Finance Department which, as per the

own showing of the respondents was taken on 11th July, 2007

though the appointments had been made between 6th to 10th July,

2007. The tearing hurry of such appointments is, thus, self-evident

and cannot withstand scrutiny of law.

Legislative history and objects and reasons for 91 st Amendment relating to Article 164(1A) of the Constitution of India.

11. Ours is a Federal Constitution. The Government of India

Act, 1935 dealt with Administration of Federal Affairs under

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Chapter II of the Act. Section 9 of the Act while dealing with

Council of Ministers stated that there shall be a Council of

Ministers, not exceeding ten in number, to aid and advice the

Governor General in exercise of his function, except for the matters

which by or under that Act were required to be exercised in its

functions in the discretion of the Governor General. This historical

piece of legislation shows that it was always in the mind of the His

Majesty to limit the strength of Council of Ministers, obviously, with

the object of avoiding undue burden on the State revenue. When

the framers of the Constitution enacted the Constitution of India, no

such restriction was placed on the Council of Ministers in terms of

Articles 131, 163 and 164 of the Constitution of India. By passage of

time, with experience gained by the Parliamentarians of jumbo

Council of Ministers putting immense pressure on the State

revenue, the Parliament in its wisdom added Article 164(1A) to the

Constitution of India by Constitution 91st Amendment Act, 2003

which came into effect from 1.1.2004. This provision specifically

put an embargo on huge Council of Ministers and provided that the

Council of Ministers in a State shall not exceed 15% of the total

number of Members of Legislative Assembly of that State while

further providing that number of Ministers including the Chief

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Minister in a State shall not be less than 12. Second proviso to

Article 164(1A) even mandated that wherever the total number of

Ministers including the Chief Minister in the Council of Ministers

exceeds the said 15%, or the number specified in first proviso, as

the case may be, then, total number of Ministers in that State shall

be brought in conformity with the provisions of this clause within

six months from such date as the President may by public

notification appoint. This proviso, thus, undoubtedly indicate the

legislative intent that provisions of Article 164(1A) should be

strictly adhered to and even the size of Council of Ministers in

excess of the specified percentage or number should be brought in

conformity to the Constitutional mandate. It may be noticed here

that section 3 of the Bill which has introduced (1A) to the main

Article 164 of the Constitution had originally proposed that the

Council of Ministers should consist of number of Ministers not in

excess of 10% of the total number of Members of the Constituent

Assembly. However, Parliamentary Standing Committee on Home

Affairs which examined the Bill which was presented to the Rajya

Sabha on 5th December, 2003 and laid before the Lok Sabha on 5th

December, 2003 had in its report under Clause 5.2.2 made the

following recommendations:

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“5.2.2 The committee recommends that the words `ten percent' in the third line and `seven' in the eighth line of page 2 of the Bill be substituted by the words `fifteen percent' and `twelve', respectively. The Committee also recommends, deletion of the words beginning with `or in case of a State' and ending with, both Houses of the Legislature of that State' in lines 5 and 6 of page 2.”

12. The Committee had discussed the size of Council of

Ministers under Clause 3.1 and it was felt that the idea of limiting

the size of Council of Ministers has been floated since pre-

independence era and even the Committee on Defections in 1969 in

its report expressed the view that such activity was effected

significantly by the lure of the Ministership in the political

defections, thus, limiting the size of Council of Ministers might not

only act as a dampener on political defectors, but might offer the

Prime Minister or the Chief Minister, as the case may be, a

convenient escape-latch when faced with pressure which otherwise

he or she may be unable to withstand. The National Commission to

Review the Working of the Constitution (2002) had also deliberated

the size of Council of Ministers and made following

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recommendations:

(ii) 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 two percent of the total strength of the Lower House.”

“(i) The practice of having oversized Council of Ministers 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 ten percent of the total strength of the popular House of the legislature.

13. It was the accumulated effect of various

recommendations that the Parliamentarians considered it

appropriate to introduce this restriction in Article 164(1A) and in

an unambiguous language expressed its mind for strict adherence

to this provision. Synopsis of debates in either of the Houses also

show that the amendment was introduced upon deliberations and

with definite emphasis on mandating proper size of the Council of

Ministers. The recommendations by National Commission to

Review the Working of the Constitution about abnormally large

Council of Ministers were also noticed in the Bill placed for

consideration before the Parliament. The object and reasons stated

in the Bill which sought to achieve the object of controlling the size

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of Council of Ministers had referred to the 170th Report of Law

Commission of India on Rule of Electoral Laws, 1999 and Report by

National Commission to Review the Working of the Constitution

dated 31st March, 2002. The Bill makes a reference to the demands

that had been made from time to time in certain quarters for

strengthening the anti defection laws emphasizing interalia the

recommendations of the Commissions for penalization of defector

for his action by debarring him from holding any public office or

remunerative political post during the remaining term and putting a

ceiling on the number of Ministers in the State or the relevant

Government maximum to 10% of the total strength of the popular

House of Legislature clarifying that the size of the Council of

Ministers should not be more than 10% of the strength of House or

Houses concerned whether unicameral or bicameral. Besides these

objects and reasons, obviously, twin objects were sought to be

achieved (i) to discourage defection in politics and (ii) to save

public money. Thus, on clear analysis of the above legislative

objects and reasons and opinion of expert bodies a dogmatic view

may be taken that the Legislature intended to limit the size of

Council of Ministers and ensure its strict implementation.

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Parliamentary Secretary : History & Status

14. History shows that the post of `Parliamentary Secretaries'

is not a new phenomenon. `Parliamentary Secretaries' were

appointed by different political parties in power probably with the

idea of accommodating some of their elected members. The record

speaks that even in earlier times, `Parliamentary Secretaries' were

appointed by the party in power. Some of the State Governments

enacted laws in relation to appointment of `Parliamentary

Secretaries' and even their terms and conditions of appointment

and dues and perks payable to them were legislated upon. The

State of Karnataka has enacted The Karnataka Parliamentary

Secretaries Allowances Act, 1963 while Government of Assam also

enacted The Assam Parliamentary Secretaries (Appointment,

Salaries, Allowances and Miscellaneous Provisions) Act, 2004 and

even reference can be made to the following Legislations:-

1. The Arunachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2007.

2. The Parliamentary Secretary (Payment of Special Allowance And Prevention of Disqualification) Act, 1971. (Pondicherry).

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3. The West Bengal Legislature (Removal of Disqualifications) Act, 1952.

What to talk of these States in India, even the Government of

Punjab, Pakistan issued an Ordinance, The Punjab Parliament

Secretaries Salary, Allowances and Privileges Ordinance, 2002.

15. All these laws were enacted by the competent

Legislatures to provide methodology for appointment and grant of

salary allowances and perks to the `Parliamentary Secretaries'. For

example, the law in relation to State of Assam requires the Chief

Minister to apply his mind with regard to the circumstances and the

need of situations and then may appoint `Parliamentary Secretaries'

for such function as are deemed fit and proper. Their functions and

duties were expected to be specified in a proper manner. The

object behind such legislation obviously was to have better

governance as well as to ensure public good. Any of these laws

enacted by respective States are bound to be in conformity to the

Constitutional law and must give meaning to the Constitutional

mandate. They cannot and ought not to be in violation to the

Constitutional mandate.

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16. The respondent-State itself has placed on record a study

report on `Parliamentary Secretaries' prepared by the Ministry of

Parliamentary Affairs, Union of India. This report discusses the

status of `Parliamentary Secretaries' in UK and Canada. While

referring to `Parliamentary Secretary' in India, this report states

that institution of the office of the `Parliamentary Secretary' has no

statutory origin nor does it derive authority from the Constitution

of India. Unlike the Ministers, oath may be administered to a

`Parliamentary Secretary' by the Prime Minister or the Chief

Minister and they were expected to do the work as given by the

Minister. They were treated not as even Deputy Minister and have

no Executive powers. In the earlier times, they were not even paid

salaries and they used to work only in honorary capacity.

However, with the passage of time, these appointments were said to

be in the discretion of the Prime Minister and the Chief Minister, as

the case may be, and they were to possess said status, power and

functions as were defined.

17. The report specifically notices that the `Parliamentary

Secretaries' were to perform such functions as may be assigned by

the Minister and oath of secrecy administered to them indicated

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that they would have access to official papers. As per this report,

the practice of appointing `Parliamentary Secretary' was primarily

followed till the year 1967. From 1967 to 1984, no `Parliamentary

Secretaries' were appointed. However, after 1984, this practice had

been reviving though sparingly.

18. On 4th November, 1985, the Ministry of Parliamentary

Affairs and Tourism, Government of India issued an office

memorandum in relation to the `Parliamentary Secretaries' which

reads thus-

“NO. F.4(25)/84-WSGOVERNMENT OF INDIA

MINISTRY OF PARLIAMENTARY AFFAIRS & TOURISM(DEPTT. OF PARLIAMENTARY AFFAIRS)

87, Parliament House, New Delhi.

4th November, 1985

OFFICE MEMORANDUMSubject :- Functions of Parliamentary Secretaries

The undersigned is directed to say that the question of norms of Parliamentary Secretaries has been under consideration of the Government for some time past. It has now been decided with the approval of the Prime Minister that the function of a Parliamentary Secretary will be as under:-

(i) He will assist the Minister in his official work;

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(ii) He will represent the Department/Ministry in the House to which he belongs; and

(iii) He will perform such functions as may be assigned to him by the Minister.

Note: Since an Oath of Secrecy is administered to a Parliamentary Secretary, he will have access to official papers.

(D.R. Tiwari) Deputy Secretary to the Govt.of India

To

1. All Ministries/Departments of the Government of India.

2. Cabinet Secretariat (Five copies) with reference their D.O. No.55/1/2/84/Cab.

3. Prime Minister's Offices, Ministry of Home Affairs (M&G Section-5 copies)”

19. Rules of Procedure and Conduct of Business in Lok Sabha

while defining the term “Minister” states that it means a Member of

the Council of Ministers and includes a member of the Cabinet

Minister of State or Deputy Minister or a `Parliamentary Secretary'.

`Parliamentary Secretary' who is not a member of the House, is not

entitled to attend its sitting. Even the Parliament (Prevention of

Disqualification) Act, 1959 provides that the Office of the

`Parliamentary Secretary' in so far as it is an office of profit under

the Government of India or Government of the State has been

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saved from the disqualification.

20. Examining the exercise of executive powers by

Governments of different political parties in power shows that the

`Parliamentary Secretaries' were appointed from time to time in the

discretion of the authorities but later this practice was minimized

and in fact, the States which desired to adopt this practice, enacted

laws for appointment and fixation of salaries and allowances

payable to the `Parliamentary Secretaries'. Various Acts which were

enacted by the States concerned are valid piece of legislations as

their correctness or otherwise in face of Constitutional mandate

have neither been challenged nor examined by the Court of

competent jurisdiction so far, at least none was brought to the

notice of this Court. As far as State of Goa is concerned, it has no

such enactment and nothing of substance has been brought to the

notice of this Court except the fact that the posts have been created

and filled in at the discretion of the Chief Minister. Thus,

historically, it is demonstrated that the posts of `Parliamentary

Secretary'' had been a known concept in Parliamentary Government

and even in State Assemblies. Some of the States have even enacted

laws to codify the methodology for appointment and define

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functions, duties and perks for appointment to the post of

`Parliamentary Secretaries''. It appears that their role and

functions are limited and that too at the discretion of the Chief

Minister. The appointment as Parliamentary Secretary is expected

to be in conformity with other laws particularly, the Constitutional

provisions and is expected to be in the public interest and interest

of good governance.

Scope and interpretation of Constitutional provisions

21. Article 154 of the Constitution of India mandates that

Executive power of the State shall be vested in the Governor and

shall be exercised by him either directly or through officers

subordinate to him but in accordance with the Constitution. Article

162 gives vast Executive powers to the State but qualifies the

Executive powers of the State while extending it to the matters with

respect to which the Legislature of the State has power to make

laws. But this power is to be exercised subject to the provisions of

the Constitution and proviso to Article 162 further limits it.

