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Attorney(S)
  • Mr. Bikash Ranjan Bhattacharyya, Sr. Adv., Mr. Samim Ahammed, Mr. Sabyasachi Chatterjee, Mr. Mrinal Ranjan Pramanik, Mr. Agnibesh Roy. …For the Petitioner
  • Mr. Lakshmi Kumar Gupta, Addl. Advocate General, Mr. Pranab Kumar Dutta, Sr. Adv., Mr. Suman Sengupta, Mr. Abdul Momen …For the State Respondents
Judges
  • Manjula Chellur, C.J
  • Ashim Kumar Banerjee, J.
Acts
  • Sections 4 & 5 of the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012,
  • India Services (Medical Attendance) Rules of 1954 or High Court Judges (Conditions of Service) Rules
  • Article 164(1A) of the Constitution of India since Sections 4 & 5 of 2012 Act
  • Disqualifications) Act, 1971 (hereinafter to be referred as the Act of 1971)
  • provisions of the Constitution and proviso to Article 162. 47. Article 163
  • Secretaries Allowances Act of 1963. Section 3 of this Act
  • ARTICLE 154 CONSTITUTION OF INDIA
  • Provision) Act of 2012 (hereinafter referred to as Act
  • provisions of Article 164(1A) of the Constitution.
  • provisions of Article 14 of the Constitution
  • ARTICLE 174 CONSTITUTION OF INDIA
  • 44 Amendment Act of 1978.27. Article 209
  • Nadu Payment of Salaries Act of 1951
  • provisions of the Constitution, Acts
  • 11.1.2013 Sections 3, 4, 5, 6 & 7
  • provisions of Article 164(1A)
  • Development Act 1957).
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. Bikash Ranjan Bhattacharyya, Sr. Adv., Mr. Samim Ahammed, Mr. Sabyasachi Chatterjee, Mr. Mrinal Ranjan Pramanik, Mr. Agnibesh Roy. …For the Petitioner
  • Mr. Lakshmi Kumar Gupta, Addl. Advocate General, Mr. Pranab Kumar Dutta, Sr. Adv., Mr. Suman Sengupta, Mr. Abdul Momen …For the State Respondents
Judges
  • Manjula Chellur, C.J
  • Ashim Kumar Banerjee, J.
Acts
  • Sections 4 & 5 of the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012,
  • India Services (Medical Attendance) Rules of 1954 or High Court Judges (Conditions of Service) Rules
  • Article 164(1A) of the Constitution of India since Sections 4 & 5 of 2012 Act
  • Disqualifications) Act, 1971 (hereinafter to be referred as the Act of 1971)
  • provisions of the Constitution and proviso to Article 162. 47. Article 163
  • Secretaries Allowances Act of 1963. Section 3 of this Act
  • ARTICLE 154 CONSTITUTION OF INDIA
  • Provision) Act of 2012 (hereinafter referred to as Act
  • provisions of Article 164(1A) of the Constitution.
  • provisions of Article 14 of the Constitution
  • ARTICLE 174 CONSTITUTION OF INDIA
  • 44 Amendment Act of 1978.27. Article 209
  • Nadu Payment of Salaries Act of 1951
  • provisions of the Constitution, Acts
  • 11.1.2013 Sections 3, 4, 5, 6 & 7
  • provisions of Article 164(1A)
  • Development Act 1957).
See more information ...
Smart Summary

High Court Opinion — Summary

Factual and Procedural Background

These two writ petitions were filed as public interest litigation challenging the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act, 2012 ("Act of 2012") as ultra vires the Constitution of India. The petitioners sought quashing of the Act and, consequentially, cancellation of appointments of certain Parliamentary Secretaries (respondents 8 to 20 in Writ Petition No. 8321(W) of 2013) on the ground that Sections 4 and 5 of the Act were repugnant to Article 164(1A) (inserted by the 91st Amendment) and therefore unconstitutional. The petitions raised issues of legislative competence, alleged circumvention of the ceiling on the size of the Council of Ministers, and claimed that Parliamentary Secretaries exercised functions and enjoyed status akin to Ministers of State.

The State and several respondents filed affidavits-in-opposition. The State enacted and notified the 2012 Act, prescribed duties and functions for Parliamentary Secretaries (Sections 3–7), and issued subsequent notifications (including notifications of January, February and March 2013) granting status, residence and benefits to Parliamentary Secretaries. The High Court heard counsel for the petitioners and for the State, analysed the statute, constitutional provisions and prior authorities, and ultimately struck down the Act and set aside the appointments. A request by State counsel for a stay of the order was rejected.

Legal Issues Presented

  1. Whether the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act, 2012 is ultra vires the Constitution because it is repugnant to Article 164(1A) (as inserted by the 91st Amendment) by indirectly enlarging the effective size/power of the Council of Ministers.
  2. Whether the appointments of Parliamentary Secretaries under the Act (and the duties, status, perks and functions assigned under Sections 3–7 and subsequent notifications) effectively render those appointees de facto Ministers, thereby circumventing the ceiling on Ministers fixed by Article 164(1A).
  3. Whether the State Legislature possessed legislative competence under the Constitution (including entries in the Seventh Schedule and provisions such as Articles 162, 163, 186, 187, 191, 194, 195, 209, 309, 310 and explanation (b) to Article 361(B)) to enact the impugned statute and to confer status/benefits to Parliamentary Secretaries.
  4. Whether the State's reliance on historical practice and earlier enactments (including a 1952 West Bengal Act and other States' statutes/notifications) can sustain the validity of the 2012 Act post-insertion of Article 164(1A).

Arguments of the Parties

Petitioners' Arguments (summary)

  • The Act of 2012 is a disguised attempt to confer ministerial powers, functions and status on a larger number of MLAs as Parliamentary Secretaries, thereby circumventing the ceiling imposed by Article 164(1A) (91st Amendment).
  • Sections 4 and 5 and related provisions delegate functions and duties to Parliamentary Secretaries that are essentially ministerial — handling departmental files, liaising between Ministers and administrative secretaries — which blurs the Cabinet form of government and violates constitutional propriety.
  • The Act imposes additional financial burden on the State (salary and allowances equal to Ministers of State) and is beyond State legislative competence, as it is inconsistent with subjects in List II of the Seventh Schedule and with the object of the 91st Amendment.
  • The petitioners relied on a news item about the Bill and argued public interest warranted judicial intervention to preserve constitutional sanctity; they contended the enactment was intended to favour MLAs who could not be appointed to the Council of Ministers.

State and Respondents' Arguments (summary)

