The Punjab and Haryana High Court, on Wednesday, set aside the appointment of Mr. Suresh Kumar as the Chief Principal Secretary (CPS) to Chief Minister Capt. Amrinder Singh, holding that the same was "without authority of law and in clear violation of the Constitutional scheme".
Justice Rajan Gupta was hearing a Petition filed by Advocate Ramandeep Singh who had pointed out that the CPS was expected to exercise powers vested in the Principal Secretary to the Chief Minister in the absence of the CM himself. This, he alleged, is unconstitutional as these are sovereign functions which cannot be delegated to anybody.
Mr. Singh had further contended that there were several cadre officers posted in the Chief Minister's Office (CMO) who could've been given such liberty, instead of an "outsider" like the CPS. Besides, he had also highlighted the fact that while the conditions of his appointment were notified, they did not have the approval of the Council of Ministers.
The Court, at the outset, noted that the CPS was empowered to exercise sovereign functions of the State and hence, he held "public office". The Court also opined that the decision to appoint Mr. Kumar was taken in "undue haste" and that "normal procedure which would require application of mind and due consideration was not followed".
It further questioned the State's decision to not endow the same powers to an in-service officer, observing, "Though State has liberty to choose a person in whom he can repose faith to discharge duties on an important post, however, such a choice has to be within the frame work of the Constitution as people have vital interest in the functioning of the Government for it affects their day to day life."
The Court then ruled that the appointment violated Article 166(3) of the Constitution of India, by infringing upon the Rules of Business of Government of Punjab, 1992 framed by the Governor. This was because the Finance Department was not consulted before creating the post of the CPS, in violation of Rule 7 of the 1992 Rules.
The Rules further allow distribution of work only between the Minister in-Charge and the Administrative Secretary. Ruling that the appointment violated this stipulation as well, the Court explained, "Any delegation of the functions envisaged by the Rules, to a person outside the framework thereof, would be against the Constitutional scheme. There are certain functions which are entrusted to the elected representatives of people who constitute the Council of Ministers. Said functions which are sovereign in nature cannot be delegated to a person who does not have the mandate of the people. It may not be possible to delegate these functions even to a cadre officer such as the Principal Secretary who may not take substantive decisions outside his purview. No extra constitutional authority can be created to oversee the functioning of the affairs of the State even for a short interregnum during absence of Chief Minister."
The Court went on to rap the State for taking the stand that since Mr. Kumar's appointment was contractual in nature, he would not be governed by any Rules. It asserted, " Having been entrusted with important sovereign functions and having ceased to be a public servant, it is inexplicable how such a appointee can be held accountable for the decisions taken by him...
... It is not difficult to envision a situation where the State is plunged into crisis by a decision taken by such appointee because he cannot be expected to have, despite his long career as a bureaucrat, same vision for the development of the State as the Chief Minister who enjoys the mandate of the general populace and is answerable to them for his decisions. Accountability is sine qua non of appointment in public services which is altogether missing in the instant case."
Further, while the State relied on the 'doctrine of pleasure', the Court ruled that the doctrine "cannot be interpreted to mean that State can act arbitrarily ignoring the public good and democratic principles as enshrined in the Constitution".
The Court, therefore, ruled, "Having considered the entire conspectus of the matter, this court finds that respondent no. 5 is holding a ‘public office’ without authority of law and in clear violation of the Constitutional scheme, particularly Article 166(3) and rules framed thereunder. Thus, the appointment of respondent no. 5 is held to be void. Same is hereby set-aside."