Himachal Pradesh High Court Issues Notice In BJP MLAs Plea Challenging Appointment Of Dy. CM, Chief Parliamentary Secretaries

The Himachal Pradesh High Court on Thursday issued notices to the six Chief Parliamentary Secretaries (CPS), including the Deputy Chief Minister seeking their replies in a plea filed by 12 BJP MLAs challenging the appointment of the Deputy Chief Minister in the state.

Issuing notices, the division bench of Acting Chief Justice Tarlok Singh Chauhan and Justice Virender Singh listed the matter for hearing on May 19.

Essentially, the plea by the BJP MLAs contends that the action of the State in creating the office/post/status of a Deputy Chief Minister (currently manned by Congress MLA Mukesh Agnihotri) is arbitrary as the same is done without any authority under the Constitution of India or any statutory enactment.

"...neither any provision of the Constitution of India nor any Statutory enactment nor any executive instruction contains any provision which empowers the State Government to create the office/post/status of the Deputy Chief Minister in the State...As the creation of the office/post/status of the Deputy Chief Minister is without any authority of law, the same needs to be declared arbitrary and the creation of the said office/post/status of the Deputy Chief Minister may be set-aside," the plea avers.

The petition has also challenged the state government's decision to create the office of Chief Parliamentary Secretary by appointing Respondent No. 5 to Respondent No. 10 (all Congress MLAs) to the said posts.

The plea argues that as per Part VI- Chapter III of the Constitution of India, Article 178 to Article 187 deals with only the “Officers of the State Legislature”, which consist of three offices viz (a) the office of Speaker; (b) the office of Deputy Speaker; and (c) the Secretariat Staff and apart from these, nowhere does the Constitution envisage the creation of any new office of the legislature.

Importantly, the plea also challenges the constitutionality of the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges & Amenities) Act, 2006 under which 6 Chief Parliamentary Secretaries have been appointed in the state.

It may be noted that the 2006 Act, which deals with the Appointment, Salaries, Allowances, Powers, Privileges & Amenities of the Parliamentary Secretaries in the State of Himachal Pradesh, has been challenged on the ground that it creates scope for the appointment of Chief Parliamentary Secretaries even though the constitution does not provide for any such post.

"The State has acted arbitrarily qua the appointments as there are no guidelines/rules/regulations, which enables the appointments qua the post of the CPS. The State in notifying the appointments qua the post of the CPS, without there being any procedure/guidelines/rules/regulations towards such appointments, have acted discriminately and in absolute violation of Article 14 of the Constitution of India"

The plea goes on to say that as per Article 191 of the Constitution of India, a person holding an office of profit shall be disqualified, however, these six Chief Parliamentary Secretaries, despite holding the office of profit under the 2006 Act, have been saved by virtue of Section 3 (d) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971 and therefore, the plea challenges the constitutionality of this provision as well.

Importantly, the action of the State qua the appointment of 6 Chief Parliamentary Secretaries has been questioned by invoking Article 164(1A) of the Constitution of India which says that the total number of Ministers, including the Chief Minister, in the Council of Ministers in a State can not exceed 15% of the total number of members of the Legislative Assembly of that State.

The plea says that applying this principle, the strength of Ministers including the Chief Minister in the Cabinet of the State cannot exceed 12, however, by virtue of the impugned appointments under the 2006 Act, the ceiling limit of 12 members as envisaged under Article 164(1A) have been exceeded as the total numbers have gone up to 18 (with the appointment of 6 Chief Parliamentary Secretaries).

"...the State in a hurried manner and to frustrate the Constitutional directive appointed respondent No. 4 to 9 as ‘Chief Parliamentary Secretaries’ with Cabinet rank/status without any formal notification. It is also worthy to mention that respondents no. 4 to respondent no. 9 were sworn in by the Chief Minister and that they have been accorded the status of a Minister with staff members of their own with all the facilities and privileges of the Ministers. The same would reflect that the State has frustrated the very purpose of the 91st Amendment of the Constitution which restricts the size of Cabinet, so as to prevent the installation of jumbo cabinets and resultant huge drain on the public exchequer."

Against this backdrop, the Plea prays for the following:

- Set aside the Notification dated 11.01.2023 qua the designation of the Deputy Chief Minister upon the Respondent no. 4 as illegal and unconstitutional;

- Direction to Respondent No. 1 to recover the money spent toward the consequential benefits including the salary given to Respondent No. 4 to the extent of benefits given above than the designation to the ‘Minister of State’.

- Direction restraining Respondent no. 4 to participate in any Cabinet Meeting.

- Quash the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges & Amenities) Act, 2006 along with all the subsequent actions undertaken including the appointments of Respondent no. 5 to Respondent no. 10, as being illegal, irrational and unconstitutional

- Quash Section 3 (d) The Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971 as being illegal, irrational, and unconstitutional; AND

The plea was drafted by Advoctes Manik Sethi, Virbhadur Verma and Ankit Dhiman.

Senior Advocate Satya Pal Jain and Ankush Dass Sood appeared for the BJP MLAa assisted by Advocates Manik Sethi, Virbhadur Verma and Ankit Dhiman.

ministerSatpal Singh Satti & Ors. vs. State of H.P & Ors.

Click Here To Read/Download Order