  • The concept of Parliamentary Secretary is longstanding in West Bengal (earlier Act of 1952) and other States; Parliamentary Secretaries were historically given salary/allowances and status for purposes of legislative coordination and liaison, not as members of the Council of Ministers.
  • Parliamentary Secretaries are appointed by the Chief Minister and are not members of the Council of Ministers appointed by the Governor; therefore they are not Ministers and do not fall under Article 164(1A).
  • The State relied on constitutional provisions (Articles 186, 187(2), 191(1)(a), 194(3), 209, 309, 310 and explanation (b) to Article 361(B)) to contend it has competence to create posts, fix salaries/allowances and regulate conditions of service in connection with State affairs; remuneration and political posts can be regulated by law of the State.
  • The State argued that merely equating remuneration and some privileges with those of a Minister does not make a Parliamentary Secretary part of the Council of Ministers; previous statutes and rules (including West Bengal Salaries and Allowances Act, 1952) and other States' enactments and notifications supported the measure.
  • Counsel for the State argued the Act regulated functions limited to legislative assistance and coordination, and did not make Parliamentary Secretaries part of executive council or permit them to advise the Governor as Ministers do.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in this Opinion
Adv. Aires Rodrigues v. The State of Goa [2009 (111) BOMLR 737] Held that State cannot frustrate Article 164(1A) ceiling by indirect means; direct or indirect attempts to overreach the constitutional restriction are arbitrary and untenable. The court referred to this decision to illustrate that what is directly impermissible (enlarging Council of Ministers beyond prescribed size) cannot be achieved indirectly; used as persuasive support for striking down enactments that seek to circumvent Article 164(1A).
S.T. Ramalingam v. State of Tamil Nadu [AIR 1994 Madras 252] Discussed application of service rules and protections under Article 221(2) regarding reduction of allowances for Judges; referenced in relation to comparative treatment under statutes and rules. Cited in the opinion as part of the authorities brought by respondents; the judgment was noted for its discussion on application of rules and allowances but the court did not base its main holding solely on this case.
Smt. Leela Devi v. Rangila Ram Rao [AIR 1985 Himachal Pradesh 22] Addressed appointment as Chief Parliamentary Secretary and consequences upon dissolution of Assembly; factual background on office of Chief Parliamentary Secretary and its legal implications. Relied upon by parties; the court observed the factual distinctions and summarized the decision as part of the background of practice regarding Parliamentary Secretaries, but found it distinguishable from the present case.
State of Maharashtra v. Bharat Shanti Lal Shah [(2008) 13 SCC 5] Explains doctrine of pith and substance and the method of examining legislative competence of an enactment; presumption of constitutionality of statutes and examining true character, object and effect. The court cited this authority for the established method of analysing legislative competence (pith and substance) and to explain how a statute's purpose and dominant character must be examined against constitutional entries.
India Cement Ltd. v. State of Tamil Nadu [(1990) 1 SCC 12] Principles on how entries in the Seventh Schedule are fields of legislation; interpretive approach to list entries and pith and substance; widest amplitude to language of entries but careful analysis required. Quoted to support that entries are legislative fields and to guide interpretive approach; the court used the principles to underscore how to test State competence and to examine dominant purpose of the impugned law.
K.M. Sharma v. Devilal [(1990) 1 SCC 438] Held that mere description or nomenclature (e.g., Deputy Prime Minister) does not confer the substantive powers of the principal office; title alone does not create constitutional status or powers. The respondents relied on it to argue that mere description of Parliamentary Secretary as akin to a Minister does not make them Ministers; the court considered the ratio while focusing on actual functions and substantive effect rather than mere nomenclature.
V.G. Shukla v. State (Delhi Administration) [1980 Supp SCC 249] Addressed reasonable classification under Article 14 and the presumption of constitutionality; onus on challenger to displace this presumption. Relied upon by respondents to argue that if the classification is reasonable, the enactment should be upheld; the court noted this principle but applied constitutional-object analysis to conclude the Act defeated Article 164(1A).
MARBURY v. MADISON [5 US 137 (1803)] Foundational principle that a legislative act repugnant to the Constitution is void; constitutional supremacy and judicial power to invalidate incompatible statutes. The opinion invoked Marbury to restate the fundamental proposition that where a statute conflicts with constitutional provisions, it must yield; used as authoritative statement of constitutional supremacy in context.
MAHALAXMI SUGAR Mills Co. v. Union of India [AIR 2009 SC 92] Referenced in the opinion (context: principles of statutory interpretation and legislative intent behind constitutional provisions). Cited to support the court's approach that constitutional provisions must be given effect in accordance with their object and purpose; used as part of the interpretive framework.
S.P. Choudhary v. State of Punjab [AIR 2001 SC 2707] and B.R. Kapoor v. State of Tamil Nadu [AIR 2001 SC 2435] Referred to for the proposition that executive discretion must be exercised in accordance with the Constitution and not contrary to it. Cited by the court to emphasize that discretionary powers of political executives are subject to constitutional limits and must respect legislative intent behind amendments such as Article 164(1A).
Calcutta Gas Co.; H.R. Banthia v. Union of India; Union of India v. H.S. Dhillon Referenced within the India Cement discussion about entries being fields of legislation and interpretive rules. These authorities were cited as background to the interpretive doctrine relied upon in analysing legislative competence and pith and substance; the court used the doctrine rather than treating any single one as dispositive.

Court's Reasoning and Analysis

The court conducted a step-by-step examination of the statute, the functions and notifications attached to Parliamentary Secretaries, the State's constitutional arguments, historical practice, and the object of Article 164(1A).

  1. Analysis of statutory provisions and notifications:
    • The court reviewed Sections 3–7 of the 2012 Act (appointment power to Chief Minister; Section 4 assigning rank and status of Minister of State or Deputy Minister; Section 5 on functions; Section 6 on oath; Section 7 on salary/allowances) and subsequent notifications that granted Parliamentary Secretaries status and benefits "at par" with Ministers of State and described duties (paras 41–57).
    • It also noted that the rules prescribing oath and the notifications assigning residence, status, and benefits effectively positioned Parliamentary Secretaries to perform functions closely connected to Ministers and departmental decision-making (paras 34–37, 50–57).
  2. Assessment of State's constitutional arguments:
    • The State invoked Articles 186, 187(2), 191(1)(a), 194(3), 209, 309, 310 and explanation (b) to Article 361(B) to justify its competence to create posts and fix salaries/allowances. The court analysed and rejected many of these as not being apt to justify the functions assigned to Parliamentary Secretaries (paras 62–66, 31–39).
    • The court specifically rejected reliance on Article 309 (recruitment and conditions of service of public servants) and Articles 186/187 (salaries/allowances and secretarial staff of Houses) as inappropriate analogies for the political-executive functions assigned to Parliamentary Secretaries (paras 62–65, 31–33).
  3. Purpose and effect analysis against Article 164(1A):
    • The court emphasised the object and legislative intent behind insertion of Article 164(1A) (91st Amendment) — to limit the size of the Council of Ministers, improve governance and reduce public expenditure (paras 68, 74–76).
    • It employed an object-oriented, purposive approach to constitutional interpretation, considering assembly debates, Commission reports (Second Administrative Reforms Commission and National Commission to review the Constitution), and historical context (paras 13–19, 72–75).
    • On facts, the court found the duties assigned to Parliamentary Secretaries (as per the Act and notifications) overlap substantially with ministerial functions: planning and co-ordination of departmental legislative and official business, liaison with Ministers and secretariat, representing Ministers in the Assembly, attending Assembly committees and coordinating departmental action, and being prepared to handle departmental policy matters when authorised (paras 37, 69, 83).
    • Because these substantive functions and the grant of status/perks equated Parliamentary Secretaries in practice with Ministers (though under a different nomenclature), the court concluded the Act was designed to circumvent the constitutional ceiling on Ministers and thereby frustrate Article 164(1A) (paras 69, 76–79, 83).
  4. Application of interpretive doctrines and precedents:
    • The court invoked the doctrine of pith and substance and principles from precedents (as summarised above) to look beyond nomenclature and examine the true character, object and effect of the Act (paras 18, 26).
    • It rejected the argument that mere parity in remuneration or incidental similarity in status is determinative; instead, it focused on the nature of functions and the dominant effect of the enactment (paras 77, 83).
  5. Conclusion of analysis:
    • Because the Act, in its substance and effect, created posts that functionally operated as Ministers and thereby sought to overcome the numerical ceiling imposed by Article 164(1A), the court held the Act to be repugnant to the Constitution and invalid (para 84).
    • Consequently, the court struck down the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act, 2012 and set aside the appointments of the Parliamentary Secretaries made under it (para 84).
    • Judge Ashim Kumar Banerjee agreed with the result, adding clarification that while the State has competence to legislate on such subjects, the dominant purpose of the impugned law was oblique (to subvert Article 164(1A)); he indicated the State remains free to enact a law regulating legislative business consistent with the constitutional limits (paras 86–92).

Holding and Implications

Holding: The High Court held that the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act, 2012 is repugnant to the Constitution insofar as it runs counter to Article 164(1A) (inserted by the 91st Amendment) and, accordingly, the Act is struck down. The appointments of the Parliamentary Secretaries under that Act were set aside (para 84).

Implications (direct and as stated in the opinion)

  • Direct effect on the parties: The Act of 2012 was declared void and the several Parliamentary Secretary appointments made under it were invalidated (para 84).
  • Judicial emphasis on substance over nomenclature: The decision underlines that courts will look to the true character and effect of an enactment and its functional consequences rather than accept a change in nomenclature as a means to avoid constitutional limits (paras 69, 77, 83).
  • State's remedial option noted: In the concurring/clarifying opinion, the court observed that the State retains legislative competence to frame appropriate law regulating legislative business, provided the dominant purpose is not to subvert constitutional restrictions; the State was indicated to be free to enact fresh legislation consistent with the Court's observations (para 92).
  • Stay application: The court considered and rejected the State's prayer for stay of the operation of the order (paras 94–96).
  • Precedential posture: The court applied established interpretive doctrines (pith and substance, examination of dominant purpose, object-oriented constitutional interpretation) rather than creating a novel legal rule; the decision applies those doctrines to the facts and statutory scheme before it (see analysis and table of authorities).