Wherever State Legislature and Parliament have power to make

laws, the Executive power of the State shall be subject to and

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limited by, the Executive power expressly conferred by Constitution

or by any other law made by the Parliament. Article 163 empowers

the Chief Minister as head of the Council of Ministers to aid and

advice the Governor and on the advise of the Chief Minister,

Governor shall appoint such number of Ministers who will hold

office during the pleasure of the Governor. Article 164 was

amended so as to place a check on the size of Council of Ministers

in every State. Article 164(1A) was introduced with two aspects,

firstly, the part of the Article which was to operate prospectively

from the date of commencement of the Act put a restriction on the

size of the Council of Ministers not in excess of 15% of the number

of members of the State Assembly with minimum limit being 12.

Secondly these provisions were to be retro-active and required the

concerned authority to bring the size of Council of Ministers in

conformity with the provisions of Article 164(1A) of the

Constitution, wherever the number was in excess of the prescribed

number, within a period of six months from the date of coming into

force of the amended provisions.

22. An object oriented approach should be adopted by the

Court when interpreting the provisions of the Constitution. The

29

provisions should be interpreted in the context in which they are

used and the purpose they seek to achieve. It is a settled principle

of law that object and legislative intent behind enacting provisions

of law are the paramount guide to give correct meaning to a

Constitutional provision and for this purpose even Assembly debate

can be used as a means of external aid for proper interpretation. In

the case of S.P. Chaudhuri vs. State of Punjab and others (2001)7

SCC 126, the Supreme Court while dealing with Articles 164(1) and

164(4) of the Constitution observed vide paragraphs 33 and 38 as

under:-

“33. Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve. Debates in the Constituent Assembly referred to in an earlier part of this judgment clearly indicate that a non-member's inclusion in the Cabinet was considered to be a “privilege” that extends only for six months, during which period the member must get elected, otherwise he would cease to be a Minister. It is a settled position that debates in the Constituent Assembly may be relied upon as an aid

to interpret a constitutional provision because it is the function of the court to find out the intention of the framers of the Constitution. We must remember that a Constitution is not just a

30

document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the “privilege” to extend “only” for six months.

38. Obligation of the judiciary is to administer justice according to law but the law must be one that commands legitimacy with the people and legitimacy of the law itself would depend upon whether it accords with justice. Article 164(1) and 164(4) have therefore, to be so construed that they further the principles of a representative and responsible government. The legitimacy of the law would be to ensure that the role of the political sovereign – the people – is not undermined. All Ministers must always owe their power, directly or indirectly, to them, except for the short duration as envisaged by Article 164(4). The interpretation, therefore, must be such that expectation of the founding fathers and constitutionalists are fulfilled rather than frustrated. The former Chief Justice of India, Shri M.N. Venkatachaliah in his Foreword to the Constitution of Jammu & Kashmir – Development and Comments (3rd Edn., 1998) said :

“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 organisation.”

23. In a parliamentary democracy, the obligation on the

Parliamentarian to adhere to the Constitutional mandate is of great

31

significance. They are expected to ensure that the purpose of the

Constitutional mandate is not subverted by circumventing the law.

Undoubtedly, the law gives much discretion in exercise of powers

to the offices like Chief Minister, but he still is expected to exercise

his discretion in a manner regulated by law and in any case not to

do anything contrary to the Constitution and the laws.

24. In the case of B.R. Kapur vs. State of Tamil Nadu, (2001)

7 SCC 231, the Supreme Court, while dealing with the qualification

or disqualification of nominated legislature, laid down a clear

mandate that the Constitutional limitations are attracted in exercise

of such powers and merely because the appointment was made by

the Governor would not get an appointee any higher right to hold

the appointment if the appointment is contrary to Constitutional

mandate and it will be struck down and an interpretation which

would defeat the legislative purpose or would be disastrous should

be avoided.

25. In the case of Shibu Soren vs. Dayanand Sahay and

others, (2001) 7 SCC 425, the Supreme Court while dealing with

the concept of “office of profit” and interpretation of Constitutional

32

provisions of Article 102(1)(a) or 191(1)(a), clearly spell out the

judicial dictum that interpretation of Constitutional provisions

should be realistic having regard to the object of enactment of such

Articles. This realistic approach should be neither too narrow nor

too wide and should have substantial and realistic nexus with the

object sought to be achieved. For a provision which statutorily

imposes a disqualification or a limitation, an interpretation by

giving wider meaning while ignoring essential points may not be

permissible. In law it may be appropriate to respect the effect, pith

and substance of the matter and not every nicety or form or

circumstance. The reason and spirit behind a provision would

make a perfect guide to determine the process of interpretation.

26. The principles stated in the case of Shibu Soren (supra)

also explain the ambit and scope of the expression `office of profit'.

This principle was followed by the Supreme Court in a judgment in

the case of M.V. Rajashekaran and others v. Vatal Nagaraj and

others, (2002)2 SCC 704 where the court accepted the opinion of

Lord Wright on `office' as follows:

“The word `office' is of indefinite content. Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant

33

for purposes of this case the following; a position or place to which certain duties are attached, especially one of a more or less public character.”

While referring earlier decisions on this point, the Apex Court

observed:

“4. In Shibu Soren v. Dayanand Sahay a three-Judge Bench of this Court considered several earlier judgments of this Court and preferred to follow the earlier judgment in Ahsok Kumar Bhattacharyya v. Ajoy Biswas wherein the Ciourt had observed: (SCC p. 161, para 21)

For determination of the question whether a person holds an office of profit under the Governemnt, each case must be measured and judged in the light of the relevant provisions of the Act. In paragraph 36 the Court held thus: (SCC p. 447)

“36. The question whether a person holds an office of profit, as already noticed, is required to be interpreted in a realistic manner having regard to the facts and circumstances of each case and relevant statutory provisions. While `a strict and narrow construction' may not be adopted which may have the effect of `shutting off many prominent and other eligible persons to contest the elections' but at the same time `in dealing with a statutory provision which imposes a disqualification on a citizen it would be unreasonable to take merely a broad and general view and ignore the essential points'. The approach which appeals to us to interpret the expression `office of profit' is that it should be interpreted with the flavour of reality bearing in mind the object for enactment of Article 102(1)(a), namely, to eliminate or in any event to reduce the risk of conflict between the duty and interest amongst members of the legislature by

34

ensuring that the legislature does not have persons who receive benefits from the executive and may thus be amenable to its influence.”

In our considered opinion this appears to be the right approach to be adopted, particularly when the word “office” has not been defined in the Constitution.”

27. The Court further went on to hold that a person who had

been given status of a Minister of Cabinet rank and was provided

with budget estimate for defraying expenses, was holding office of

profit under the Government. Such an approach was held to be

supported by the provisions of Karnataka legislature (Prevention of

Disqualification) Act, 1956 as well as Representation of People Act,

1951. This approach, thus, clearly establishes that the exercise of

Executive power by the State has to be in conformity with the

Constitutional limitation and mandate. The Constitutional

provisions cannot be circumvented by recourse to methodology

which is otherwise not permissible.

28. In `Principles of Statutory Interpretation' (11th Edition,

2008) by Justice G.P. Singh, it is observed that historical facts and

surrounding circumstances can always be taken into consideration

by the Court while interpreting the provisions :

35

“It has already been noticed that the court is entitled to take into account “such external or historical facts as may be necessary to understand the subject-matter of the statute” or to have regard to “the surrounding circumstances” which existed at the time of passing of the statute. As stated by Lord Halsbury : “The subject-matter with which the Legislature was dealing, and the facts existing at the time with respect to which the Legislature was legislating are legitimate topics to consider in ascertaining what was the object and purpose of the Legislature in passing the Act”. In the words of Lord Atkinson : “In the construction of statutes it is, of course, at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed and to the evils, which, as appears from the provisions, it was designed to remedy”. The Supreme Court (S.K. Das, J.) has referred with approval the following passage from an American decision : “We are not limited to the lifeless words of the statute and formalistic canons of construction in our search for the intent of Congress (Parliament in our case) and courts in construing a statute, may with propriety refer to the history of the times when it was passed”. However, an argument based on history is not to be pushed too far as “the inferences to be drawn therefrom are exceedingly slight”. Like any other external aid, the inferences from historical facts and surrounding circumstances must give way to the clear language employed in the enactment itself. The rule of admissibility of this external aid in case of ambiguous enactments is of general application and a number of cases in this respect have already been discussed while dealing with the rule in Heydon's case, and the admissibility of parliamentary History”.

29. Changed circumstances also have a bearing on the

36

approach of the Court in such matters. The fact that such provision

did not exist earlier and after great deliberation and

recommendation of the Standing Committee, Article 164(1A) was

introduced is a circumstance which indicates that Constitutional

command was to ensure that Council of Ministers does not exceed

the prescribed size to which the framers chose not to provide any

exception.

30. The purpose of enacting Article 164(1A) was to check

defection and limit the size of the cabinet for better governance and

to avoid heavy burden on public exchequer. It could not be the

Legislative intent that ambit of power under Article 162 of the

Constitution should be such that it would have the effect of

overriding the Constitutional intent of Article 164(1A). These two

provisions must be read harmoniously so as to achieve the object

behind legislation and should not grant excessive or unlimited

powers to the Executive. For proper interpretation, the principles

of purposive construction along with principles of constitutionalism

be taken recourse to. In the case of Mahalaxmi Sugar Mills Co. vs.

Union of India, 2008(6) Scale 275, the Supreme Court even applied

the rule of “executive construction” in the situations where a

37

representation is made by the maker of the legislation at the time of

introduction of the Bill or construction thereupon is put by the

Executive upon its coming into force. The same carries great

weight. What was the material before the framers of the legislation

while enacting Article 164(1A) and what was object and purpose of

91st Amendment is to be treated with great relevance and respect by

the Executive without taking recourse to its other powers.

31. Reference can also be made to the judgment of the

Supreme Court in the case of Zee Telefilms Ltd. and another vs.

Union of India and other, (2005) 4 SCC 649, where the Supreme

Court observed as under :-

“There can be no two views about the fact that the Constitution of this country is a living organism and it is the duty of courts to interpret the same to fulfil the needs and aspirations of the people depending on the needs of the time. In Article 12 the term “other authorities” was introduced at the time of framing of theConstitution with a limited objective of granting judicial review of actions of such authorities which are created under statute and which discharge State functions. However, because of the need of the day the Supreme Court in Rajasthan SEB, (1967) 3 SCR 377 and Sukhdev Singh, (1975) I SCC 421 noticing the socio-economic policy of the country through it fit to

38

expand the definition of the term ”other authorities to include bodies other than statutory bodies. This development of law by judicial interpretation culminated in the judgment of the seven-Judge Bench in the case of Pradeep Kumar Biswas, (2002) 5 SCC 111. It is to be noted that in the meantime the socio-economic policy of the Government of India has changed and the State is today distancing itself from commercial activities and concentrating on governance rather than on business. Therefore, the situation prevailing at the time of Sukhdeo Singh is not in existence at least for the time being. Hence, there seems to be no need to further expand the scope of “other authorities” in Article 12 by judicial interpretation at least for the time being. It should also be borne in mind that in a democracy there is a dividing line between a State enterprise and a non-State enterprise, which is distinct, and the judiciary should not be an instrument to erase the said dividing line unless, of course, the circumstances of the day require it to do so.”

