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2004 DIGILAW 323 (HP)

CITIZEN RIGHTS PROTECTION FORUM v. UNION OF INDIA

2004-12-06

DEEPAK GUPTA, V.K.GUPTA

body2004
JUDGEMENT V.K.Gupta,C.J. (Oral). - In this petition filed under Article 226 and article 227 of the Constitution of India the petitioner, which claims to be a society registered under the societies Registration Act has claimed the following relief.- (i) That the respondent No.2 be directed to reconstitute the Council of Ministers as per Article 164 of the Constitution of India and as per the law immediately. (ii) That the respondents No.2 and 3 may kindly be restrained from inducting any fresh member in the Council of Ministers including Chief Parliamentary Secretaries and Parliamentary Secretaries. (iii) That in case the respondent No 2 does not reconstitute the council of ministers as per the Article 164 of the Constitution of India, the respondent No.1 may kindly be directed to initiate appropriate action against respondent No.2 in accordance with law. (iv) That the public money spent on respondents No 2, 4 to 15 being members of the council of Ministers after the amendment in article 164 came into force may kindly be ordered to be recovered from them and deposited in the Government treasury to be used for a public purpose, and orders passed by respondent No. 15 be declared nonest. (v) That the records pertaining to this case may kindly be called for. (vi) Any other order which this Hon’ble Court deems fit in the facts and circumstances of the matter may kindly be passed in favour of the petitioner. (vii) That the petition may kindly be allowed with costs throughout" 2. (v) That the records pertaining to this case may kindly be called for. (vi) Any other order which this Hon’ble Court deems fit in the facts and circumstances of the matter may kindly be passed in favour of the petitioner. (vii) That the petition may kindly be allowed with costs throughout" 2. By the Constitution (91 ist Amendment) Act 2003, amongst various other provisions of the Constitution of India, Article 164 was amended in which amongst other insertions, a new Clause (LA) was inserted which reads thus:- “(IA) The Total number of Ministers, including the Chief Minister, in the council of Minister in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve: Provided further that where the total number of Ministers including the Chief Minister in the council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 excess the said fifteen per cent or the number specified in the first proviso, as the case may be, then the total number 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" 3. Before the filing of this petition on 16th august 2004, the State of Himachal Pradesh had 16 Ministers including the Chief Minister and one Chief parliamentary Secretary (attached to the Chief Minister in the Department of Housing) as is evident by a perusal of General Administration Department Notification No. GAL. C(CC)-1-(A)-2/03 dated 7th March, 2003 which had been issued in pursuance to Rule 6(1) of the Business of the Government of Himachal Pradesh Rules and whereby the State Governor had allocated the portfolios amongst the Ministers. Because of the amendment to Article 164 (supra) by the aforesaid Constitution (91 Ist Amendment) Act 2003, in compliance with the mandate contained in Clause (1A) of Article 164, four Ministers out of the aforesaid sixteen Ministers in the Council of Ministers of Himachal Pradesh made their exit, with a result that on the date this petition was filed in this Court, only 12 Ministers, including the Chief Minister remained a part of Council of Ministers. Even though the aforesaid earlier Notification dated 7th March, 2003 had been issued with respect to sixteen Ministers, including the Chief Minister, on 3rd August, 2004 the General Administration Department of the Government of Himachal Pradesh issued a fresh Notification No. GAD- C(CC)—A-2/03 of the same date in which allocation of portfolios was made amongst only twelve Ministers including the Chief Minister. It dearly and manifestly, therefore, suggests that the number of Ministers as far as the state of Himachal Pradesh is concerned being exactly at twelve is strictly in conformity with the amended Article 164 of the Constitution of India. There is no dispute about this aspect of the matter \n this petition. 4. The dispute in this petition, therefore, if at all, is only with respect to respondent No. 15 Shri Mukesh Agnihortri, who has been styled as Chief parliamentary Secretary. The petitioners contention, probably and perhaps based on petitioners own apprehension is that respondent No. 15 also being a Minister, the number of Ministers in Himachal Pradesh crosses the mark of "12" and, therefore, this violates the mandatory Constitutional requirement as contained in Clause (1A) of Article 164 of the Constitution of India. The fact that respondent No. 15 is neither a Minister nor is he being treated as a Minister nor the state Government thinks or considers him to be a Minister is clearly borne out from the reply affidavit filed by respondent No.3 in which this respondent has specifically made the following statement/averment:- "Respondent No. 15 has not been allotted any portfolio whatsoever and is not part of the Council of Ministers. The petitioner is, therefore, guilty of making deliberate false averments in the writ petition. This false averment has been deliberately made as is apparent from the verification (the petition is verified not to the knowledge of the petitioner as required by law but to "the best of my personal knowledge", which is deliberate).The petition, therefore, deserves to be dismissed on this short ground alone." 