This summary is derived exclusively from the provided opinion text. No additional facts or inferences beyond those expressly contained in the opinion have been included.

Show full summary ...

    Vishak Bhattacharya. v. The State Of West Bengal & Ors.

    Manjula Chellur, C.J:— These two writ petitions are in the nature of Public Interest Litigation seeking quashing of West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012 (hereinafter referred to as ‘Act of 2012’) as ultra vires to the Constitution of India. Consequently, they have also sought for cancellation of appointments of the respondents 8 to 20 in Writ petition No. 8321(W) of 2013 repugnant to Article 164(1A) of the Constitution of India since Sections 4 & 5 of 2012 Act are repugnant to 91st Amendment of Constitution of India. They have also sought for consequential reliefs as well in case of allowing the main reliefs.

    2. The main contention and arguments addressed on behalf of the writ petitioners in brief are as under:

    On reading of news item regarding introduction of Bill of 2012 pertaining to the above Act was passed at the floor of West Bengal Legislative Assembly in order to provide appointment to Members of Assembly as Parliamentary Secretaries who would have the rank and status of a Minister of State and who shall help in planning and coordination of Legislative business in the House by serving as an inter-mediatory between Administrative Secretaries and Ministers, the petitioners came up with the above Public Interest Litigation contending that the judicial intervention is imminent to protect the sanctity of the Constitution and esteemed democratic institution such as the Legislative Assembly. To safeguard the constitutional spirit and its propriety under Article 164(1A) of the Constitution, according to petitioners, the present challenge is justified and proposed enactment is nothing but extending privileges to some of Members of Assembly who would not be able to make it to the Council of Ministers.

    3. According to petitioners, the functions and duties entrusted to Parliamentary Secretaries under the Act in question exhibits most important privileges being enjoyed by Minister of the Council of Ministers that is handling files of the Department concerned has been delegated to the Parliamentary Secretaries under certain circumstances which is not acceptable and justifiable when the very system in existence indicate Cabinet form of Government. It is nothing but elevating good number of M.L.As, to the position of Minister of State under the guise of Parliamentary Secretaries violating the Constitutional mandate. It is also contended that the Act of 2012 is without any legislative competence apart from casting heavy financial burden on the State exchequer since, it is undergoing financial crisis.

    4. They have also referred to several provisions of the Act pointing out that in the name of Parliamentary Secretaries, they would be discharging the functions of a Minister of State. There is express restriction indicating upper limit for the number of Council of Ministers in respect of a State. Under Article 164(1A) the very object of the 91 Constitutional Amendment was to fix a ceiling on the number of Ministers in a State or Union. The Act in question is in gross violation of said mandate. State Government under colourable exercise of power cannot award a particular rank as a favour which affects Constitutional propriety. State is under an obligation to act in accordance with the provisions of Constitution of India and is not free to act upon its whims and fancies. Since the Act in question is beyond the subject matters enumerated under List II of Schedule VII of the Constitution, therefore, it has to be quashed. Provisions under Sections 4, 5 etc. of the Act of 2012 indicate duties assigned to Parliamentary Secretaries which are derogatory to the very spirit of Cabinet form of Government.

    5. Respondents 1 to 19 & 21 in W.P No. 8321 (W) of 2013 have filed affidavit-in-opposition which states in brief as under:

    The concept of Parliamentary Secretary is not a new one and the expression ‘Parliamentary Secretary’ has been practiced since 1952 by enactment of the State of West Bengal. Under the said Act, they were entitled to receive salary as well as Compensatory Allowance apart from Constituency Allowance as per the provisions under 1952 Act. In the said Act, there is clear statement that Parliamentary Secretaries are those whom the Chief Minister selects. Other than Parliamentary Secretaries, other office-holders found place in the said Act of 1952. This creation of Parliamentary Secretaries by virtue of a Statute was with the sole purpose of planning and co-ordination of legislative and other official business in the West Bengal Legislative Assembly. Various functions and duties of Parliamentary Secretaries are enumerated with the sole purpose of maintaining closest possible liaison with the department which they are attached to. In order to ensure better co-ordination between the executive and legislature since specific duties and responsibilities are assigned to them, they are entitled to enjoy the status of a Minister of State. The Governor appoints Council of Ministers on the advice of Chief Minister and the total number of Ministers including the Chief Minister in the Council of Ministers shall not exceed 15% of the total number of MLAs of the State. So far as appointment of Parliamentary Secretaries, it is totally on a different footing. They are appointed by Chief Minister and are deemed to be Ministers only for the purpose of ensuring better co-ordination between the actual Ministers and the Legislature. Claiming competency to enact such legislation, they question the locus standi of the petitioner who is a practicing lawyer. There is no question of appointment of Ministers beyond the permissible strength of Ministers under the guise of Parliamentary Secretaries. There is no intention to overcome the constitutional mandate. There is no likelihood of any misuse or drainage of public money as contended. No procedure or rules are violated and there is no question of financial burden and the reasons stated for striking down the statute deserves to be rejected.

    6. Respondents 1 to 4 have placed affidavit-in-opposition in W.P No. 7326 (w) of 2013. They denied that entrustment of duties by Ministers and Chief Minister upon the Parliamentary Secretaries blurs the distinction between legislative and administrative functions. Writ petitioners are not competent to agitate the manner of discharge of functions by a Member of Council of Ministers and it is entirely the prerogative of the executive to arrange proper distribution and co-ordination of Government business. With these observations, they have sought for dismissal of the writ petitions.

    7. In support of the contention, learned Senior Counsel Mr. Bikash Ranjan Bhattacharyya contends that concept of Parliamentary Secretaries is totally misunderstood by enacting the statute in question. According to him, the entire exercise was with an intention to accommodate MLAs who could not be accommodated with a berth in the Council of Ministers. He further contends that petitioners as responsible citizens of this country can always act as pro bono publico whenever there is an attempt to create dent so far as constitutional mandate. As the enactment in question, according to learned Senior Counsel aims at, is solely with the purpose of overcoming the hurdle of restriction created by virtue of 91 Constitutional Amendment, such direct or indirect intervention cannot be allowed. According to him, Article 164(1A) clearly restricts the number of Council of Ministers depending upon the number of Members of Legislative Assemblies in a particular State, therefore, in the guise of Parliamentary Secretaries, MLAs cannot be favoured under the said enactment. He also questions the competency of the State to make such an enactment which contravene provisions of the Constitution. No State can enact laws on the subjects other than the subjects mentioned in the VIIth Schedule of Constitution is his stand.

    8. He took us through various provisions of Constitution and also several decisions which shall be referred to later.

    9. As against this, Mr. Lakshmi Kumar Gupta, learned Additional Advocate General contends that State has competency to enact the statute in question. Since Parliamentary Secretaries are not part of Council of Ministers and are not appointed by Governor on the advice of the Chief Minister, they cannot be considered as Ministers and, therefore, there is no question of the State enactment being in conflict with the constitutional mandate. He refers to Articles 186, 187(2), 191(1)(a), 194(3), 209, 309 & 310 of the Constitution contending that how different posts are created under the Constitution and how the State is competent to enact any law in connection with the affairs of the State. He also refers to explanation (b) of Article 361(B) contending that the concept of political post being a remunerative post is recognized. According to him, so long as the creation of post is in connection with the affairs of the State, Act 2012 cannot be found fault with. Since Minister is one who is a Member of Council of Ministers, reading Sections 5, 6, 7 & 8 of the Act of 2012, along with other provisions, nowhere the post of Parliamentary Secretaries is referred to as Council of Ministers. Therefore, Parliamentary Secretaries cannot be brought on par with the two posts, i.e, Minister of a State and Council of Minister since, Parliamentary Secretary is neither a member of Council of Minister nor a Minister of a State. It is further argued that a Minister is one who is a member of Council of Minister and not others. He further contended that the functions of the Parliamentary Secretary are entirely different as enacted by the Statute and there is no question of Parliamentary Secretary advising the Governor either as a Chief Minister or as a Council of Ministers. Since Parliamentary Secretary is not a post referable to Article 164(1A), the enactment in question cannot be found fault with.

    10. Learned Senior Counsel Mr. Pranab Kumar Dutta representing respondents took us through rules, procedure and conduct of business of the West Bengal. He places reliance on List II Entry 38 & 40 of the VII Schedule of the Constitution. According to him prior to impugned Act, Act of 1952 was in existence which was never questioned and under Article 208 the State has power to make provisions for Parliamentary Secretary. According to him, at any stretch of imagination, the Parliamentary Secretary cannot be a Council of Ministers. Therefore, the enactment is valid and justified.