32. In the light of these well enunciated principles, it has to

be held that the provisions of Article 164(1A) are mandatory. This

Constitutional mandate should not be permitted to be circumvented

by the concerned authorities as they are expected to function within

the prescribed Constitutional limitations. The restriction on the size

of the Council of Ministers thus must not be unsettled by any

indirect method when it is directly impermissible. Quando aliquid

prohibetur ex directo, prohibitur et per obliquum (When anything

is prohibited directly, it is prohibited also indirectly). If the

39

authorities are permitted to frustrate this mandate, merely by

exercise of discretion, it will hurt the very Constitutional intent and

mandate. In such circumstances, it would not be permissible to

enlarge the Council of Ministers beyond the prescribed limitation

and to adopt an indirect method to defeat the golden figure stated

by giving it a different nomenclature of “Parliamentary Secretary”

when in fact and in terms of logical prudence and even in terms of

law, they would be Ministers. Description of de jure Parliamentary

Secretary, de facto is Minister. Their status, perks, privileges are

not only equitable to Ministers, but in fact are of of the Ministers.

We have already referred to the orders which were passed in the

case of Respondent Nos.2 to 4 and subsequently supported by the

orders giving details of their functions and perks and privileges to

which they are entitled to. All this lead to an irresistible conclusion

that they are in fact Ministers. It is the resultant effect and nexus to

the various facets of the case which we would shortly discuss.

33. In the case of Dr. D.C. Wadhwa and others vs. State of

Bihar and others, (1987) 1 SCC 378, where the Executive in Bihar

had almost taken over the role of the Legislature in making laws,

not for a limited period, but for years together in disregard to the

40

Constitutional mandate issuing ordinance and rules in regard to

various activities in the State relating to forest produce, brick

business, etc., the Supreme Court held vide paragraphs 7 and 8 as

under :-

“7. The determination of this question depends on the true interpretation of Article 213 which confers power on the Governor of a State to promulgate ordinances. This article insofar as material, reads as follows :

213. (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require :

* * * *

(2) An ordinance promulgated under this article shall have the same force and effect as an Act of the legislature of the State assented to by the Governor, but every such ordinance -

(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the legislature, or if before the expiration of that period

41

a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by Council; and

(b) may be withdrawn at any time by the Governor.

Explanation: - Where the Houses of the legislature of a State having a Legislative Council are summoned to re-assemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

The power conferred on the Governor to issue ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the legislature is not in session. The primary law making authority under the Constitution is the legislature and not the executive but it is possible that when the legislature is not in sessions circumstances may arise which render it necessary to take immediate action in such a case in order that public interest may not suffer by reason of the inability of the legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate ordinances. But every ordinance promulgated by the Governor must be placed before the legislature and it would cease to operate at the expiration of six weeks from the reassembly of the legislature or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any. The object of this provision is that since the power exercisable when the legislature is not in session,

42

an ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life. Since Article 174 enjoins that the legislature shall meet at least twice in a year but six months shall not intervene between its last sitting in one session and that date appointed for its first sitting in the next sessions and an ordinance made by the Governor must cease to operate at the expiration of six weeks from the reassembly of the legislature, it is obvious that the maximum life of an ordinance cannot exceed seven and a half months unless it is replaced by an Act of the legislature or disapproved by the resolution of the legislature before the expiry of that period. The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political ends”. It is contrary to all democratic norms that the executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time. That is why it is provided that the ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the legislature. The Constitution-makers expected that if the provisions of the ordinance are to be continued in force, this time should be sufficient for the legislature to pass the necessary Act. But if within this time the legislature does not pass such an Act, the ordinance must come to an end. The executive cannot continue the provisions of the ordinance in force without going to the legislature. The law-making function is entrusted by the Constitution to the legislature consisting of the representatives of the people and if the executive were permitted to continue the provisions of an ordinance in force

43

by adopting the methodology of repromulgation without submitting to the voice of the legislature, it would be nothing short of usurpation by the executive of the law-making function of the legislature. The executive cannot by taking resort to an emergency power exercisable by it only when the legislature is not in session, take over the law-making function of the legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the executive. The government cannot by-pass the legislature and without enacting the provisions of the ordinance into an Act of the legislature, repromulgate the ordinance as soon as the legislature is prorogued. Of course, there may be a situation where it may not be possible for the government to introduce and push through in the legislature a Bill containing the same provisions as in the ordinance, because the legislature may have too much legislative business in a particular session or the time at the disposal of the legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the ordinance. Where such is the case, repromulgation of the ordinance may not be open to attack. But,otherwise, it would be a colourable exercise of power on the part of the executive to continue an ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation. It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly

44

a fraud on the constitutional provision. This is precisely what was pointed out by Mukherjea, J. speaking for the Court in K.C. Gajapati Narayan Deo v. State of Orissa :

It other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method.

So also in P.Vajravelu Mudaliar v. Special Deputy Collector, Madras a Constitution Bench of this Court observed that when it is said that legislation is a colourable one, what it means is that the legislature has transgressed its legislative power in a covert or indirect manner,if it adopts a device to outstep the limits of its power. When the constitutional provision stipulates that an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the legislature and the government if it wishes the provisions of the ordinance to be continued in force beyond the period of six weeks has to go before the legislature which is the constitutional authority entrusted with the law-making function, it would most certainly be a colourable exercise of power for the government to ignore the legislature land to repromulgate the ordinance and thus to continue to regulate the life and liberty of the citizens through ordinance made by the executive. Such a stratagem would be repugnant to the constitutional scheme, as it would enable the executive to transgress its

45

constitutional limitation in the matter of law-making in an emergent situation and to covertly and indirectly arrogate to itself the law-making function of the legislature.

8. Shri Lal Narain Sinha, appearing on behalf of the State of Bihar urged that the court is not entitled to examine whether the conditions precedent for the exercise of the power of the Governor under Article 213 existed or not, for the purpose of determining the validity of an ordinance and in support of this proposition, he strongly relied upon the decisions reported in Bhagat Singh v. Empire, Raja Bahadur Kamakshya Narain Singh v. CIT, Lakshmidhar Misra v. Rangalal and R.C. Cooper v. Union of India. We do not see how these decisions could possibly help in the present case. They do not at all deal with the question which we are called upon to decide here. It is true that, according to the decisions of the Privy Council and this Court, the court cannot examine the question of satisfaction of the Governor in issuing an ordinance, but the question in the present case does not raise any controversy in regard to the satisfaction of the Governor. The only question is whether the Governor has power to repromulgate the same ordinance successively without bringing it before the legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, repromulgated any ordinance after its expiry. The startling facts which we have narrated above clearly show that the executive in

46

Bihar has almost taken over the role of the legislature in making laws, not for a limited period, but for years together in disregard of the constitutional limitations. This is clearly contrary to the constitutional scheme and it must be held to be improper and invalid. We hope and trust that such practice shall not be continued in the future and that whenever an ordinance is made and the government wishes to continue the provisions of the ordinance in force after the assembling of the legislature, a Bill will be brought before the legislature for enacting those provisions into an Act. There must not be Ordinance-Raj in the country.”

34. The other important question that we are called upon to

discuss is whether the respondents have the power to create posts

of `Parliamentary Secretaries' and power of conferring the status of

Ministers of cabinet rank upon the appointees. Ancillary thereto

shall be the question with reference to facts of the present case.

Article 162 of the Constitution vests the Executive with wide

powers. These Executive powers can be exercised in respect of all

matters in regard to which the State Legislature has the power to

make laws. This wide power carries with itself an important

restriction. Powers under this Article can be exercised subject to

the provisions of the Constitution and law framed by the Union

shall take precedence. The Legislature of the State is vested with

wide powers in regard to regulation of the recruitment and

47

conditions of service of person appointed to public service and post

in connection with the affairs of the State. Under proviso to Article

309, the Governor would be competent to make rules regulating the

recruitment, and the conditions of service of persons appointed, to

such services and posts until provision in that behalf is made by or

under an Act of the appropriate Legislature under this article, and

any rule so made shall have effect subject to the provisions of any

such Act. Thus, the State exercises its executive powers under this

Article till proper legislation is framed by the competent

Legislature.

Scope of Judicial Review

35. Thus, it could be stated that the State has the power to

create posts and frame its policies. Policy framing falls in the

domain of the State and is open to restricted judicial review. Policy

framing is essentially for the State and if overall assessment is right

on reasonable basis and proper appreciation and is in conformity

with the Constitutional commands, it is not for the courts to

interfere with the policy matters. If a decision taken on policy

suffers from infirmities of being violative of the Constitution or

being in violation of the settled law and has no legal basis

48

whatsoever and is in arbitrary or colourable exercise of power, the

court would have to examine such cases. We, however, narrow the

scope of judicial review in this case.

36. It is obvious that there is no legislation by the Assembly

of State of Goa codifying the method of appointment, functions and

perks of a `Parliamentary Secretary'. Not even proper Rule or

Regulation in exercise of its Executive power, so far, has been

framed by the State. It is in complete contradistinction to the

Legislatures of some of the other States where law in this regard

stands codified. The stand of the State before the Court is that the

posts were created in exercise of its Executive powers and it is the

policy of the State. It was also contended that the Court would not

interfere in the appointments as it is a matter of policy. The

Advocate General appearing for State of Goa relied upon the

“Divisional Manager, Aravali Golf Club and another v. Chander

Hass and another”, (2008)1 SCC 683, in support of his contention

that creation and sanction of posts is a prerogative of Executive and

Legislative authorities and the Court cannot arrogate to itself this

purely Executive or Legislative function and direct creation of posts

in any organisation.

49

37. Reliance has been placed on behalf of the State in the

cases of Rai Sahib Ram Jawaya Kapur and others v. The State of

Punjab, AIR 1955 SC 549 and Jayantilal Amratlal Shodhan v. F.N.

Rana and others, AIR 1964 SC 648 to emphasise their submission

that the Executive can create posts and it is not necessary that there

should be legislation for that purpose particularly when they are

within the framework of law and that the legislation would be

necessary only where the Government needs power more than the

prescribed. There can hardly be any dispute about this proposition

of law that the Executive exercises powers within the framework of

law and in conformity with the Constitutional provisions. Wherever

it transgresses its defined powers and whenever there is colourable

exercise of powers, the discretion vested in the Executive would be

required to be restricted. The power of the State to sanction or

create posts can hardly be questioned but exercise of such power

certainly should not be in conflict with the Constitution and other

laws. Particularly where the Constitution prohibits an act by the

Legislature, the Executive in the garb of its power under Article 162

cannot frustrate the limitation imposed by Constitutional law. The

exercise of executive power and for that matter even policy has to be

50

in conformity with the Constitutional limitations. The powers of

the Chief Minister and the Governor under Articles 162 and 163 are

controlled or limited by the provisions of Article 164(1A). Thus, the

acts done by the Executive or the State under Articles 162 and 163

or in exercise of any other power cannot defeat the object of Article

164(1A). This, of course, will have to be examined in the

background whether even the Executive power was exercised in

accordance with law or it was an exercise in undue hurry, arbitrary

manner and without any nexus to the object of creation of such

power. Colourable exercise of power having the effect of infringing

the Constitutional mandate normally would invite judicial

chastisement.

38. The vesting of a power per se is no proof of the fact that

power has been exercised in accordance with law. Constitution

holds supremacy over all other laws and all powers emerging from

any source of law must be in conformity with the Constitution and

exercise of those powers essentially must be in adherence to the

Constitutional mandate. If Executive was to exercise its powers free

of all limitation of law, it would suffer from the element of

arbitrariness or patent discrimination which is impermissible under

51

basic rule of law. No person or authority can defy the law or

disobey the command of law. Obedientia est legis essentia.

39. Equitable principles are supportive of basic rule of law.

They require that public necessity is greater than private necessity

and absolute discretion is not the best form of proper governance.

It is for the authority which exercises the power to show that it had

the power backed by law and such power has been exercised

appropriately. The power to create post should be exercised in

accordance with the prescribed limits of law. A communi

observantia non est recedendum. These are the principles which

must be borne in mind before challenge to executive action is

discussed. We must examine now as to how the power was

exercised.

