Shimla, Nov 13 (IANS) In a major setback to the Congress government in the state, the Himachal Pradesh High Court on Wednesday said that the appointment of MLAs as parliamentary secretaries is unconstitutional and ordered their immediate removal.

A bench of Justices Vivek Singh Thakur and Bipin Chander Negi said that after the passing of the (Ninety-First Amendment) Bill, 2003, an embargo was placed on the size of the Cabinet in a Legislative Assembly, as under Article 164(1- A) of the Constitution, the size of the Council of Ministers in a state could not exceed 15 per cent of the total strength of the Assembly.

It said, “The Legislature cannot violate the mandatory constitutional prohibitions by employing an indirect method. If there is a constitutional provision inhibiting the Constitutional Authority from doing an act, such provision cannot be allowed to be defeated by the adoption of any subterfuge. That would be clearly a fraud on the constitutional provision.”

In its detailed judgment, the Himachal Pradesh High Court noted that though parliamentary secretaries, under the Himachal Pradesh Parliamentary Secretaries (Appointment, Salaries, Allowances, Powers, Privileges and Amenities) Act, 2006, did not have the powers to approve the action proposed by a Secretary or any other subordinate functionary of the Government but had access to the office of the political executive.

It further noted that parliamentary secretaries had access to official files to participate in the decision-making process and the Chief Minister had also allotted the portfolios to them and they have been attached to the Cabinet ministers.

“In their capacity as ‘Chief Parliamentary Secretary’ or a ‘Parliamentary Secretary’, they perform functions ancillary/incidental to the office of a Cabinet Minister. Even though their role at best is recommendatory, they are actively associated with the performance of constitutional or statutory, sovereign functions of the Political Executive,” it said.

“Evidently, the distinction attempted to be portrayed between Chief Parliamentary Secretary/Parliamentary Secretary and Minister is artificial,” added the high court.

Holding that the creation of the office of parliamentary secretaries was beyond the legislative competence of the state legislature, the Himachal Pradesh High Court said that what is prohibited and limited directly by Article 164(1-A) of the Constitution of India has been sought to be done indirectly.

Consequently, it held and declared the appointment of parliamentary secretaries to be illegal, unconstitutional and void ab initio.

“Chief Secretary to the Government of Himachal Pradesh, as well as all other concerned shall ensure implementation of this judgment in letter and spirit forthwith,” the high court ordered.

The court delivered the order on two petitions, including a PIL by 10 BJP legislators, challenging the appointment of six chief parliamentary secretaries (CPS).

The High Court also set aside the Act under which the appointment of the CPS had been made. The court termed the appointment of the CPS as a waste of public funds while ordering the immediate withdrawal of all facilities extended to them.

The six CPS whose appointments were set aside were Kishori Lal (legislator from Baijnath in Kangra), Mohan Lal Brakta (Rohru in Shimla), Ram Kumar (Doon in Solan), Ashish Butail (Palampur in Kangra), Sunder Thakur (Kullu) and Sanjay Awashty (Arki in Solan).

The petitioner BJP leaders contended that the appointment to the CPS posts was a burden on the state exchequer. The government defended the appointments, saying they complied with the provisions of the state Act passed by the Legislative Assembly.

The chief parliamentary secretaries were appointed on January 8, 2023, just before the induction of seven ministers in the Cabinet led by Chief Minister Sukhvinder Singh Sukhu.

Earlier on August 18, 2005, the High Court had set aside the appointment of eight CPS and four parliamentary secretaries.

Those who were removed then were Mukesh Agnihotri, currently the Deputy Chief Minister, Thakur Singh Bharmouri, Anita Verma, Prem Singh, Tek Chand, Harshwardhan Chauhan, Lajja Ram and Harbhajan Singh.

The four parliamentary secretaries were Jagat Singh Negi, Surinder Kumar, Sudhir Sharma and Raghubir Singh.

Besides Agnihotri, Chauhan and Negi are currently in the Cabinet.