    11. So far as the remuneration and allowances payable to Parliamentary Secretaries, various judgments are referred to and they specifically contend that creating a post or making benefit of post equivalent to the post of a Minister of State is in existence under various enactments. Therefore, merely the Parliamentary Secretary receives the remuneration and other benefits equivalent to that of a Minister of State, it would not make them part of Council of Ministers.

    12. Learned Senior Counsel, Mr. Bhattacharyya has placed on record several materials which would be referred to. Second Administrative Reforms Commission (ARC) which was published somewhere in 2009 as 15 Report details blueprint for revamping the public administration system.

    13. Coming to the State administration, the relevant paragraphs are 2.3.2.7 & 2.3.2.8 which read as under:-

    2.3.2.7 The Commission feels that a compact and small sized Council of Ministers is one of the essential requirements of good governance and as indicated earlier the current ceiling of 15% which has been imposed by Article 164(1A), appears to be somewhat excessive for many of the States.

    2.3.2.8 In order to arrive at some rational criteria for reducing the size of the Council of Ministers, the Commission feels that all the 28 States of the country could be conveniently placed in three groups on the basis of the strength of their Legislative Assemblies. Bigger States where the strength of the Assemblies lies between 200 and 400 could be placed in one group such as Uttar Pradesh, Bihar, West Bengal, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra, Andhra Pradesh, Karnataka and Tamil Nadu. States where the strength of the Legislative Assemblies is between 80 and 200 such as Jammu & Kashmir, Punjab, Haryana, Assam, Jharkhand, Orissa, Chhattisgarh, and Kerala could be grouped together. The third Group may consist of States where the strength of their Assembly is below 80 such as Himachal Pradesh, Uttarakhand, Sikkim, Arunachal Pradesh, Nagaland, Manipur, Mizoram, Tripura, Meghalaya, and Goa. (For The Union Territory of Delhi, Article 239AA(4) of the Constitution itself limits the size of the Council of Ministers to 7 whereas in the case of Puducherry it is limited to 6).

    14. The Commission was of the opinion that a compact and small sized Council of Ministers is one of the essential requirements of good governance. They felt 15% which has been imposed by Article 164(1A) appears to be excessive for many of the States. Therefore, they recommended maximum percentage limit in the range of 10 to 15% of the strength of the respective State Legislative Assembly. They also suggested where the membership of the Assembly is more than 200, the strength of Council of Ministers should not exceed 10% and 12% in the case of medium States where the strength of the Assembly between 80 to 200 and 15% where the strength of the Assembly is below 80. Rules of procedure and conduct of business in the West Bengal Legislative Assembly in terms of Article 208 of the Constitution refers to Minister as a Member of Council of Ministers and includes a member of the Cabinet, a minister of State, a Deputy Minister or a Parliamentary Secretary. Similarly, Rules of Procedure and conduct of business in Lok Sabha refers to Ministers as stated above.

    15. It is pertinent to mention report of the National Commission to review the working of the Constitution. At Clause 4.19 there is a reference to the practice of having oversized Council of Ministers which must be prohibited by law. A ceiling on the number of Ministers in any State or the Union government be fixed at the maximum of 10% of the total strength of the popular house of the legislature. In this connection, reference is also invited to clause 4 of article 239AA of the Constitution, which limits the size of Council of the Ministers to not more than 10% of the total number of members in the Legislative Assembly of the National Capital Territory of Delhi. Also, the practice of creating a number of political offices with the position, perks and privileges of a minister should be discouraged and at all events their number should be limited to 2 per cent of the total strength of the lower house.

    16. The petitioners mainly relies upon 2009 (111) BOMLR 737 [Adv. Aires Rodrigues v. The State of Goa by its Chief Secretary] to contend that while considering Article 164(1A) of the Constitution of India, Their Lordships had an occasion to look into the challenge questioning the authority of the respondents therein to hold the posts of ‘Parliamentary Secretaries’ and also to enjoy the status of a Cabinet Minister. Along with this, appointment to different posts in the State administration was also under challenge on the ground that the same was violative of Constitutional provisions, therefore, arbitrary and is opposed to public policy. It was further contended that appointment of Parliamentary Secretaries and other Governmental posts was under a colourable exercise of power and even if the same was a policy decision, it is motivated to frustrate the constitutional mandate, therefore, void ab initio.

    17. Their Lordships opined in a detailed judgment that since Council of Ministers should not exceed the prescribed size under Article 164(1A), State has no authority to frustrate the Constitutional mandate and over-reach the constitutional restriction. They further opined that such exercise would be termed as arbitrary and untenable in law. Therefore, what is directly impermissible as a restriction on the size of the Council of Ministers cannot be permitted by indirect method.

    18. Respondents relied upon the following decisions.

    AIR 1994 Madras 252 [Justice S.T Ramalingam v. State of Tamil Nadu]. The controversy that arose in this case, whether the Judges of the Madras High Court were entitled to medical bills and other facilities in terms of All India Services (Medical Attendance) Rules of 1954 or High Court Judges (Conditions of Service) Rules continued to apply for the reasons the Rules were framed under the Tamil Nadu Payment of Salaries Act of 1951 for the medical attendance bills of the Ministers and others, if applied to them, appear to deny what they must legitimately get in terms of the said Rules. It was opined that application of the Rules which reduce the allowances already granted to the Judges is not permissible under Article 221(2) of the Constitution of India.

    AIR 1985 Himachal Pradesh 22 [Smt. Leela Devi v. Rangila Ram Rao] was relied upon. This was an election petition to declare the election of the respondent Rangila Ram Rao as void. Para 3 is relevant which reads as under:

    “It is stated in the election petition that the respondent was a member of Himchal Pradesh Vidhan Sabha from June 1977 to April 19, 1982. With effect from May, 9, 1980, he was appointed as Chief Parliamentary Secretary to the Government of Himchal Pradesh. It is pointed out that since there was no provision for the appointment of Chief Parliamentary Secretary under the Constitution of India, the Government of Himchal Pradesh in exercise of its executive powers, accorded sanction to the creation of the post of Chief Parliamentary Secretary. Consequently, the respondent was appointed as such by an order dated 11 June, 1980. The order was, however, made effective from May 9, 1980. It is stated that on April 19, 1982, the Governor of Himachal Pradesh in exercise of his powers under Article 174 of the Constitution of India, dissolved the Legislative Assembly of Himachal Pradesh with effect from that date. As such, according to the petitioner, the respondent ceased to be a Member of Himachal Pradesh Legislative Assembly (The Assembly in short) and could not continue to be a Member of the Government of Himachal Pradesh, headed by the then Chief Minister. It is contended by the petitioner that from that day onward, the respondent was reduced to the status of an employee of the State Government drawing a salary of Rs. 1,000/- per month apart from enjoying other privileges as contained in Annexure-A. According to the petitioner, since the respondent held the office of profit under the State of Himachal Pradesh from April 19, 1982, the protection from disqualification afforded to him as a Chief Parliamentary Secretary under Section 3 of the Himachal Pradesh Members of Legislative Assembly (Removal of Disqualifications) Act, 1971 (hereinafter to be referred as the Act of 1971) ceased to be available to him from that day onwards. The respondent is stated to have resigned from the said office on 24 May, 1982.”

    They also relied on (2008) 13 SCC 5 Constitutional Bench judgment in the case of State of Maharashtra v. Bharat Shanti Lal Shah Learned Senior Counsel Mr. Pranab Dutta relied upon this decision with regard to mode of construction of statute and how presumption of constitutionality in favour of a statute has to be drawn. It was stated in the above case that one of the proven methods of examining the legislative competence of an enactment is by the application of doctrine of pith and substance. This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the Courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the Courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to the field of legislation allotted to the respective legislature under the constitutional scheme. The said doctrine has come to be established in India and is recognized in various pronouncements of the Supreme Court and the High Courts.

    19. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on topics in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the topics in the Union List. Thus, though it is true that the State Legislature would not have power to legislate upon any of the matters enumerated in the Union List but as per the doctrine of pith and substance, if it could be shown that the area and subject of the legislation is also covered within the purview of the entry of the State List or the Concurrent List, in that event incidental encroachment to an entry in the Union List will not make a law invalid and such an incidental encroachment will not make the legislation ultra vires the Constitution.