40. The power of judicial review is well defined and

prescribed jurisdiction in Constitutional jurisprudence. With

development of Constitutional law, power of judicial review has

attained the status of a definite concept of extraordinary

jurisdiction exercisable by the Court under Article 226 of the

Constitution of India. It cannot be treated as synonymous to

52

judicial activism which in the recent times has not found favour in

some judicial pronouncements. The power of judicial review

exercised within its circumscribed limits in no way offends the

doctrine of separation of power. In a democracy, judiciary is not

only one of the main organs but is an institution which is duty

bound to protect rights of the people and which is vested with the

constitutional duty to ensure that other organs of the State do not

exceed their jurisdiction and infringe the basic structure of the

Constitution and rights of the people. It was argued on behalf of the

State of Goa that appointment of Parliamentary Secretaries and

grant of ministerial status to the Chairman of the different

Corporations is merely an administrative policy matter and thus

would not fall within the limitats of judicial review. This argument

does not appear to contain any merit inasmuch as, these are not

matters of policy simplicitor. However, even if for the sake of

argument we were to accept that these are merely administrative

policy matters, still no policy matter can be decided by the State

administration which would violate specific provisions of the

Constitution. Wherever such decisions are taken in a manner

opposed to public policy and in a manner which is not apparently

fair besides being violative of Constitution, such decision making

53

process would suffer from the vice of excessive exercise of executive

power and, therefore, could be unsustainable in law. One of the

relevant considerations thus would be to see whether the

appointments of Parliamentary Secretaries tantamount to

appointments as Minister and are they de facto appointments of

Ministers which are made in a circumscribed manner to defeat the

Constitutional mandate. This we have to examine in different

context. The nomenclature of Parliamentary Secretaries may not

be a demonstrative factor. The Court is expected to examine how

and for what purpose these appointments are made and what is

their impact upon the infra-structure of the Cabinet mechanism.

Before we dwell upon examination of these aspects in the

background of our Constitution and the facts of this case, we may

also usefully refer that such a restriction and prohibition also exists

under the Commonwealth of Australia Constitution Act under

Chapter II. Sections 64 and 65 contemplates a restriction on the

size of the cabinet and reads as under :-

“64. The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.

Such officers shall hold office during the

54

pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.

After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

65. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.”

41. It is worthwhile to examine status of Parliamentary

Secretary in Australia. As per briefs produced by the Department of

the Senate, Parliament of Australia :

“Statutory provision is made in the Ministers of State Act 1952 for the Prime Minister to appoint a member of either house of Parliament to be a parliamentary secretary to a minister. While Section 44 of the Constitution prohibits a member of either house of Parliament from holding an `office of profit under the Crown' (i.e. A salaried government position), ministers are specifically exempted by the Constitution from this provision. This meant that parliamentary secretaries, unlike ministers, could not be paid a supplement to their basic salaries. The Ministers of State and Other Legislation Act 2000 amended the Ministers of State Act by providing that parliamentary secretaries are to be appointed as ministers of state for constitutional purposes, which enables them now to be paid a salary.

55

A parliamentary secretary makes ;inquiries, conducts correspondence and deputises for his or her minister under the direction of that minister. While parliamentary secretaries can exercise the powers and perform the functions conferred upon ministers by the procedures of the Senate, they cannot take political responsibility for a department, be asked questions or answer questions that are put to ministers, or represent a Senate minister in relation to that minister's responsibilities before a legislation committee considering estimates.

Though not responsible for a portfolio, Parliamentary Secretaries are appointed as Federal Executive Councillors.”

..... ..... .....

“Parliamentary secretaries are now appointed under an amendment made in 2000 to the Ministers of State Act 1952, which prescribes the number of ministers under section65 of the Constitution. The statutory provision provides for them to be appointed as ministers, but without that title or status. The purpose of this paradoxical provision is to allow them to be paid salary for the office without incurring disqualification under section 44(iv) of the Constitution, which prevents members of either House holding an office of profit under the Crown, excepting only ministers. (For comments on the constitutional propriety of this provision, see the remarks by Senator Harradine. SD. 17/2/2000, pp 11926-7. This arrangement, however, was in effect, upheld by the High Court : In Re Patterson, ex parte Taylor 2001 182 ALR 657).

Before the 2000 provision, parliamentary secretaries were appointed under

56

the Parliamentary Secretaries Act 1980, and were not paid any remuneration of office but were reimbursed for expenses”(Reference : Parliament of Australia SENATE – Chapter 19 – Relations with the executive government – http:// www.aph.gov.au /senate/pubs/odgers/ chap1905.htm)

42. In Re: Patterson ; Ex Parte Taylor, 207 CLR 391, a

Seven Judge Bench of the High Court of Australia while examining

various aspects of executive power under the Constitutional law also

dealt with the question whether the appointment of Parliamentary

Secretary as a Minister was invalid or not and the appointment of

two persons to administer a department was not inconsistent with

Section 64 and the effect of the restriction contemplated under

Section 65. The contention raised before the Bench was that the act

of appointment of Parliamentary Secretaries as Ministers is an

attempt to circumvent Section 44(iv) of the Constitution and that

they were not appointed as Ministers.

43. As per the facts of the case an application was made to the

High Court challenging a decision of Senator Patterson, the

Parliamentary Secretary to the Minister for Immigration and

Multicultural Affairs, to cancel Mr. Taylor's visa under s. 501(3) of

57

the Migration Act 1958. Mr. Taylor (`the applicant') was born in

the United Kingdom and in 1966, as a child, came to Australia with

his parents. He had not become an Australian citizen. However,

subject to the cancellation of his visa, the applicant was entitled to

remain permanently in Australia and, like other UK citizens who

migrated to Australia before 1987, was entitled to vote at federal

elections. The Parliamentary Secretary cancelled the applicant's

visa on the basis that he was not of good character (he has a number

of convictions for sexual assaults on children) and that it was in the

national interest to cancel the visa.

44. It is relevant to reproduce some extracts from the

aforesaid judgment.

(A) In Re: Patterson (supra), the contention of the

prosecution was :

“ The purported appointment of the respondent as a Minister of State was void. Before the Ministers of State and Other Legislation Amendment Act 2000 (Cth), which substituted a new section 4 s 4 of the Ministers of State Act 1952 (Cth), Parliamentary Secretaries were appointed by the Prime Minister and were not Ministers. The Act of 2000 was intended to alter the status of the Parliamentary Secretaries but not their functions or role. That Act and the appointment of the

58

Parliamentary Secretaries as Ministers are an attempt to circumvent s 44(iv) of the Constitution. Even if her appointment as a Minister were not void, the respondent is not “the Minister personally” for the purposes of s 501(4). The Act of 2000 is invalid to the extent that it purports to invest the executive with a power to designate the respondent a Parliamentary Secretary upon her appointment by the executive under s 64 of the Constitution. The executive has no power to appoint to administer a department of State a person who cannot and does not in fact and substance administer the department. A Parliamentary Secretary, who merely assists the Minister in a subordinate manner, does not relevantly “administer” the department and is answerable to the Minister rather than the Parliament. Accordingly, the purported appointment of a Minister was not a valid exercise of power under s 64 of the Constitution. ..... .... ... In any event, the respondent can be neither “the Minister” nor “the Minister personally” within the meaning and intent of s 501 of the Migration Act 1958 (Cth). Section 19A(1) of the Acts Interpretation Act 1901 (Cth) does not apply, because a contrary intention to the effect of that provision is indicated by the word “personally” in s 501. When s 501 was introduced, before the repeal of the Parliamentary Secretaries Act 1980 (Cth), it could not have been though that anyone other than the portfolio holder would exercise the power. The requirement in s 501(3) that the Minister be reasonably satisfied that it was in the national interest to cancel the prosecutor's visa is a jurisdictional fact. The type of situation to which s 501(3) was intended to apply was one which involved an active threat to the national interest requiring urgent attention. ...”

59

(B) Attorney General and Solicitor General for

Commonwealth contended in support of the Respondent as under :

“.... The respondent was appointed under s 64 of the Constitution to administer the Department of Immigration and Multicultural Affairs and thereupon became a Minister of State for the Commonwealth. As such, she was directed by the Governor-General under s 65 to hold the office of Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs. As a Minister of State administering the Department, she well within the description of “the Minister” in s 501(3). By reason of s 19A(1)(aa) and (b) of the Acts Interpretation Act, the reference in s 501(3) to “the Minister” is to any one of any two or more Ministers for the time being administering that section. The reference in s 501(4) to “the Minister acting personally” merely shows that the power conferred by s 501(3) must not be exercised by a delegate. [He referred to Kartinyeri v The Commonwealth (15)]. Nothing in s 64 of the Constitution prevents the appointment of two or more Ministers to administer the same *396 department. Provided an officer appointed to administer a department of State is a Senator or member of the House of Representatives, the function of responsible government is fulfilled. [He referred to Egan v Willis (17) and Egan v Chadwick (18)]. It does not matter that another officer, who is also a Senator or member of the House of Representatives, may also be appointed to administer the same department. The use of assistant Ministers in the United Kingdom was well-known in 1900 (19). In any event, s 64 cannot be read as limiting the evolving institution of responsible government to the forms or practices of the past. [He referred to The Commonwealth v Kreglinger & Fernau Ltd and

60

Bardsley (20) and Ega v Chadwick (21)]. Section 4 of the Ministers of State Act, as substituted by the Ministers of State and Other Legislation Amendment Act, does no more than limit the number of Ministers by reference to the offices to which they are designated. Even if it prescribed the office of Parliamentary Secretary, it would fall within the scope of power s 51(xxxvi).”

(C) Gleeson C.J. In his judgment observed :

“The respondent as Minister

8 The prosecutor challenged the status of the respondent as Minister for the purposes of the exercise by her of the power conferred by s 501(3) of the Migration Act.

9 On 21 October 1998, the Governor-General, acting pursuant to ss 64 and 65 of the Constitution, appointed the Honourable Philip Ruddock, a member of the House of Representatives, and a member of the Federal Executive Council, to hold the office of Minister for Immigration and Multicultural Affairs, and directed that the administer the Department of Immigration and Multicultural Affairs. The validity of such appointment and direction is not in question.

10 On 10 March 2000, the Governor-General signed an instrument, relating to the respondent, described as “Appointment of Parliamentary Secretary”. By that instrument, the Governor-General, acting pursuant to ss 64 nd 65 of the Constitution, appointed the respondent, who is a Senator and a member of the Executive Council, to administer two Departments, the Department of Foreign Affairs and Trade and the Department of Immigration and Multicultural

61

Affairs. By the instrument, His Excellency also designated the respondent, pursuant to s 4 of the Ministers of State Act 1952 (Cth), as Parliamentary Secretary, and directed her to hold the office of Parliamentary Secretary to the Minister for Foreign Affairs and the office of Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs.

11 This, the prosecutor argues, cannot be done. Why not ? If there is a reason, it must be found in the provisions of Ch II of the Constitution, concerning the Executive Government. But those provisions are relatively brief and, as one would expect, are expressed in a form which allows the flexibility that is appropriate to the practical subject of governmental administration, consistent with the basic requirements of responsible government.

12 The relevant sections of the Constitution provide as follows :

“61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. *402

62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

63. The provisions of this

62

Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.

64. The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.

Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.

After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

65. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.”

