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2015 DIGILAW 317 (AP)

Gutha Sukender Reddy v. State of Telangana

2015-05-01

K.J.SENGUPTA, P.V.SANJAY KUMAR

body2015
ORDER K.J. Sengupta, C.J. 1. Both the writ petitions are filed to challenge the Constitutional validity of the Act called, being Act No. 7 of 2015, Telangana Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2015 (hereinafter referred to as 'the said Act') and the G.O. Ms. No. 173, General Administration (Poll. C) Department, dated 29-12-2014. Various grounds are taken including legislative competency and also violation of other Constitutional provisions. 2. Having heard the learned counsel for the petitioners and the learned Advocate General for the State of Telangana, we admit these petitions for hearing, since the learned Advocate General appears and accepts notice which is required to be served upon him, no formal notice is issued in these matters. 3. Let the counter-affidavit be filed by all the respondents within two weeks after Summer vacation and affidavit-in-reply within two weeks thereafter. The matters be posted for hearing five weeks after Summer vacation. 4. The petitioners pray for interim suspension of operation of the G.O. and also the Act itself. 5. The learned counsels for the petitioners submits that the impugned G.O. was issued by the Chief Secretary to Government, by order and in the name of the Governor of Telangana, and this appointment has been made in purported exercise of power under Section 3 of the Telangana Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2014. It is patently illegal, as in the Ordinance the power of appointment has been given to the Chief Minister, whereas the orders have been issued by the Governor, even if it is assumed that this Ordinance now replaced by the impugned Act is constitutionally valid, then these appointments have not been made by the Chief Minister. This order is non est. 6. As far as the Act is concerned, both the learned lawyers for the petitioners argued that the State Legislature has no competence to legislate for making appointment of Parliamentary Secretaries either under State List-II or Concurrent List of the Seventh Schedule. The scheme of the Act appears to be in substance for appointment of a Minister of the State Cabinet from and amongst the Members of the Legislative Assembly and this is contrary to the provisions of the Constitution, namely, Article164(1A) of the Constitution of India. The scheme of the Act appears to be in substance for appointment of a Minister of the State Cabinet from and amongst the Members of the Legislative Assembly and this is contrary to the provisions of the Constitution, namely, Article164(1A) of the Constitution of India. As this provision does not empower or enable to appoint the Ministers, more than 15% of the State Legislative Assembly, even by His Excellency Governor not to speak of by the Hon'ble Chief Minister. This Act has been brought into operation in order to bypass indirectly the provision of the aforesaid Article. 7. According to them, the power of the appointment of the Minister is conferred upon the Governor not upon the Chief Minister under Constitution. In the scheme of the Constitution, the Chief Minister cannot be the appointing authority. His role is to head the Cabinet and to advise His Excellency the Governor of the State in the matter of appointment in any post in the affairs of State. 8. The learned lawyers for the petitioners also highlighted the other Constitutional infirmities in the Act. In order to get the interim relief, aforesaid argument has been advanced. 9. The learned Advocate General for the State of Telangana questions the locus of the petitioners, as neither of them can be said to be affected persons and further it is not a public interest litigation, as such none can challenge the same. He argues that any enactment made by the State Legislature within its competence is presumed to be constitutionally valid, unless the Court upon final hearing finds otherwise. In support of his submission, he has placed reliance upon a judgment of the Supreme Court in the case of P.N. Krishna Lal v. Govt. of Kerala (1) 1995 Supp (2) SCC 187. 10. He submits that this legislation has been made under Entry-38 of List-II of Seventh Schedule to the Constitution. He contends that the Secretaries have already assumed office. Therefore, weighing the balance of convenience and inconvenience, no interim order should be granted. 11. Since the question of the locus of the petitioners has been contended, we think that any citizen of India can challenge either by way of individual litigation or public interest litigation with regard to constitutional validity of any enactment. This right to challenge is Constitutional right, if not fundamental right. 12. 11. Since the question of the locus of the petitioners has been contended, we think that any citizen of India can challenge either by way of individual litigation or public interest litigation with regard to constitutional validity of any enactment. This right to challenge is Constitutional right, if not fundamental right. 