    20. Learned Advocate General relied upon (1990) 1 SCC 12 [India Cement Ltd. v. State of Tamil Nadu] again to contend how the language used in a particular entry should be understood? Para 18 is relevant which reads as under:-

    18. Certain rules have been evolved in this regard, and it is well settled now that the various entries in the three lists are not powers but fields of legislation. The power to legislate is given by Article 246 and other articles of the Constitution. See the observations of this Court in Calcutta Gas Co. v. State of West Bengal. The entries in the three lists of the Seventh Schedule to the Constitution, are legislative heads or fields of legislation. These demarcate the area over which appropriate legislature can operate. It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists. See the observations of this Court in H.R Banthia v. Union of India and Union of India v. H.S Dhillon. The lists are designed to define and delimit the respective areas of respective competence of the Union and the States. These neither impose any implied restriction on the legislative power conferred by Article 246 of the Constitution, nor prescribe any duty to exercise that legislative power in any particular manner. Hence, the language of the entries should be given widest scope, to find out which of the meaning is fairly capable because these set up machinery of the government. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. In interpreting an entry it would not be reasonable to import any limitation by comparing or contrasting that entry with any other one in the same list. It is in this background that one has to examine the present controversy.

    21. Respondents also relied upon (1990) 1 SCC 438 [K.M Sharma v. Devilal]. In this case, the challenge was with regard to appointment of Deputy Prime Minister. Since the oath of the Deputy Prime Minister was not in accordance with the prescription of the Constitution Their Lordships opined that mere description of Deputy Prime Minister as such would not confer on him any power of the Prime Minister and he would remain only a Minister and accordingly held that appointment was not vitiated. This was relied upon to contend that merely subscribing status of a Minister of State to Parliamentary Secretary, he would not become Council of Minister, but he would remain only a Member of Legislative Assembly.

    22. 1980 Supp SCC 249 [V.G Shukla v. State (Delhi Administration)] was relied upon to contend that if there is reasonable classification and if provisions of Article 14 of the Constitution permits the same, then it is reasonable. Once hostile differentiation between equally circumstanced and situated persons arises, Article 14 of the Constitution is attracted. Onus is on the person challenging the statute to displace presumption arising in favour of constitutionality of the statute.

    23. Learned Additional Advocate General supporting the legislation in question brought to our notice Article 186 and 187(2) of the Constitution to contend that salaries and allowances of the Speaker and Deputy Speaker as well as Chairman and Deputy Chairman of Legislative Assembly and Legislative Council respectively are fixed by the Legislature of the State by law. So far as application of salaries and allowances mentioned in the Second Schedule would apply till such law is made by the State.

    24. Similarly, sub-Article (2) of Article 187 speaks of authority of the State to make law to regulate the recruitment and the conditions of service of persons appointed to the Secretarial staff of the House or Houses of the Legislature of the State.

    25. Article 191(1A) speaks of disqualification of a member of Legislative Assembly or a Legislative Council of a State if such person holds any office of profit under the Government of India other than being a Member of Legislative Assembly or Legislative Council of State.

    26. Sub-Article (3) of Article 194 speaks of the powers, privileges and immunities of a State Legislatures and their Members. It says, the powers, privileges and immunities of a House of a Legislature of a State, of the Members and the Committees of House of such Legislature shall be such as may from time to time be defined by the Legislature by law and until so defined shall be those of that House and of its members and committees immediately before the coming into force 44 Amendment Act of 1978.

    27. Article 209 refers to authority of Legislature of a State for regulating the timely completion of financial business by procedure in relation to any financial matter or to any Bill for the appropriation of moneys.

    28. Article 309 is relied upon to contend that subject to the provisions of the Constitution, Acts which are promulgated by the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State can be made by the State Legislature. This was contended to substantiate the stand of the State that State can legislate law on subjects other than those provided under VII Schedule of the Constitution.

    29. Article 310 is also relied upon with regard to the civil service of the persons.

    30. Explanation (b) to sub-Article 361(B) was relied upon with regard to the procedure for disqualification for appointment of remunerative political posts.

    31. This Article was relied upon to contend that Parliamentary Secretary post is remunerative political post under the Government of a State and the salaries or remuneration is payable out of the public revenue of the State as the case may be. According to them, unless the person, who is appointed as Parliamentary Secretary is disqualified for being a Member of the House shall also be disqualified to hold any remunerative political post for duration of the period commencing from the date of his disqualification till the date on which the term of his office would expire in that post.

    32. It is contended on behalf of the State that the Parliamentary Secretary under Act 2012 cannot be treated as a Member of Council of Ministers since Minister is one who is Member of Council of Ministers. According to them, the creation of Parliamentary Secretary post as long as is in connection with the affairs of the State, it is valid. They took us through Sections 5, 6, 7 & 8 of the Act. The rules for this enactment were made in 2013.

    33. After the Bill in 2012, the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012 has come into force from the date it was notified in the Official Gazette. Said notification was gazetted on 11.1.2013 Sections 3, 4, 5, 6 & 7 are relevant which read as under:-

    3. The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretaries and assign to each of them such duties and functions as he/she may deem fit and proper.

    4. A Parliamentary Secretary shall be of the rank and status of a Minister of State or Deputy Minister and shall exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister by way of a notification published in the Official Gazette.

    5. The functions and duties of Parliamentary Secretary shall be such as may be specified.

    6. The Parliamentary Secretary shall, before entering upon his office, take an oath of office and secrecy in such manner as may be prescribed.

    7. A Parliamentary Secretary shall be entitled to such salary and allowances as are admissible to a Minister of State or a Deputy Minister, as the case may be, under the West Bengal Salaries and Allowances Act, 1952.

    34. Subsequent to this enactment from time to time notifications were made with regard to benefits to be enjoyed by Parliamentary Secretaries. As per notification No. 558 dated 12.7.2013, the benefits/facilities of a Parliamentary Secretary appointed under 2012 Act will be at par with those of a Minister of State.

    35. Another notification dated 11.6.2013 says they are entitled to use a furnished residence in Kolkata, if they normally resided outside Kolkata.

    36. Another notification No. 226 dated 14.3.2013 says they shall enjoy the status of a Minister of a State in West Bengal.

    37. By notification dated 01.02.2013 in exercise of power conferred under Sections 4 & 5 of the West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012, they were assigned to discharge the following duties and functions:-

    (1) The Parliamentary Secretaries will assist the respective Minister-in-Charge in planning and co-ordination of legislative and other official business in the West Bengal Legislative Assembly;

    (2) Parliamentary Secretaries are expected to maintain the closest possible liaison with the Department to which they are attached, the Minister-in-Charge and Secretary and with the members of the Legislature;

    (3) Parliamentary Secretaries would be prepared at all times to represent and speak on behalf of the Minister-in-Charge in the West Bengal Legislative Assembly, including at various Assembly Committees so constituted, subject to specific authorization by the Minister-in-Charge and the Chief Minister;

    (4) Parliamentary Secretaries would attend the meeting of the Assembly Committees and co-ordinate the action based on the recommendations of Assembly Committees, subject to specific authorization by the Minister-in-Charge and the Chief Minister;

    (5) Parliamentary Secretaries will maintain necessary liaison with leaders of various political parties and groups represented in the West Bengal Legislative Assembly, subject to specific authorization by the Minister-in-Charge of Parliamentary Affairs Department;

    (6) The Minister-in-Charge of a Department may, at his discretion and with the prior approval of the Chief Minister, specify a selected class of legislative policy matter which the Parliamentary Secretary may deal with and submit his or her views to the Minister-in-Charge;

    (7) Parliamentary Secretaries are not ordinarily required to deal with Departmental files except in so far as they may be specifically directed to do so by the concerned Minister-in-Charge and the Chief Minister for his or her assistance in his or her Parliamentary work.

    38. As per Rule 3 which came into effect on 21.01.2013 Parliamentary Secretaries (Oath of Office and of Secrecy) shall be made before the Chief Minister in the prescribed form.

    39. Manual Part-I was placed on record to show that in West Bengal Salaries and Allowance Act of 1952, Parliamentary Secretary of the Government of West Bengal was also included whose salary was Rs. 1,000/- per month at the relevant point of time.

    40. By order dated 11.8.1999 the Home Department clarified who are Council of Ministers. It says Council of Ministers includes all Minister and Ministers of State of West Bengal.