13. ..... A Minister of State was to be either a senator or a member of the House of Representatives, and thus answerable in and to Parliament for matters relating to the

63

administration of government. Parliament was empowered to make provision as to the number of Ministers of State at any one time, and also to prescribe the offices such Ministers should hold. In the absence of such parliamentary prescription it was to be for the Governor-General to direct which offices should be held by Ministers. Parliament, however, was to control the size of the Ministry.

xxxxx xxxxx xxxxx

15. The concept of administration of departments of State, appearing in s 64, is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.

xxxxx xxxxx xxxxx

17 This contention fails. There is nothing inconsistent with s 64 in the appointment of two persons to administer a Department. The practice of appointing Ministers, and Assistant Ministers, is well established, here and in the United Kingdom (63). The concept of administration does not require that there be only one person who administers, and the concept of responsible government does not require that there be only one person answerable to Parliament for the administration of a Department. Under the appointments made by the Governor-General, it is for the Minister and the Parliamentary Secretary to make their own arrangements as to the method by which the Department will be administered. It is for Parliament to determine the procedures

64

by which those two persons will answer for the conduct of such administration. To repeat what was said in Egan v Willis (64), responsible government is a concept based upon a combination of law, convention, and political practice. The characteristics of responsible government are not immutable. They are certainly capable of accommodating the arrangements made by the Governor-General in the present case.

18. The Ministers of State Act 1952 (Cth), as amended by the Ministers of State and Other Legislation Amendment Act 2000 (Cth), provides that the number of Ministers of State must not exceed, in the case of those designated upon appointment as Parliamentary Secretary, twelve, and in the case of those not so designated, thirty. This is an exercise of the power conferred by s 65 and also by s 51(xxxvi) of the Constitution. The respondent is a Minister of State, designated upon appointment as a Parliamentary Secretary. By virtue of s 19A of the Acts Interpretation Act 1901 (Cth) she had the powers conferred upon the Minister by s 501(3) of the Migration Act.

19 The challenge to the respondent's status as Minister must be rejected.*404”

(D) Gaudron J in his judgment observed :

“The issues

28 The issues which arise in this matter are : (1) whether s 501(3) of the Act is valid in its application to the prosecutor; (2) whether, as a matter of statutory construction, the

65

Parliamentary Secretary is the “Minister personally” for the purposes of s 501(4) of the Act; (3) if the Parliamentary Secretary is “the Minister personally”, whether she has been validly appointed as one of the Queen's Ministers of State for the Commonwealth; (4) whether the decision of the Parliamentary Secretary involved jurisdictional error attracting relief by way of prohibition under s 75(v) of the Constitution.

xxxxx xxxxx xxxxx

The Minister personally

55 On this issue, I agree with Gummow and Hayne JJ, for the reasons that their Honours give, that, as a matter of statutory construction, the Parliamentary Secretary is, for the purposes of s 501(4) of the Act, “the Minister personally”.

Validity of the Parliamentary Secretary's appointment as Minister of State

56 It was argued on behalf of Mr Taylor that, notwithstanding that, as a matter of statutory construction, the Parliamentary Secretary is “the Minister personally” for the purposes of s 501(4) of the Act, her appointment as Minister is invalid and the only person capable of acting as the Minister personally is the Hon Philip Ruddock who was appointed by the Governor-General on 21 October 1998 to administer the Department of Immigration and Multicultural Affairs and, thus, to hold office as one of the Queen's Ministers of State for the Commonwealth. His appointment has not been revoked.

66

57 The Parliamentary Secretary's appointment occurred on 10 March 2000. On that day the Governor-General signed an Instrument of Appointment designating her, pursuant to s 4 of the Ministers of State Act 1952 (Cth), as Parliamentary Secretary and directing her to hold the office of Parliamentary Secretary to the Minister for Foreign Affairs and the office of Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs. By the Instrument of Appointment she was also appointed “to administer THE DEPARTMENT OF *414 FOREIGN AFFAIRS AND TRADE AND THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS”.

58 The appointment of the Hon Philip Ruddock and of the Parliamentary Secretary were each expressed to be pursuant to ss 64 and 65 of the Constitution. Section 64 relevantly provides :

The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.

Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.”

59 Section 65 provides :

“Until the Parliament otherwise provides, the Ministers of State shall not

67

exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.”

The Minister of State Act provides, in s. 4, that:

“The number of the Ministers of State must not exceed:

(a) in the case of those designated, when appointed by the Governor-General, as Parliamentary Secretary – 12; and

(b) in the case of those not so designated – 30”.

60 It was put on behalf of Mr Taylor that s 4 of the Ministers of State Act is invalid in so far as it “purports to confer upon the Executive a power to designate [a member of Parliament] as Parliamentary Secretary upon ... appointment by the Executive under s 64 of the Constitution”. Accordingly, so the argument went, the Governor-General could not appoint more than thirty Ministers, a number which was exceeded by the appointment of the various Parliamentary Secretaries and, thus, their appointments were invalid.

61. The Parliament has power under s 51 (xxxvi) of the Constitution to legislate with respect to “matters in respect of which this Constitution makes provision until the Parliament otherwise provides”. Section 65 of the Constitution makes provision with respect to the number of the Ministers of State and the offices they are to hold “[u]ntil the Parliament otherwise provides”. By s 4 of the Ministers of State Act Parliament has provided for an office

68

of Parliamentary Secretary to be held by twelve of the forty-two persons who are appointed Ministers of State. Such provision is clearly authorised by s 51(xxxvi) of the Constitution.

62 Additionally, it was put that there is no power under s 64 of the Constitution “to appoint to administer a department of State a person who cannot and does not administer the department”. The question whether, at the relevant time, the Parliamentary Secretary administered the Department of Immigration and Multicultural Affairs is a question *415 of fact and as will later appear, is one that is irrelevant to these proceedings. The question whether she could administer the Department depends on whether s 64 of the Constitution permits of two or more persons to administer a department of State.

63 Before turning to s 64 of the Constitution, it is convenient to note that the notion of responsible government was called in aid of the argument that s 64 permits of the appointment of only on person to administer a department of State. The concept of responsible government is not one which is elaborated in the Constitution. Rather, the Constitution simply provides, in the concluding sentence of s 64, that :

“After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.”

It may here be noted that the Parliamentary Secretary has at all relevant times been a Senator.”

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(E) Gummow and Hayne JJ observed :

“187 Putting to one side any questions of the constitutional competence of any of the above steps, the position is that (i) the respondent, Senator Patterson, was appointed under s 64 of the Constitution to administer the Department of Immigration and Multicultural Affairs; (ii) she became a Minister of State for the Commonwealth by operation of s 64 of the Constitution; (iii) as such a Minister she was directed by the Governor-General under s 65 of the Constitution to hold the office of Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs; and (iv) she is a Minister of State administering the provisions of the Migration Act. That state of affairs attracts the operation of s 19A of the Interpretation Act. The respondent is one of the Ministers administering s 501(3) and thus falls within the term “the Minister” as a repository of the power conferred by that provision. The decision of the respondent made on 30 June 2000 with respect to the prosecutor thus answered the requirement in s 501(4) that the power under sub-s (3) thereof only be exercised by the Minister personally.

xxxxx xxxxx xxxxx

Constitutional issues

198 There remain the arguments presented by the prosecutor which are based in the Constitution. The constitutional questions he agitates fall under two heads. The first is concerned with the position of Parliamentary Secretary. The second the status of the prosecutor as a “non-citizen”. As will appear,

70

neither of these questions should be answered favourably to the prosecutor's case.

199 However, there is a significant distinction between the two questions. Resolution of the first is necessary for the Court to determine whether the relief granted to the prosecutor is to be supported by s 75(v) of the Constitution on the footing that the respondent is an “officer of the Commonwealth”. Somewhat paradoxically, the denial by the prosecutor that there can be, consistently with Ch II of the Constitution, an office of Minister of State identified as Parliamentary Secretary, would have the consequence that his claim to relief fell outside s 75(v).

200 In the past, the point has been assumed rather than decided, but it should be taken that the common law doctrine respecting the acts of de facto officers has no application to the officers spoken of in s 75(v). In any event, the common law doctrine appears to posit the existence of an office but a defective title to that office (216).

xxxxx xxxxx xxxxx

204. We turn to deal, in order, with the two constitutional questions we have identified.

Parliamentary secretaries

205 The prosecutor pointed to the provision in s 65 of the Constitution that the Minister of State holds such offices as the Governor-General directs and fixed upon the phrase in s 64 “appoint officers to administer such departments ... as the Governor-General in Council may establish”, in particular the words “to administer”. The prosecutor does not

71

contend that the only administration of a department of State of the Commonwealth permitted by the Constitution is one conducted by no more than one Minister of State. The submission is that a Minister of State must have the overall superintendence and direction of a department, so that an element of subordination of one Minister to the other would deny to the subordinate the conduct of an administration within the meaning of s 64. Such a subordinate will not have been appointed under s 64 as a Minister of State for the Commonwealth.

206 The respondent then points to advice given on 23 May 2000 by the Australian Government Solicitor concerning the implications of the appointment of Senator Patterson under s 64 of the Constitution. Paragraph 11 of that advice states :

“It is up to Mr Ruddock and Senator Patterson to decide the administrative parameters in which they will exercise their shared Ministerial powers. There is no legal requirement that dictates whether Mr Ruddock or Senator Patterson will attend to particular administrative matters. However, there may well be preferred administrative arrangements that the Prime Minister requires to be followed or that Mr Ruddock as the “senior” Minister requires to be followed.”

xxxxx xxxxx xxxxx

211 This reasoning should be accepted. The Court should favour a construction of s 64 which is fairly open and which allows for development in a system of responsible ministerial government.”

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(F) Kirby J specified the relevant issues as under:

“257 .....

(2)(a) Whether the federal law and instrument of appointment pursuant to which the respondent was appointed Parliamentary Secretary to the Minister were authorised by s 64 of the Constitution and lawfully constituted the respondent “the Minister” for the purposes of the Migration Act; and

(b) Whether, if the respondent was “the Minister” for such purposes, she was “the Minister personally” within s 501(4) of the Migration Act, a requirement for the exercise of the power afforded to the Minister under s 501(3) (the Assistant Minister issue).”

xxxxx xxxxx xxxx

320 The prosecutor complained that a Parliamentary Secretary, such as the respondent, was not, by the Ministers of State and Other Legislation Amendment Act 2000 (Cth) or otherwise, a Minister, still less a Minister administering a Department as, it was suggested, s 64 of the Constitution requires. The arguments on this issue are set out in the reasons of other members of the Court (405). So are the applicable constitutional provisions (406). On this issue I agree in the reasons of Gummow and Hayne JJ (407).

321 However, it is as well that I make it clear that I do not agree with the opinion that, were the prosecutor to succeed in his objection to the constitutional validity of the appointment

73

of the respondent as Parliamentary Secretary, this would paradoxically have put his claim outside s 75(v) of the Constitution (408). It would be alarming if that could be so. It would seriously undermine the effectiveness of s 75(v) as a provision of cardinal importance for upholding the rule of law in the Commonwealth. Section 75(v) says nothing about the capacity in which the officer of the Commonwealth concerned has acted. It merely describes the officer as the party respondent and a person amenable to the constitutional writ that this Court has issued. Senator Patterson in such a person. She purports, relevantly, to be an officer of the Commonwealth and asserts a capacity to act under statute as a Minister and repository of statutory power conferred on her by the Parliament. As such, she is an much an “officer of the Commonwealth” as is a Judge of a federal court (409). She is therefore amenable to process for which s 75(v) provides if she acts, or purports to act, beyond her lawful constitutional or other legal powers.

322 The jurisdiction and power of this Court to grant relief does not depend upon the ultimate validity or lawfulness of the respondent's powers. If it were otherwise, demonstration of constitutional invalidity *409 would be placed beyond constitutional redress – a conclusion incompatible with the language, purpose and history of s 75(v) of the Constitution. From the start, this Court has taken an ample view of the reach of this provision. In my view, it should not even hint that a change is in the wind.