5. Mr. Mattewal, learned Senior Counsel appearing for respondent No. 3 has also made a categorical statement before us that respondent No. 15 is neither a Minister nor is he being considered or treated as Minister nor is he any part of the States Council of Ministers. 6. Mr. Mattewal, learned Senior Counsel appearing for respondent No. 3 has also made a categorical statement before us that respondent No. 15 is neither a Minister nor is he being considered or treated as Minister nor is he any part of the States Council of Ministers. 6. Clauses (2) and (3) of article 164 dearly lay down that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State and that before a Minister enters upon his office, the Governor shall administer to him the oaths of office and secrecy according Id the forms set out for this purpose in the Third Schedule. Respondent No. 15 not being a Minister is surely not any part of any collective responsibility to the Legislative Assembly of the State and it has been clearly stated before us that he had not been administered any oath as a Minister as per the form set out in the Third Schedule. The Notification dated 3rd August, 2004 (supra) as also the earlier Notification dated 7th March, 2003 (supra) even though issued under Rule 6(1) of the Rules of Business of the Government of Himachal Pradesh, surely finds its genesis and origin to clause (3) of Article 166 of the Constitution which reads thus:- "(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." 7. Even though in the Notification dated 7th March, 2003 the state Government had, wittingly or unwittingly included respondent No. 15 for the purposes of allocation of portfolios, fortunately in the latest Notification dated 3rd August 2004 (supra) the name of respondent No. 15 has not been included and rightly so. Under Article 166 (3) of the Constitution of India the business of the Government has to be allocated only amongst the Ministers. Business cannot be allocated or assigned in terms of this Article to a person who is not a Minister. Respondent No. 15 in his capacity as the Chief Parliamentary Secretary is not and cannot be termed or styled as a Minister. He can neither perform the functions of a Minister, nor can be termed or styled as a Minster. Business cannot be allocated or assigned in terms of this Article to a person who is not a Minister. Respondent No. 15 in his capacity as the Chief Parliamentary Secretary is not and cannot be termed or styled as a Minister. He can neither perform the functions of a Minister, nor can be termed or styled as a Minster. He can neither perform the functions of a Minister, nor can he discharge the obligations of a Minister or assume any responsibility of that office. We are very clear m our minds and we have no doubt whatsoever that the State of Himachal Pradesh already has the maximum number of Ministers (12) and these persons, as at present are respondents No.2 and 4 to 14 Respondent No. 15 is not a Minister m the Council of Ministers m Himachal Pradesh and, therefore, he is not entitled to function as such in any capacity and in any manner whatsoever. 8. Our attention has been drawn to an averment made in para 1 (viii) "on merits" of the reply of respondent No.3 which reads thus:- “(viii) That in pursuance to the provisions of Rule 62 of the Rules of Business of the Government of Himachal Pradesh, Instructions have been issued with regard to duties of CPS/PS. A copy of the instructions is attached herewith as Annexure R/1. It is apparent from a perusal of these instructions that CPS/PS attached to the Chief Minister /Ministers." 9. In support of this averment, Annexure R/1 has been appended by respondent No.3 in which inter alia it has been mentioned that in all cases referred to a Chief parliamentary Secretary, he may either record a note on the file and sign it as on behalf of the Minister or, approve the action proposed in the Secretarys note by appending his signatures in a similar manner (emphasis supplied by us). For ready reference, Clause 3 of Annexure R/1 is reproduced hereunder which reads thus. "3. In all cases, referred to him, the Chief Parliamentary Secretary, parliamentary Secretary any either record a note on the file and sign it as on behalf of the Minster-in-charge or, approve the action proposed in the Secretarys note by appending his signature in a similar manner." 10. Whatever may be the functions of Chief Parliamentary Secretary, they cannot be identical, similar or akin to a Minister. Whatever may be the functions of Chief Parliamentary Secretary, they cannot be identical, similar or akin to a Minister. The Chief Parliamentary Secretary is not a Minister and cannot perform the functions of a Minister. Viewed either from the touchstone of Article 164 of the Constitution or, from the standpoint of Article 166, particularly Clause (3) thereof, responsibilities cannot be assigned to a Chief Parliamentary Secretary which are in the nature of responsibilities to be discharged by a Minister. Even though, therefore, he may record note on behalf of a Minister, he does not have any power of approving the action proposed by a Secretary or any other subordinate functionary of the Government That power exclusively vests with a Minister and it cannot be usurped by the Chief parliamentary Secretary who cannot assume to himself the trappings of the office of a Minister. If that happens or is ever allowed to happen, this shall be a clear violation of the mandate contained in Clause (1A) of Article 164 of the Constitution of India and may actually amount to perpetrating a fraud on the Constitution, If this is ever brought to the notice of this Court in any appropriate proceeding, this Court surely would not be expected to remain a mute or a silent spectator to the violation of the mandatory and binding Constitutional provisions. 11. Based on the aforesaid observations, this writ petition is disposed of but without any order as to costs.