12. Besides, we find that the petitioner in one of the writ petitions, namely. Anumula Revanth Reddy is a Member of the same Legislative Assembly, as such he is very much interested with regard to legality and validity of this appointment. 13. We hold, overruling the contention of the learned Advocate General, that all the petitioners have locus to file these writ petitions. 14. Now, on the merit, in order to consider to grant interim relief, we notice that the impugned order of appointment was made by the Government by order and in the name of His Excellency the Governor, whereas at that time Ordinance under Section 3thereof empowers the Chief Minister to appoint. We set out the relevant portion of the impugned Order as follows: "ORDER:- Government hereby appoint the following Members of Telangana State Legislative Assembly as Parliamentary Secretaries in the State under Section 3 of the Telangana Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provision) Ordinance, 2014. S.No. Name of MLA Parliamentary Secretary in the office of the 1. Shri D. Vinaya Bhaskar, MLA Chief Minister’s Office 2. Shri Jalagam Venkat Rao, MLA Chief Minister’s Officer 3. Shri V. Srinivas Gaud, MLA O/o. the Deputy Chief Minister (Revenue, Relief and Rehabilitation, ULC, Stamps and Registration) 4. Shri G. Kishore Kumar, MLA O/o. the Deputy Chief Minister (Medical and Health) 5. Shri V. Satish Kumar, MLA O/o the Minister for Education 6. Shri Kova Laxmi, MLA O/o the Minister for Agriculture, Horticulture, Sericulture, Animal Husbandry, Fisheries, Dairy Development Corporation, Seeds Corporation 2. The Parliament Secretaries appointed in Para (1) above shall be of the rank and status of Minister of State. (By Order and in the name of the Governor of Telangana) Dr. Rajiv Sharma Chief Secretary to Government" 15. As rightly contended by the learned counsel for the petitioners, even if the aforesaid Ordinance that is subsequently replaced by the impugned Act is presumed to be constitutionally valid, then these appointments are completely inconsistent with the aforesaid provision of Section 3 of the Ordinance, which is set out hereunder: 3. Rajiv Sharma Chief Secretary to Government" 15. As rightly contended by the learned counsel for the petitioners, even if the aforesaid Ordinance that is subsequently replaced by the impugned Act is presumed to be constitutionally valid, then these appointments are completely inconsistent with the aforesaid provision of Section 3 of the Ordinance, which is set out hereunder: 3. Appointment of Parliamentary Secretary:- The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretaries from among the members of either House of the Legislature of the State. Miscellaneous Provisions) Ordinance, 2014. 16. Therefore, the above G.O. though purported to have been issued under Section 3 of the Ordinance is patently illegal as it is passed by Government of Telangana, not by Chief Minister. Accordingly, we grant stay of operation and further operation of the impugned G.O. 17. Now, whether the operation of the Act will be suspended or not. 18. It is true that ordinarily the Court does not grant any stay of operation of any enactment. But, it is a general rule and there are exceptions in rarest cases, namely, patently constitutional incompetence. The Court at the interlocutory stage, in order to prevent miscarriage of justice and illegal and unjust wastage of public fund, can pass interim order. 19. The learned Advocate General has shown us the source of power, namely, Entry-38 of List-II of Seventh Schedule to the Constitution of India, which reads as follows: 38. Salaries and allowances of members of the Legislature of the State, of the Speaker and Deputy Speaker of the Legislative Assembly and, if there is a Legislative Council, of the Chairman and Deputy Chairman thereof. 20. It will appear from the aforesaid Entry, it deals with something else, namely, allowances of the Members of the Legislative Assembly and other authority mentioned therein. Therefore, the aforesaid power does not speak of creation of any post by the State Legislature in the way it has been done here. Moreover, the Chief Minister under the scheme of the Constitution cannot be the appointing authority. Appointment of any officer including Hon'ble Ministers are made by His Excellency the Governor of the State or in the name of the Governor by the State Government. 21. Moreover, the Chief Minister under the scheme of the Constitution cannot be the appointing authority. Appointment of any officer including Hon'ble Ministers are made by His Excellency the Governor of the State or in the name of the Governor by the State Government. 21. Having found this patently constitutional incompetence, we have no hesitation to pass interim order to the effect that without prior permission of this Court no fresh appointment shall be made. 22. Above interim measure is taken keeping in view balance of convenience and inconvenience that if the same is not granted and unofficial respondents are paid their salaries and other benefits qua Secretary, and ultimately the writ petitions are allowed, it would be difficult to recover the same from them, and if the writ petitions fail the unofficial respondents, who have already been appointed will get everything from the State. The WPMPs are ordered accordingly.