323 Meaning of “the Minister personally”: The prosecutor alternatively argued that, even if the respondent were validly appointed a Minister, she was not the repository of the

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power contemplated by s 501(4) of the Migration Act. That sub-section requires that the power under s 501(3), to cancel a visa “in the national interest”, may “only be exercised by the Minister personally”. The purpose of such a requirement (which is an exceptional one) is obviously to reflect the seriousness of the particular decision; the fact that it deprives the person subject to it of the protections of the rules of natural justice and of the code of procedure contained in the Migration Act; and that, for such decisions, the Minister personally should be accountable to the Parliament and thereby to the people of Australia (410). The present Minister (Mr Ruddock), when explaining the introduction of the provision in the Migration Act (411), justified the removal of the person without the benefit of natural justice by saying (412) :

“Parliament should be notified of the making of such decisions ... The minister is very accountable for his actions to the parliament, his colleagues and the people of Australia.”

324 The prosecutor submitted that only the ministerial head of the Department concerned could fulfil the stated role. He argued that, to permit the decision to be made by someone other than the Minister would be to debase the adverb “personally”. As that word was introduced into the Migration Act in 1998, it should not be read as extending to a subordinate “Minister” who did not then have the responsibility of administering the Department concerned.

325 There is no merit in this argument. If persons such as the respondent may be appointed as Parliamentary Secretaries, and if

75

they are “Ministers” for constitutional purposes, then, subject to their being appointed to administer the Act in relation to the provision in question, there is no reason why s 501(4) should not be read as extending to them. The purpose of requiring a personal decision is equally achievable. Persons such as the respondent must, by the Constitution, be members of one of the Houses of the Parliament (413). They are, *500 therefore, ultimately accountable in Parliament and, in that way, rendered answerable to the people of Australia. Political sanctions might be attached to an erroneous or unjust decision. The Migration Act contains large powers of Ministerial delegation. By s 496(1), the Minister is permitted, by a written instrument, to “delegate to a person any of the Minister's powers under this Act”. All that s 501(4) provides is that the Minister cannot delegate to an official the making of the decision under s 501(3) of the Migration Act. He or she must make that decision personally. Provided that the person making the decision answers to the description “Minister”, and makes the decision personally, the requirements of s 501(4) are fulfilled (414). The separate submission based on that sub-section, in the case of an Assistant Minister, fails.”

45. The Court (Gleeson CJ, Gaudron, Gummow, Kirby,

Hayne and Calllinan JJ, McHugh J not deciding) rejected the

applicant's argument that the Parliamentary Secretary was not

validly appointed under Secs.64 and 65 of the Constitution and Sec.

4 of the Ministers of State Act 1952 and was not `the Minister

personally' for the purposes of Section 501(4) of the Migration Act.

76

(Section 501(4) provides that only `the Minister personally' can

make a decision under Section 501(3).) The Court accepted the

submission put forth by the Attorney-General who appeared

personally as intervener on this issue, that there was nothing in

Sections 64 and 65 of the Constitution and the system of

responsible Government for which the Constitution provides that

precludes the appointment of more than one Minister to administer

a department and, in particular, the appointment of Senator

Patterson as Parliamentary Secretary to administer the Department

of Immigration and Multicultural Affairs with the Minister for

Immigration and Multicultural Affairs.

46. In case of exercise of power by the Executive, particularly

in relation to formulation of policy matters, the Courts are very

reluctant to interfere with. Exercise of discretionary power per se

may not fall within the framework of policy formation. The action

of the State whether falling within the field of policy framing or

otherwise if patently suffers from the defect of violation of

Constitutional provisions or mandate or is opposed to public policy

or is a decision which is irrational and is coupled with the fact that

it has been taken on irrelevant considerations while ignoring

77

relevant law, factors and public interest, such exercise of power

could hardly stand the test of judicial scrutiny. In such cases, it is

imperative for the judiciary to intervene and protect the rights of

the people and also to ensure that the constitutional mandate is not

hurt by actions of the State in exercise of excess of its legitimate

authority. From time to time public authorities have set their forces

against the policy of an Act or even command of the Constitution.

On other occasions, there might be attempts within the so called

exercise of Executive power either to decline to implement or

attempt to frustrate the Constitutional mandate. Such exercise of

power could be termed as `unlawful motive'. The Courts have a

duty to exercise the power of judicial review within its limitations,

where it is expected of other organs of the State that they would act

within the Constitutional framework. An act in transgration of

limitation, particularly offending the Constitutional provision,

would have to be necessarily viewed by the Courts with some

seriousness. The orders have to be examined and scrutinized

closely and objectively. Without substituting its views on

administrative matters, the Court is called upon to judge the legality

and validity of State actions including policy matters where they are

of the nature indicated above. The powers of the Court have to be

78

used with scrupulous attention while keeping in mind the true

purpose of statutory power and for reasons which are relevant and

proper for exercise of such power of judicial review.

47. Let us now also examine the concept of `Minister

personally' and `Parliamentary Secretary'. This distinction

essentially must be understood in context to the provisions of

Article 164(1A), the source of appointment, purpose of

appointment, duties and functions and the perks and privileges

conferred on such `Parliamentary Secretary'. The expression

`Minister personally' is indicated as an appointment of an elected

member of Assembly to the Cabinet which is to assist and advise the

Governor in discharge of the functions of the State. The persons

appointed as Cabinet or State Ministers within the Cabinet and

their number is undisputedly governed by the provisions of Article

164(1A). Their appointments are duly notified. Oath is administered

to them by the Governor. They are given portfolios, functions,

duties, privileges and perks as that of a Minister of the Cabinet or

the State Minister or Deputy Minister in accordance with the

relevant rules framed by the competent authority.

79

48. It needs to be examined as to what is the purpose of

appointing `Parliamentary Secretaries' as it appears that there is

no regular cadre carrying this nomenclature originating from any

statute or deriving authority from the Constitution of India. In other

words, they are not part of the regular State services nor Executive

authorities forming part of the bodies involved in Governance of the

State. Number of Cabinet Ministers/State Ministers as

contemplated under section 164(1A) are appointed immediately

after election. At the same time, the `Parliamentary Secretaries' are

appointed. Normally and as even conceded now in the reply

affidavit, their functions and duties are to assist the Minister with

whom they are working. They are given all privileges and perks of a

Minister. Their staff is equivalent to that of a Minister. It cannot be

said that they do not have access to the Government records and

Government files. Their main role, as it appears from the record

before us is to participate in Government functioning, may be with

some limitations but they are no way outsiders to the Government

functioning, its records and interaction with the public. The

distinction between these two is primarily marked with their

nomenclature. One is called a regular Minister while other is called

`Parliamentary Secretary'. Which is and what is the main line of

80

distinction between these two public officers is a question left to

anybody's imagination and in any case, the record reflects nothing.

Viewed from the normal conduct of the Government, these

appointments are primarily made with the purpose of

accommodating an elected member who could not be included in

the regular Cabinet for one reason or the other and primarily for the

limitation contained in Article 164(1A) of the Constitution. They are

given the status, functions and privileges of a Minister though

without the title of the Minister. The situation created as a result of

this exercise of power does appear to be paradoxical as, in fact,

`Parliamentary Secretary' carry all that a Minister does except the

name. `Minister personally' is de jure Minister while the

Parliamentary Secretary is Minister de facto who exercises all such

authority, power, perks, status and privileges of Minister.

49. In this context, another aspect which needs to be clarified

is the distinction between the concepts of Governance and of

politics. Politics involves process by which a group of people join

together in making collective decisions regarded to be binding on

the group and which may be enforced as common policy.

Governance, on the other hand, conveys the administrative and

81

process-oriented elements governing rather than its antagonistic

ones. Therefore, the Courts must view either of them with marked

distinction. Political common policies may be the decision of that

political group but Governance is a matter of administration of the

State as a whole and, thus, should essentially be in conformity with

the laws and the Constitution.

50. Whatever be the extent of Parliamentary control over the

Executive but fact of the matter is that practically, the Parliament in

the Parliamentary Government has definite control over the

Executive. Parliament frames the laws and one of its important

functions is to ensure its implementation and control through the

Executive. In India, this control is exercised through the Council of

Ministers which assist and advise the Governor in enforcement of

policies and effective working of the Executive. It is said that the

Council of Ministers and Parliament are closely interlinked but

there is a clear distinction between the functions of the Executive

and the functions of the Parliament. Despite the relationship, there

is a mandatory obligation upon the executive to act in consonance

with the Constitutional provisions. A decision or an action of the

Government which essentially must be in consonance with law

82

would have to be tested from the touchstone of `motives and

purpose'. There may not be a clear-cut legal distinction between

these expressions. To be actuated by ulterior motives is to seek to

promote ulterior purposes. Yet it is sometimes said that the law is

concerned with purposes but not with motives. This school of

thought has not been universally accepted as both these expressions

are capable of meaning a conscious desire to attain a specific end, or

the end that is desired. In Constitutional interpretation of

provisions, the court may not be concerned with state of mind in

general terms but state of mind do in fact influence conduct of an

Executive directing his acts towards attainment of specific end

which may be indirectly relevant. In other words, the apparent

purpose may be different but attainment of a motive or a desire may

not be congruent to the purpose. The purpose in creating posts

with a motive for providing similar status in excess of limitation

specified in law appears to be an ulterior motive i.e. to settle

political interest in the garb of exercise of an executive power

apparently not in consonance with law. [See- Oxford-

Administrative Law, Ninth Edition (Indian Edition) by H.W.R.

Wade and C.F. Forsyth].

83

51. The supremacy of the Constitution cannot be permitted to

be compromised by any organ of the State and particularly the

Executive is expected to act in line with the Constitutional mandate.

An executive action founded on ancillary law or State policy framed

cannot in any way be permitted to impinge or cast a shadow upon

the Constitutional scheme. Both the purpose and motive of the

Executive are of relevant consideration as they essentially must go

in line with the command of the Constitution. An objective purpose

as a result of colourable exercise of power would vitiate the

executive action. In the case of S.R. Bommai and others v. Union

of India and others, (1994)3 SCC 1, the Supreme Court emphasized

the duty of the Court to interpret the Constitution to bring political

parties within the purview of Constitutional parameters for

accountability and to abide by the Constitutional law for their strict

adherence. This indicates the necessity for interpretation of

Constitutional provisions so as not to permit it being overreached

by executive or political action. To that extent, these provisions

need to be understood and enforced strictly.

52. At this stage, we may examine an illustration which is of

common knowledge in relation to appointment of law officer under

84

the Constitution of India. Every State has a power under Article 165

of the Constitution of India to appoint a person to be the Advocate

General of the State. In the case of M.K. Khan v. Government of

Andhra Pradesh, 2004(2) SCC 267, the question arose before the

Supreme Court whether the State can appoint in exercise of its

executive power more than one Advocate Generals for the State.

Stating the clear distinction between the Constitutional

appointment and the appointments made in exercise of Executive

power, the court held as under:

“12. It is a well-settled principle of law that the provisions of the Constitution shall be construed having regard to the expressions used therein. The question of interpretation of a Constitution would arise only in the event the expressions contained therein are vague, indefinite and ambiguous as well as capable of being given more than one meaning. Literal interpretations of the Constitution must be resorted to. If by applying the golden rule of literal interpretation, no difficulty arises in giving effect to the constitutional scheme, the question of application of the principles of interpretation of a statute would not arise only.

xxxxx xxxxx xxxxx

14. In Balram Kumawat v Union of India, (2003) 7 SCC 628, this Court held : (SCc p. 637, para 26)

“26. The courts will therefore reject that construction which will defeat the plain

85

intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v Duncombe [(1886) 11 AC 627] AC at p. 634). Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. The courts, when rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve. [See BBC Enterprises v. Hi-Tech Xtravision Ltd. (19990) 2 All ER 118 at pp. 122-23]”.

xxxxx xxxxx xxxxx

19. The matter relating to the appointment of a legal practitioner by a Government may be subject-matter of a legislation. The State by amending the provisions of Sections 24 and 25 of the Code of Criminal Procedure may make a law regulating the appointment of the Public Prosecutor or Additional Public Prosecutor. Such a law can also be made for regulating appointment of other State counsel. In absence of any legislation in this behalf, various States have laid down executive instructions. Thus, the State in exercise of its jurisdiction under Article 162 of the Constitution of India, is, in our considered view, competent to appoint a lawyer of its choice and designate him in such manner as it may deem fit and proper. Once it is held that such persons who are although designated as Additional Advocate Generals are not authorized to perform any constitutional or statutory functions, indisputably, such an appointment must be held to have been made by the State in exercise of its executive power and not in exercise of its constitutional power. Consequently, Additional

86

Advocate General so appointed as not in the constitutional scheme and does not hold constitutional office.”

