We do not see that 'Parliamentary Secretary' is anathema to the scheme of the Indian Constitution, the bench said.
The Chhattisgarh High Court has upheld appointment of 11 members of the Chhattisgarh State Legislative Assembly MLAs as parliamentary secretaries to assistant different ministers, though it clarified that they cannot discharge any function as member of Council of Ministers.
In the public interest litigations and other writ petitions filed challenging these appointments, it was urged that appointments result in infraction of Article 164(1A) of the Constitution of India and such appointments are the result of colourable exercise of power to circumvent the restrictive covenant contained in that provision of the Constitution.
Observing that that 'Parliamentary Secretary' is not anathema to the scheme of the Indian Constitution, the bench of Chief Justice Thottathil B Radhakrishnan and Justice Sharad Kumar Gupta said the provision for Parliamentary Secretary is not a new concept and it is matter of practice that ministers are given support of parliamentary secretaries to assist in management of departments.
The bench referred to the judgment in Bimolangshu Roy (Dead) Through LRs v. State of Assam & Another and observed that in the said case, the apex court was dealing with a statute which contained a legislative declaration that the parliamentary secretaries ought to be of the rank and status of a Minister of the state.
The court said: “In the case in hand, the Parliamentary Secretaries who are among the Respondents are not shown to be having rank or status of a Minister of the State or the authority to exercise powers or discharge functions and perform duties of a Minister. Unlike the provisions of Section 7 of the Assam Act which was under challenge before the Apex Court, there is no provision under which the Parliamentary Secretaries in the State of Chhattisgarh, who are among the Respondents herein, would be entitled to salary and allowances as are admissible to a Minister. The terms of the notification under which they are working as Parliamentary Secretaries, after being administered oath of secrecy, do not equate them with any of the constitutional authorities in Chapter II of Part VI of the Constitution. They are also not posted with any authority to carry out any constitutional or statutory function. Their duty is only to assist the Minister to whom each of them were required to assist in terms of the impugned notification”.
Repelling the challenge, the court said in this case, the appointees are not Ministers and cannot be treated as Ministers for the purpose of the terms 'Minister' or 'Council of Ministers' in Articles 163 and 164 of the Constitution or for the purpose of the phrase "total number of Ministers" in Article 164(1A).