    41. In order to contend that several political posts are assigned with rank and status of a Minister to such persons, several notifications were relied upon. The notification dated 24.2.1984 speaks of rank and status of Leader of the Opposition in the West Bengal Legislative Assembly equivalent to that of a Cabinet Minister of that State. Similarly, notification dated 4.4.1990 speaks of rank of Advocate General of the State shall be deemed to have been status of Member of State Cabinet. Similarly, notification dated 8.9.1993 speaks of Sabhadhipati of a Zilla Parishad enjoying the status of a Minister of State in the West Bengal. Notification dated 19.8.1994 speaks to Chief Minister to enjoy the status of a Minister of State of the Government. Another notification dated 9.2.1999 speaks of Sabhadhipati to Siliguri Mahakuma Parishad to enjoy the status of Minister in State of West Bengal. They have also placed on record Karnataka Parliamentary Secretaries Allowances Act of 1963. Section 3 of this Act says that Parliamentary Secretary shall be entitled to such salaries and allowances as are admissible to a Minister, Minister of State or a Deputy Minister of State in Karnataka Minister's Salaries and Allowances Act of 1956.

    42. We have to analyse the arguments of the State in order to appreciate whether there is justification in their stand supporting the Legislation in question. Parliamentary Secretaries cannot be equated with that of service of persons serving the Union or the State. Article 309 authorizes the Legislature to regulate the recruitment and conditions of persons appointed in connection with the affairs of the Union or State as the case may be. These appointments are regulated by rules with reference to recruitment and other conditions of service. It would be inappropriate to equate the services of Parliamentary Secretaries with that of the services of persons serving the Union or a State with reference to public service i.e, in connection with the affairs of the Union or the State. Therefore, there is no justification for the State to rely upon Article 309 so far as the controversy before us.

    43. Similarly Articles 186 and 187 cannot be relied upon as the Speaker and Deputy Speaker so also Chairman and Deputy Chairman referred to in these Articles cannot be equated with that of Parliamentary Secretaries. None of the persons referred to under Articles 186 and 187 are required to discharge the duties and functions of Parliamentary Secretaries as referred to at para 37 which are akin to functions of Council of Ministers.

    44. There cannot be any dispute that the Legislature of a State by law is empowered to define powers, privileges and amenities of a House of such Legislature or its Members. We are not deciding any issue with regard to the status of the party respondents as members of the Legislative Assembly. We are examining their status as Parliamentary Secretaries. They cannot fit in the description of House of the Legislature of a State, its Members and the Committees of the House.

    45. Article 195 definitely takes care of salaries and allowances of the Members of the Legislative Assembly and the Legislative Council of the State. It does not speak of Parliamentary Secretaries. The rules so far as persons of public service or persons holding any posts by virtue of Article 309, only the President of India or the Governor of a State is empowered to do so and not the Chief Minister.

    46. Article 154 of the Constitution of India clearly indicates that the executive power of the State is vested in the Governor, who shall exercise such executive power either directly or through officers subordinate to him, but it has to be in accordance with the Constitution. The powers defined under Article 162, no doubt give/vest executive powers to the State but it also defines or qualifies the executive powers of the State, i.e, to what extent it can be exercised since it is subject to the provisions of the Constitution and proviso to Article 162.

    47. Article 163 empowers the Chief Minister of a State as Head of the Council of Ministers to assist and advice the Governor. The Governor shall appoint such number of Ministers, who will hold office during the pleasure of the Governor, on the advice of the Chief Minister.

    48. It is needless to say much exercise must have gone into during the deliberations before bringing amendment to Article 164. It was amended so as to place a check on the size of Council of Ministers in every State. It was to operate prospectively from the date of commencement of the 91 amendment of the Act by putting a restriction on the size of the Council of Ministers not exceeding 15% of the total number of Members of the State Assembly with minimum limit of 12%. The provisions were expected to be retroactive requiring the authority concerned to bring down the size of Council of Ministers in conformity with the provisions of Article 164(1A) of the Constitution. This had to be done within a period of 6 months from the date of coming into force of amended provisions. The amended provision came into effect from 1.1.2004 It is also seen that, several States adopted the amendment, enacted laws for appointment and fixation of salaries and allowances payable to the Parliamentary Secretaries. Apparently, various Acts enacted by different States concerned remain valid piece of Legislation till their correctness or validity is challenged in the face of Constitutional mandate by 91 Amendment.

    49. The Bombay judgment was in respect of an ordinance in the State of Goa in the absence of any enactment of the present nature. We have to examine the present situation in the light of Constitutional amendment to Article 164. The challenge would be the same whether it is an ordinance or a policy or an enactment since it has to be examined in the face of Constitutional amendment. In the enactment under challenge, the posts of Parliamentary Secretaries are created and they remain so at the pleasure or discretion of the Chief Minister. Past history indicates concept of Parliamentary Secretary is not unknown practice. We have to examine the enactment which creates post of Parliamentary Secretary wherein provisions regarding methodology for appointment, demarcating functions, duties and perks of Parliamentary Secretaries, vis-à-vis., the purpose and the object with which Article 164 was amended by inserting Article 164(1A). The functions of the Parliamentary Secretary defined in the Statute do not go beyond the purview of the duties and functions of the Council of Ministers. Their functions are not like that of an Advocate General, Speaker and Deputy Speaker which are created by virtue of other provisions of Constitution. The functions attached to the post of Parliamentary Secretary is that of the functions of the Ministers. In other words, they share the responsibility of the Minister of a State. Their deliberation or involvement in the duties and functions of the Department to which they are attached to, have an impact on the decision making process so far as that Department is concerned. In other words, they without being called as Ministers, do discharge functions of Ministers. They are not Secretaries, who come through the public service referred to under Article 309. The Parliamentary Secretary is also a political executive like other political executives in the State.

    50. In the above background, one has to examine the enactment with reference to the object and purpose with which Article 164(1A) was introduced. While interpreting the provisions of the Constitution, one has to examine and interpret the provisions in the context in which they are used and the purpose they are expected to achieve. The paramount guidance would be to see what the object and the legislative intent lies behind enacting provisions of law. On several occasions, the Courts exercising object oriented approach while interpreting the provisions of Constitution, did refer to assembly debate as a means of guidance in order to arrive at proper interpretation. The Constitution is not just a document in sacred or solemn form. It has to be considered as a living frame work for the Government of the people and its successful working entirely depends upon the democratic spirit underlying it which has to be respected in letter and spirit. On many occasions it is reiterated by various judgments of the Apex Court that obligation of the judiciary is to administer justice according to law. However, the law must be one which commands legitimacy with the people and legitimacy of the law itself. This would depend upon whether it is accorded with justice. Therefore, it is said even ruler is not above the rule of law.

    51. It is worth referring to wisdom of Former Chief Justice of India, Mr. Justice M.N Venkatachalaiah, in his Forward Note to the Constitution of Jammu and Kashmir - Development and Comments which says “the mere existence of a Constitution by itself, does not ensure constitutionalism. What are important are the political traditions of the people and its spirit and determination to work out its constitutional salvation through the chosen system of its political organization.”

    52. The obligation on the elected representative in a parliamentary democratic set up is to strictly adhere and obey the Constitutional mandate. At any cost, it cannot be subverted by circumventing the law. By enacting a law, law gives much discretion in exercise of powers by authorities like Chief Minister and others, but they are expected to exercise discretion only in a manner regulated by law and they shall not do anything contrary to the Constitution (referred to AIR 2001 SC 2707 - S.P CHOUDARY v. STATE OF PUBJAB; AIR 2001 SC 2435 - B.R KAPOOR v. STATE OF TAMILNADU).

    53. As contended by the State, by enactment of 1952 in the State of West Bengal post of a Parliamentary Secretary was a convention or a practice. It is pertinent to mention that in the year 1952 Article 164(1A) was not in existence. This is how the purpose and the object with which Article 164(1A) was inserted in the Constitution becomes relevant. The question before us is whether Act of 2012 is valid and justified in the light of Article 164(1A). Mere such practice cannot make the enactment a valid one unless such enactment is in consonance with the object and the mandate enshrined in the Constitution.

    54. One has to examine the surrounding circumstances under which Articles 164(1A) was inserted and interpret the enactment under challenge.