53. The above clear enunciation of law makes it explicit that

the provisions of Constitution cannot be compromised so as to take

in its ambit appointments of general nature and such appointments

may not be termed improper or invalid if they are lawfully provided

and only if they do not perform any Constitutional or statutory

functions which an Advocate General in terms of his Constitutional

appointment is required and expected to perform. Nomenclature

simpliciter may not by itself be a sufficient ground for validating the

appointment. Shortly, we will examine the applicability of this

principle to the facts of the present case.

Arbitrariness in State Action

54. We have already discussed the scope of judicial review

above. The Judicial review of Executive and Administrative action

is permissible. This power of judicial review of course, has to be

exercised within the framework of law and settled principles. Every

State action may not fall within the ambit of judicial review but

wherever the action of the State is arbitrary or unconstitutional, the

87

power of judicial review of the court can be invoked. The

expression “arbitrarily” means “in an unreasonable manner, as

fixed or done capriciously or at pleasure, without adequate

determining principle, not founded in the nature of things, non-

rational, not done or acting according to reason or judgment,

depending on the will alone.” (Sharma Transport v. Government of

A.P., (2002) 2 SCC 188.

55. Wherever the validity of the State action is questioned on

the ground of constitutionality, the Court normally would not

decline to interfere in the case on the ground that such case would

fall beyond the circumscribed limit of judicial review. Policy

decisions of the State are outside the scope of judicial review except

when such policy decisions again are arbitrary, irrational, opposed

to Constitutional provisions or are contrary to law.

56. In the case of Delhi Development Authority, N.D. & Anr.

v. Joint Action Committee, Allottee of SFS Flats & ors., 2008

AIRSCW762 [(2008)2 SCC 672], the Supreme Court clearly stated

the principle that executive order termed as policy decision is not

beyond the pale of judicial review. The Courts may not interfere

88

with the nitty gritties of the policy or substitute their opinion but

may interfere where the policy decision is unconstitutional and is

de hors the provision of the Act and the Regulations, delegate

beyond permissible delegative power and most importantly is

contrary to statute or larger public policy or public interest.

57. In the present case, the challenge to the State action in

appointing the respondent Nos.2,4 and 5 to 7 is founded on the plea

that the same is violative of Constitutional provisions and is so

arbitrary that it opposes the public policy. The act is a colourable

exercise of power. It is also challenged on the ground that the

decision even if treated as policy decision is motivated to frustrate

the constitutional mandate and as such is an action void ab initio.

58. To examine the plea of unconstitutionality as well as

arbitrariness or undue haste reflecting non-application of mind and

colourable exercise of power, it would be appropriate to recapitulate

concisely the facts. The election to the State Legislative Assembly

was held in May, 2007 and the Chief Minister had constituted a

Cabinet. The total strength of the Ministry constituted 12 posts of

Cabinet/State Ministers being 15% of the total number of Members

89

of the State Legislative Assembly in terms of Article 164(1-A) of the

Constitution. Notifications were issued on 6th ,9th and 10th July,

2007 appointing respondent Nos.3 and 4 as Parliamentary

Secretaries with the cabinet rank status. However, notification

sanctioning such posts were issued by the administration on 11th

July, 2007, as already referred. Their terms and conditions of

appointment and functions were to be stated subsequently.

However, appointment of respondent No.3 as Parliamentary

Secretary was revoked vide order dated 17th August, 2007 with

effect from 14th August, 2007. Conditions of appointment were

issued vide order dated 15th October, 2007. These respondents

thus, attended and started functioning as Parliamentary Secretaries

with effect from 6th to 9th July, 2007 without proper sanction of the

posts, without proper creation of the posts, without defining their

conditions of service and functions which they were required to

discharge.

59. Vide notification dated 6th December, 2007, the terms

and conditions of the post of Parliamentary Secretary were specified

for respondent No.2, an elected Member who had been appointed

as Parliamentary Secretary on 6th July, 2007 against a post created.

90

It clearly state that while drawing the pay and allowances of the

Members of Legislative Assembly, he will be entitled and treated on

par with the Cabinet Ministers. By different orders dated 24th

August, 2007, 29th August, 2007 and 6th September, 2007, the

functions of the Parliamentary Secretaries were specified. In terms

of these functions, they were to assist the Chief Minister. They were

to represent Department/ Ministry in the House to which they

belong and to perform such other functions as were assigned to

them by the Chief Minister and were to have limited access to

official papers in respect of the files dealt with by them. They were

administered the oath of secrecy much prior to the issuance of any

of these Notifications.

60. Original record has been produced by the learned

Advocate General during the course of the arguments. From the

record it seems that, for the first time, a note is recorded by the

Under Secretary, G.A. on 6th July 2007 that as per the note of

Hon'ble Chief Minister placed at page 1/C, Chief Minister had

decided to appoint Smt. Victoria Fernandes, M. L. A., Santa Cruz

Constituency, Shri Francis Silveira, M. L. A., St. Andre Constituency

and Shri Nilkant Ramnath Halarnkar, M. L. A., Thivim

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Constituency as Parliamentary Secretaries with immediate effect

from the date and time they are administered oath of secrecy.

Respondent No.2 was sworn in on the same day while others were

sworn in subsequently. At page 2/C, the Chief Minister directed

appointment of these three persons as Parliamentary Secretaries

and as one post was existing, directed creation of two more posts.

These two posts are stated to have been created on the same day i.e.

6th July 2007 and the file moved all the concerned Departments on

the very day and Notification to that effect was issued on 11th July

2007. The file does not reflect any necessity for creation of these

two posts nor states as to what Governmental or public interest was

sought to be served by creating these three posts and appointing the

elected members as Parliamentary Secretaries in the rank of a

Cabinet Minister.

61. Undue haste and hurry made in these appointments is

again a matter of some concern. There is no basic data supporting

creation of such posts with the necessity of creating of such posts in

the administrative interest. It appears to be in compliance to the

political wish which is not founded on known precepts of

Administrative law or Governance. Immediately after elections, the

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intention seems to be to accommodate the three elected members

in the post and designation of a Cabinet Minister in violation of the

bar contained in Article 164(1-A) which is staring the

administration in the face. Creation of posts is a process which

normally takes time in the Government mechanism and it is a

known fact that some times it takes months and years. Undue

haste to accomplish a political wish does not fit into the norms of

administrative function and would appear as colourable exercise of

power.

62. In the case of Citizen Rights Protection Forum vs. Union

of India and others, 2006 (1) Shimla Law Cases 60, a Division

Bench of the Himachal Pradesh High Court was concerned with

challenge to the appointment of Parliamentary Secretaries of the

elected members from the legislative assembly of that State. The

Court did not specifically deal with the question relating to

appointment of Parliamentary Secretaries when full-fledged

Council of Minister was already in place in terms of Article 164, it,

however, examined the matter and quashed the appointment of the

Respondents who were appointed as Chief Parliamentary Secretary

and Parliamentary Secretaries in the State of Himachal Pradesh on

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the basis and the manner in which they were appointed with undue

haste and hurry. The Court held as under :-

“6. The only issue with which we are concerned in deciding this case and which has persuaded us to allow this petition and quash and set aside the appointment of respondent No. 3 to 14 as Chief Parliamentary Secretaries and Parliamentary Secretaries in the State of Himachal Pradesh is the manner of their appointment. Undoubtedly the pith and substance of the arguments of Mr S.P. Jain, learned senior Counsel appearing for the petitioner is that neither the Constitution of India nor any statutory enactment provides for and caters to the appointment of Chief Parliamentary Secretaries and Parliamentary Secretaries and in the absence of any enabling provision or any source of power, respondent No.2 has no jurisdiction, power, authority, or competence to appoint the Chief Parliamentary Secretaries or Parliamentary Secretaries in Himachal Pradesh. Neither any provision of the Constitution of India nor any statutory enactment, nor for that matter any executive instruction or any subordinate or delegated legislation contains any provision, which empowers the State Government to appoint the Chief Parliamentary Secretaries or Parliamentary Secretaries.

xxxxx xxxxx xxxxx xxxxx

16. The Chief Minister is shown to have appointed the Chief Parliamentary Secretaries and Parliamentary Secretaries. He is also shown to have administered the oath of office and secrecy to these persons. From where does the Chief Minister derive the power to appoint these

94

persons ? Under which law does he have the power to administer the oath of office and secrecy to these persons ? Similarly, under which law and based on whose authority did these persons subscribe to the oath of office and secrecy before the Chief Minister. These three questions have not been answered by the learned Counsel appearing either for respondent No.2 or for any of the private respondents. The omission to answer these three questions leads us to only one inescapable and inevitable conclusion and the conclusion is that these persons were appointed without there being any authority of law vested in any person.

xxxxx xxxxx xxxxx xxxxx

18. Even though it is a well settled principle of constitutional law that the Governor while exercising his executive power does so on the aid and advise of his Council of Ministers, yet the Constitution also specifically provides that the exercise of the executive power by the State has to be carried out only in the name of the Governor. Not being unmindful of the constitutional provisions, we find that in the present case no order, notification or action of the Government has been shown to us whereby we could be persuaded to infer or presume that the appointment of respondents No. 3 to 14 was made by the State Government in exercise of the executive power of the State in the name of the Governor of the State. The only reference to the Governor finds a mention in Order No. GAD (PA)-4 (D)-20-87 dated 21st April, 2005 (supra), which even while referring to the Governor with respect to the accord of sanction to the creation of 7 posts of Chief Parliamentary Secretaries and to the appointment of 7 persons mentioned therein, does not contain any stipulation nor lays down any provision as to the manner of appointment of

95

these persons, who would be the appointing authority and what would be the terms and conditions of their appointment except to prescribe the salary and other perquisites to be received by them.

xxxxx xxxxx xxxxx xxxxx

25. The aspect relates to the tearing hurry with which respondent No.2 appears to have acted in appointing respondents No. 3 to 14 as Chief Parliamentary Secretaries/Parliamentary Secretaries in total disregard to the norms of fair play as well as the due observance of the rules of business of the Government. As has been extracted in the earlier part of this judgment, respondents No. 3 to 14 were appointed on or before 18th April, 205 when admittedly on the own showing of respondent No.2 neither the creation of the posts had been sanctioned nor any sanction for appointment had been obtained from the competent authority. The record extracted above also clearly shows that within a day or two of respondents No. 3 to 14 having been appointed and machinery swung into action for obtaining ex post facto sanction to the aforesaid action of respondent No.2. Why were respondents No. 3 to 14 appointed in such a tearing hurry ? What was the compelling, urgent need to appoint them on or before 18th April, 2005 even when an on this date proper sanction was not in existence ? Could the Government not have waited for obtaining the proper sanction first and then to appoint these persons ? None of these questions has been answered by respondent No.2. We put repeated queries to Mr. Mattewal, learned senior Counsel appearing for respondent No.2 to explain to us as to why at all did respondent No. 2 act in such a compelling hurry to appoint respondents No. 3 to 14 and then after appointing them and their assumption of charge to initiate action to validate

96

their appointment. Yes, there are situations where compelling circumstances can dictate taking such an urgent action and then to move for rectification and validation but no such compelling circumstances was brought to our notice by respondent No.2. At the risk of reiteration, we wish to observe that even though this aspect has no direct bearing to the issue upon which we are deciding this case yet, it did deserve to be noticed because it perhaps reflects the way the Government acted in this case.”