    55. In principles of statutory interpretation by great author Justice G.P Singh, it is observed that the Court can always take into consideration while interpreting the provisions, the historical facts and circumstances. It is well-settled that a legislation has to be saved as far as possible. If it needs to be read down to save the legislation it has to be done so since presumption of validity is attached to a legislation. Such presumption cannot be raised if the legislation opposes the ethos of Constitution. No doubt, changed circumstances have a bearing on the approach of the Court in such matters. Article 164(1A) was not in existence till 2004. After great deliberation and recommendation of the standing committee it was introduced. The circumstances existed definitely indicate, it was to ensure that Council of Ministers does not exceed the prescribed size, therefore, the framers chose not to provide any exception. The main purpose of enacting Article 164(1A) was not only to check defection on the part of the Members of Legislative Assembly but also to limit the size of the Cabinet for better governance and also to avoid heavy burden on public exchequer. By referring to power under Article 162 of the Constitution, there cannot be any interpretation over reaching or over riding the constitutional mandate under Article 164(1A). The political executive must obey and respect the object and purpose of 91 amendment to the Constitution of India. Reference is made to AIR 2009 SC 92 MAHALXMI SUGAR Mills CO. v. UNION OF INDIA.

    56. The authorities, who are expected to discharge their functions should always remember the Constitutional mandate and they cannot circumvent the said mandate under the guise of exercising other powers or taking recourse to other provisions over riding Constitutional mandate. If the enactment did not prescribe qualification of MLA it is altogether a different situation. If a legislation is brought to regulate the business of the House for better governance and administration no one can find fault with the same. Probably number of Parliamentary Secretaries, Cabinet Ministers and Ministers of a State all put together do not exceed the restricted number of Council of Ministers indicated under Article 164(1A), such legislation cannot be found fault with.

    57. Under the enactment in question, the qualification to become a Parliamentary Secretary one has to be a Member of Legislative Assembly. Except M.L.A, no other person could be conferred with the nomenclature of a Parliamentary Secretary. Under the Act, they are given the status of a Minister of State. Definitely, as contended by the State, one cannot find fault with the prescription of salaries and allowances of Parliamentary Secretary on par with the Minister of a State since many other political executives are given such benefits on par with Minister but assigning the status to them, the status of Minister of a State cannot be approved. Other political executives do enjoy all the benefits assigned to the post of a Minister of State, but they are not connected to the Departments assigned to a particular Minister. Those political executives are not acting as intermediary between the Minister of the Department and the Secretariat as like Parliamentary Secretaries. Over and above, by giving them salaries, allowances and perks equal to that of a Minister of State, they are also assigned with the status of a Minister of State. Treating a post equal with that of a Minister is different from assigning the status of a Minister of a State to that post. It is nothing but over riding the Constitutional mandate i.e, restricting on the size of Council of Ministers. What is directly prohibited cannot be achieved by indirect method. Where it is not permissible to enlarge the Council of Ministers beyond the prescribed size, adopting an indirect method to defeat the Constitutional mandate by giving the nomenclature of Parliamentary Secretary to a Member of Legislative Assembly, who could not make it to become a Minister is nothing but defeating the very purpose and intent of the Constitutional mandate. The description of Parliamentary Secretary and the duties assigned to them especially after insertion of Article 164(1A) is nothing but allowing a Member of Legislative Assembly to become de-facto Minister. Assigning status of Minister of a State, description of their functions and qualifying the perks and privileges under the enactment would clearly lead us to the conclusion that the Parliamentary Secretaries are in fact Ministers though they function under a different title or nomenclature.

    58. No one can deny the authority of a State to create posts and frame its policies for better administration. They can have any number of advisers with vast experience in the field to advise the Government. But one must remember it cannot be against the philosophy of the Constitution as Constitution is above all other laws. Whenever such policies are framed on reasonable basis without hidden agenda and the overall assessment of the policy do not expose any arbitrariness, Courts shall not interfere with such policies is the settled principle. If a decision taken on policy suffers from infirmities or deficits on account of violation of the Constitutional provisions or in violation of settled law and if such policy decisions has no legal basis whatsoever and is an outcome of colourable exercise of power, Courts have to examine such cases in order to intervene by exercising judicial review. Same principle applies even to a legislation.

    59. In the present case, Statute is brought in this regard and according to the State the posts of Parliamentary Secretaries are created under a Statute made by competent authority that is the State and not a policy decision like in the case of State of Goa (supra). Apparently, post of Parliamentary Secretary is political executive post. The State can take shelter by arguing that the appointments in question are within the powers under frame work of law. The power of the State to sanction or create post under the impugned enactment can hardly be questioned, but the question is not the competency of the State to sanction or create the post by law under an enactment, but the very Statute is in conflict with the Constitutional mandate. Especially when the provisions of Article 164(1A) prohibits number of Council of Ministers, can there be a law which frustrates the limitation imposed by Constitutional mandate? In other words, the powers vested by virtue of Articles 162 and 163 of the Constitution to be exercised by the Chief Minister and the Governor are rather controlled or limited by insertion of Article 164(1A).

    60. Constitution holds supremacy over all other laws. The authority or power arising from any source of law, naturally has to be in conformity with the Constitution and the powers to be exercised by authority must be in adherence to the provisions of the Constitution. It is well settled that public necessity is greater and higher than private necessity. Private interest must yield to the public interest. In order to have proper governance, the authority which exercises power must be backed by law and such law must be exercised in accordance with the prescribed limits of law. Could we consider the Statute in question as an exercise of an Administrative Policy Decision, therefore, no judicial review is possible. Whether it is by a Statute or by an Administrative Policy, unless it is not in violation of specific provisions of the Constitution, such law or policy cannot have the seal of validity.

    61. A question arose before the Supreme Court of USA-Whether the law of the Legislature is above the Constitution of the Country. In the case of MARBURY v. MADISON, 5 US 137 (1803) it was opined that, there cannot be any presumption that any clause in the Constitution is intended to be without effect. An act which is repugnant to the Constitution cannot be a valid law. Any legislative Act contrary to the Constitution is not law. When people have framed written Constitution it is contemplated that it is fundamental and paramount law of the nation, therefore, every Government must follow the Constitution and any act of the Legislature repugnant to the Constitution is void. If an act of Legislature is repugnant to the Constitution, definitely Courts cannot give any effect to such legislative act. If two laws conflict with each other, while interpreting the laws, Courts must decide on the operation of each of the law. If a law is in opposition to the provisions of the Constitution, it cannot be approved by Courts of Law. Why does a Judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his Government? If it is closed upon him, and cannot be inspected by him, if such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, it becomes equally a crime. When one has to declare what shall be the supreme law of the land, the Constitution itself is first mentioned and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution have that rank. When the Constitution is made by the people of the Country and that Constitution must be respected and implemented in letter and spirit. No law made by any authority irrespective of its competence can be allowed to work in defiance of the Constitution. Any law whatever be the purpose or the object, if repugnant to the Constitution, it is void.

    62. One has to see whether the appointment of Parliamentary Secretary tantamount to appointment of Minister. Is it an exercise to circumvent and defeat the limitation or restriction under the Constitutional mandate? Definitely, nomenclature of the post is of irrelevance. For what purpose they are appointed and the impact of their functions on the infrastructure of the mechanism of the Cabinet has to be seen.

    63. The difference between the Minister and Parliamentary Secretary has to be understood with reference to the provisions of Article 164(1A). The source of appointment, purpose of appointment, duties and functions and the perks and privileges confirmed on such Parliamentary Secretary is on par with a Minister of State. Minister of State is nothing but an elected member of an Assembly, who is part of Council of Ministers, who would assist and advice the Governor in discharge of the functions of the State. Whether they are persons forming part of the Cabinet or State Ministers within the Cabinet, their number is definitely and undisputedly governed by the provisions of Article 164(1A). Their appointments are duly notified and oath is administered through the Governor. It appears, there is no regular cadre carrying the nomenclature of Parliamentary Secretary deriving authority from the Constitution of India i.e, to say, they are neither part of regular State services nor political executive authorities forming part of the system governing the governance of the State. Their role is to participate factually in the functioning of Government, may be with some restrictions but definitely they are outsiders to the functioning of the Government. They have access to public record and interaction with the public. Practically except for the nomenclature, they almost function like a Minister of a State. It appears, these appointments are primarily made for the purpose of accommodating an Elected Member of Assembly, who could not be included in the regular Cabinet for one reason or the other primarily on account of restriction contained in Article 164(1A) of the Constitution. In fact ‘Parliamentary Secretaries’ carry all that a Minister does except the name.