63. The Court besides above specific reasons also held that

the Chief Minister was not vested with the power to make such

appointments at his own and could not have administered oath to

the Chief Parliamentary Secretary and Parliamentary Secretaries

appointed by him and termed these actions of the Chief Minister as

without authority of law, illegal and unconstitutional. The

Respondents were held to be usurping the public office.

64. During the course of hearing, we are informed that a

Special Leave Petition filed against the judgment of the Himachal

Pradesh High Court had been withdrawn. In the event these

principles are also applied to the present appointments, the

appointment of Respondent Nos.2 and 4 as Parliamentary

Secretaries can hardly stand to the scrutiny of law. This cannot be

97

said to be exercise of executive powers simpliciter. Articles 154,

162, 163 and 164 clearly provides for the power and methodology to

be followed by the State while exercising its powers. Exercise of any

power should have a source, which is acceptable and known to law.

It may emerge from a statute, a subordinate legislation or any other

form of law which is recognized under the Constitution.

65. Of course, it is a settled principle of law that when a

power is given to an authority to do something, it includes such

incidental or implied powers which would ensure the proper doing

of that thing. (See : Sakiri Vasu vs State of Gujarat, (2008) 2 SCC

409). In other words, when any power is expressly granted by the

statute, there is implied inclusion of the power to do that thing

effectively even without special mention. Thus, it is apparent that

power should come from a statute. In terms of Article 154 of the

Constitution, the executive power of the State is vested in the

Governor and would be exercised by him directly or through

officers subordinate to him in accordance with the Constitution.

The Governor would act on the advise of the Council of Ministers

and again in line with the Constitution. All executive actions of the

Government will be expressed to be taken in the name of the

98

Governor. Under Article 309, the appropriate Legislature may

regulate the recruitment and conditions of service of persons

appointed to the public service and posts in connection with the

affairs of the State. The Executive power of the State is relatable to

the power of the Legislature of the State as the power to make laws

is the dimension of the Executive power of the State. Such power is

subject to the provisions of the Constitution and especially the

limitations explained in proviso to Article 162 of the Constitution.

In other words, in whatever field or power the action of the State in

relation to appointment or otherwise falls, it has to find its source in

either of these Articles of the Constitution or in any other law

enacted by the State. Admittedly, the State of Goa has not enacted

any law relating to creation or filling up the post of Parliamentary

Secretaries. The Government claims to have exercised its power

under Article 162 but this power has been exercised in an arbitrary

and colourable manner and that too to frustrate the limitations

imposed by the Constitution under Article 164(1-A) of the

Constitution.

66. Article 14 of the Constitution debars the State from acting

arbitrarily. It is expected to have reasons, more so, valid reasons

99

for its decision. If it failed to disclose its reasons to the Court, the

Court would presume that it had no valid reasons to give and it

therefore was arbitrary. This was the view taken by the Supreme

Court in the case of Life Insurance Corporation of India vs Escorts

Limited and others, AIR 1986 SC 1370, where the Court was

primarily concerned with the action of the State in commercial

transaction. While referring to the cases in Sukhdev Singh (AIR

1975 SC 1331), Maneka Gandhi (AIR 1978 SC 597), International

Airport Authority (AIR 1979 SC 1628)and Ajay Hasia (AIR 1981 SC

487), the Attorney General in that case contended that actions of

the State or an instrumentality of the State which do not properly

follow the field of public law but belong to field of private law are

not liable to be subjected to judicial review. This argument partially

found favour with the Supreme Court, where the Court observed as

under :-

“.... While we do find considerable force in the contention of the learned Attorney General it may not be necessary for us to enter into any lengthy discussion of the topic, as we shall presently see. We also desire to warn ourselves against readily referring to English cases on questions of Constitutional law. Administrative Law and Public Law as the law in India in these branches has forged ahead of the law in

100

England, guided as we are by the technical rules which have hampered the development of the English law. While we do not for a moment doubt that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings in Art. 226 or Ar. 32 of the Constitution, we do not construe Art. 14 as a charter for judicial review of State actions and to call upon the State to account for its actions in its manifold activities by stating reasons for such actions.”

67. Therefore, an action which is unsupported by reasoning

and has no record to show the need and necessity for taking such a

decision would tilt the law in favour of the action being termed as

arbitrary. There is no reference to the source of power, no

explanation for the undue haste in making appointments and

administering oath of office. The motive to appoint Respondent

Nos.2 to 4 as Parliamentary Secretaries in the rank and status of

Cabinet Ministers was merely an attempt to create political balance

by accommodating the elected members. Lack of any reasoning

further supported by the fact that it was not even considered

appropriate to spell out the duty and function of the persons

appointed to such high public office in the State beforehand and

granting them rank and status of Cabinet Ministers, is sufficiently

101

suggestive of unjustifiable motive on the part of the authorities

concerned and it entirely defeats the very purpose even if it is

assumed that such a power of appointment and administering oath

indeed vested in the Chief Minister.

68. There is a clear distinction in law between the

`equivalence in status and rank' and `making appointment to a

public office or post with status and rank of that post'. These are

the expressions quite often used and are known to service

jurisprudence. One may be appointed to a post in the State

Administration in terms of its own rules, regulations and for the

purposes of perks and benefits may be equated with another post

without assigning any functions of the equated posts. For example,

Respondent Nos.5 to 7 have been appointed as Chairman, Deputy

Chairman and Commissioner of different Companies/Corporate

Sectors/Departments owned or run by the State of Goa in

accordance with the Articles of Association and Memorandum and

Service Rules framed in exercise of its power under sub-ordinate

legislation or as per regulations framed thereunder. After their

appointment in the respective sectors for the purpose of granting

perks and benefits, they have been placed at parity with Ministers.

102

This is primarily a decision of the Government and those

Companies collectively and is based on policy decision. Such

appointments, where equivalence is granted per se, may not

infringe the limitations imposed under Article 164(1A) of the

Constitution. Another example which can usefully be referred to in

the facts and circumstances of the case in relation to such

appointments is an appointment under certain special statutes like,

Administrative Tribunals Act, 1985, Debt Recovery Tribunals Act,

etc. where civil servants or judicial officers are eligible to be

considered for the post of member provided they satisfy the

qualifications laid down. By their appointments to the post of

Member of Tribunal, they are entitled to perks and benefits

equivalent to the District Judges or specified category of civil

servants. It does not mean that by its equivalence, they become

District Judges or Civil Servants of the specified category despite

the fact that they may be performing judicial functions. In

contradistinction to this equivalence of perks and benefits while

appointing a person to that public office or post gives him the

authority to discharge functions, duties, responsibilities and enjoy

the privileges of that public office or post. Thus, the Petitioner

hardly has any cause of action against Respondent Nos.5 to 7 and

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the Petition qua them is liable to be rejected.

69. It is a settled canon of service jurisprudence that

involvement of office in carrying out of a sovereign function,

delegation of a portion of the sovereign power of the State to the

incumbent of the office and some permanency and continuity in the

appointment are quintessential features of a public office in respect

of which even a writ of quo warranto would lie. [See : B. Srinivasa

Reddy vs. Karnataka Urban Water Supply & Drainage Board

Employees Association and others, (2006) 11 SCC 731 (1)].

70. As far as Respondent Nos.2 and 4 are concerned, they

have been appointed to a public office with the nomenclature of

Parliamentary Secretaries with cabinet rank and they are to

perform duties and functions in the respective ministries. They

would represent the government in the Assembly and would, while

assisting the Chief Minister, have the authority to pass appropriate

orders. They, obviously, participate in the decision making process

and take decisions. Thus, equivalence of status and rank is clubbed

with the functions, duties, responsibilities and privileges of that

post and, therefore, in the spirit and substance they have been

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appointed as Cabinet Ministers/Ministers, may be under the

expression of “Parliamentary Secretaries”. We have already noticed

that the Parliamentary Secretary is not a regular post created in

furtherance of exercise of any statutory power and State of Goa has

not framed any law in that behalf. The appointment of

Parliamentary Secretaries alleged to have been made by the Chief

Minister would fall within the constitution of the council of

Ministers. If these appointments of Parliamentary Secretaries are

to relate to the appointments in the State Legislature, then there

should exist a codified law in relation to requirements, conditions of

service, qualifications for appointment to the post or the Governor

of the State, after consultation with the Speaker of the Assembly in

the manner specified under Article 187(3) of the Constitution of

India can make such appointments. Admittedly, that is not the

case here. Thus, these appointments are not in the service cadre of

the Legislative Assembly and in fact that is not even the case of the

State.

71. As far as Respondent Nos.2 to 4 are concerned, the

appointment of Respondent No.3 already stands revoked by

Notification dated 17th August 2007 and the appointment of

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Respondent Nos.2 and 4 as Parliamentary Secretaries has been

actually made in the status and rank of a Cabinet Minister. They

are not only entitled to enjoy the perks and benefit of a Cabinet

Minister but are performing the duties and functions in the

Departments/Ministries in that status. They have limited access to

the Government files, they are to assist the Chief Minister in the

Department and Ministry to which they are allotted and would

perform such functions as may be assigned to them. Though they

were granted the rank of a Cabinet Minister vide Notification dated

28th June 2007, their functions were defined or explained vide

Notification dated 6th September 2007. We have already dealt with

the aspect of “Minister-personally” and the Parliamentary

Secretaries. Once the source of appointment, purpose of

appointment, duties and functions and perks and privileges

conferred upon such Parliamentary Secretary are akin to “Minister-

personally”, the distinction sought to be made on behalf of the State

becomes irrelevant. They are awarded Departments like portfolios

of Ministers and they were functioning in those Departments. Thus

in pith and substance, they are appointed as Cabinet Ministers

though under the nomenclature of Parliamentary Secretaries. The

cumulative effect of the discussion leads us to an irresistable

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conclusion that attempt of the State in making these appointments

of Parliamentary Secretaries was clearly intended to over-reach the

Constitutional restrictions contained in Article 164 (1-A) of the

Constitution of India with the aid of Executive power. Exercise of

such Executive power with reference to the source of power would

vitiate the action ab initio. State's action in frustrating the

Constitutional mandate and attempt to over-reach the

Constitutional restrictions would per se be termed as arbitrary and

untenable in law.

72. There is no doubt that some liberty and freedom is vested

in the State in relation to framing of policies as the State policies are

intended to achieve larger public interest and may relate to complex

matters of social, economic and commercial nature. The scope of

judicial review in such matters is narrower but in the matters of

present kind where there is hardly any question of public policy or

larger public interest, the relevancy and utility of such a decision in

the larger public interest and welfare of the State needs close

scrutiny. In the case of the present nature where the decision is

hardly relatable or founded on matters of policy relating to public

utility or public interest but is the result of a `wish' expressed at a

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given point of time to create political stability by accommodating

elected members of the Assembly in violation to Constitutional

command contained in Article 164(1-A), such decision can hardly

stand to the scrutiny of law. In the present case, the entire decision

making process and the final decision both are arbitrary,

unjustifiable, unconstitutional and serve no public interest.

73. Thus, we have no hesitation in quashing the

appointments of Respondent Nos.2 and 4 as Parliamentary

Secretaries in the State of Goa. Resultantly, the appointments of

Respondent Nos.2 and 4 are quashed. Writ against Respondent

Nos.5 to 7 rejected. Rule accordingly disposed of. However, in the

facts and circumstances of the case, there shall be no order as to

costs.

74. After pronouncement of the Judgment, the learned

Advocate General orally requested for stay of the operation of the

Judgment. Keeping in view the fact that respondents Nos.2 and 4

have been in office and the Judgment involves question of public

and legal importance, we find the request to be reasonable. Thus,

we stay the operation of the Judgment for a period of 4 weeks from

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today.

CHIEF JUSTICE

N. A. BRITTO, J.

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