    64. In the present case, the Statute in question is nothing but an enactment to overcome the limitation or restriction imposed under Articles 164(1A) of the Constitution of India. Hence, it is repugnant to the Constitution and deserves to be struck down. Accordingly, the writ petitions are allowed. The enactment of West Bengal Parliamentary Secretaries (Appointment, Salaries, Allowance and Miscellaneous Provision) Act of 2012 is struck down. Consequently, the appointments of the party/respondents as Parliamentary Secretaries are set aside.

    Ashim Kumar Banerjee, J.:

    I have the golden opportunity to go through the well-versed judgment of my esteemed sister, Her Ladyship, the Hon'ble Chief Justice, I fully agree with Her Ladyship on the ultimate result of the lis. However, with great hesitation and with all humility may I express my little apprehension to the extent, our judgment may be misunderstood and/or misinterpreted. I thus feel prudent to add a few words clarifying some issues which would dispel my little apprehension as expressed hereinbefore. My earnest effort is to dispel all doubt that might arise. Hence, this humble endeavor.

    I need not dilate on the issues raised and argued before us as it would be a repetition and in the process I might commit mistake. To my understanding, the writ petitioners approached us challenging the validity of the impugned Act. The sheet anchor of the petitioners' case would lie on two High Court decisions, one of the Himachal High Court and the other of the Bombay High Court. To my understanding, the said two decisions would never support the case of the petitioners as those could be clearly distinguished. The argument on that score, in my view, was thoroughly misplaced. If we look to the Himachal case we would find an unsuccessful candidate challenging an election process under the Representation of Peoples Act, solely on the ground, the successful candidate was holding the post of Chief Parliamentary Secretary a place of profit and as such violated the provisions of the Representations of Peoples Act. The High Court dismissed the petition, while doing so the High Court held, once the Assembly was dissolved and the candidate ceased to be a member of the Assembly he could not continue as Chief Parliamentary Secretary. It could not be said, the respondent was disqualified to be elected as a member of the Assembly as he had been appointed the Chief Parliamentary Secretary. I do not find any resemblance of the factual scenario that prompted to High Court to make such observation. Rather, the logic behind such observation, if one would infer on a combined reading of the said decision, would support my view that I shall be expressing hereinafter.

    In the Bombay case, the appointment of Parliamentary Secretary in Goa Assembly was called in question. The Bench dealt with all aspects while examining the constitutional validity of such appointment. The Division Bench found, the State of Goa did not enact any law relating to creation or filling up the post of Parliamentary Secretary. The claim of the Government exercising power under Article 162 was found to be arbitrary and colourable and that too, to frustrate the limitations imposed under Article 164(1)A as observed by the Bench in paragraph 65 of the said decision. In our case, the legislature enacted the law that was called in question and as a consequential relief the petitioner prayed for quashing of the appointments under the said statute, meaning thereby, in case the petitioners would succeed in getting the law struck down the fruits out of it would automatically go. We wonder, how this could be of any help to us.

    Let me now deal with the issue independent of those two decisions. The petitioners would claim, the power of the State to make such law was absent as the entry No. 2 item 40 in Seventh Schedule would not support such enactment. Per contra, the State would claim, they derived power under list 2 entry No. 38. We all know, List 2 of the Seventh Schedule would itemize subjects that would be dealt with by the State. Item 40 would relate to salaries and allowances of the ministers for the State whereas item 38 would deal with the salaries and allowances of the members of the legislative Assembly including the speaker and deputy speaker. The schedule and the list appended thereto, would deal with subjects that would be within the domain of the State or the Union or both. However, the power would come from the Articles. Article 309 would empower the Union or the State to regulate the recruitment and conditions of service in public employment through appropriate legislation. Article 208 would empower the legislature of a State to make rules for regulating its procedure and conduct of its business, of course subject to the limitations and restrictions that the Constitution would impose. Similarly, with regard to financial business, Article 209 would empower the State legislature to make appropriate laws. In my humble opinion, the list so appended, is to facilitate appropriate rules and procedures to be enacted to deal with various subjects and issues appended thereto. There are separation of powers to avoid conflict. There are some items where concurrent competence is entrusted on the Union and the State. However, this, in my view, cannot be exhaustive. Whether a particular issue or subject is within the scope or not, the law so enacted that is called in question, has to be closely examined before the same could be termed as unconstitutional. The dominant role of the impugned law, its effect on the issue, would be very much important to be examined. Merely because the particular subject on which the law is enacted per se, would not be there in the State list the law cannot be said to be invalid. All aspects must be closely examined. I am prompted to say so being encouraged by the Apex Court decision in the case of Indian Cement (supra). In the said case, the issue involved was to examine the competence of the State to impose Cess on Royalty under the Mines and Minerals (Regulation and Development Act 1957). The Apex Court found, none of the three lists of the Seventh Schedule would permit or authorize a State to impose tax on Royalty. Cess was not on land but on Royalty which was included in the definition of land revenue. After having close examination, per majority, the Apex Court observed, “Construction most beneficial to the widest possible amplitude of its powers, must be adopted. But the language cannot be stretched or perverted in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors.” The majority decisions examined various entries and ultimately came to such conclusion. The Apex Court also observed, “It is well-settled now that the various entries in the three lists are not powers but fields of legislation.” I thus observe, the power could be found anywhere in the Constitution. Unless the Court is satisfied, the power is absent or rather dehors the constitutional mandate the impugned law cannot be said to be unconstitutional. Its objects and reasons and its dominant purpose must be examined to find out its true purport and then to examine whether the same would offend the constitutional mandate.

    Let me now come to the subject law. Appointment of Parliamentary Secretary is not a new concept. There are States that would have appropriate laws on the issue. In fact, our State did have such law in 1952 as discussed by Her Ladyship, the Hon'ble Chief Justice. The State Legislature is entitled to make appropriate rules and procedure for conducting its own business. The job of the Parliamentary Secretary is to assist the Council of Ministers on the floor of the House so that the business of the House could be effectively run. The Secretaries are to maintain liaison between the Executives, Departments and the Ministers so that the Ministers could effectively deal with the issues that would come in course of business on the floor of the House. Such restricted power and authority of a Secretary, in no stretch of imagination, can be equated with that of Ministers who are appointed by the Governor under the advice of the Government.

    There is some misconception about the status. The status of a person would have two facets i.e his rank that would describe his power and authority and secondly his honour for the power and authority that he would hold. Per se, it might not have any financial implication. However, as a far-reaching consequence, it might have some financial implications too. For example, the Advocate General for the State or a District Sovadhipati could be given the status of a Minister. However, the power and authority of a Minister and the job that the Advocate General or Sovadhipati would discharge, would be completely different. Hence, someone despite having the same status with that of a Minister cannot be termed as a Minister. The Parliamentary Secretaries were given the same status as a Minister of State. A Minister of State would have Legislative function, he would have executive function too. Such functions are performed both within and outside the floor of the House. However, the job of the Parliamentary Secretary would be restricted on the floor of the House. They might have power to collect information for the Ministers from outside source or maintain liaison with any outside agency on behalf of the Minister. Their primary job is to assist of the Minister on the floor of House. Hence, the misconception that the people would have, the Parliamentary Secretaries are equated with the Ministers, is a complete misnomer.

    Coming back to the present case, I find, Her Ladyship, the Hon'ble Chief Justice, upon proper appreciation of facts, found, the subject law was enacted for the dominant purpose to give the secretaries status of a Minister beyond the capacity that the Constitution would fixed, hence, held the subject law unconstitutional. On facts, I would respectively agree with His Lordship. I would only observe, the power to make law of the like nature would very much lie with the State Legislature. However, the dominant purpose must be to regulate the business of the floor and not to subvert the restrictions imposed by the Constitution as to the number of the Council of Ministers. Hence, the challenge to the power of the State, in my view, must fail. However, the subject law is liable to be struck down because of its oblique purpose. The State, in my view, would still be free to come with a new law on the subject issue keeping in view the discussions and observations made by us in the foregoing judgment.

    Later:

    Mr. Pranab Kumar Dutta, learned Senior Counsel appearing on behalf of the State respondents prays for stay of operation of this order.

    The prayer for stay is considered and rejected.

    Ashim Kumar Banerjee, J.:— I agree.

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